Hawaiʻi's Technology Community

I would like to share with you a message from Kym Pine.  I asked her to address the concerns mentioned here on Tech Hui and she did. What she says here about legislators being open is true, her quick response to my request is a great example.  Here you go:

"Aloha TechHui members, I am writing to deeply apologize for any
offense we have caused you or your industry this legislative session.
I have whole heartily supported the tech industry for many years
including support Act 221 which allowed many of you to thrive in your
businesses.  I also support the many bills currently at the
legislature which will help you to continue to succeed.

The cybercrime bills that have been introduced this year came from
recommendations from law enforcement during a hearing on cyber crimes which occurred this last summer.  I can post the video from the hearing if this is needed.  I know that many would like to say that I
am getting back at a web designer as the reason behind all of these
bills, but this is simply not true.  It is true that my experience in
cyber crimes awakened me to the cybercrime issue and as a result I
have helped many victims get the help they need.  I have chosen to
allow law enforcement to handle my situation, and I know that in time,
my harasser will be in jail using our regular laws on the books now.

Please know that legislators welcome your input at the state capitol.
All bills are crafted by lawyers at the legislative reference bureau
and they are often written to be vague on the first draft so as to
give committee chairs flexibility to narrow the focus of the bill
based on testimony. One or two consultants from your industry advising us on various bills may not have the same opinion as another and that is why your opinion is so important.

HB2288 was a bill referred to the legislature by law enforcement who
are already working with companies that do save information to catch
serious cyber criminals.  During the committee hearing, the testimony
made it clear that this was not the solution, and I went up to the
chair and told him so and the bill did not make it out of committee.
As a result, of the hearing I have made important contacts with HiTech companies who now want to help victims of cyber crime and we will get together to see if we can do this without legislation.  This is a huge gain for cyber victims who for many years have asked for help and until now have not been listened to.

I encourage members to come to the capitol or call legislators that
may have introduced legislation that relates to your industry.  My
office is room 333 and my number is (808) 586-9730.  I will make it my personal priority to hear your concerns.  You will be surprised how
open legislators are to your ideas and how willing they are to amend
legislation to include your ideas.

I caution members however from attacking legislators personally for
introducing a bill.  90 percent of the time if you just talk to them
they will change or table a bill until the right solution is created
for a particular problem.  HB2288 is a great example.

Attacking legislators, especially well loved and highly popular
legislators like John Mizuno who wins by landslides and knows everyone in his district only makes other legislators want to support him more.  I especially worry that someone created a website in his name because now that will motivate our federal congressional delegation to make that a federal crime.

We need to lower the tone a bit and start talking about how your
industry and law enforcement can work together to help cyber crime
victims.  What has happened is that for some reason your industry has a reputation of only wanting things from the legislature and not
working with us on the things we need your help on.  Legislators have
given your industry $1 billion in tax credits which could have gone to
helping our homeless issue, paid for affordable housing, upgrades to
our schools etc.  We were highly criticized for doing this.

You could really be the heroes in all of this and I look forward to
seeing it work out that way.  You have so much to offer and I am
excited to have this dialogue with you.

Rep. Kymberly Pine

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Comment by Karen Chun on February 20, 2012 at 9:20am

@Daniela " We need to look at ourselves like any other contractor.  If you hire your neighbors kid to install you electricity and they are unlicensed and your house burns down, they should get in trouble. "

Good lord, are you even a web designer?  This is nonsense.  To equate electrical wiring of a home which has the potential to kill someone to creating a website?  If you are going to apply that reasoning, then there is even more reason to license editors, technical writers and biographers.  This is ludicrous.

There is no good reason to push a bill opening up a web designer to felony charges and regulating the developer-client reason except that Rep Pine is p'o'd at her web designer.  To try and defend this nonsense simply invalidates your technical credentials.

Comment by Daniel Leuck on February 20, 2012 at 8:41am

@Daniela I'm setting aside privacy issues for a moment and, as my friend Jared suggests, focusing on bills attempting to regulate the working arrangement between web developers and customers (the DOA HB2762 and its companion SB2951.) Why do you or Rep. Pine feel that the details of this arrangement are the business of the state? If Rep. Pine, or anyone else seeking web development services, wishes to dictate details of how approval for web updates works for their site, it is a simple matter to include such requirements in a legal agreement. Breach of such an agreement is a civil matter. There are already laws covering libel, copyright infringement and illegal computer access. As Rep. Pine says in her response, she is pursuing her case under existing law.

The state has absolutely no business interfering with how web developers and their customers structure their relationships and legal agreements. I've been doing this since the web was first commercialized (and software development long before.) Like any established business owner in this space, I know far better than Rep. Pine how to structure a successful arrangement with my customers.

