24 August 2013

Glass Slippers

'Was it Author's Rights All the Time? Copyright as a Constitutional Right in Ireland' by Rónán Kennedy in (2011) 33 Dublin University Law Journal 253 comments
If property rights are “the Cinderella of the fundamental rights provisions of the Irish Constitution,” copyright may be its glass slipper, seeking its proper owner. The underlying rationale for copyright in Irish law is rarely examined, despite statements from the bench that place it on a constitutional footing. This would make Ireland distinctive amongst common law jurisdictions and may impact on the copyright regime in ways that may surprise those accustomed to looking to the UK and US for guidance. 
In Phonographic Performance Ireland Ltd. v Cody, Keane J (as he then was) said: 
Section 60(4) of the [Copyright] Act of 1963 provides that no right in the nature of copyright “shall subsist otherwise than by virtue of this Act or of some other enactment in that behalf”. The right of the creator of a literary, dramatic, musical or artistic work not to have his or her creation stolen or plagiarised is a right of private property within the meaning of Article 40.3.2° and Article 43.1 of the Constitution of Ireland, 1937, as is the similar right of a person who has employed his or her technical skills and/or capital in the sound recording of a musical work. As such, they can hardly be abolished in their entirety, although it was doubtless within the competence of the Oireachtas to regulate their exercise in the interests of the common good. In addition and even in the absence of any statutory machinery, it is the duty of the organs of the State, including the courts, to ensure, as best they may, that these rights are protected from unjust attack and, in the case of injustice done, vindicated. The statements in some English authorities that copyright other than by statutory provision ceased to exist with the abolition of common law copyright are not necessarily applicable in Ireland. 
 This article examines the issues that arise from this statement. What was the history of copyright in England? What is the position of copyright in other common law countries? How do other constitutions deal with copyright? Can we find a basis for copyright in Irish constitutional theory and practice? Is it therefore correct to say that intellectual property, and specifically copyright, is a property right in Irish constitutional law? What difference does it make that copyright law has a constitutional basis?


