13 July 2013

Privacy Auditing

'Privacy Auditing: An Exploratory Study' by Penica Cortez and David Hay (University of Auckland) reports
an exploratory study of privacy breaches in the U.S. from 2005-2011 to explore potential benefits of data privacy auditing. Privacy auditing is a mechanism to help organisations to be vigilant in protecting information privacy, and to avoid penalties or damage to reputation and losing customer trust. Recently, privacy audits have been imposed on several high-profile organizations, but little is known about the benefits of privacy audits. We examined whether companies with privacy disclosures in their audited financial statements (as a proxy for privacy audits) were more or less likely to incur subsequent privacy breaches, and whether companies incurring breaches were more or less likely to make privacy disclosures. The results show that there are empirical regularities consistent with the privacy disclosures in the audited financial statements having some effect. Companies disclosing privacy risks are less likely to incur a breach of privacy related to unintentional disclosure of privacy information; while companies suffering a breach of privacy related to credit cards are more likely to disclose privacy risks afterwards. Disclosure after a breach is negatively related to privacy breaches related to hacking, and disclosure before a breach is positively related to breaches concerning insider trading. These results may be related to the risk of privacy breaches. Privacy disclosure in the regulatory risks section of a 10K report is associated with a larger number of records affected by a breach of privacy. We also examined the extent of damages arising from privacy breaches, but there are not enough observations to draw a conclusion.
The authors conclude -
The current study has been motivated by media, professional and academic attention devoted to information privacy concerns and possible benefits of privacy auditing.To provide initial evidence for possible economic benefits of data privacy auditing, the current study examined whether privacy disclosure in the audited financial statements as a proxy for privacy auditing was associated with the type of privacy breach. We found that there are significant associations, and these suggest possible impacts of privacy auditing. Some types of breach are less frequent when there is a privacy disclosure before the breach occurs; while in other cases, the disclosure is more frequent after a breach. We also investigated the relationship between having privacy policies audited and the number of total records breached. These were associated with type of disclosure. We examined total damages. These results were not as clear, partly due to the small number of observations available.
Because this issue is very new and topical, only limited information is available. This gives rise to a number of limitations. Firstly, the use of disclosures in 10K reports regarding data privacy as a proxy for privacy auditing is a clear limitation of the study. Audit reports or disclosures disclosing actual privacy auditing are not available. As a result a proxy measure has been applied. This is a limitation because even though having a statement about privacy in the 10K report may indicate the company's commitment to data privacy, these companies may not necessarily have their privacy policy audited. However, statements in 10K reports regarding privacy serve as a reasonable proxy because auditors have the responsibility to make sure that these statements are not misleading.
In addition, the website primarily used to collect data regarding privacy breaches may not contain a comprehensive list of privacy breaches. It is restricted to U.S. companies and breaches; and, information regarding breaches is primarily gathered from news reports collected by and/or reported to other non-profit public organisations advocating for privacy. The number of actual privacy breaches can be expected to be larger than what is reported in the media. Several U. S. states have enacted security breach notification laws requiring that the public or relevant authorities be notified when a breach occur (Gunasekara, 2012). Databases maintained by the states may therefore be used for greater data availability and larger sample size in future.

NZ Governance of Surveillance

The New Zealand Human Rights Commission has released its report to the Prime Minister on proposed surveillance legislation and changes to the NZ national security regime [PDF].

The legislation follows the Kitteridge Report noted earlier this year and predates recent revelations regarding PRISM, TEMPORA and other large-scale data collection activity in the US, UK and other nations.

The two Bills are the Government Communications Security Bureau and Related Legislation Amendment Bill 2013 (NZ) and the Telecommunications (Interception Capability and Security) Bill 2013 (NZ) .

