24 May 2018

Consumer Data Right

The Treasurer has announced appointment of the Independent chair of the Consumer Data Right’s Data Standards Body
The Turnbull Government is continuing to progress our establishment of the Consumer Data Right, beginning with the Open Banking regime, which will provide Australians with more choice and better deals in the financial sector. 
Mr Andrew Stevens has been selected as the interim Chair of the Data Standards Body for the Consumer Data Right. 
The Consumer Data Right, starting in the banking sector with Open Banking, will give consumers greater control over the data that businesses hold on them. 
The Data Standards Body, established within the CSIRO’s Data61, is facilitating the development of data sharing standards that provide consumers with safe, convenient, and timely methods of accessing and transferring their data to trusted and accredited data recipients. 
The Independent Chair will ensure the standards maximise the benefits for consumers and are developed in consultation with technology firms, and consumer and privacy groups.
CSIRO’s Data61 has been appointed
to perform the role of a Data Standards Body for the Federal Government’s Consumer Data Right, which will give Australians greater control over their own data, including who receives it and how it is used, and open up competition across industry sectors.

Ectoplasm Ahoy!

Fancy a video conference with Kubilai Khan or Charles Manson, ? A two-way call with John Rawls or Aristotle? That's the prospect if you embrace claims made by the SoulPhone Foundation, a US entity that is researching communication with what legal pragmatists such as myself refer to as dead people.

The Foundation's site asks
imagine that science and technology have advanced to the point where it is only a matter of time before accurate and reliable devices will be available for us to continue our relationships with our loved ones who have “passed on,” but definitely not “passed away.” 
The Laboratory for Advances in Consciousness and Health (LACH) at the University of Arizona is actually progressing toward a working prototype of what my colleagues and I call the “SoulPhone.” We express this emerging historic development as the evolution from the cell phone, through the smart phone, to the SoulPhone. 
Now, imagine that this technology exists, and that you can literally text, speak to, or video conference with your child who has physically died. What we call “death” will have been radically transformed from “passing away” to “moving to” a different realm (like a different city, state, or country). ​
The site helpfully provides answers to several concerns -
Q. When contacting those “on the other side,” might we be intruding upon their rest or privacy? 
Two decades of contemporary research with genuine mediums clearly indicate that cooperating spirits want to communicate with their loved ones on earth. “Departed” loved ones and luminaries want to continue to be with us just as we wish to be with them. The evidence reveals that we on earth are not intruding upon the rest or privacy of those in spirit. We are, rather, enabling them to experience and express their love for us and the planet. 
Q. Could SoulPhone devices be used in negative or harmful ways as has occurred with the Internet and other technologies in the world today? 
There will always be those who use surgical knives to kill rather than cure. Some will use smart phones to trigger bombings instead of sending loving messages. Potential abuse of the SoulPhone is no different than for any other technology. Society must be educated in respecting the gift and power of this technology for humanity. 
Q. Will using the SoulPhone and communicating with spirits possibly leave ones self open to evil interference? 
We are very mindful of this possibility and have considered it for years. Here is not the place to describe how we address this profound question. There are technical ways to minimize abuse from “negative” spirits, but for reasons of intellectual property cannot be shared here. Insights from the science of Quantum Electro-Dynamics (QED) indicate that you get what you intend. For people who believe in evil spirits, those are very real. On the other hand, for example, evidential mediums who do not believe in negative spirits can truthfully say they have never observed one. So both those who perceive evil spirits, and those who don’t, are telling their truth. 
When using out-of-body (OBE) techniques, Robert Monroe of the Monroe Institute recommended intending that you will connect only with those on your energetic level or above. Another of his techniques involved encasing one's self in a protective shield. The SoulPhone technology may incorporate using one or more of these approaches to protect being “spiritually hacked.”
Potential consumers of the service or the 'protective shield' might want to read works such as Jeffrey Sconce, Haunted Media: Electronic Presence from Telegraphy to Television (Duke University Press, 2000) or John Durham Peters, Speaking Into the Air: A History of the Idea of Communication (University of Chicago Press, 2000).

Hoary old sceptic that I am, the SoulPhone - used to contact Elvis or otherwise - strikes me as sad, just like the work noted here.


