劳动职业伤害的企业社会责任主体分析——以“毒苹果”为例

苹果公司供应商联建科技使用有毒化学原料正己烷导致百名员工中毒的案例引出一个法律难题——间接职业伤害主体的责任问题。本文从"毒苹果"事件提出的法律问题、职业伤害间接责任主体承担企业社会责任的依据,以及间接责任主体承担企业社会责任的途径等方面进行了论述,提出职业伤害间接主体应承担扩大的企业社会责任;间接责任主体承担企业社会责任应从企业自身监督、利益相关者参与治理及政府监管等方面进行。     

Visualization in testing a volatile memory forensic tool

We have developed a tool to extract the contents of volatile memory of Apple Macs running recent versions of OS X, which has not been possible since OS X 10.4. This paper recounts our efforts to test the tool and introduces two visualization techniques for that purpose. We also introduce four metrics for evaluating physical memory imagers: correctness, completeness, speed, and the amount of “interference” an imager makes to the state of the machine. We evaluate our tool by these metrics and then show visualization using dotplots, a technique borrowed from bioinformatics, can be used to reveal bugs in the implementation and to evaluate correctness, completeness, and the amount of interference an imager has. We also introduce a visualization we call the density plot which shows the density of repeated pages at various addresses within an image. We use these techniques to evaluate our own tool, Apple’s earlier tools, and compare physical memory images to the hibernation file.     

Decoding the APFS file system

File systems have always played a vital role in digital forensics and during the past 30–40 years many of these have been developed to suit different needs. Some file systems are more tightly connected to a specific Operating System (OS). For instance HFS and HFS+ have been the file systems of choice in Apple devices for over 30 years.Much has happened in the evolution of storage technologies, the capacity and speed of devices has increased and Solid State Drives (SSD) are replacing traditional drives. All of these present challenges for file systems. APFS is a file system developed from first principles and will, in 2017, become the new file system for Apple devices.To date there is no available technical information about APFS and this is the motivation for this article.     

论我国商标法使用条款之完善——以iPad商标纠纷案为视角

连续三年不使用的商标,已经成为死亡的商标,在侵权诉讼中,在后使用人可以以在先使用人连续三年不使用该商标为由进行抗辩,不构成侵权.结合近期媒体热炒的iPad商标纠纷,讨论对连续三年不使用商标的效力问题,从而关注我国商标法修改中的使用条款,提出对应的立法修改建议.     

Loose‐Lipped Mobile Device Intelligent Personal Assistants: A Discussion of Information Gleaned from Siri on Locked iOS Devices

The forensic analysis of mobile handsets is becoming a more prominent factor in many criminal investigations. Despite such devices frequently storing relevant evidential content to support an investigation, accessing this information is becoming an increasingly difficult task due to enhanced effective security features. Where access to a device's resident data is not possible via traditional mobile forensic methods, in some cases it may still be possible to extract user information via queries made to an installed intelligent personal assistant. This article presents an evaluation of the information which is retrievable from Apple's Siri when interacted with on a locked iOS device running iOS 11.2.5 (the latest at the time of testing). The testing of verbal commands designed to elicit a response from Siri demonstrate the ability to recover call log, SMS, Contacts, Apple Maps, Calendar, and device information which may support any further investigation.     

How much privacy do clouds provide? An Australian perspective

Cloud computing is becoming the standard operating process, communications system and underlying infrastructure of the Internet. This is of paradigm-shifting significance to the law. Multinationals, such as Google, Amazon, Apple, Facebook, and Microsoft, own and operate the cloud computing infrastructure of the Internet as well as influencing its culture. They have been called the Four Horsemen of Technology and consider Microsoft their inspiration.¹ Business can now be transacted at the speed of thought. The digital nervous system that Bill Gates envisioned is blossoming as cloud computing. However, sovereign nations can no longer effectively regulate the telecommunications systems within their borders without the tacit compliance of these cloud operating multinationals. The aim of this paper is to determine whether or not cloud computing infrastructure can support privacy regulation yet remain practical.     