Chief Commissioner David Rutherford said the Commission used its direct reporting function under the Human Rights Act 1993 (NZ) "due to the seriousness of the proposed Bills’ measures and the need for proper oversight of the surveillance activities of intelligence agencies".
The Commission is concerned that the proposed Bills are wide-reaching without sufficient safeguards against abuse of power. There is inadequate oversight and inadequate provision for ensuring transparency and accountability. The Commission notes media reports that these issues are matters of discussion between some of the leaders of political parties in New Zealand.
The Commission recognises that some level of surveillance is inevitable and justifiable from a human rights perspective in a democratic society. However, surveillance can be subject to human rights principles, protecting human rights and limiting them only when proportionate and justified and in accordance with the law.
The right to privacy is fundamental in a democracy and reinforces other fundamental rights, such as rights to freedom of expression, association and assembly. The proposed restrictions on the right to privacy are too general to be proportionate to the Bills’ objectives.
We note that the Bills were introduced before the recent media exposure of the extent of mass surveillance by some States party to the Five Eyes arrangement. Public trust in Government intelligence agencies is at risk if surveillance activities aren’t being conducted appropriately and seen to be so.
It is in the interests of our intelligence agencies to have appropriate transparency and accountability mechanisms in place to maintain public trust. We believe much of the public’s concerns could be alleviated if there was satisfactory oversight of surveillance powers and we propose an independent cross-party select committee to oversee intelligence agencies.
The Commission’s report recommends:
  • a full and independent inquiry into New Zealand’s intelligence services as soon as possible (with terms of reference agreed on a cross-political party basis), to consider the role and function of NZ intelligence services, their governance and oversight mechanisms and to consider the balance between human rights and national security
  • Stronger accountability and oversight mechanisms, including Parliamentary oversight from a cross-party select committee, in addition to the Inspector-General of Intelligence & Security
  • Amending the Bills in line with the submissions of the New Zealand Law Society and the Legislation Advisory Committee 
  • Taking into account the submissions of Internet New Zealand, particularly as they relate to human rights
  • Human rights training for all members of New Zealand’s intelligence services. 
The Law Society's concerns, in summary, were -
The Bill changes the Government Communications Security Bureau (GCSB) from being a foreign intelligence agency to a mixed foreign and domestic intelligence agency. The Bill empowers the GCSB to spy on New Zealand citizens and residents, and to provide intelligence product to other government agencies in respect of those persons, in a way not previously contemplated and that is inconsistent with the rights to freedom of expression and freedom from unreasonable search and seizure under the New Zealand Bill of Rights Act 1990 (NZBORA) and with privacy interests recognised by New Zealand law.
The Law Society’s concerns regarding the absence of clear justification for these changes are exacerbated by the use of Parliamentary urgency, and the consequent short timeframe provided for consultation and submissions. The Law Society is concerned that, in the absence of compelling grounds for urgency, its use degrades the democratic quality of the legislative process.
The Law Society recommends that more information should be provided to the public regarding the justification for such changes, further debate should be held regarding that justification, further 3 safeguards should be incorporated into the law if reforms are to proceed, and an updated section 7 report should be sought from the Attorney-General.
The Law Society’s submissions on the amendments to the GCSB Act focus on systemic checks that should be put in place to ensure the GCSB powers that are to be extended by the amendments are exercised appropriately. The Law Society also recommends that when the GCSB retains “incidentally obtained intelligence” such retention is required to be certified by the Director of the GCSB. In addition, we make recommendations as to aspects of the drafting of the amendments.
In terms of the proposed amendments to the ISIG Act, the Law Society supports the strengthening of the office of the Inspector-General of Intelligence and Security, although we question whether it is possible for a full and proper analysis of the requirements of the office to be undertaken in circumstances where the full justification for (and with it the intended operational purposes of) the proposed changes to the GCSB Act are unknown. The Law Society recommends that the Inspector- General be required to conduct a full operational review of the GCSB once any amendments to the GCSB Act itself are implemented, in order to report to Parliament as to whether the ISIG Act remains effective in allowing the Inspector-General to independently review and report to Parliament upon the activities of the GCSB. We also make recommendations regarding aspects of the drafting of the proposed amendments.
In terms of the proposed amendments to the ISC Act, the Law Society notes the existing anomaly that the Intelligence and Security Committee (ISC) – unlike Parliamentary select committees – is statutorily limited in its ability to undertake inquiries and investigations of its own volition. The Law Society considers that such an anomaly is not justified, and recommends that the Bill amend the ISC Act to allow the ISC to undertake inquiries into matters which are otherwise within the jurisdiction of the Inspector-General or otherwise prohibited. We also recommend that the requirement for the ISC to report on its activities to Parliament be strengthened, to require the ISC to report on specific matters.
In its report the Commission comments that -
This report is provided against the background of the disclosure beginning in June 2013 and which is ongoing through international media of the existence of an extensive external intelligence-gathering programme operated by the United States National Security Agency (NSA). This programme is extraordinary in scope, monitoring vast amounts of electronic communication, including metadata of non-United States persons living outside the United States. The disclosures also highlight the way in which the NSA has worked along with some members of the Five Eyes arrangement (members of which are Australia, Canada, New Zealand, the United Kingdom and the United States) on this mass intelligence-gathering programme.
These disclosures have revealed the involvement in mass surveillance of some members of the Five Eyes arrangement. It is clear from these disclosures that the NSA has had access to the personal data of large numbers of individuals around the world, via telecommunications and electronic communications companies. On 27 June 2013, a bi-partisan group of 26 United States senators stated in a letter to the Director of National Intelligence that “the bulk collection and aggregation of Americans’ phone records has a significant impact on American’s privacy.” What is also clear is that the New Zealand public is now concerned that metadata related to people in New Zealand may be being passed onto the GCSB by Five Eyes partners. This is given the suggestion that the sharing of metadata collected by agencies in other member countries between some Five Eyes partners is taking place.
The Commission recognises that States have a duty – which is in part a human rights related duty – to protect their citizens from both physical harm and from interference with their civil and political rights. Most law enforcement involves active protection of human rights. Legislation has an important role to play; however, legislation can be unduly intrusive. Careful consideration is required to ensure that resulting legislative measures are consistent with international and domestic human rights obligations;

Twitter and the UEJF

Jurisdiction matters. The Guardian reports that Twitter - highlighted here - "has handed French authorities data which could identify the users behind a spate of antisemitic tweets after a long court battle begun by anti-racism campaigners".