Russell Jacoby's 'Stanley Fish Turned Careerism Into a Philosophy' in The New Republic comments that
 The advanced fragmentation of intellectual life in America means that personalities and issues that loom large in one field are often invisible in another. For the sociologist or the economist, the name Stanley Fish probably means little or nothing. For those in more literary domains, however, this scholar, university administrator, and critic has for decades been a familiar figure. To be sure, he has gained wider acclaim inasmuch as David Lodge apparently drew upon Fish for the character of Morris Zapp in his novels satirizing academic life. He also shows up regularly as an opinion writer for The New York Times. Fish’s importance resides mainly in that he is an exemplar of recent academic trends. He chiefly represents himself—he does that quite well—but he may also represent something of the postmodern academic life: its self-satisfaction, its self-promotion, its glibness. If the humanities are in trouble today, humanists like Fish are one of the reasons. 
Unlike the jargon-filled writings of his colleagues, Fish’s work has a utilitarian and readable style. Many of his books are collected essays and reflect a relaxed public self. They are larded with “I think this,” “I hasten to add,” and “I am aware.” He does not shy away from distilling his arguments, and even presenting them in bullet points. He writes short declarative sentences. “By ‘there’s no such thing as free speech,’ I mean three things.” Compare the prose of Fish with that of a high priest of academic gibberish: the Anne F. Rothenberg Professor of English and American Literature and Language and the director of the Humanities Center at Harvard University. Homi K. Bhabha writes, in a typical passage, “The politics of difference lives on to rethink the minority not as an identity but as a process of affiliation ... that eschews sovereignty and sees its own selfhood and interests as partial and incipient in relation to the other’s presence.” This is not Fish. .... Fish’s original claim to fame was his idea of “interpretive communities,” which was presented in 1980 in his book Is There a Text in This Class? The answer to the title’s question is no. For the early as well as the late Fish, disciplinary or historical realities overwhelm old-fashioned principles. (Another one of his collections is called The Trouble with Principle.) The notion of the scholar eliciting textual truth is as quaint as the general store. For Fish, the reader—or the consumer—is king. It is we scholars who decide what a text means. The text itself disappears. “Meanings are not extracted but made.” How do we decide on meanings or their validity? It depends. On what? It depends on what you bring to a text: what your training is; what issues bother you; what “interpretive strategies” you use; and—in general—what “interpretive communities” you belong to. 
This is a version of “different folks, different strokes,” which Fish basically admits. One group of scholars uses this approach; another uses that approach. “Those outside that community will be deploying a different set of interpretive strategies.” The question of which is true does not interest Fish. Disputes about what a text means devolve into group membership. How do you settle disputes? You don’t. You check the membership card. You make certain you are talking to an ally. “The only ‘proof’ of membership is fellowship, the nod of recognition from someone in the same community, someone who says to you what neither of us could ever prove to a third party: ‘we know.’ I say to you now, knowing full well that you will agree with me ... only if you already agree with me.” Group thought and solidarity trump everything. 
Of course, Fish throws in important caveats. The communities are unstable and shifting; one person can belong to many communities, and membership can get confusing. Hence a scholar frequently argues across communities, as Fish himself does. But the basic point remains. Interpretation becomes the province of like-minded professionals who constitute a community with its own preconceptions, conceptions, and rules. Little or nothing exists outside these communities. They constitute texts, interpretations, and even facts. 
... More than fifteen years ago, Alan Sokal, a professor at NYU, pilloried the literary theorists in what became a famous put-down. He submitted to a leading journal of literary theory an article of high academic balderdash that heavily cited French pooh-bahs. After it was accepted and published, he revealed the prank. Of course Fish came to the defense of his hoodwinked confrères. He lectured Sokal, who is a professor of physics, about how science, like baseball, was “socially constructed.” Balls and strikes are “socially constructed” inasmuch as the rules can change. They are the product of history and choice. And the physics of baseball are also socially constructed. How so? Here Fish gets uncharacteristically vague. After making these acerbic points, Fish appealed to his version of his interpretive communities. Sokal was not part of the literary-theory community; he was a presumptuous outsider. He does not understand that “the criteria of an enterprise will be internal to its own history,” which depends on colleagues, traditions, and issues. We have our “own goals and protocols.” In other words, if we English professors trade in advanced nonsense, this is our own business. ... 
It would take a scholar of prodigious energy and inexhaustible masochism to document the extent to which the professoriate, decade after decade, remains thunderstruck by the most basic insight into the historical reality of life and thought, which Fish regularly rehearses. Thus the jaws of academics collectively drop when someone declares for the zillionth time that everything is historical, contextual, or situated. With the added imprimatur of Foucault or Althusser, this banal idea turns academic dross into academic gold. Althusser had the habit of dating exactly when he completed an essay, which he considered “important” to do. Without a date indicating when it was written, we would presumably imagine that his essay was a missive from the beyond. The new Diagnostic and Statistical Manual of Mental Disorders missed this obsessive-compulsive disorder of literary professors: repeating sans cesse the pedestrian observation that everything is contextual and contingent. Fish has taken this historicist principle and run with it forever. He is still agog over it. 
It is not an evil principle, and sometimes it can be salutary. It is also profoundly conservative and—despite Fish’s good cheer—deeply cynical. To be sure, Fish positions himself as a critic of both left and right. On most things, however, he is a solid academic liberal warmly defending new academic fields such as women’s studies and African American studies. He eschews “the neo-conservative assault on the humanities.” (In fact some neoconservatives have been the most ferocious defenders of the humanities.) On certain issues, however, Fish has roundly attacked the pretensions of academic leftists. He is not wrong to do so. We have all experienced the deluded Che Guevara–citing professors who cannot teach or write. Save the World on Your Own Time runs the title of one of Fish’s books. Yet it must be said that, for every leftist professor who makes waves by berating his students with Chairman Mao, there are a thousand—no, ten thousand—who bore their students with professional platitudes. A problem of the contemporary professoriate is not vociferous leftism but blatant quiescence, not political posturing but relentless careerism. 
The issue is not that Fish challenges political bombast, but the way he does it, by defending professionalization. He cites Samuel Goldwyn, the movie mogul, who responded to criticism that his movies lacked social significance with the comment, “If I wanted to send a message, I’d use Western Union.” Fish reformulates the idea: “If you want to send a message that will be heard beyond the academy, get out of it. Or, if I may adapt a patriotic slogan, ‘the academy—love it or leave it.'" Fish loves it. Fine, but his love always devolves into celebrating the woof and warp of the discipline. The rank solipsism of his position inevitably surfaces. What do English professors do? We do literary criticism. What’s that? “It’s what I do.” And “I do it because I like the way I feel when I’m doing it.” Fish does it in journals, jargon, and junkets. “The structure of a fully articulated profession is such that those who enter its precincts will find that the basic decisions, about where to look, what to do, and how to do it, have already been made.” Join in or leave us alone. 
The empirical truth that Fish proffers can hardly be challenged—intellectual life in this country has been highly professionalized—but its banality is hard to beat. In response to criticisms of an argument or questions about a particular interpretation, Fish merely outlines how the profession functions, as if this were an answer. The cult of theory ends in the cult of facts. Fish’s default position describes the activities of professionals. He seems convinced that this is a powerful sally—and advances it in perhaps his most consequential discussion, when he weighs in on the role of liberal education. 
Here Fish is at his best and worst. He is at his best because he punctures some “grandiose claims” for liberal education—for instance, that it fosters moral uprightness, community involvement, or global justice. “What is really at stake” in the controversy over liberal education, Fish writes, are not large philosophical principles but “administrative judgment with respect to professional behavior and job performance.” What happened to the idea that liberal education is more than just skills and job performance? That it entails, as John Henry Newman put it in The Idea of a University, overcoming “narrowness of mind”? That it leads to comprehension, even enlightenment? Newman described the narrow mind this way: “Nothing has a drift or relation; nothing has a history or a promise. Everything stands by itself, and comes and goes in its turn.” Newman could be describing Fish’s educational ideal. 
Fish wants academics to respond with aggression, even arrogance, to the perpetual calls to slash the funding of humanities departments and programs. He wants the professors to stop rolling over and playing dead. He is right. But when Fish comes out shooting, he turns out to be packing a water pistol. His aggressive rejoinder has nothing to do with first principles or with philosophical fundamentals. He offers conformity in the name of iconoclasm. His take-no-prisoners comeback retreats to the facts of academic life—with the kicker “take it or leave it.” What is liberal education to Fish? It’s what we do, that’s all. It is “entirely self-referential.” “We are responsible for the selection of texts, the preparation of a syllabus, the sequence of assignments and exams, the framing and grading of a term paper, and so on.” If you are busy with this, then the bigger questions, like “what is this good for,” are irrelevant. “You have already answered that question by sticking with the job: it’s good because it’s what you like to do.” 
Thus Fish gives these instructions for those who resist the calls to gut the university: “Instead of saying, ‘Let me tell you what we do so that you’ll love us,’ or ‘Let me explain how your values are really our values too,’ say, ‘We do what we do, we’ve been doing it for a long time, it has its own history, and until you learn it or join it, your opinions are not worth listening to.'" So much for a ringing defense of liberal education! Fish merely puffs himself, his colleagues, and his allies. From his criticism of “blind submissions” to his recent defense in the Times of favoritism and nepotism, Fish elevates those close to him—because they are close to him. “What counts is who your friends and allies are.... Your loyalty is to particular people and not to an abstraction.” You cannot fault him for gilding his credo. 
What is one to make of all of this? The crisis of the humanities—at the very least, the declining interest in the humanities—cannot obviously be attributed to Fish and his like-minded colleagues, but they have certainly abetted the decline. The lax concept of “socially constructed” flattens out cultural distinctions, so that baseball, physics, serious novels, and sitcoms all appear as kindred inventions, all worthy of full-time study. Not only students, but also interested outsiders and literate citizens, might wonder what is the point of going into the humanities to study comic books. Fish has been unable to uphold the liberal arts as anything more than a vehicle to provide jobs for liberal-arts professors, who do what they do. After all, the liberal tradition has served him and his friends quite nicely. “I believe fully in the core curriculum,” he wrote in one of his Times columns on the crisis of the humanities, “as a device of employment for me and my fellow humanists.” Bully for him. But if this is the best defense of the liberal arts by one of its most celebrated practitioners, who needs it? 
Fish has raised careerism to a worldview. In this way, he is a man for our time. His writings incarnate the cheerful, expedient self-involvement that is part and parcel of contemporary life: everyone is out for himself. Fish has burnished this credo for the professoriate (who already knew it). He seems to believe that frank self-promotion is somehow subversive in this society. Fish also likes to see himself as the perpetual bad boy of literary criticism, provoking left and right. Fish is anything but. He is much too practical to be dangerous. He closes one of his defenses of the humanities with a little vignette of an encounter with a university lobbyist. He offers to accompany the fellow to the next legislative committee investigating the university. But the lobbyist has doubts about Fish’s conduct and asks, “Will you behave?” Fish concludes his chapter, “Some people never learn.” The self-satisfaction is palpable—as is the self-mystification. The unexciting truth is that Stanley Fish has always behaved. He has always bravely defended self-interest. With friends like him, the humanities needs no enemies.