'The Fatal Failure of the Regulatory State' by W. Kip Viscusi in William and Mary Law Review (Forthcoming) comments 
 While regulatory agencies place high values on the benefits associated with the reduction in mortality risks due to regulations, these same agencies substantially undervalue lives in their enforcement efforts. The disparity between the valuation of prospective risks and fatalities that have occurred is often by several orders of magnitude, diminishing whatever safety incentives the regulations might have generated. A review of the practices by the major federal agencies with responsibility for product safety and occupational safety finds that the value placed on fatalities in agencies’ regulatory analyses can be a factor of 1,000 times greater than the magnitude of the corresponding sanctions that the agency levies for regulatory violations that led to the fatalities. The source of the mismatch between the valuation of prospective risks and fatalities that have occurred can be traced to agencies’ dated and restrictive legislative mandates. This Article proposes revisions in these statutes to create more appropriate, stronger safety incentives. Setting the pertinent price to deter excessive risks will also foster corporate risk analyses so long as companies are also provided with pertinent legal protections.

22 May 2018


'CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity' by Paul Spruhan in (2018) 6(2) American Indian Law Journal comments
Native Americans are the only group in the United States that possess a document stating the amount of their “blood” to receive government benefits. The official name is a “Certificate of Degree of Indian or Alaska Native Blood,” or (CDIB) for short. As suggested in its name, the CDIB states the amount of “Indian” or “Alaska Native” blood possessed by the person named on the document.  It may be broken down by different tribal blood or may only state the amount of blood of a specific tribe.  It is certified by a Bureau of Indian Affairs (BIA) or tribal official authorized to issue it.  It may be printed on a standard eight and a half by eleven inch piece of paper or on a smaller card, which may or may not be laminated. 
Why does such a document exist in the United States in 2018? Simple in form, yet possessing immense bureaucratic power, the CDIB is a key that unlocks educational loans, medical services, employment preference, or other federal benefits unique to Native Americans,  and, in some circumstances, even enrollment as a member of a tribal nation. 
Simultaneously derided and coveted,  pervasive yet mysterious, the CDIB is one of the most important documents for Native Americans, but is issued with no direct statutory authority and governed by no formally published regulations. A CDIB may be issued directly by the BIA or by a tribal enrollment office operating under a “638” contract, but with no clear rules to govern how those offices grant or deny a CDIB or calculate the blood quantum listed on the document. 
This article is about the CDIB and its role in defining Native American legal identity. The purpose of the article is to describe the CDIB, its function, its statutory authority (or lack thereof), and the BIA’s recent attempts at issuing regulations, which no other article or book has done. First, I discuss its primary purpose as proof of blood quantum for specific federal statutes and regulations, and how its use has expanded to other purposes, including by tribes to define eligibility for membership. Second, I discuss its origins as an internal BIA document lacking any direct congressional authorization or published regulations and suggest several possibilities for its first appearance. I then discuss a 1986 Interior Board of Indian Appeals (IBIA) decision, Underwood v. Deputy Ass’t Secretary- Indian Affairs (Operations). In that decision, the IBIA blocked an attempt by the BIA to unilaterally alter a person’s blood quantum on a CDIB, because there were no properly issued regulations. I then discuss the BIA’s attempts at issuing regulations since 2000 and the possible reasons for why they have never been finalized. I then discuss potential remedies the BIA might consider in order to solve problems arising out of the CDIB program, including the potential misuse of CDIBs in current disenrollment conflicts within some tribes. In the conclusion, I discuss the CDIB’s role in enshrining “blood” as the dominant definition of Native American legal identity. I also argue that, for as long as the CDIB continues, the BIA has an affirmative obligation to issue clear policies that prevent its misuse in internal tribal conflicts.