announced on Friday that "in response to a valid legal request" it had provided the Paris prosecutor with "data that may enable the identification of certain users that the vice-prosecutor believes have violated French law". Twitter said this gesture put an end to the long legal dispute ....
When alerted to the tweets, Twitter immediately removed them.
The French Union of Jewish Students (UEJF), backed by anti-racism groups, appealed to a judge to force Twitter to hand over personal details of users who had posted the tweets so they could be prosecuted under French laws against publishing racist and discriminatory hate speech.
Twitter contested the case but in January the Paris high court ruled against the site, saying it must hand over user data. The judge said the messages violated French laws against hate speech and Holocaust denial.
Last month, the Paris appeals court decided not to hear Twitter's appeal and reiterated that it must hand over the user details. In March the UEJF had launched a civil suit against Twitter for failing to hand over the details, claiming €38.5m (£33m) in damages which it said it would hand over to the Shoah Memorial Fund. It also announced it would sue Twitter's chief executive, Dick Costolo.
Twitter, in its statement on Friday, also vowed to continue to "fight against racism and antisemitism". It said this included "taking measures to improve the accessibility of the reporting procedure of illegal tweets".

US Trade Secrets

'A Legal Tangle of Secrets and Disclosures in Trade: Tabor v. Hoffman and Beyond' by Jeanne Fromer in Intellectual Property at the Edge: The Contested Contours of IP (Cambridge University Press, 2013, Forthcoming) ed Rochelle Cooper Dreyfuss and Jane Ginsburg explores
an early trade secrecy case from New York, Tabor v. Hoffman, decided in 1889. A study of this case indicates that many present-day concerns about overlapping edges between trade secrecy and patent laws — and their interaction and interference with one another's aims — were latent, if not overtly raised, when American courts were just beginning to articulate the common law right of trade secrecy. After telling Tabor’s tale, I investigate some of the longstanding interactions and tensions between trade secrecy and patent laws, through the lens of the regimes’ encouragements of disclosure in some ways and secrecy in others. Moreover, even though trade secrecy law is predominantly focused on secrecy, in some ways it enables disclosure. By contrast, although patent law is preoccupied with disclosure, in some ways, it permits and encourages secrecy. In all, patent law and trade secrecy together create a legal tangle of secrets and disclosures in trade. A full review of the Tabor case suggests that the innovator there was able to take advantage both of trade secrecy’s disclosures and patent law’s secrets. The court did not appreciate this possibility, instead focusing on the unfairness to the plaintiff of the defendant’s appropriation.
Fromer comments that
Current trade secrecy protection looks much like the protection conferred long ago in Tabor. Pertinently, the Uniform Trade Secrets Act, adopted in forty-six states and the District of Columbia, shields as a trade secret from certain types of misappropriation information that “derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons” and is “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Misappropriation occurs principally when the acquirer of another’s trade secret contravenes a pre-existing contractual or other obligation to the secret holder not to disclose the secret or commits an improper act of industrial espionage (often quasi-tortious, if not tortious) to get it. So long as a secret remains unrevealed, legal protection is everlasting. Of course, the information comprising the secret might always be properly revealed through acts that do not constitute misappropriation, principally independent discovery or reverse engineering of an available product. With this avenue of sanctioned uses of secrets so long as they are independently found, as Rochelle Dreyfuss explains, “trade secrecy laws … safeguard public access.”
As the Supreme Court has reasoned, there are thought to be two key purposes to trade secrecy laws: “maintenance of standards of commercial ethics” and “the encouragement of invention.” With regard to commercial ethics, the general idea is that trade secrecy liability will deter people from carrying out certain illicit forms of commercial behavior. Additionally, trade secrecy protection encourages investment in scientific and technological research, according to Mark Lemley, by “giv[ing] the developer of new and valuable information the right to restrict others from using it, and therefore the prospect of deriving supracompetitive profits from the information.” Both motivations have served to protect trade and innovation, particularly in an era of mass production, in which commercialization of innovation depends on access to trade secrets by a large number of employees and third parties.
Now consider patent law. Utilitarianism is the dominant purpose of American patent law. According to utilitarian theory, patent law provides the incentive of exclusive rights for a limited duration to inventors to motivate them to create technologically or scientifically valuable inventions. In exchange for this incentive, patent law also requires patentees to disclose their inventions to the public. Without the patent incentive, the theory goes, inventors might not invest the time, energy, or money necessary to create the works because such works might be copied cheaply and easily by free riders, thereby eliminating inventors’ ability to profit from their labors. According to utilitarian thinking, public benefits accrue by rewarding inventors for taking two steps they likely would not otherwise have taken: first, to invent, and possibly commercialize; and second, to reveal information to the public about their inventions that serves to stimulate further innovation.
Consistent with utilitarianism, the rights conferred by patent laws are designed to be limited in time and scope. The reason for providing patent protection to creators is to encourage them to produce socially valuable works, thereby maximizing social welfare. If the provided rights were exceedingly extensive, society would be hurt and social welfare diminished. Exclusive rights in patent law prevent competition in protected works, allowing the patent holder to charge a premium for access and ultimately limiting these valuable works’ diffusion into society. Moreover, given that knowledge is frequently cumulative, society benefits when subsequent creators are not prevented from building on previous scientific and technological creations to generate new works. Therefore, patent law ensures both that the works that it protects will fall into the public domain in due course and that third parties will be free to use the protected works for certain socially valuable purposes. Moreover, patent law’s requirement of disclosure of information about inventions can stimulate productivity, as I have previously explored, in two ways:
First, it permits society at large to apply the information by freely making or using the patented invention after the expiration of the patent. Second, the disclosure can stimulate others to design around the invention or conceive of new inventions—either by improving upon the invention or by being inspired by it—even during the patent term. Otherwise, the patent system would not require disclosure earlier than the expiration of the patent term, as it does here by requiring disclosure at the time of the patent grant, at the latest, and typically much sooner. ….
Disclosure of an invention sets out what others have already accomplished, thereby both revealing information about those discoveries—enabling the avoidance of wasteful duplication of the original inventor’s research—and noting, usually implicitly by omission, what has yet to be done. Patent disclosures act, as one commentator labels it, as an “invisible college of technology.” Use of these disclosures, in turn, speeds the rate of innovation in society, which is central to economic growth.
There are a number of reasons an innovator might prefer trade secrecy protection to patent protection. First, protection vests without any need for government approval, which is typically time-consuming and expensive to obtain. Second, because trade secrecy laws protect all economically valuable information from misappropriation, they cover inventions that are either unpatentable or of dubious patentability. Third, protection can last for a longer time, and potentially forever, if the chances are great that the invention will not be independently discovered by a third party for a time exceeding patent duration (or the time in which the invention is commercially important). That is, trade secrecy protection is particularly attractive for inventions that are likely to stay secret, such as chemical or mechanical processes, as they can be shielded from public view and are hard to reverse engineer even as the products they produce are commercialized. When those conditions do not hold, patent protection is likely to be favored over trade secrecy. An inventor is likely to be happy to forego trade secrecy protection in exchange for the more certain but time-limited protection that patent law confers if he is willing and able to spend the money and time to obtain patent protection for a patentable invention that is likely to be independently discoverable or reverse engineered once it is commercialized. More extremely, the Supreme Court, in ruling that the federal patent laws do not preempt Ohio’s trade secrecy laws, thought that patent protection would always be preferred to trade secrecy when an invention is patentable.  Reasoning that trade secrets are at risk of honest discovery and failed lawsuits even when misappropriated, the Court stated that “[t]he possibility that an inventor who believes his invention meets the standards of patentability will sit back, rely on trade secret law, and … forfeit any right to patent protection is remote indeed.” Empirical evidence shows that the Supreme Court’s conclusion is categorically wrong, but there is a reasonable set of situations in which patent protection is preferable.
From this comparative description, it might seem that trade secrecy is focused heavily on keeping inventions secret from others for as long as possible, while patent law is centered on ensuring that inventions are disclosed widely to the public. In broad strokes, that is true. But it neglects the disclosures about inventions that trade secrecy enables and the secrets about inventions that patent law permits, sometimes in conflicting ways.