'Two Concepts of Corruption' (Edmond J. Safra Working Papers, No. 16) by Dennis F. Thompson comments
 To combat institutional corruption, we need to distinguish it clearly from individual corruption.
Individual corruption occurs when an institution or its officials receive a benefit that does not serve the institution and provides a service through relationships external to the institution under conditions that reveal a quid pro quo motive. Institutional corruption occurs when an institution or its officials receive a benefit that is directly useful to performing an institutional purpose, and systematically provides a service to the benefactor under conditions that tend to undermine procedures that support the primary purposes of the institution.
Institutional corruption does not receive the attention it deserves partly because it is so closely (and often unavoidably) related to conduct that is part of the job of a responsible official, the perpetrators are often seen as (and are) respectable officials just trying to do their job, and the legal system and public opinion are more comfortable with condemning wrongdoing that has a corrupt motive. Yet institutional corruption, which is usually built into the routines and practices of organizations, is usually more damaging to the institution and society than individual corruption, which in advanced societies typically consists of isolated acts of misconduct with effects limited in time and scope.


'Taking Fake Online Consumer Reviews Seriously' by Justin Malbon in (2013) 36(2) Journal of Consumer Policy 139 argues that
 consumers rely heavily upon consumer reviews when making decisions about which products and services to purchase online. Sellers and their marketeers are aware of this, and as a result, some of them succumb to the temptation to generate fake consumer reviews. This article argues that policymakers and regulators need to take fake reviews seriously. This is because they undermine a (potentially) effective and efficient mechanism for overcoming information asymmetry between online sellers and buyers. Consumer reviews also offer a powerful mechanism for regulating the marketplace. Sellers who sell sub-standard products or engage in sub-standard selling practices risk reputational damage. Genuine consumer reviews can therefore moderate bad seller behaviour and assist in improving the quality and efficiency of the marketplace. Although there are laws in many jurisdictions that prohibit misleading and deceptive conduct, detecting fake reviews is complex and difficult. This article proposes that one way of increasing the effectiveness of regulatory oversight is for regulators to add an “alliance approach” to their existing arsenal of regulatory systems and mechanisms.

23 August 2013

APPs Consultation

The Office of the Australian Information Commissioner (OAIC) is seeking comment on first tranche of draft guidelines regarding the Australian Privacy Principles (APP), ie the unified privacy principles in the amended Privacy Act 1988 (Cth).

The guidelines are not a legislative instrument. They instead outline how the Information Commissioner interprets and applies the APPs when exercising functions and powers under the Privacy Act relating to the APPs.

The draft Introduction to the guidelines states that
The APPs are the cornerstone of the privacy protection framework in the Privacy Act.
The APPs set out standards, rights and obligations in relation to handling, holding, accessing and correcting personal information. They apply to most Australian and Norfolk Island Government agencies and some private sector organisations – collectively referred to as APP entities (see paragraphs A.7 – A.9).
The APPs are principles-based law. This provides APP entities with the flexibility to tailor their personal information handling practices to their diverse needs and business models, and to the diverse needs of individuals. They are also technology neutral, applying equally to paper based and digital environments. This is intended to preserve their relevance and applicability, in a context of continually changing and emerging technology.
The APPs are structured to reflect the personal information lifecycle. They are grouped into five parts:
Part 1 – Consideration of personal information privacy (APPs 1 and 2).
Part 2 – Collection of personal information (APPs 3, 4 and 5).
Part 3 – Dealing with personal information (APPs 6, 7, 8 and 9).
Part 4 – Integrity of personal information (APP 10, APP 11).
Part 5 – Access to, and correction of, personal information (APP 12, APP 13)
In developing the APP guidelines, the Information Commissioner has had regard to the objects in s 2A of the Privacy Act, which are:
  • promoting the protection of the privacy of individuals  
  • recognising that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities 
  • providing the basis for nationally consistent regulation of privacy and the handling of personal information
  • promoting responsible and transparent handling of personal information by entities 
  • facilitating an efficient credit reporting system while ensuring that the privacy of individuals is respected 
  • facilitating the free flow of information across national borders while ensuring that the privacy of individuals is respected 
  • providing a means for individuals to complain about an alleged interference with their privacy, and 
  • implementing Australia’s international obligation in relation to privacy.