Legal Pragmatism

'Three Forms of Legal Pragmatism' by Charles L. Barzun in (2018) 95(5) Washington University Law Review comments 
The term “Legal Pragmatism” has been used so often for so long that it may now seem to lack any clear meaning at all. But that conclusion is too quick. Although there are diverse strands of legal pragmatism, there is also unity among them. This essay distinguishes among three such forms of legal pragmatism. It dubs them instrumentalist, quietist, and holist strands, and it offers, as representatives of each, the views of Richard Posner, Ronald Dworkin, and David Souter, respectively. Each of these forms of pragmatism has developed as a response to the same underlying philosophical problem, namely that of justifying moral and legal values within a naturalistic, nontheological worldview. That problem is an old one and a fundamental one. And it is one felt acutely by those judges and legal theorists over the last century or more who have sought to make sense of the judge’s task when deciding hard cases. The essay does not defend any one or more of these three understandings of law and adjudication against its critics. But it does suggest that the feature they share, in virtue of which they are all plausibly classed as “pragmatist,” may also be an important and distinctive feature of law as a discipline – that is, as a form of reasoning about matters practical and theoretical.
'Trust Me, I'm a Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism' by Joshua Galperin in (2017) 42(2) Columbia Journal of Environmental Law comments
Pragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive framework for addressing some of my critiques. 
To highlight the contours of pragtivism, this Article tells the story of the Dunes Sagebrush Lizard. In 2010 the United States Fish and Wildlife Service proposed to list the imperiled Lizard under the Endangered Species Act. In record time, the State of Texas, the Texas Oil and Gas Association, and other stakeholders developed a conservation plan for the lizard. FWS approved the plan and as a consequence agreed to withdraw its proposed listing. In March 2016 the Court of Appeals for the D.C. Circuit upheld the non-listing. 
The Texas Plan and the D.C. Circuit decision are results of “innovative” environmentalism, which relies on “flexible,” “collaborative,” “cooperative,” “voluntary,” “pragmatic” “partnerships” to achieve “win-win solutions.” But does this pragtivist boasting undermine more critical dialogue and more effective environmental protection? Does it trample on an intentional and well-reasoned structure of traditional environmental law? Is it actually pragmatic in the philosophical sense? This Article is a first attempt to answer some of these questions and to generate more analysis of the influence of pragmatism on environmental activism. It begins with a taxonomy of pragmatism in law and policy, details the Lizard’s story as a case study, offers a critique of pragtivism as a method of environmental protection, and concludes by offering a framework that might improve the use of pragtivism if the practitioners are truly willing to be pragmatic.

Digital Driver Licences and the Identity Hub

The Road Transport and Other Legislation Amendment (Digital Driver Licences and Photo Cards) Bill 2018 (NSW) seeks to amend the Road Transport Act 2013 (NSW), the Photo Card Act 2005 (NSW), Gaming and Liquor Administration Act 2007 (NSW), Liquor Act 2007 (NSW) and other legislation to 'provide for the issue and use of digital driver licences and digital Photo Cards and for other purposes'.

In essence, the new regime will provide for people to hold a digital version of their licence or government-issued photo identity card on their mobile phones. The biometric image will be used by NSW Police in relation to road management and, presumably, for other law enforcement.

The expectation is that it will also have extensive use across the private sector (for example in over 14,200 venues under NSW liquor law), consistent with the driver licence being the default identity document for most adult Australians.

NSW will presumably be emulated by the other state/territory jurisdictions

The IGA and the Hub

The Second Reading Speech understandably does not refer to sharing of images and other data with the Commonwealth Department of Home Affairs under the identity-matching services interoperability hub to be operated by that Department.

That hub is at the heart of the current Identity-matching Services Bill 2018 (Cth) - noted here - to 'facilitate the secure, automated and accountable exchange of identity information between the Commonwealth and state and territory governments' under the October 2017 Intergovernmental Agreement on Identity Matching Services (IGA).

Under the IGA, the Commonwealth, states and territories agreed to preserve or introduce legislation to support the collection, use and disclosure of facial images and related identity information between the parties, via a set of identity-matching services, for
  •  Preventing identity crime 
  •  General law enforcement 
  •  National security 
  •  Protective security 
  •  Community safety 
  •  Road safety, and 
  •  Identity verification. 
 The interoperability hub
facilitates data-sharing between agencies on a query and response basis, without storing any personal information. Passport, visa and citizenship images will continue to be held by the Commonwealth agencies that issue these documents, and that already have facial recognition systems.  
 Driver licence images will be made available by the establishment of a National Driver Licence Facial Recognition Solution (NDLFRS), hosted by the Commonwealth on behalf of the states and territories in accordance with the IGA. The NDLFRS will consist of a federated database of identification information contained in government identification documents (initially driver licences) issued by state and territory authorities, and a facial recognition system for biometric comparison of facial images against facial images in the database..
The NSW Bill

