Unlimited Cloud Storage from Google and Amazon

Apple’s “cloud” service has spurred Amazon and Google in providing unlimited storage, for free, with restrictions. In Google’s case, if you have a Google+ account you are given unlimited storage for pictures and videos on their Google Photos (formerly Picasa), as long as they aren’t more than 2048×2048 in size and videos are under 15 minutes. For most people this isn’t an issue; there’s little rssaon to have photos larger than 2048 in width on the web.

Amazon has changed their policy in regards to their Cloud Player that now gives unlimited storage to upload all your MP3’s to their service, as long as they don’t have DRM on them. This means that if you bought songs on the iTunes Music Store then they won’t play on the Cloud Player unless you strip the DRM from them using an app.

However with these new services people will have to pay close attention to the terms of service to see what happens when they copy over their data to these services. Already there’s some apprehension about Google’s copyright policy when you upload pictures to their Google Photos service. This article outlines those issues.

With this in mind, why use these cloud services at all? There are a number of good reasons, namely as a backup source, to protect your precious photos, music, home videos, etc. in the event of a hard drive failure, fire, or other means of losing your data. Another reason is for convenience; to access and share them across multiple platforms. For example, listen to your music on any device without taking up space on your device’s limited drive, or show friends your photos without having to load them on your laptop.

There’s no set definition on what exactly the cloud is. To numerous people it means different things. One of them is basically storing your data on the internet using the variety of services such as YouTube and Flickr, for example. By uploading your files to these different services, you’re no longer constrained to having to access them on your own computer but can access them from anywhere, using any device, so long as you have an internet connection.

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    The law seeks to secure a balance between two conflicting social interests of individual freedom and public peace and order. In this regard, there are two basic models underlie the criminal procedure; the crime control model and due process model.
    In terms of the crime control model, combating crime is the most important function of criminal procedure. Due process model, on the other hand, goes further than this; it provides that an accused person can only be convicted and sentenced if strict adherence to the rules which duly and properly acknowledge an accused person’s rights are complied with. These rules must be respected at every stage of the criminal process. They apply from the moment a crime is suspected or reported all the way to the appearance of the suspect in court, and beyond .

    The Constitution of South Africa supports this model. The Constitution sets out the rules for, and limitations on the exercise of powers of the government. These rules and limitations are meant to ensure the protection of fundamental rights ( in the Bill of Rights) and enhance individual freedom.

    1. The Bill of Rights

    Everyone has inherent human dignity and the right to have their dignity respected and protected.
    Everyone has the right to freedom and security of their person which includes the right not to be deprived of freedom without a good reason, to be free from all forms of violence, not to be tortured, not to be treated…in a cruel, inhuman or degrading way, and the right to bodily and psychological integrity, which includes the right to security in and control over one’s body.
    Everyone has the right to privacy, which includes the right not to have their person searched and their property seized.
    Everyone has the right to freedom of movement.

    Limitation clause

    These fundamental rights, however, can sometimes be limited. This would be the case where society’s wider interest in the combating of crime necessitates the limitation. It may, for instance, be necessary to arrest a person and thereby violating his rights, for example, his right to freedom of movement or to not have his person searched. The limitation of the rights must however be supported by the Constitution. The Constitution contains a so-called limitation clause. The limitation clause lays down certain requirements with which such rights limitations must comply before they can be supported by the Constitution, viz: the limitation must apply to everyone in the same situation, in exactly the same way. It must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

    2. Criminal Process: first stage

    The ultimate appearance of a person who is accused of having committed a crime in court can come about as a result of the reporting of the crime by the victim or any member of the general public. If this happens, a police officer will be assigned to the case and will investigate the alleged crime. This will ultimately result in the arrest of the suspect on evidence found.
    Alternatively, a person’s arrest could come about as a result of a legitimate action by the police (in certain circumstances a private person can also arrest, but this article looks at arrest by the police). Here, the police see a suspected crime, and forthwith, arrest the suspect. It is thus unnecessary that someone should have first reported the crime. The police act on reasonable suspicion or belief.

    The South African police have a constitutional duty to ensure the safety and security of all persons by combating and investigating crime. In South Africa, however, there is no general legal duty on anyone to report crime (except in certain circumstances). Ultimately, the police depend on their own limited resources and voluntary public reporting to combat and investigate crime.