'Germany's Circumcision Indecision: Anti-Semitism or Legalism?' by Hendrik Pekárek (Humboldt University Law School) comments that
Male ritual circumcision is one of the most frequently conducted surgical procedures in the world and constitutes an important aspect of the Jewish and Muslim religion. Thus, when in May 2012 a German court in Cologne allegedly ‘banned’ the procedure, legal uncertainty in Germany set in and emotions worldwide ran high against the decision. In December 2012, the German parliament enacted a law explicitly granting parents the right to have their sons circumcised. This article revisits the complex and unique criminological, legal, dogmatic and constitutional debates and processes that shaped both the earlier court decision and the later legislation. It presents the actual case facts, explains the arguments pro and contra the procedure’s legality brought forward in the legal debate that preceded the court’s ruling, and then analyses the new law that will regulate the matter in the future.
Pekárek concludes -
The Cologne decision — and the debates that preceded and succeeded it — had it all. As Krüper has pointedly phrased it: “It’s an explosive mixture, that’s created when religion meets sanction, when the cultural traditions of a minority are confined to the legal conventions of the majority, thus when suddenly something is prohibited, which was always permitted”. Moreover, as Walter trenchantly pointed out, there is not one unified circumcision debate, but actually several separate underlying debates: “We argue about the scope of authority of parents in regard to their children; about whether Jews should have special legal privileges because of the Holocaust; about how far the Federal Republic should go in order to integrate Muslims, and finally about how much [gender] equality our society is in need of.”
Rarely did a case embrace all the key disciplines of law, rarely was there such a complex collision of legal and cultural values, rarely was there so much international media interest in a legal debate that originally started with haggling over technicalities. In this article I attempted to diffuse this explosive mixture by giving an overview of the full spectrum of the legal debate. By reviewing and explaining the criminal law and constitutional law arguments brought forward by the opponents and proponents of circumcision I have tried to present the perspective of both sides. I have addressed the actual case, the judgment and its initial impact. I have laid out the relevant law and the legal reasoning of both opponents and proponents of circumcision. I have explained the fundamental constitutional values that dominated the debate and have shown how the legislature attempted to unify those conflicting values within a new statutory solution.
For anyone familiar with German constitutional law and its basic rights doctrine, the compromise solution of the new legislation does not come as a surprise. In fact, it is almost exemplary for the application of a legal device, which is central to the German constitution’s conflict resolution mechanism. Time and again the Federal Constitutional Court stressed the concept that the Basic Law represents a unified structure of principles and values (Einheit der Verfassung). From this doctrine of constitutional unity arises the obligation to solve conflicts between constitutionally guaranteed individual basic rights through Praktische Konkordanz or in English ‘practical concordance’ or ‘principle of practical harmony’. As such, the doctrine constitutes a specialized application of the principle of proportionality. The aim of practical concordance is to balance out and harmonize the effects of the two basic rights that are in conflict with each other,  whereby the imaginative scale between the two rights should not tip too much towards either side. Therefore, even rights that are stated in absolute terms without a limitation clause (such as religious freedom) may not nullify competing rights with a limitation clause. Both rights shall be brought into a state of ‘concordance’ where under the prevalent circumstances they are able to come to maximum effect, while neither of the two rights is rendered ineffective. To achieve this, the scale balancing out the rights should be held level: the limitations applied to the one right must be equal or close to the limitations applied to the other right.
The doctrine of practical concordance has a number of advantages towards more resolute constitutional law conflict resolution mechanisms: One of the advantages of practical concordance is that there is no need for “the abstract evaluation or hierarchy of constitutional norms”. The Bill of Rights that opens the Basic Law does not contain any specific hierarchical order of the basic rights it guarantees, i.e. it does not decide whether freedom of speech is more important than equality, or religious freedom more important than personal freedom. The only right it lifts above all others is human dignity – from which all other rights derive in the first place.
The newly introduced section 1631 d (1) BGB is a result of the practical concordance doctrine and follows the guidelines set up by the Federal Constitutional Court. The legislator attempted to balance out the parents’ rights to religious and parental freedom against the child’s right to development of its own personality, health and bodily integrity, equally applying limitations to each side. When the law subtracts from the child's rights by granting the parents the permission to intervene into the health and body of their child, at the same time it takes away the parents’ complete discretion by setting up the requirements of professional performance, effective pain treatment, informed consent and the child's veto power. Thus, the independent rights of the parents and the independent rights of the child harmonize with each other. Both sides, as equal and independent bearers of basic rights, loose a limited amount of freedom in order to protect the other side, yet neither side’s basic rights are negated to the degree they would be made ineffective if an absolute decision in favor of one side for the other were taken.
In the light of the doctrine of practical concordance, the ‘mohel exception clause’ of section 1631 d (2) BGB hence is not a sign of favoritism of one particular religion either. A regulation without an exception for traditional circumcisers would have rendered the pertained religious group severely diminished in their right to freedom of religious practice, since a mohel is central to the traditional Jewish practice of brit milah on the eighth day. The introduced requirement of medical training and supervision, professional performance, effective pain treatment, informed consent, as well as the limitation of how long a traditional circumciser is allowed to conduct the procedure shows the active application of practical concordance. The new law subtracts from the parental and religious groups’ discretion in those matters in as much as it subtracts a part of the freedom of the child's right to personality and bodily integrity.
Yet, what conclusion is there to draw from half a year of debating the legality of ritual circumcision in Germany? To come back to the question raised by the subtitle of this article – anti-Semitism or Legalism – I suppose that conscious legalism plays a far bigger role in the legal debate than latent anti-Semitism or a clash of cultures. While this may not be equally true in respect to the wider debate that followed the judgement, the original Cologne decision is neither anti-Semitic nor anti-Muslim, for there is no evidence that it was deliberately aimed at harming these particular minorities. The Cologne court saw itself confronted with a technical matter of statutory law. As we have seen, the main criminal and civil law arguments are either questions about the meaning of individual criminal or civil norms or medical questions that are not conclusively clarified. Hence, especially the criminal law debate reflects the complex dogmatic structure of German criminal law. As such, the case illustrates the differences between the bipartite US system and, the tripartite continental system. The Cologne Regional Court had to make decisions on all these three stages. Granted, the arguments on each stage where highly complex and in the absence of previous decision, the court was not in an easy position.