The 2nd Reading Speech states
As at the end of 2017 there were over six million New South Wales driver licences and over 568,000 photo cards in use. 
The bill delivers on the Government's 2015 election commitment to transition to digital driver licences by 2019. It also supports the Government's digital strategy, the Premier's priority to improve government services and the State priority of 70 per cent of government transactions to be conducted by digital channels by 2019. In 2015 the New South Wales Government announced its commitment to offering the people of New South Wales a range of digital licences, including a transition to digital driver licences by 2019. Since then this Government has successfully digitised the responsible service of alcohol and responsible conduct of gambling competency cards, the recreational fishing fee, boat driver licences and recreational vessel registrations. This bill will take the next step by delivering the digital driver licence and the digital photo card. 
Digitising the driver licence and photo card is an opportunity to provide benefits for the community of New South Wales in three key areas. Firstly, for the citizens of New South Wales the digital driver licence and digital photo card will provide greater convenience, choice and security. Digital licences are also an opportunity for citizens to have more control and transparency over how the personal information on their licence is shown and shared with others. 
The reality is that a digital driver licence or digital photo card brings a multitude of additional benefits and protections for users. One example of this is when a licence is lost. If you lose a physical driver licence or you have your wallet stolen, you have no ability to stop it being used by another person for nefarious purposes. Sure, you can report it to police and to Service NSW but once a licence is lost there is no way to cancel it in the way you would a credit card because so much checking of the licence is simply sighting it rather than it being scanned. There is a risk that it can still be used. 
Then to replace a lost physical card you must attend a Service NSW centre in person and apply for a new card, which would be sent to you sometime after applying for it. This process takes time out of your busy day and is a major inconvenience. However, for a digital driver licence it is a much more secure proposition. Say you lose your phone that has your digital driver licence on it. You eventually have to go out and buy new device but you are concerned that your digital driver licence is on there. As soon as you know your phone has been lost or stolen you can log into Service NSW and cancel your digital driver licence on that device. 
You will know if it is used by someone who is not you as you will have access to an activity log, just like you have with your Opal card. By being able to cancel their card at the click of a button the citizen is empowered to take control of their identity security and privacy and ensure that their licence cannot be used or scanned by an unauthorised person, just like they can with their credit card. To replace your digital driver licence you simply take your new device, re-download the app, accept the digital driver licence on the new phone and away you go. 
For businesses in New South Wales, digital licences present an opportunity to streamline manual processes for checking or recording licence details. This means that businesses may deliver a better experience for their customers and benefit from time and cost savings. Digital licences can also provide a greater level of assurance, reducing risks of fraud and loss. For government, this development will mean simpler and faster ways to communicate and interact with citizens—for example, digital notifications and licence renewals for those who prefer to deal with us in that way. 
The NSW photo card is an increasingly important identity product; in 2017 alone there was a 28.38 per cent increase in its adoption. This makes it a priority for digitisation. A digital photo card is also not constrained by the national driver licensing framework and therefore may be delivered in a more flexible form to enhance citizen privacy—for example, providing citizens with more control over the personal information they share, depending on the situation, such as to security staff at licensed venues. It will also give citizens a digital identity product that is independent of their authority to drive.
Private Sector use

The Speech quotes industry support
The Australian Hotels Association: The continued expansion of smartphone technology for cardless transactions will see the use of wallets as an option rather than a necessity, based on these feedback from our Dubbo members. The AHA NSW is supportive of the expansion of the digital driver licence statewide. 
The Liquor Stores Association: [The LSA] remains supportive of a full statewide rollout of the digital driver licence as it will give packaged liquor retailers, licensees and their staff at the point of purchase a safe and efficient digital service control age verification measure. 
The Restaurant and Catering Association: I am firmly of the view that this project will be of significant benefit to the approximately 14,200 cafĂ© and restaurant businesses in New South Wales. The addition of the digital driver licence as a valid form of identification will provide patrons with a more seamless method of ordering alcohol in licensed cafes and restaurants. It is for this reason I have no hesitation in supporting a state-wide rollout of the digital driver licence. 
ClubsNSW: Proper implementation of digital drivers' licences will be a positive development in better equipping clubs for the digital future and the industry is excited for what these changes mean. I look forward to continuing to work closely with industry as we progress to implementation of the digital driver licence and the digital photo card and thank them for their support to date. I now go through the statewide rollout of the digital driver licence and digital photo card.
Privacy is 'sacrosanct'