    (statements, questioning and searching)

    Once a alleged crime has been reported to, or suspected by the police, prior to or after the arrest of the suspect, the police will conduct an investigation. They open a file commonly known as a docket. The purpose of opening a docket being to gather information about the alleged crime. In their investigation, the may take statements from the victim(s), question eyewitness(s), and the person(s) suspected of having committed that crime. The police may also inspect or search the place where the suspected crime is alleged to have taken place and also search the suspected person or his home for any evidence.

    Victim/reporter statement

    Victim statement: when report a crime, the police will take a statement from you by writing it down. He will read it back to you, and if you are satisfied with your statement, ask you to sign it. In this regard you have a right to make the statement in your own language and you have a copy of your statement. May also ask for a case number in order to do follow up on the case. Where necessary, the police will take you to a doctor for check ups or treatment. Later, the police will tell you of the arraingements of the trial and whether you will have to give evidence or come for an identification parade. If as a victim, or a person who reported the crime to the police, you were threated, inform the police immediately.

    Questioning the witness

    As part of collecting information for the docket, the police may question witnesses, ie persons who may have seen the commision of the alleged crime or who could have any information which may be used by the police in their investigation. If the police approach a prospective witness in this regard, the person may assist the police by giving them the required information about the crime. If the prospective witness does not want to answer to the police questioning, the police can take such a person’s name and address, and obtain a court order to that will compel the prospective witness to appear in court. Failure to give, or, giving a wrong name and address, the police can arrest the person forthwith. If the person the police wish to question is at any place and the police are refused entry into such place, they may use such force as may be reasonably necessary to overcome resistance and gain entry into such place, including the breaking of the door or window.

    Search and Seizure

    The police can search any person or place and seize (take) anything which they reasonably believe that it has anything to do with the suspected crime or that may afford evidence in such suspected crime. The law requires that the police must first have the court’s permission before doing so (warrant). However, were the person whom the police wish to search, or the person who may agree to the searching of a place, agrees to such search and seizure, the police may do so without first having obtained court’s permission. This is also possible were the police believe that any delay in searching the person or their property will provide an opportunity for such person to destroy or hide the ‘thing’. The police may use necessary force if their are attempts to search a person or a place are resisted.

    When the police are satisfied that there is sufficient information or evidence that a crime has been committed, they may proceed to arrest the person suspected of having committed the crime (it is also possible, in certain instances that the police investigation could carry on with the suspect already in police custody. For example were a person is suspected of having committed drug offences)

    3. Arrest

    Arrest is one of the methods of securing the attendance of the accused (or a suspect) in court for the purpose of being tried. Simply put, arrest is when the police take hold of the body of a suspected person into their control and take it into custody (imprisonment). Other methods are: issuing of a notice to appear and summons. This two methods mean that the suspect will be outside police cells until his appearance in court at a given date and time. This article, however, is confined to arrest as a method of securing the attendance of an accused person in court.

    Requirements for a lawful arrest

    1. The police must be properly authorised by law to arrest you. This would be the case where you have committed a crime or you are suspected of having committed a crime.
    2. The police must physically control your person (body). The police must actually touch you, or if the circumstances so require, forcibly confine your body.
    3. You must be informed of the reason why you are being arrested. If you are not informed of the reason for arrest, your imprisonment will be unlawful, unless you are later informed.
    4. You must be taken to the police station as soon as possible (see below).

    The purpose of arrest is to bring the suspect before a court of law, not to frighten, harass or punish a person without him appearing in court. .

    The use of force in order to arrest a suspect

    If the suspect submits to the arrest, the general rule is that the police may not use force to arrest him. However, if the suspect resists arrest or attempts to run away, the police may use such force as may be reasonably necessary in order to arrest him.

    Search of an arrested person

    On arrest, the police officer making the arrest may search the suspect and seizure anything that may be dangerous or related in anyway, to the suspected offence in the suspect’s possession. The police may use reasonable amount of force in order to overcome resistance. A suspect must be searched in a decent and orderly manner. A woman must be searched by a woman, and a man by a man. If the appropriate person (sex) is not available, an appropriate person designated by the police may do the searching.

    Section 35: rights of an arrested person

    The Constitution in section 35 sets out some important rights that apply to suspects and arrested persons in the criminal process.
    Presumption of innocence: everyone has the right to be presumed innocent until properly found guilty by a court of law. The accused person is entitled to this right irrespective of the crime he is alleged to have committed.
    Right to remain silent: every accused person has a right to remain silent and to be informed of the consequences of not remaining silent. He cannot be forced to tell the police anything or what he did or did not do or admit to any thing (he must however give his name and address when asked to do so). He must be informed of this right at the moment he is arrested and he cannot be punished for exercising it.
    Assistance after arrest: the accused is entitled to the assistance of his lawyer as from the moment of his arrest. He must also be informed of the options available to him if he cannot afford one.
    Understanding: the accused must be informed of these rights in such a manner that it can reasonably be supposed that he understands them and their importance. He must be informed in a language that he understands.