However, the starting point seldom excuses the outcome. The Cologne decision suffered from a lack of in-dept legal reasoning and total ignorance of legal pluralism. The judgment leaves the sad impression that the judges were in fact totally unaware of the magnitude of the topic they were confronted with. Nowhere does the judgment address that a procedure was legal for centuries might need a little more to have its legality negated by expressing ‘legal disapproval’ than by stubbornly applying the wording of a law that has been in place for more than a hundred years, but has never been applied to this particular context. Whether one is in favor or against the parent’s right to consent into the circumcision of their boy, a decision on the legality of a ritual that is central to two major religious minorities is not to be taken lightly. Yet, a judgement whose central reasoning on parental consent spans merely two pages and only reflects a limited amount of the existent literature reflects a lack of understanding both of the actual matter and the implications it’s decisions have on the pluralistic society. Moreover, to negate the importance of basic rights and to refuse to strive for a compromise between the parent’s freedoms and the child’s rights, but instead to go for a ‘winner takes it all’ approach in favor of culturally defined bodily integrity, reflects a lack of understanding of the constitutional framework of the Federal Republic. Thus, the decision suffered from amnesia of the history, unfamiliarity with the present, and blindness for the future of Germany.
However, the shortcomings of the actual judgement do not mean that the whole debate was a failure, too. As shown, the original discussion in Germany primarily revolved around conflicting criminal law rules and constitutional rights and values. This side of the debate has opened up a number of really important issues in respect to human rights theory. To probe where the religious freedom of one individual ends and the rights of another individual begin in itself is a valid, but complex question.
The constitutional systems of the United States and Germany give distinct answers to this question. While both systems in general may share a lot of similarities — and the influence of the former on the later is undeniable — the circumcision debate highlights a fundamental difference between the two: The US constitution envisions a society centered on human liberty, while the German Basic Law envisions a society centered on human dignity. Whereas the American constitution evolved around a value-neutral concept of liberty, which is characterized by the notion “freedom from government” in order to allow individuals to pursue their interest (and the interest of their children) according to their own vision, its German counterpart evolved around a value-oriented concept of human dignity and free unfolding of personality, which is characterized by the protection of personal development and the physical integrity of the human body, as well as the notion “freedom with, not from government". The United States Declaration of Independence promotes “Life, Liberty and the pursuit of Happiness” and the 1st Amendment protects “Freedom of Religion, Press, Expression”, but it is silent in respect to rights and duties of parents and to direct personality rights. A specific protection of bodily integrity or a explicit limitation of parental freedom does not exist. Hence, it does not come as a surprise that in America the right of the parents to legally consent to alter the body of their child is rarely challenged.
In contrast to the US constitution, the much younger Basic Law’s Bill of Rights is more concrete and exhaustive, which is why the triangular relationship between personal-, parental and religious freedom forms the key aspect of the German circumcision controversy. Neither of these two constitutional visions of society must necessarily be better or worse, they are just different. Yet, the question where the religious freedom of one individual ends and the rights of another individual begin evokes more fundamental, legal philosophical questions. The primary purpose of any law and legal order is to serve society. Ideally, the law therefore reflects the morals and ideals of the particular society as a whole. Since these values may differentiate significantly even in a relatively homogeneous society, law typically accepts the position of the lowest common denominator. In a democracy, the rule of law serves as the only protection of the minority from the dictatorship of the majority, its functional role is to protect the weakest. There lies a crux of the circumcision controversy: Both sides claim the protection of the weaker party. While the opponents deem the boy to be in a weaker position vis-a-vis the power of his parents, the proponents see the Muslim and Jewish minority in the weaker position vis-a-vis the secular and Christian majority. Many opponents and proponents fail to recognize the fact that the weak position of one side does not necessarily disbands the weak position of the other. Thus, if anything, the epistemological conclusion of the debate must be the acceptance of the equilibrium of weaknesses of both sides. Once this realization sets in, the ground is prepared for a legal solution. Law and law making is a communicative process, an active engagement between the different sides to an argument. As such, compromise and understanding for the issues of the ‘other’ has proven time and again to be the more constructive framework to build a state of law upon than a partial solution.
Many legal theorists believe the renunciation of the ‘personality principle’, i.e. the abolition of judging individuals according to the specific religion they belong to. The advent of religious neutrality is regarded as one of the greatest innovations of the emancipated and enlightened state. The circumcision controversy shows the drawbacks of unequivocally accepting those beliefs. Ultimately, a democratic legal system cannot sustain its democratic nature without permitting a limited amount of legal pluralism. The famous German philosopher Jürgen Habermas has summarized the problem like this: “The universalist objective of the enlightenment only fulfills itself in the fair recognition of the particularistic claims to self-assertion of religious and cultural minorities”. A democratic society will have to accept the binding importance of a separate religious law on the followers of that religion and the collisions it may cause with the law of the land as an unavoidable necessity, unless that society deems the observance of those religious laws as unbearable for the society as a whole. The accomplishments of the enlightenment are not necessarily universal truisms and the law will never be the best tool to enforce allegedly enlightened concepts. In the end, I would like to give a positive outlook. I reckon it is safe to say that the German legal system and the academic landscape as a whole have handled the issue fairly well, considering the explosive nature of the topic. The intensity of the debate, but also the judgment and the new law, show that Germany is a viable Rechtsstaat and a stable, openminded democracy with a strong, functioning rule of law, whose jurisprudential science and legal practice are deeply interwoven. Members of the legal academia identified a disparity in the law, and legal practice reacted with the attempt to fix the disparity in correspondence with the law and the immediate information it had access to. Once it was established that the solution by the judiciary proved faulty and inadequate, the executive and legislative branch reacted swiftly and strove for a compromise solution based on ‘practical concordance’. The result — while not fully satisfying the extremes on both sides to the debate — will nonetheless be fit to keep the legal peace and balance out the religious interests of the parents with the non-negotiable interests of the child. For a society that is increasingly confronted by the challenges that go hand in hand with growing pluralism, this is the only way forward.