'Arendt, Human Rights, and French Philosophy' (APSA 2013 Annual Meeting Paper) by Justine Lacroix comments that
Contemporary French thought provides an especially instructive ‘laboratory’ for examination of the meaning and present-day relevance of Hannah Arendt’s famous chapter ‘The Decline of the Nation-State and the End of the Rights of Man’ (1951). The polarised interpretations the piece has elicited (and continues to) in France raise issues that also form the core of contemporary debates about the possibility and meaning of cosmopolitan citizenship. This paper shows that Arendt’s article furnishes two distinct interpretations in Francophone analysis that correspond respectively with two contemporary critiques of cosmopolitanism. According to the first, Arendt’s meaning was that human rights can only be realised within a determined national collectivity. The second interpretation reads Arendt’s text as an invitation to pronounce human rights obsolete, on the grounds that they are inextricably linked to an assertion of the sovereign violence of the nation-state. In counterpoise to these two interpretations, this paper foregrounds alternative readings by Miguel Abensour, Etienne Balibar and Etienne Tassin, suggesting that Arendt’s work in fact embodies a ‘political’ conception of human rights that neither devalue abstract humanism, nor launch an assault on hypocrisy in human rights rhetoric, nor restrict human rights to the framework of a national collectivity. Finally, the paper explores Arendt’s positions further with an examination of the European ‘case’, which provides a contemporary illustration of the real achievements – yet also the limits – of this embryonic form of cosmopolitan citizenship.
Lacroix concludes with an endorsement of "Etienne Tassin’s view that far from mere ‘collateral damage’ from European unification, clandestinity in fact represents the heart of the European conundrum; its importance far surpasses the boundaries of ‘a mere question of border policing, which would leave intact the radically new logic on which political Europe is built’"
It is as well to recall, indeed, that Renaissance humanists and Enlightenment thinkers also dreamed of freedom of movement, and that Kant based his theory of cosmopolitan rights on the principle of universal hospitality. In this perspective, the political recognition of foreigners, and beyond it a generalized right to free movement, is a useful criterion to evaluate how far public power succeeds in honouring its cosmopolitan goals.
In this sense, rather than constructing a European people on an extended scale, it would be more in harmony with the cosmopolitan spirit to pursue this movement towards the ‘denationalisation of rights’, to the benefit of Europeans of course but also of those who do not belong to ‘its’ nations, in order gradually to make Europe an arena for the construction of a ‘universal field of rights’ premised on a partial dissociation of nationality and citizenship, hitherto all but inseparable. Another possibility to take into account is Pierre Hassner’s suggestion of conferring European citizenship upon those who, as refugees or stateless persons, do not, or no longer, have a territorial state within the framework of which they may access. Hassner referred to groups with an ambiguous or incomplete status, and argued that if European citizenship, if it must in any case be partial and paradoxical, may as well embrace these qualities by welcoming those who are unable to be citizens elsewhere. This would, Hassner argued, be one way of circumventing the dilemma between the stark abstraction of human rights and national citizenship. Though Arendt’s federalist views remained vague in institutional terms, her insistence on the necessity of breaking the automatic equation of nationality with citizenship can hardly be in doubt. A pluralisation of demoï would in this regard be more consistent with her reasoning than a mere translation of the national demos into a European demos, which could only ever reproduce national logic on a larger scale.
This is particularly relevant to the endeavour of conceiving rights in relationship to democracy by recalling that the demands of right and those of democracy ‘are connected by a doubly unstable definition. Rights are sought and consolidated. Democracy submerges them and sets the bar higher. This is its untameable essence, which can never be reduced to mere institutional mechanisms’. Yet here we must remain cautious: if it is doubtless necessary to leave behind an overly institutional or formal definition of democracy in order to conceive of cosmopolitan citizenship, it seems a little precipitous simply to substitute ‘struggles for rights’ for the principle of a self-legislating people. Conceiving of cosmopolitan citizenship means rather to seek a possible connection between the national and the transnational, between approaches to political commitment termed ‘liberal’ and those of a more ‘republican’ bent, between struggles for equal rights and collective self-determination initiatives. To reflect on democracy in an age of globalisation means to ‘complicate’ it, following Pierre Rosanvallon’s expression, but not necessarily to change conceptual register completely.
Beyond this, conceptualising cosmopolitan citizenship means recalling too that citizenship is also a status. This is important in counterpoise to a tendency, prevalent among several theorists of radical democracy, to think about citizenship merely as a form of political action and to deconstruct it as a status. On this specific point I therefore disagree with James Ingram – to whom we owe, beyond this, a remarkable elucidation of Arendt’s political conception of human rights – when he writes that ‘she (Arendt) conceives of rights not as a status but as an activity’ and that ‘“a right to have rights” is not a right to a status in a political community but what Balibar calls a “right to politics itself” – to participate in political processes aiming, among other things, at the invention of new rights, new forms of inclusion and empowerment’.
However, citizenship must not be recognised only as an attribute of those actively involved in political mobilisation. Many individuals who do not wish to or cannot demonstrate in the public sphere nonetheless enjoy its rights. As Alison Kesby demonstrates in her critical exploration of the conception of the political subject in Jacques Rancière’s writings, Rancière appears to take as given an ability to demand ‘the rights that one does not have’; hence the danger of excluding those who cannot be directly involved in political action, whether because of a handicap or, for instance, imprisonment or seclusion preventing meaningful action. We may add that ‘ordinary’ citizens who do not wish to be involved in public life also have the ‘right to rights’ even if they only enjoy what has been won by others. As the French philosopher Alain put it: ‘No one is worthy of rights. This is the very foundation of rights.’ And returning to Arendt, we find that she also repeatedly emphasised in her article ‘We refugees’ (1943) that it is the loss of a legal status in the world that has made pariahs of stateless persons. ‘Very few individuals’, she wrote, ‘have the strength to preserve their own integrity if their social, political and legal status is simply thrown into doubt’.


Apropos Spark's Ms Brodie on this cold black Canberra afternoon -
Fully to savour her position, Sandy would go and stand outside St. Giles' Cathedral or the Tolbooth, and contemplate these emblems of a dark and terrible salvation which made the fires of the damned seem very merry to the imagination by contrast, and much preferable. Nobody in her life, at home or at school, had ever spoken of Calvinism except as a joke that had once been taken seriously. She did not at the time understand that her environment had not been on the surface peculiar to the place, as was the environment of the Edinburgh social classes just above or, even more, just below her own. She had no experience of social class at all. In its outward forms her fifteen years might have been spent in any suburb of any city in the British Isles; her school, with its alien house system, might have been in Ealing. All she was conscious of now was that some quality of life peculiar to Edinburgh and nowhere else had been going on unbeknown to her all the time, and however undesirable it might be she felt deprived of it; however undesirable, she desired to know what it was, and to cease to be protected from it by enlightened people.
In fact, it was the religion of Calvin of which Sandy felt deprived, or rather a specified recognition of it. She desired this birthright; something definite to reject. It pervaded the place in proportion as it was unacknowledged. In some ways the most real and rooted people whom Sandy knew were Miss Gaunt and the Kerr sisters who made no evasions about their belief that God had planned for practically everybody before they were born a nasty surprise when they died. Later, when Sandy read John Calvin, she found that although popular conceptions of Calvinism were sometimes mistaken, in this particular there was no mistake, indeed it was but a mild understanding of the case, he having made it God's pleasure to implant in certain people an erroneous sense of joy and salvation, so that their surprise at the end might be the nastier.
Sandy was unable to formulate these exciting propositions; nevertheless she experienced them in the air she breathed, she sensed them in the curiously defiant way in which the people she knew broke the Sabbath, and she smelt them in the excesses of Miss Brodie in her prime. Now that she was allowed to go about alone, she walked round the certainly forbidden quarters of Edinburgh to look at the blackened monuments and hear the unbelievable curses of drunken men and women, and, comparing their faces with the faces from Morningside and Merchisten with which she was familiar, she saw, with stabs of new and exciting Calvinistic guilt, that there was not much difference.
In this oblique way, she began to sense what went to the makings of Miss Brodie who had elected herself to grace in so particular a way and with more exotic suicidal enchantment than if she had simply taken to drink like other spinsters who couldn't stand it any more.