    What happens after arrested.

    The effect of arrest is that the suspect will be in lawful custody and that he shall remain in it until he is lawfully discharged or released from it.

    After arrest the suspected person must be taken to the appropriate authorities (a police station or a place determined in the warrant of arrest, if arrested with a warrant. If this is the case then he has a right to a copy of such warrant) as soon as possible.
    At the police station (or place determined in a warrant) his finger-prints, palm-prints, foot-prints or photograph may be taken. The police may ascertain whether his body has any mark, characteristic or distinguishing feature. They may also take him to a doctor or nurse in order to have his blood sample taken so as to ascertain any characteristic.

    Release before appearing in court

    An accused that is in custody after arrest may be released by a police officer on warning or on a written notice. This would be the case if he is charged with less serious offences. If this is the case he is warned to appear at a particular court, at a specific time, on as specific date. If released on written notice, an accused may have an option of admitting his guilt and paying a certain amount of money called admission of guilt fine without having to appear in court. He could also be released on a so-called ‘police bail’. Again this could be the case if you are charged with the less serious offences. Alternatively, the prosecutor may release him on ‘prosecutorial bail’ in respect of certain offences.

    “First appearance”

    Unless the accused is released on written notice or on bail, he will remain in custody until his first appearance in court. At this first appearance he may apply for his release on bail, despite that he was not granted ‘police bail’ or ‘prosecutorial bail’

    The 48 hours rule

    After arrest, the accused person has a right to be brought before a court as soon as reasonably possible, but no later than 48 hours after his arrest. If the 48 hours expire outside court hours (court hours: 09h00 to 16h00), or on a day which is not a court day (weekends and public holidays) he must be taken to court the next court day. If there are no charges brought against him, example, where police investigation reveals that he is innocent, he must be released immediately. This rule also applies in respect of the preliminary enquiry for children (see below).

    Arrest and Children (persons under the age of 18)

    If the child who is alleged to have committed a crime is less than 10 years old, the police must immediately take him and hand him over to his parent(s), guardian or appropriate person. The police will then inform the probation officer about the child. The probation officer will assess the child within 7 days and may decide to refer the child to the children’s court, or for therapy or suitable programme, or arrange a meeting with the child and his family members, or may decide to take no action.

    A child between the ages of 10 and 18 has a right not to be arrested for less serious offence such as theft, unless the police reasonably believe that the child: has no fixed address; will continue to commit crime; poses a danger to others or himself; or that the crime is in process.
    If arrested for these offences (less serious offences), the child must be released on a written notice as soon as possible before making his first appearance at a preliminary enquiry ( a preliminary enquiry is a simple questioning process held in court to determine the correct action to take in respect of the child). If not released, the investigating police officer must provide reasons to the inquiring magistrate of the reasons why. Alternatively, the prosecutor may authorise the release of the child on bail.
    If the child has appeared or is appearing at the preliminary enquiry, for any offence, the magistrate may release the child into the care of a parent, guardian or appropriate person; or he may release the child on bail.

    If it is not appropriate to release the child, the magistrate may order that the child be imprisoned. If the child is between the ages of 10 and 14, he will be kept at an appropriate child or youth care centre, if this is available, if it not available, the child will be placed in the police cells. This will also be the case if the child is between the ages of 14 and 18 and is charged with less serious offences. If he is charged with more serious offence such as murder, the child will be placed in the police cells forthwith.

    9. Consequences of unlawful arrest, detention, search and seizure.

    Any arrest, detention, search and seizure of any person or object is assumed to be unlawful, unless it complies with the aforementioned rules, requirements, and limitations. In the first place, an unlawful arrest, search and seizure could give rise to an action for claiming compensation against the police. In the second place, it may amount to an offence. Lastly, the evidence that is obtained as a result of such unlawful arrest, search and seizure will be excluded and may not be taken into account if its admission would render the trial unfair or otherwise detrimental to the administration of justice.


    Please note:
    This article is an overly simplified piece which does not contain all the relevant information in respect of the subject matter. For more precise and up-to-date information, consult a professional legal advisor.

    Compiled by:
    LM Rampitsana

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