Forensic Inspection of Sensitive User Data and Artifacts from Smartwatch Wearable Devices

Wearable devices allow users the ability to leave mobile phones behind while remaining connected to the digital world; however, this creates challenges in the examination, acquisition, identification, and analysis of probative data. This preliminary research aims to provide an enhanced understanding of where sensitive user data and forensic artifacts are stored on smartwatch wearable devices, both through utilization as a connected and standalone device. It also provides a methodology for the forensically sound acquisition of data from a standalone smartwatch wearable device. The results identify significant amounts of data on the Samsung^? Gear S3 Frontier, greater than that stored on the companion mobile phone. An Apple Watch^® Series 3 manual examination method which produces native screenshots was identified; however, the companion mobile phone was found to store the greatest amount of data. As a result of this research, a data extraction tool for the Samsung^? Gear S3 Frontier was created.     

The challenge and imperative of private sector cybersecurity: An international comparison

Attacks on computers and information networks, both public and private, are disclosed in the news daily. Most recently, Apple, Facebook, and Twitter acknowledged that they were attacked and were now taking additional measures to secure their networks. In January of 2013, Kaspersky Labs reported discovering malware that not only targeted government information in Eastern Europe, former Soviet republics, and Central Asia, but also had been actively doing so since 2007. The scope of global cyber attacks is staggering and the solutions to securing property and protecting national security are illusive, in large part because infrastructure is owned and operated by private, rather than public, entities. Nations struggle with choosing the most effective strategy and potential regulation of the private sector in order to reduce overall cybersecurity risk. This paper reviews the nature of cyber threats, and compares the United States and European approach to promoting cybersecurity in the private sector. Furthermore, the paper discusses how different approaches can affect cybersecurity risk, and suggests a framework for visualizing the impact of law and strategy on security.     

MEGA: A tool for Mac OS X operating system and application forensics

Computer forensic tools for Apple Mac hardware have traditionally focused on low-level file system details. Mac OS X and common applications on the Mac platform provide an abundance of information about the user's activities in configuration files, caches, and logs. We are developing MEGA, an extensible tool suite for the analysis of files on Mac OS X disk images. MEGA provides simple access to Spotlight metadata maintained by the operating system, yielding efficient file content search and exposing metadata such as digital camera make and model. It can also help investigators to assess FileVault encrypted home directories. MEGA support tools are under development to interpret files written by common Mac OS applications such as Safari, Mail, and iTunes.     

MEGA: A tool for Mac OS X operating system and application forensics

Computer forensic tools for Apple Mac hardware have traditionally focused on low-level file system details. Mac OS X and common applications on the Mac platform provide an abundance of information about the user's activities in configuration files, caches, and logs. We are developing MEGA, an extensible tool suite for the analysis of files on Mac OS X disk images. MEGA provides simple access to Spotlight metadata maintained by the operating system, yielding efficient file content search and exposing metadata such as digital camera make and model. It can also help investigators to assess FileVault encrypted home directories. MEGA support tools are under development to interpret files written by common Mac OS applications such as Safari, Mail, and iTunes.     

电子商务平台MFN条款的反垄断法分析

近年来在电子商务平台领域,围绕MFN条款产生的垄断行为逐渐引起各国反垄断机构的关注,已经涌现出如“苹果电子书案”“亚马逊电子书案”“在线酒店预订(OTA)案”等典型案例。由于MFN条款具有促进竞争和限制竞争的双重效果,各国在规制MFN条款垄断行为过程中面临着适用原则选择、违法性认定依据选择和责任追究等多重分歧和困境。在市场高度集中、信息高度透明的电子商务平台领域,涉MFN条款的垄断行为可能更易达成,危害性也可能更为严重。我国有必要借鉴域外经验,形成对涉MFN条款垄断行为的违法性认定标准体系和追责机制,防范和减轻MFN条款引起的限制竞争效果。     

We are meeting on Microsoft Teams: Forensic analysis in Windows,Android, and iOS operating systems