10 July 2013


To a point, Lord Copper. 'Neuroscience, Mental Privacy, and the Law' by Francis X. Shen in (2013) 36 Harvard Journal of Law and Public Policy 653 asks -
Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching.
Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But only to a point.
Quite so! Shen goes on to comment -
In this Article, I reconsider these concerns about the use of brain science to infer mental functioning. The primary message of this Article is straightforward: “Don’t panic!” Current constitutional protections are sufficiently nimble to allow for protection against involuntary government machine-aided neuroimaging mind reading. The chief challenge emerging from advances in brain science is not the insidious collection of brain data, but how brain data is (mis)used and (mis)interpreted in legal and policy settings by the government and private actors alike.
The Article proceeds in five parts. Part I reviews the use of neuroscientific information in legal settings generally, discussing both the recent rise of neurolaw as well as an often overlooked history of brain science and law that stretches back decades. Part II evaluates concerns about mental privacy and argues for distinguishing between the inferences to be drawn from the data and the methods by which the data is collected. Part III assesses current neuroscience techniques for lie detection and mind reading. Part IV then evaluates the relevant legal protections available in the criminal justice system. I argue that the weight of scholarly opinion is correct: The Fourth Amendment and Fifth Amendment likely both provide protections against involuntary use of machine-aided neuroimaging mind reading evidence. Part V explores other possible machine-aided neuroimaging mind reading contexts where these protections might not apply in the same way

Defamation and the undead

Should every legal person get protection under defamation law?