‘Complete Independence’ of National Data Protection Supervisory Authorities - Second Try: Comments on the Judgment of the CJEU of 16 October 2012, C-614/10 (European Commission v. Austria), with Due Regard to its Previous Judgment of 9 March 2010, C-518/07 (European Commission v. Germany)' by Alexander Balthasar in (2013 9(3) Utrecht Law Review 26 comments
 In 2010, the Court of Justice of the European Union (CJEU) delivered a landmark judgment concerning the requirements of the ‘complete independence’ of national data protection supervisory authorities (Commission v. Germany, C-518/07). Two and a half years later, the Court has taken a far more moderate view when assessing the level of independence of the Austrian Data Protection Commission (Commission v. Austria, C-614/10). For the author, who had criticized the previous judgment, the more recent one is a major step forward – towards a fair balance to be struck between the necessary independence of these authorities and the likewise necessary coherence of general State organization, State responsibility and State budget. The more recent judgment is also more in line with a) the wording of Article 8(3) of the EU Charter of Fundamental Rights, b) the level of independence enjoyed by the European Data Protection Supervisor (EDPS), the French Commission nationale de l’informatique et des libertés (CNIL) and the National Human Rights Institutions (NHRI) under the ‘Paris Principles’, and c) the previous case law (Commission v. ECB). 
Nevertheless, even this more moderate level of independence required for data protection authorities seems to exceed the one deemed sufficient for the judiciary. This is highly problematic given the fact that the judiciary is not just a branch of State organization completely separated from data protection authorities but, on the contrary, is called upon to legally review the decisions of data protection authorities. 
So also Commission v. Austria will, most probably, not yet be the end of the story – the more so, because the arguments raised in both judgments in favour of ‘complete independence’ are not intrinsically linked to the issue of data protection, but are likewise applicable to all kinds of regulatory bodies or institutions with a specific remit to secure fundamental rights, and, thus, in principle with horizontal relevance.


In United Firefighters Union of Australia v Easy [2013] FCA 763 the Federal Court of Australia has held that wearing a union shirt in the workplace did not constitute industrial action within the meaning of Fair Work Act 2009 (Cth) s 19(1), if the act did not result in a restriction or limitation on the performance of the employee's work. As a result, the FCA also dismissed the allegations of the applicant that the company and its employees' conduct towards her constituted a prohibited adverse action.

22 August 2013

NSW Property Crime Analysis

'The Great Property Crime Drop: A regional analysis' by Don Weatherburn and Jessie Holmes at BOCSAR [PDF] considers "regional variation between parts of NSW in the rate at which theft and robbery offences have fallen".

The authors calculated percentage changes in rates of offending in robbery and various categories of theft were calculated for the period 2000 to 2012. Changes in the extent to which rates of crime across areas have become more similar were quantified by comparing the standard deviation in crime rates across areas in 2000 to the standard deviation in crime rates in 2012. Product moment calculations were used to measure (a) the extent to which areas with high crime rates in 2000 also had high crime rates in 2012 and (b) the extent to which areas with the highest crime rates in 2000 had the largest falls in crime in 2012.