The Minister comments
Once launched, the people of New South Wales will be able to opt-in to receive a digital driver licence and digital photo card. These will essentially constitute a digital representation of a person's physical driver licence or photo card. 
The digital versions will be in addition to the physical licence or card, and accessible via the MyServiceNSW app, which can be downloaded to their device, such as a smartphone. The digital driver licence and digital photo card will provide a secure and user-friendly experience and be able to be authenticated visually, by viewing the visual security features, or electronically. Citizens who opt in for the digital driver licence will have the option of carrying or producing either their digital driver licence or their physical licence card when driving in New South Wales. Citizens will also be able to show their digital driver licence or digital photo card as evidence of their age and of their identity in the liquor and gaming industry to enter pubs and registered clubs, and in a variety of ways that the driver licence and photo card is currently used.
The rhetoric ramps up, complete with reference to privacy being sacrosanct ...
As many in this House know, a mobile phone is so much more than just a digital driver licence. A phone is a person's personal property and may also be used to store and access personal and private information. To ensure appropriate privacy and a citizen's right to maintain control of their personal electronic device, a driver will only need to display their digital driver licence on their device to the police or authorised officer in order for their digital driver licence to be checked. I am pleased that the Privacy Commissioner has supported this approach, stating, "This will ensure the privacy rights of an individual who holds personal information on their phone beyond the digital driver licence is preserved." ...
The member for Cessnock also will recall how important it was that, when we debated that legislation, both sides of politics agreed that privacy was sacrosanct. I do not think there is any debate in this Chamber when it comes to putting the privacy of the citizen front and centre. Indeed, when we drafted the Data Analytics Centre legislation—the Data Sharing (Government Sector) Act 2015, as it was appropriately titled—we made sure that the Privacy Commissioner was involved from the ground up in the steering committee so that we achieved the right outcome. In preparing this legislation, we engaged the Privacy Commissioner because privacy is beyond politics. It is an absolutely enshrined right of the citizen.
One final question, which in my view is the most important of all, is: How does the digital driver licence and digital photo card ensure security of personal information and protect against fraud? To obtain a digital driver licence and digital photo card, a person is required to register for a MyServiceNSW account and establish their identity to link their account with Roads and Maritime Services. Once verified, the person's driver licensing or photo card information and photograph is securely released to the Department of Finance, Services and Innovation and Service NSW digital platforms to be processed to create the digital driver licence and digital photo card in the Service NSW app. None of the information or photographs is stored by the Department of Finance, Services and Innovation or Service NSW platforms. The digital driver licence and digital photo card are securely stored on a person's device. On top of any device PIN code or touch identification—fingerprint—the Service NSW app is also PIN code protected to ensure that the person's personal information remains safe and secure.  
Identity Crime

In relation to identity crime the Speech states that
Visually, the digital driver licence contains several features that can be sighted to ensure that it is not a screenshot or a fake. The digital driver licence can then be further verified by police using a "MobiPol" device, which scans a digital driver licence to initiate a search against backend police systems without the police officer having to manually type in the licence number.
Approximately 95 per cent of road traffic infringements issued by police are issued through MobiPol devices and the digital driver licence leverages this technology. In network blackspots where MobiPol is unable to connect to backend police systems, police may still verify the digital driver licence in the same way as a physical licence: by radioing back to station or using the terminals in their vehicles.
The digital driver licence and digital photo card include several visual security features that can be sighted to ensure that it is not a fake or a screenshot. For example, the design includes animations and a hologram. The digital driver licence and digital photo card also include a quick response code that may be scanned to verify its authenticity. Unauthorised use of a digital driver licence and digital photo card may also be detected through a device management framework and activity log, which will notify the person of logins from unrecognised devices or other unusual activity. 
This would mean that if someone living in Sydney has opted in to have a digital driver licence, whenever that digital driver licence is scanned they could be notified by email instantly of when and where that was done—just like a credit card. For example, if your card was scanned in Byron Bay by someone seeking to defraud you, you could instantly deactivate the digital driver licence and inform Service NSW and/or the police of the breach. This tangible security and fraud benefit comes with the digital driver licence and simply is not available with the physical card. I am pleased that the Privacy Commissioner supports this added level of protection, stating: "The recommendation that holders of a digital driver licence are notified of transactions including third party checks is supported".

21 May 2018


'Understanding and responding to victimisation of whistleblowers' (AIC Trends and Issues in Crime and Criminal Justice 549, 2018) by Inez Dussuyer and Russell Smith comments
Speaking out in the public interest — being a whistleblower — can be risky. Media reports and public inquiries into allegations of misconduct in the public and private sectors regularly recount the negative consequences that those who make reports in the public interest have experienced—despite the presence of legislation that seeks to prevent reprisals and retaliation for disclosing misconduct. Instances in which whistleblowers have lost employment and careers, suffered harassment and intimidation, and experienced threats or acts of violence continue to occur in Australia. 
This study sought to understand the nature of victimisation experienced by whistleblowers who had reported or attempted to report wrongdoing in their workplace. Information was obtained from in-depth interviews with 36 whistleblowers and 21 people who dealt with their reports in public and private sector organisations. The results confirm the nature of the harms that almost all whistleblowers experience as a consequence of reporting misconduct. The paper concludes by identifying ways in which whistleblowers could better be protected from victimisation and how the procedures and safeguards involved in the whistleblowing process could be strengthened.