'Corporate defamation: reputation, rights and remedies' by Gary KY Chan in (2013) 33(12) Legal Studies 264–288 comments that
Under English common law, a corporation is generally entitled to sue for defamatory attacks on its reputation and may recover substantial damages without proof of special damage. While a trading corporation could pursue a defamation action for an attack on its trading or business reputation, a non-trading corporation is entitled to do so when the defamatory statement targets its governing reputation.  In South Hetton Coal v NE News, where the defendant newspaper published a libel alleging that the claimant company failed to provide sanitary and proper premises for its workers, the English Court of Appeal held the libel to be actionable without the need to prove special damage. In 2006, the House of Lords in Jameel v Wall Street Journal Europe Sprl was confronted with a challenge against the continued applicability of presumed damages vis-à-vis corporations but the doctrine survived intact. The claimants, comprising a Saudi Arabian businessman and a company incorporated in Saudi Arabia, sued the defendants for publishing an allegedly defamatory article linking the claimants to the funding of terrorist activities. By a majority of 3:2, the House of Lords took the position that the company should be allowed to sue for damages without having to prove special damage. 
The current position in Australia is significantly different. Prior to the statutory developments in Australia, corporations were entitled to sue in defamation and the doctrine of presumed damages in defamation applied to corporations. In 2003, the Committee Report on the Reform to the Law of Defamation in Western Australia recommended that leave of court be obtained by a corporation (not including a non-profit corporation) before bringing proceedings in defamation. It was proposed that the court, in considering whether to grant leave, should take into account factors such as the number of employees, whether the corporation has suffered ‘identifiable economic loss as a result of the defamation’ and the adequacy of other remedies. In 2004, a contrary recommendation was made by the Commonwealth Attorney General that corporations should be permitted to sue for defamation. Notwithstanding the recommendation, Australia later enacted statutes which overrode the common law position. The National Uniform Defamation Laws (‘NUDL’) in Australia came into force in 2006 restricting the corporations’ right to sue in defamation, with exceptions for non-profit and small trading corporations (ie corporations which employ fewer than ten persons and are not related to other corporations). In effect, Australia has statutorily abolished the common law right of large trading corporations to sue in defamation.
In the UK, post-Jameel, the English PEN and Index on Censorship have campaigned for large and medium-sized corporations to be exempt from suing in defamation  unless they can prove malicious falsehood. This is similar to the Australian approach. However, this is not a view commonly adopted by the UK legal institutions. The House of Commons Culture Media and Sport Committee, for instance, did not provide a definitive opinion on the various measures to make it more difficult for corporations to claim for damages or the alternative method of compelling corporations to rely instead on malicious falsehood. Lord Lester’s Private Member’s Bill, on the other hand, focused on requiring corporations to show that the publication of the words or matters complained of had caused, or was likely to cause them substantial financial loss. The UK Ministry of Justice, in a consultation paper on the draft Defamation Bill, has also resisted abolishing the corporate right to sue in defamation but noted the potential problem of inequality of arms in defamation actions brought by a trading corporation against an individual or a nongovernmental organisation in order to stifle criticism of the corporation. It took the position that the requirement for corporations to prove financial loss would likely result in corporate claimants frontloading costs and consequent delays in bringing proceedings. Moreover, the alternative cause of action in malicious falsehood (ie requiring proof of malice) would render the claim difficult for the corporations and thus would not adequately protect their interests.
In view of the vastly different positions adopted in England and Australia, respectively, it is unsurprising that the rationales proffered in support of either camp are no less disparate and divisive. The current English position conferring on a corporation the right to sue in defamation and to recover presumed damages has been criticised on a number of grounds: large multinational corporations today have the upper hand in pursuing defamation actions against financially strapped defendants, the chilling effect on defendants arising from potential awards of substantial damages and costs, undue restrictions on the democratic freedom to criticise and protest against multinational corporations, circumvention of the tort of malicious falsehood due to the relative ease of pursuing a defamation action, and insufficient attention paid to the fact that corporate reputation, unlike individual reputation, is a mere commercial asset for which presumed damages should not be applicable. On the other hand, strong arguments have been made to maintain the status quo, highlighting the significant value of corporate reputation that is worthy of protection, the need to allow the recovery of presumed damages in order to vindicate corporate reputation, the difficulties of proving special damage in defamation cases and that the (perceived) inequality of arms between the multinational corporations and defendants is illusory or at least exaggerated.
Amid this clash of ideas, values and perceptions, this paper attempts to seriously examine and weigh each of the opposing arguments. To that end, it will consider the following questions: What is corporate reputation? Should we preserve the existing right of corporations in England to sue in defamation or adopt the contrasting Australian position? Is the current basis in England for allowing presumed damages without proof of special damage sustainable? Are there alternative remedies we should consider for corporate claimants? Insofar as the claims for damages or remedies are concerned, how should we treat defamatory attacks on the business and non-business reputations of trading and non-trading corporations, respectively? The resolution and clarifications of these issues would clearly be important given the prevalence of modern corporations and corporate defamation today.A conscious effort will be made to maintain conceptual coherence within the tort of defamation and, at the same time, take into account the practical realities of the corporate world with a view to proposing sound viable solutions.
Chan concludes
The right of corporations to sue in defamation should continue to be preserved in England. Corporations should be allowed to protect its reputation as property, which is an important aspect of corporate reputation. One valid exception is where the corporations fall into the category of government entities exercising governmental functions in accordance with Derbyshire. The distinct treatment between corporations and such government entities for the purpose of determining the right to sue in defamation is sufficiently justified by policy reasons relating to the significance of democratic political debate, the use of the political process by government entities to respond to criticisms and the prohibition against the use of public funds by government entities to initiate defamation suits.
Two reforms to corporate defamation are proposed. First, corporations, whether trading or non-trading, should be entitled to vindicate their reputations via declarations of falsity in order to reflect the baselessness of the defamatory charges. Further, corporations should continue to be entitled to the recovery of special damages in a particular case provided there is sufficient proof of such damages. Declarations of falsity are preferred to an award of presumed damages for vindication of corporate reputation. This is because the declarations constitute authoritative judicial statements to the public that the allegations are false, the potential ‘chilling’ effect of a substantial award of presumed damages that is not amenable to proof, the inappropriateness and difficulty of ascertaining the quantum of monetary damages to reflect the baselessness of the charges and the more expeditious defamation proceedings in seeking judicial declarations as compared with the claim for damages.
Secondly, insofar as proof of special damage is concerned, the current distinction between trading and non-trading corporations should be re-examined. In the event of a defamatory attack on the business reputation of a trading corporation, a claim for special damage (such as loss of customers or goodwill) must be proven. It is suggested that the trading corporation should also be allowed to recover special damage arising from a defamatory attack against the non-business reputation of the trading corporation, provided it can prove actual pecuniary losses (such as the loss of charitable donations). This fulfils the objective of an award of damages as reparation of damage to corporate reputation.
A non-trading corporation does not suffer loss of goodwill or custom, unlike for trading corporations. However, defamatory attacks on the governing reputation of a non-trading corporation may impair its capacity to fulfil the social objects for which it is established. Thus, it should normally be entitled to claim special damage such as loss of donations or membership subscriptions provided they are proven. Finally, it is proposed that where the defamatory allegations attack the business reputation of a non-trading corporation, it should also be able to recover special damage subject to proof.
This proposed flexibility in allowing the recovery of special damages for both trading and non-trading corporations serves to accommodate the various evolving forms of corporate enterprise and purposes, and reflects social realities concerning the diverse activities undertaken by modern corporations.