They comment that
Between 2000 and 2012, New South Wales (NSW), along with most other Australian States and Territories, experienced a remarkable fall in theft and robbery offences. Figure 1 shows the annual rate of these two types of offence for 2000 and 2012. Over this period the robbery rate fell 66.5 per cent while the theft rate fell 54.8 per cent. Rates of these two categories of recorded crime in NSW are now the lowest they have been since 1995. The fall in theft and robbery is not specific to any particular kind of theft or robbery offence. As can be seen from Table 1, there have been substantial reductions across the State in all the major categories of robbery and theft. While the overall decline in theft and robbery over the long term is welcome news, not all communities throughout NSW have benefited equally from the fall in these crimes. The variation in crime trends across the State is quite substantial. In some areas, rates of theft have actually increased.
They conclude that
the fall in property crime and robbery across NSW between 2000 and 2012 has been very uneven; being much larger in Sydney and other urban areas than in rural areas. The fall in theft offence rates ranges from 62 per cent in the Sydney Statistical Division (SD) to 5.9 per cent in the Northern SD. Similarly, the fall in robbery rates ranges from 70.8 per cent in the Sydney SD to 21.9 per cent in the Northern SD. In some areas some offences actually increased. The Murray, Northern, Murrumbidgee, North Western, Hunter and Central West SDs, for example, all experienced an increase in steal from a retail store. ... State Plan performance measures for improvements in public safety should take into account regional changes in rates of offending as well as changes in the overall volume of offending. ... The fall in theft and robbery in NSW (and other Australian States and Territories) over the last 13 years has been remarkable. The NSW theft rate in 2012 was less than half what it was in 2000. The robbery rate in 2012 was less than a third of what it was in 2000. Sydney and other urban areas, however, have benefited much more from this fall in crime than rural NSW. In some rural areas, rates of theft have actually increased. These findings raise two questions: 1) What caused the fall in property crime and robbery? and 2) why has the fall been more pronounced in urban NSW areas than in regional ones?
In the two decades prior to the heroin shortage, theft and robbery rates in Australia were rising rapidly (Mukherjee & Dagger 1990; Australian Bureau of Statistics 2001). The dramatic fall in theft and robbery offences from 2000 onwards was both unprecedented and unexpected. It is true that the United States and Britain experienced falls in crime around this time but the crime drop in these countries began some years earlier than in Australia and affected a much wider range of offences (US Department of Justice 2013; UK Office for National Statistics 2013). If the fall in theft and robbery offences in Australia was caused by factors within Australia, it is important to know what they were. If they can be manipulated or controlled in any way, they may provide valuable insights into the effectiveness of existing or future policies in controlling crime.
As it happens, very little research has been conducted into why theft and robbery rates have fallen in Australia. Only two studies have been conducted to date. The first, by Moffatt et al. (2005), focussed on the influence of the Australian heroin shortage on burglary and robbery in NSW. The second, by Wan et al. (2012), focussed on the effect of the NSW criminal justice system on property and violent crime, but included a measure of the influence of the heroin shortage. Some background information is necessary in order to understand the significance of the heroin shortage.
Past research has shown that dependent drug users, especially dependent heroin users, frequently commit theft and robbery offences in order to fund their drug purchases (Dobinson & Ward 1985; Hogg 1987; Stevenson & Forsythe 1998; Chilvers & Weatherburn 2003). The rise in theft and robbery rates in Australia during the 1980s and 90s coincided with falling heroin prices, increasing heroin purity and a rapid growth in heroin use (Degenhardt & Day 2004). Around Christmas 2000, the price of heroin rose by 75 per cent and the purity fell from around 70 per cent to around 30 per cent. From this point on, both heroin use and crimes known to be commonly committed by heroin users (viz. burglary and robbery) began to fall (Degenhardt & Day 2004).
Moffatt et al. (2005) recognised that heroin shortage could have affected levels of burglary and robbery but pointed out that other factors correlated with the shortage, such as increased use of imprisonment, reduced levels of unemployment or growing consumer confidence, might also have played a role. They noted that these factors continued to change in a favourable direction (along with crime) long after the primary indicator of heroin use (e.g. heroin overdoses) had stabilised (at a lower level). To test the hypothesis that the heroin shortage contributed to the fall in burglary and robbery they examined the influence of heroin use on burglary and robbery between January 1998 to December 2003, while controlling for changes in long-term unemployment, consumer confidence (a proxy for average weekly earnings) and the aggregate prison time being served by offenders.
The results revealed a strong association between crime trends and heroin use (as measured by the number of heroin overdoses) even after adjusting for the effects of long-term unemployment, consumer confidence and the aggregate prison time being served by offenders. These other factors, however, also had a significant effect on crime trends (although aggregate prison time affected burglary, not robbery). That study also found that rates of entry into drug treatment were significantly correlated with falling crime rates, even after adjusting for all the factors mentioned above. The research by Moffatt et al (2005), then, suggested that the drop in property crime was attributable to falling drug use, an improving economy, a tougher criminal justice system and greater access to drug treatment.
In 2012, Wan et al. (2012) published a more comprehensive study of trends in property and violent crime across 153 NSW LGAs between 1996 and 2008. Their study, like that conducted by Moffatt et al. (2005), included measures of the economy (average weekly income) and heroin use (heroin overdoses). It also included measures of the likelihood of arrest, the likelihood of imprisonment given arrest and the average prison term if sentenced to prison. As with Moffatt et al. (2005), their measure of heroin use remained strongly associated with the fall in crime even after adjusting for the effects of changes in income, the risk of arrest, the risk of imprisonment and the length of the average prison term. All these other factors except the last, however, were also significantly associated with the fall in property crime. The research by Moffatt et al. (2005) and Wan et al. (2012) has yielded some important insights into the fall in theft and robbery in NSW but much work remains to be done before our understanding of the fall in NSW or, indeed, across Australia, is complete. No-one has yet examined the contribution of changes in the number of people in the peak offender-prone age bracket (16-24 years), changes in vehicle and household security, changes in the market for stolen goods (Fitzgerald & Poynton 2011) or changes in police tactics and resources, although any or all of these factors might have influenced crime. Nor has anyone tested the possible effect of changes in abortion laws or falling lead levels, both of which have been cited as possible causes of the long-term fall in crime in the United States and both of which have been the focus (in that country) of considerable research (Levitt 2004; Nevin 2007).
This makes it difficult to answer the question of why the fall in theft and robbery in NSW was much more pronounced in urban than in rural areas. The correlations reported earlier show that the size of the fall in crime in a given area was (for most offences) not strongly related to the rate of that crime in that area in 2000. This rules out any explanation based on regression to the mean. It would be interesting to know whether the regional pattern in the size of the crime drop observed in NSW is mirrored in other States and Territories. Unfortunately, the Australian Bureau of Statistics does not publish any regional breakdown of national crime data. It is therefore impossible to determine whether the regional pattern observed in NSW is due to a State-specific set of factors, factors impacting the country as a whole or some combination of the two.
Some of the factors identified as contributing to the general drop in theft and robbery may have had effects that were more pronounced in urban areas than in regional areas. The growth in average weekly earnings is an example. In terms of State-specific factors, it is worth noting that the major markets for heroin in NSW at the time of the heroin shortage were Kings Cross, Cabramatta and Redfern (Degenhardt & Day 2004). If the reduction in theft and robbery is partly attributable to the fall in heroin use and if heroin users commit crime in areas close to where they purchase heroin, we would expect the reduction in theft and robbery to be larger in the Sydney SD than elsewhere. This prediction is broadly supported by the data in Figures 6 to 17.

Nagoya Protocol and National Indigenous Cultural Authority

The National Congress of Australia's First Peoples - an Indigenous advocacy group - has released The Call for a National Indigenous Cultural Authority [PDF], calling for recognition of the Nagoya Protocol and establishment of a National Indigenous Cultural Authority (NICA).