Microsoft released a new communication platform, Microsoft Teams, in 2017. Due in part to COVID-19, the popularity of communication platforms, like Microsoft Teams, increased exponentially. Given its user base and increased popularity, it seems likely that digital forensic investigators will encounter cases where Microsoft Teams is a relevant component. However, because Microsoft Teams is a relatively new application, there is limited forensic research on the application particularly focusing on mobile operating systems. To address this gap, an analysis of data stored at rest by Microsoft Teams was conducted on the Windows 10 operating system as well as on Android and Apple iOS mobile operating systems. Basic functionalities, such as messaging, sharing files, participating in video conferences, and other functionalities that Teams provides, were performed in an isolated testing environment. Cellebrite UFED Physical Analyzer and Magnet AXIOM Examine tools were used to analyze the mobile devices and the Windows device, respectively. Manual or non-automated investigation recovered, at least partially, the majority of artifacts across all three operating systems. In this study, a total of 77.6% of the populated artifacts were partially or fully recovered in the manual investigation. On the other hand, forensic tools used did not automatically recover many of the artifacts found with the manual investigation. Only 13.8% of artifacts were partially or fully recovered by the forensic tools across all three devices. These discovered artifacts and the results of the investigations are presented in order to aid digital forensic investigations.     

Promises Schmomises

In this piece, I argue that promises need not be kept just because they were made. This is not to say, however, that unwise, unhappy, and unfortunate promises do not generate obligations. When broken promises will result either in wrongful gains to promisors or wrongful losses to promisees, obligations of corrective justice will demand that such promises be kept if their breach cannot be fully repaired. Thus, when a broken promise will constitute a deliberate loss transfer for personal gain, the duty not to exact unjust enrichment (a wrongful gain) will require a promisor either to honor her promise or craft a means of ensuring that the promisee’s impoverishment is not traded for her enrichment. And when a broken promise will constitute the culpable imposition of a reliance-based injury on a nonculpable promisee (a wrongful loss), the duty to make others whole when one has purposefully, knowingly, or recklessly injured them will require one either to keep one’s promise or to fashion a remedy for its breach that ensures that the promisee is left no worse off than he would be had the promise not been made. This account explicitly parts ways with normative powers theories of promising. It places no weight at all on the raw fact that a promise has been made. Instead, it locates the gravamen of a promissory violation in the harm that is caused to a promisee who nonculpably relies upon and changes her position in anticipation of the prediction about the promisor’s future conduct that is embedded in his promise. Absent any adverse reliance on the part of a promisee, there is nothing that gives rise to an obligation of performance or repair on the part of the promisor. But this account is also to be distinguished from utilitarian theories that take promises to be instruments of wealth maximization that properly give way whenever the reason for honoring them speaks in favor of violating them. On my account, the balance of reasons for action that determines the morality of performance includes deontological rights and duties, agent-relative permissions, and Hohfeldian liberties. As I shall argue, even if one rightly concludes that one has no duty either to keep a promise or to craft a remedy for its breach, one must nevertheless remember that virtue requires one to be or become the kind of person who often goes beyond the call of duty. But the fact that virtue often requires us to do what we have no duty to do should not cause us to confuse its conditions with the conditions of right and wrong action. We have a duty to keep promises or to otherwise protect the reliance interests that they generate only when failing to do so will lead either to our own unjust enrichment or to others’ unjust injury. And this means that we have a duty to keep promises in far fewer circumstances than is commonly believed.     

Statutory interpretation, capture, and tort law: the regulatory compliance defense

The regulatory compliance defense holds firms liable whose productsor product warnings fail to satisfy federal regulatory standards,but does not exculpate firms that comply. Rather, complianceis relevant evidence for a jury to consider in a products liabilityaction. This article argues that the defense should exculpatecompliant firms as a matter of law. A Congress that thoughtabout the matter would prefer this judicial construction ofan unclear safety statute. To defend this view, the articleargues that a legislature can have intentions in a normativelymeaningful sense, that claims that a Congress or its agenciesare captured by special interests should be nonjusticiable,and that, when a court is in doubt as to what a legislatureintended, it should adopt that construction of the relevantstatute that would be easiest for the legislature to correctif the court errs. In this case, it is easier for Congress tocorrect a construction that it intended to exculpate compliantfirms than a construction that it did not.     