08 July 2013

False Identity

From the Cth Department of Immigration and Citizenship  site -
A Vietnamese man was handed a six-month jail sentence in the Melbourne Magistrates Court today after he was prosecuted for using three false identities to apply for and obtain permanent residence and fraudulently obtain and use a genuine Australian passport.
A Department of Immigration and Citizenship (DIAC) spokesman said the sentence sent a strong warning to those engaging in migration-related fraud.
Van Son Nguyen, a convicted drug trafficker serving a seven-year sentence, was also convicted on charges s.234(1)(b) of the Migration Act 1958, s.10(1)(a) of the Passports Act 1938 and s.11 of the Statutory Declarations Act 1959.
DIAC’s facial comparison specialist identified that the photographs of Mao Lay, who had altered his date of birth, Saing Nguyen and Van Son Nguyen matched.
“The department continues to develop specialised capabilities in the areas of facial recognition, document examination and fingerprint analysis to assist with the investigation of fraud offences as well as maintaining the integrity of the migration program,” the spokesman said. “This includes the expansion of biometric collection points and sharing of data with partner countries and government agencies.
“These developments have led to several recent successful prosecutions against people found to have used false information, including identity details, as part of visa application processes.
“Over the past 12 months, eight individuals have been successfully prosecuted for offences relating to identity fraud used to subvert immigration channels. These cases have resulted in numerous convictions federal offences [sic] under the Migration Act, Criminal Code Act and Foreign Passports Act.”
DIAC subsequently announced -
A Sri Lankan-born man was jailed for three-months in Melbourne today for supplying false information in his application for permanent residence and subsequent Australian citizenship.
The Department of Immigration and Citizenship (DIAC) successfully prosecuted Surendran Rajendran, who hid his true identity and background when applying for a visa to Australia.
A department spokesman said Rajendran was charged with offences under the Migration Act 1958, Citizenship Act 1948 and other breaches of Commonwealth law.
“In 2007, this man made claims to DIAC that he was another person and was subsequently granted permanent residence through the general skilled migration program, and then Australian citizenship in 2010,” the spokesman said.
“DIAC later learned that documentation supplied to support his claimed identity was falsified.”
Rajendran received a three-month prison sentence for the offences in Dandenong Magistrates’ Court today.