The best protection from unscrupulous web developers is simply to check references and have a good legal agreement in place. If a developer can point to three or more publicly accessible sites (especially local sites that are easily verified), and is able to produce contact information for the happy customers behind those sites, you are most likely in good shape. A good designer or developer will have multiple repeat customers who are happy to sing their praises. The state's interference in this area is neither required nor desired.

Comment by Daniel Leuck on February 20, 2012 at 7:57am

@Jared I think we are in absolute agreement, although we often seem to end up in debate :-) If SB2951 has legs, it should be the focus of our attention. As you rightly point out, there is no reason for the state to meddle in the details of how web designers and web developers structure their legal agreements with customers.

I only brought up HB2288 because I felt you were understating Rep. Pine's involvement. The Senate majority whip stated that SB2530, which is HB2288's companion bill, was introduced at Rep. Pine's request. Further, she defers all questions in regard to these bills directly to Rep. Pine - "I would defer to her on the origins of these bills as she has done the research and outreach, and been the main champion of this effort." As a close follower of Hawaii politics you know that if Pine wanted to sell the concept there were very good reasons for having a sympathetic Mizuno introduce it.

Comment by Jared I. Kuroiwa on February 20, 2012 at 2:40am

Dang it... I deleted my response.

@Karen, I don't think you read my response. HB2288 is a bad bill due to the collection of destination data. However, and this goes to @Dan's response, HB2288 has never been attributed to Rep. Pine as far as I know. The CNet article and quote from Sen. Tokuda is over her bill in the Senate and as is based on language from other states and law enforcement agencies around the world (not just in the US). The thing to realize is that HB2288 has nothing to do with web development, it's about cybercrime and finding a way to identify traffic of criminals. There are other mechanisms that are working their way through Congress that look to require the storage of IP addresses only and I tend to think that isn't as bad (though there are ways around it). That's a different discussion.

@Daniela, HB2762 and SB2951 are not about licensing. While licensing would be a good discussion to have and I've heard both sides of the concept, these bills are about forcing certain language into developer contacts. And the language is specific to a type of client/contractor relationship. Below is most of the text from those bills:

(1)  Use in the web page or website design or programming any graphics or other material or software that the person is not authorized to use, including copyrighted material;

(2)  Design or program the web page or website to include material that is not approved by the customer;

(3)  Claim ownership of the web page or website after the person has completed the job and has been compensated by the customer as agreed upon; or

(4)  Use any material at any time obtained from the customer's computer, including e-mail and e-mail addresses, without authorization from the customer.

This forces the developer to have sign off on every step of the process. It is good practice, however it shouldn't be mandated as it opens you up for a lawsuit if you forget any of the steps. It also doesn't take into consideration the variety of methods used in web design as well as user generated content and embedding content from outside sites. Those alone could get you into a lawsuit if these bills pass.

Comment by Daniela Stolfi on February 20, 2012 at 12:27am

YES. this is PART 3!  ok maybe I should have edited this....

@Jon In regards to your comment about defining a web developer.  We need to look at ourselves like any other contractor.  If you hire your neighbors kid to install you electricity and they are unlicensed and your house burns down, they should get in trouble.  To me, the hours it will take and monetary amount of money its going to cost me to pay for a license, is a small price to pay in contrast to what is being gained.  We already have to register our businesses and pay GE taxes etc.  SO what if we have to get a license too?

Alternatively, Rep. Pine has suggested that maybe this is where we as the industry representatives should take responsibility and define and promote a code-of-ethics that includes transparent best practices when it comes to issues like domain registration etc?

Either way, it will expose and weed out the ethical businesses from everyone else including those with malicious intent.  We weed out every brother-in-law building a website, every scam artist trying to make a quick buck.  Consumers now will now take our industry seriously and seek out licensed businesses.  It will drive more business to us, and discourage the off shore or out of state businesses from encroaching in our market.  It will protect the consumers from overpaying or being cheated, which quite frankly, has made web designers look like USED CAR salesman. 

The ease of being able to create a business in this field, that Peter Kay is saying is a positive thing, is actually not in my opinion...anymore.  Its just an open door to crooks, it floods the market and it devalues us.  The flood of all these social media and web design companies, (more than half are not qualified or even real) is hurting our credibility and over saturating the market. We need to find the balance of keeping whats good about this business open and restrict what we need to, to protect our industry.  Lets give consumers the peace of mind that we are a market of reputable, serious, professionals. 

There is a balance here, but the key is open discussion, assuring you have all the facts, and being willing to work together.

Ok that was one long ass post.  Never had one go in 3 parts.  But anywayz....  Next!

Comment by Daniela Stolfi on February 20, 2012 at 12:24am

PART TWO of my long post :)

@Karen, Pine did not lose a lawsuit, it hasn't happened yet.  And in regards to what you said about fair use is valid. BUT we must consider the right of publicity, right of privacy and malicious intent  Just because they are public figures does not mean its open season. They do have rights to protect their identity from commercial use and deceptive or malicious attack.  What Ryan did was reprehensible in more ways then one per se. Copyright and fair-use is a slippery slope, and I don’t really want to go there now.