Sanchez v. Fairview Developmental Center: findings of fact and conclusions of law denying preliminary injunction. (No. CV 88-0129 FFF (Tx), 30 Mar 1988)

Jesus Sanchez is a profoundly retarded patient in a semicomatose state in California's Fairview Developmental Center. His parents requested that the Center remove his gastrostomy tube. Fairview refused the request because it contradicted state hospital policies. Claiming that the refusal violated Jesus's right of privacy, his parents sought to have a federal court interpret the Constitution in a manner requiring California to allow for unilateral termination of their son's life. The parents moved for a preliminary injunction compelling Fairview to honor their request. The Court refused to find that the Constitution provided a mandate to terminate life-sustaining treatment. The Court said that Jesus could be moved from Fairview to a private facility that would carry out the request, but declined to issue the injunction because the parents failed to demonstrate a fair chance of success on the merits or that irreparable harm would accrue if the injunction were not ordered.     

Advance directives and the persistent vegetative state in Victoria: a human rights perspective

With advances in medical technology, it is now possible to sustain the life of a person in a persistent vegetative state (PVS) until a decision is made to withhold or withdraw life-sustaining treatment. Who makes that decision? Under the Medical Treatment Act 1988 (Vic) there is no legally enforceable right for a person to choose, in advance, what intervention that person will and will not accept if he or she ends up in a PVS. The best that can be achieved is that a person can appoint an agent who is empowered to refuse medical treatment on the person's behalf in the event of incompetence. It is suggested that this mechanism ignores two fundamental human rights: self-determination and the inherent right to dignity. This article proposes the development of an advance directive mechanism that provides for a person to refuse, in advance, specified intervention, thereby respecting fundamental human rights and alleviating the existing need for an agent to second-guess a person's desires and best interests.     

Queer Criminology,Critique, and the “Art of Not Being Governed”

This article builds on previous work that argues that a useful path for a “queer/ed criminology” to follow is one that takes “queer” to denote a position. It suggests that one way of developing such an approach is to adopt a particular understanding of critique—specifically one that draws from Michel Foucault’s view of critique as “the art of not being governed.” It then charts some of the possible directions for such a “queer/ed criminology.” While such an approach to critique has previously been discussed within critical criminologies, this article suggests that it is useful for queer criminologists to explore the opportunities that it affords, particularly in order to better appreciate how “queer/ed criminology” might connect to, draw from, or push against other currents among critical criminologies, and help to delineate the unique contribution that this kind of “queer/ed criminology” might make.     

Deferred Prosecution Agreements and the Presumption of Innocence

A deferred prosecution agreement, or DPA, allows a corporation, instead of proceeding to trial on a criminal charge, to settle matters with the state by acknowledging the facts on which any charge would be based, pay a reduced fine, and agree to change the way they conduct business. Critics of DPAs have suggested that, because the defendant corporation must pay a fine and submit to structural reform without having been found guilty at trial, DPAs violate the Presumption of Innocence. This paper argues that they do not. The paper appeals to the role of civic trust in a liberal political community. The obligations a corporation assumes in a DPA can be framed as a reasonable retributive response to a breach by that corporation of the community’s laws, and an appropriate reassurance by that corporation to the community that such breaches will not reoccur. This framing is sufficient to deny that DPAs violate the Presumption of Innocence.     

Quantitative assessment of evidential weight for a fingerprint comparison I. Generalisation to the comparison of a mark with set of ten prints from a suspect

The authors have published elsewhere a quantitative method for assessing weight of evidence in the case where a finger mark from a crime scene is compared with a control print taken from a single finger of a suspect. The approach is based on the notion of calculating a likelihood ratio (LR) that addresses a pair of propositions relating to the single finger that was the origin of the crime mark. In practice, things are rather different because the crime mark will not just be compared with a single finger from a suspect but with a set of prints from all of his/her fingers; likewise, when the mark is compared with a database, this will consist of ten print records from random individuals. It is clear that "finger propositions" are not realistic in this situation and we show how our approach may be generalised to address a pair of propositions that relate to the person that made the crime mark. It often is the case that information is present at the crime scene that enables some inference to be drawn relating to which of the offender's ten fingers left a particular mark of interest. This kind of inference may profitably be drawn into the formal analysis. We illustrate our approach with an example.