The Nagoya Protocol is promoted as
 a new international standard for using Genetic Resources and associated Traditional Knowledge. It will be important for Australian and international users of Australian Genetic Resources to demonstrate compliance with Australian law, and therefore, compliance with the Nagoya Protocol. A National Indigenous Cultural Authority should be part of the implementation framework, to facilitate and assist collaborations with Aboriginal and Torres Strait Islander Peoples. 
The Congress recommends the Australian Government take the following steps to establish a NICA, implement the Nagoya Protocol and recognise Indigenous Cultural Intellectual Property rights:
The establishment of a National Indigenous Cultural Authority 
1. Prioritise the establishment of a National Indigenous Cultural Authority to cover the holistic definition of Indigenous Cultural Intellectual Property, in Australia’s National Cultural Policy and a Nagoya Protocol Implementation Plan; 
2. Appoint an Aboriginal and Torres Strait Islander Steering Committee to oversee the National Indigenous Cultural Authority project, working in partnership with a Government Inter‐Departmental Committee for Indigenous Cultural Intellectual Property and the Indigenous Advisory Committee under the Environmental Protection and Biodiversity Conservation Act and the Aboriginal and Torres Strait Islander Arts Board’s National Indigenous Reference Group; and
3. Fund development of a National Indigenous Cultural Authority through research, a business case, a public awareness campaign and national consultations. 
The implementation of the Nagoya Protocol 
4. Develop a timeframe for ratification of the Nagoya Protocol and an Implementation Plan to ensure all Australian laws, policies and practices are consistent with the Nagoya Protocol; 
5. Amend the Nationally consistent approach for access to and the utilisation of Australia’s native genetic and biochemical resources Principles 7 and 11 to be consistent with the Nagoya Protocol and the principle of free, prior and informed consent; 
6. Create a new offence under the Environmental Protection and Biodiversity Conservation Act to give effect to Article 15 and 16 of the Nagoya Protocol; and 
7. Propose that the following responsibilities under the Nagoya Protocol are included in the mandate of a National Indigenous Cultural Authority:
a. Act as National Focal Point under Article 13 of the Nagoya Protocol for Article 8(j) of the Convention on Biological Diversity to ensure Aboriginal and Torres Strait Islander interests in Indigenous Cultural Intellectual Property are represented to Access Parties, Competent National Authorities, National Checkpoints and the Convention on Biological Diversity secretariat; 
b. Act as National Checkpoint under Article 17 of the Nagoya Protocol to track and register Indigenous Cultural Intellectual Property interests and promote best practice protocols, working in collaboration with other National Checkpoints that have industry‐specific expertise and/or authority to penalise non‐compliance; 
c. Contribute to the Clearing House Mechanism under Article 14 of the Nagoya Protocol by promulgating Australian practices and processes for working with Indigenous Cultural Intellectual Property to prospective international users and facilitating relationships between international users and ICIP holders; 
d. Set national standards relating to the use of Genetic Resources and associated Traditional Knowledge for rights‐holders and stakeholders; 
e. Assist with enforcement, access to legal advice and dispute resolution processes under any offence provisions created in the Environmental Protection and Biodiversity Conservation Act; 
f. Develop a labelling system for authorised uses of Indigenous Cultural Intellectual Property and issue certificates of compliance; and 
g. Promote the observance of Aboriginal and Torres Strait Islander customary laws and community protocols regarding the use of Indigenous Cultural Intellectual Property under Article 12.1. 
The Recognition and Protection of Indigenous Cultural Intellectual Property 
8. Work with a National Indigenous Cultural Authority (NICA) and Congress to develop a National Plan for the Legislative Recognition of Indigenous Cultural Intellectual Property (ICIP) rights that includes extensive national consultations on the form and content of ICIP rights and the role of a NICA in the promotion and protection of ICIP rights.

Copyright and Computer Generated Works

'Curing the Authorless Void: Protecting Computer-Generated Works Following IceTV and Phone Directories' by Jani McCutcheon in (2013) 37 Melbourne University Law Review 46 [PDF]
builds on the author’s recent article ‘The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law’. That article explained how recent Australian case law has seriously undermined copyright protection for works which are substantially shaped by software such that they lack a human author. The article argued that such works, if otherwise original, should not be denied copyright protection solely because they are computer-generated. 
This article thoroughly examines and evaluates three possible reform options: (1) deeming authorship of computer-generated works; (2) classifying computer-generated materials as subject matter other than works; and (3) sui generis protection. This article will also explore the sometimes difficult issues these options generate.
McCutcheon concludes -
Part 1 addressed the arguments for protecting CGM which, but for the lack of human authorship, would have been protected as a copyright work under the Act. Being ‘otherwise original works’, these creations meet all copyright subsistence criteria other than authorship. Originality does not necessarily eliminate the potentially adverse effects of copyright protection, however, it tends to minimise them. To the extent that copyright protection for otherwise original CGM may have adverse effects, this applies to all works. Protection of such ‘nearly copyright’ works is best achieved under Option 1, since it cures the central defect — it supplies an author where one is missing. While there may be issues of interpretation of the reform provisions, there are no major obstacles to this reform option. Further, other jurisdictions have effectuated this reform model with no apparent adverse outcomes. The growing jurisprudence on the interpretation of substantially identical provisions in neighbouring common law jurisdictions can be usefully monitored. There is also useful judicial interpretation of similar statutory wording in the context of film and sound recording authorship. 
Part 1 did not engage comprehensively with the policy and other issues that surround protection for unoriginal CGM. Options 2 and 3 extend protection beyond the ‘otherwise original material’ examined in Part 1, to unoriginal material which may, or may not, merit protection. As such, they raise a plethora of issues which require further, and more careful, deliberation. However, that should not prevent early protection of the otherwise original authorless works examined in Part 1. Indeed, there are compelling arguments for separately protecting merely authorless works in Part III of the Act, and authorless and unoriginal works through some other mechanism — just as original and unoriginal material is currently divided between Parts III and IV of the Act.

21 August 2013

FTC and US Privacy Regulation

The US Federal Trade Commission (FTC) provides a benchmark for action by Australia's privacy commissioners and the Australian Competition & Consumer Commission (ACCC). It also provides a lens for understanding the US privacy regime.