It is irrelevant whether or not he had a cause or reason to pick a fight with Pine. But, it is how he acted which makes him wrong.  Taking down a site for (alleged) non-payment is one thing.  What he did was tacky, unprofessional, and clearly malicious.   And he did it again just recently with that mass email (or fax blast) he sent out.  I saw numerous complaints from people who received those comms, stating they did not give him permission to be on his mailing list and some had opted out of the last blast he sent.  But if you saw those comms, it was typical Ryan style.  Man, this guy has a talent for laying out content in such a way to really makes people look bad.  The guy could make Mother Theresa look bad.    I mean the mug shots of Kym Pine were hysterical, and the APB type language would make many people think Kym Pine was running loose in Ewa Beach and it was our responsibility to throw a net over her and deliver her to authorities.

As web professionals we can make our contracts protect us from any kind of retaliation, but those of us who would stoop to it could use the loose laws and our client’s ignorance to gouge or even extort them (like registering domains in our name rather than the client’s).  In fact your contracts should already contain some of this language, to protect you from any misunderstanding or liability with content ownership, use etc.  Especially with the recent rise in infringement claims and then the new copyright extortion schemes.  I have a binder system that I give clients that has sign off sheets for each phase of the process. I require final payment before launch.  And then I have a launch sign off sheet that reiterates the language in the contract that relates to content, proper ownership and use etc.  That ownership of content provided by either side, stays with the perspective owner.

I don't agree that is has "NO EFFECT OTHER THAN TO CREATE A POLICE STATE FOR LAW-ABIDING USERS." And maybe I am weird this way, but I don't like that a big % of my business comes from fixing the issues of non-qualified or scam web designers/developers.  I am sure most smart businesses love that this gives them business,  but I hate it.  I hate having to tell a client, sorry you just paid $10,000 for a website and now you have to pay me to fix.  Or telling someone the IT person they used for 8 years loyally was stealing from them to the point it put them out of business.  I have always been heavily involved in small business development here in Hawaii so I get to see first hand the damage that is done by people who are abusing the system or not qualified.  And recently I have seen even worse situations that ended up in death.  It really woke me up. SO I am incredibly passionate about this now.   We have to look at the criminal aspect here, the people who are meant to do harm.  Most of us are good people with good intentions.  And if everyone in this business was that way, we wouldn't have need for these policies.  But that is not the case, lets talk to the lawmakers about finding a balance between industry self regulation where it is enforceable, and legislation where our influence falls short.

@Jon In regards to your comment about defining a web developer.  We need to look at ourselves like any other contractor.  If you hire your neighbors kid to install you electricity and they are unlicensed and your house

Comment by Daniela Stolfi on February 20, 2012 at 12:22am

OK thought about this a lot and here is my response.  BTW I love these conversations, very productive, thanks all for replying!  Lots of good points made here that have highlighted possible ambiguities in some draft language for the news bills; this type of feedback from industry in invaluable for lawmakers. 

I was privy to several of the discussions about the intent of some of these bills. Circumstances  brought me into a situation that allowed me to assist in some cases involving cyber attacks so I was asked to provide information about the challenges and circumstances of those cases. So that is my involvement with this if anyone is wondering.

The intent of these bills was NOT about revenge and definitely not about control, it is about providing RELIEF to victims.  The British “Magna Carta” declares that " justice delayed is justice denied"  The same is true if justice is out of reach or unaffordable. With respect to civil cases, these bills are about protecting the 99% of the world who can't afford to hire a lawyer if, or more likely when, they fall victim to poison penned vandals executing internet smear campaigns.  Believe me when I say that Rep. Pine's personal issues in this area were not the focus of these discussions, although her experiences opened her eyes to the clear and present risk the problem poses to the emotional, financial and social well being of victims; it was other cases and issues that involved deaths, rapes, suicides, etc. There is a much bigger picture here and for the sake of the victims, it demands that we, the industry, make sure we have ALL the information and are considering all people affected by this before judging the matter. 

The misinformation circulating now, originated with lobbyists.  First, the bill was not asking for ISPs to track anyone or do anything they weren't already doing.  They are asking that the ISPS keep the records for 2 years instead of 6 months or less as they do now.  ILog files would be in their sole custody just as they are now.  When an  internet crime is committed, those records can be the smoking gun on which the case hinges. That way, when probable cause dictates, those records can be subpoenaed by authorities to catch the bad guys.  Government, police etc will not have access without probable cause, and abuse of authority would be punished, in fact I believe that they are discussing stricter justification and reporting and harsher penalties for abusing it.  The reason for this is simply to eliminate the risk of evidence perishing as the sloth like legal process tries to keep up with the speed of the internet.  If your child is victimized by an internet predator, and the only evidence to connect the person to the crime is in those records, but the orders to release those records are not received before the ISPs purge the data, then basically that person just got away with the crime.  Right now its a race to get information before its wiped out.

And let me tell you, if you use GOOGLE and YELP, your privacy is way more violated than it is with these bills, and Rep. Pine wants reform in those leaky privacy areas too.

I believe most of us here have good intentions.  But most of us are part of the 99%. As local tech community leaders and innovators we are in a unique position to champion social responsibility within this area but we have to see through the lobbyist’s spin and diversion tactics.  Look, if a Google, AT&T or Road Runner representative says a new bill is bad, that is a red flag to the critical thinkers amongst us.  For the most part big business’ best interests, as defended by their lobbyists is diametrically opposed to the interests of the rest of us. We need to look through the smoke and mirrors.

@Karen, Pine did not lose a lawsuit, it hasn't happened yet.  And in regards to what you said about fair use is valid. BUT we must consider the right of publicity, right of priv

Comment by Daniel Leuck on February 19, 2012 at 11:26pm

Jared: HB2288 and the other cybercrime bills weren't from her as she says. It was from law enforcement around the country and world. While she may have had a part in it locally, she did not introduce it or write the verbiage.

This understates her involvement at the local level. Rep. Pine didn't introduce HB2288, but she did the background research, championed the bill and pushed for its companion bill in the Senate. Hawaii Senate's majority whip Jill Tokuda, "I was asked to introduce the Senate companions on these Internet security related bills by Representative Kymberly Marcos Pine after her own personal experience in this area," Tokuda said. "I would defer to her on the origins of these bills as she has done the research and outreach, and been the main champion of this effort." Full article on CNET

HB2762 and SB2951 aren't getting as much ink but, you are right, that are at least equally worrisome. HB2762 wasn't heard, but it could be reincarnated and I believe SB2951 is still in play.

Just to reiterate, I agree that personal attacks aren't helpful. I've never personally attacked either of these legislators. I favor engagement and intelligent discourse.

Comment by Karen Chun on February 19, 2012 at 9:31pm

Daniela - this advice is meant in  good will and from someone much older than Rep Pine.  She should drop all the bills since it just publicizes her fight with her ex-web designer.  She should also ignore him rather than getting into the gutter with him.  No one who looks at his site is going to take it seriously.  His karma will be that no one would be so reckless as to hire him again.  So she should let the whole thing die down by ignoring it and being above it.  Truly, if she takes the high road, his actions cannot harm her.

As long as these bills are alive, though, the whole situation will continue to receive publicity and she will be a target of acrimony from other web designers who fear her bills (which could result in felony charges for any of us, without good cause).  If she was watching what happened to Lamar Smith and the whole SOPA protest, she would realize that the netizens are a powerful force that one does not want to stir up.  These netizens are her constituents and voters.  She is supposed to represent THEM, not George Fontaine and his police pals.

So she should take the high road and she can minimize the damage already done and this whole huhu will die down and be forgotten.

I realize that it is difficult to ignore public attacks like those of her ex-designer and especially if one feels they are unjust - but really, let his attacks be their own discrediting and don't engage with him.  And especially don't get the entire web designer community feeling THEY are in danger of felony charges!

Comment by Daniela Stolfi on February 19, 2012 at 8:42pm

@Karen, I am preparing a response to everything said here and will post shortly.  I have to deal with a web emergency first but I promise to get that posted soon.  I hope you all will see that there is a lot of misinformation that is being circulated right now, and I will show you that shortly.   I will also provide you with more information on what was said about fair use and about why public figures are not open game. I worked for celebrities for 16 years so I know very well how all this works and I can tell you that what was done to Pine broke several laws.

BTW just to clear something up,  Pine did not lose a lawsuit against Ryan, it hasn't happened yet. 

I think its important to keep dealings with these guys amicable.  They are responding and are willing to listen and are interested in hearing what everyone has to say.   I personally was able to discuss lots of issues with several of the people involved and they contacted me often with questions etc so I can tell you that they do care.  As she said, the people they talked to all have different opinions.  She realizes that my opinion or whoever else they talked to was not the voice of all the techies and want to hear more.   I am not into politics or in that circle at all, I personally can't stand politics.  But I have clients who are politicians and around them often as a Director for the K. Chamber of Commerce.  I find that if you are respectful and professional, they will help you so just try to keep that in mind.  Its ok to have an opinion but attacking them is going to get you nowhere. They get attacked a lot and are grateful when they are treated nicely.

I attempted to contact Peter several weeks ago, but I never heard back from him. I am trying again to connect him to one of the specialists before he leaves town,  so hopefully he gets back to me.


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