'The FTC and the New Common Law of Privacy' by Daniel J. Solove and Woodrow Hartzog is an innovative and important article that  comments -
One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite more than fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States – more so than nearly any privacy statute and any common law tort.
In this article, we contend that the FTC’s privacy jurisprudence is the functional equivalent to a body of common law, and we examine it as such. We explore how and why the FTC, and not contract law, came to dominate the enforcement of privacy policies. A common view of the FTC’s privacy jurisprudence is that it is thin, merely focusing on enforcing privacy promises. In contrast, a deeper look at the principles that emerge from FTC privacy “common law” demonstrates that the FTC’s privacy jurisprudence is quite thick. The FTC has codified certain norms and best practices and has developed some baseline privacy protections. Standards have become so specific they resemble rules. We contend that the foundations exist to develop this “common law” into a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, that extends far beyond privacy policies, and that involves a full suite of substantive rules that exist independently from a company’s privacy representations. ...
The landscape of United States privacy law has been gap-riddled and often confounding. Self-regulation has reigned supreme over many industries. And yet, the FTC has risen to act as a kind of data protection authority in the United States. Despite having limited jurisdiction and limited resources, the FTC has created a body of common law doctrines through complaints, consent decrees, and various reports and other materials. The FTC’s jurisprudence has developed in some classic common law patterns, evolving from general to more specific standards, gradually incorporating more qualitative judgments, imposing certain default standards, and broadening liability by recognizing contributory liability.
In the future, the FTC can be even bolder. The FTC has built a foundation from which it can push more toward focusing on consumer expectations than on broken promises, move beyond the four corners of privacy policies into design elements and other facets of a company’s relationship with consumers, and develop and establish even more substantive standards.
Through a gradual process akin to the common law, the FTC has developed a federal body of privacy law, the closest thing the United States has to omnibus privacy regulation. Unlike the top-down approach of the European Union and many countries around the world, the FTC’s approach has been bottom-up – a series of small steps. Because of these modest movements, and the fact that the FTC’s privacy doctrines haven’t been developed in judicial decisions, they have been largely ignored by the legal academy and are also often underappreciated in the United States and abroad.
Taking stock of what the FTC has been doing, the doctrines it is developing, and the potential future directions it can take, reveals that the FTC at least deserves greater study and appreciation. The FTC is far more than a rubber stamp on self-regulation, and far more than a mere enforcer against broken promises. This article is hopefully the start of a more sustained examination of the FTC and the body of law it has developed and the future directions that law can take.
The authors note that
Because so many companies fall outside of specific sectoral privacy laws, the FTC is in many cases the primary source of regulation. FTC regulation is thus the largest and arguably the most important component of the U.S. privacy regulatory system. Despite this fact, there is surprisingly little scholarship about the FTC’s privacy regulation. The dearth of scholarship about the FTC stands in stark contrast to the enormous amount of scholarship about information privacy law. Why is the scholarship so disproportionate to the influence and importance of the FTC?
The most likely reason is that the FTC actions have nearly all ended in settlements rather than case law. This, too, is a curiosity in privacy law. Perhaps the single most important and widely-applying body of precedent that regulates privacy in the U.S. is not in the form of any traditional kind of privacy law, such as cases or statutes.
Another curiosity is privacy exceptionalism -- privacy policies began as stand-alone documents and are only just recently beginning to be incorporated into a website’s terms of use. Why is privacy separate from the rest of the terms? This curiosity becomes even more odd when coupled with an additional curiosity – the fact that contract law has barely played a role in governing civil disputes regarding privacy policy violations. Although privacy policies look like contracts, there are hardly even a handful of cases attempting to enforce privacy policies as contracts. In contrast, terms of use are clearly the province of contract law. Of course, both the FTC and contract law can regulate simultaneously, but why has privacy become so exclusively the province of the FTC? Moreover, the doctrines developed by the FTC sometimes are parallel with contract law but are not always. This body of doctrines is thus somewhat unique, a body of “law” unto itself. It is a new species that has yet to be classified in the legal taxonomy.
The result of all these oddities is that such a large domain of the U.S. privacy regulatory framework primarily consists of a relatively obscure body of doctrines that scholars have not analyzed in depth. Thus, it is often hard to characterize precisely what this large domain of regulation is, what precisely it says when viewed altogether, and where it is heading.


'Australia's Plain Packaging of Tobacco Products: Science and Health Measures in International Economic Law' by Andrew Higgins, Andrew D. Mitchell and James Munro in Science and Technology in International Economic Law: Balancing Competing Interests (Routledge, 2013) edited by Bryan Mercurio and Kuei-Jung Ni comments that
Australia’s introduction of plain packaging of cigarettes, which is a world first, has prompted international legal challenges under both the World Trade Organization (WTO) and the bilateral investment treaty between Australia and Hong Kong. These international legal challenges raise questions as to how scientific evidence used to justify public health measures is, or should be, treated in international economic law. For instance, what is the significance of uncertainty or gaps in scientific knowledge? How should a tribunal or panel treat divergent scientific opinions? What quantity and quality of scientific evidence is required to establish a causal connection between a measure and its objectives under the applicable standard of proof? Certain features of Australia’s plain packaging laws make these questions particularly pertinent: they will be operating amongst a suite of other measures directed at the same objective; they will be implemented in a context where external social forces may seek to undermine their impact; and this is the first time they have been tried anywhere in the world. These factors make it difficult to measure their effectiveness in the real world with precision. However, despite these difficulties, we find that both, investor-State tribunals and WTO panels and the Appellate Body have demonstrated a welcome degree of flexibility in how they approach scientific evidence. That said, a number of key areas of uncertainty remain in international economic law, and the disputes over plain packaging could play an important role in bringing clarity to those areas.

20 August 2013

Consent and Consumer Profiling

'Consent to Behavioural Targeting in European Law - What are the Policy Implications of Insights from Behavioural Economics?' (Amsterdam Law School Research Paper No. 2013-43) by Frederik J. Zuiderveen Borgesius comments that
Behavioural targeting is the monitoring of people’s online behaviour to target advertisements to specific individuals. European law requires companies to obtain informed consent of the internet user before they use tracking technologies for behavioural targeting. Other jurisdictions also emphasise the importance of choice for internet users. But many people click ‘I agree’ to any statement that is presented to them. This paper discusses insights from behavioural economics to analyse problems with informed consent to behavioural targeting from a regulatory perspective. What are the policy implications of insights from behavioural economics in the context of behavioural targeting? Two approaches to improve regulation are explored. The first focuses on empowering the individual, for example by making informed consent more meaningful. The second approach focuses on protecting the individual. If aiming to empower people is not the right tactic to protect privacy, maybe specific prohibitions should be introduced.
Borgesius concludes
... People’s choices regarding privacy can be analysed using economic theory. Consent to behavioural targeting could be seen as a trade-off: people often consent to a company processing their personal data in exchange for the use of a “free” service. However, information asymmetries hinder meaningful decisions. Many people don’t realise that their online behaviour is tracked. If somebody doesn’t realise releasing personal data in exchange for the use of a “free” service, that “choice” can’t be informed. But even if companies asked people consent for behavioural targeting, information asymmetry problems would remain. First, people often don’t know what a company will do with their personal data. Second, if people knew, it would be hard to predict the consequences of future data usage. Third, people don’t know the value of their personal data, so they don’t know how much they “pay”. In sum, making meaningful decisions about behavioural targeting is hard for people because of a lack of information. Because of transaction costs, like the time it would take to inform oneself, the information asymmetry problem is hard to solve. Reading privacy policies would cost too much time, as they tend to be difficult to read and long. Some suggestions were made to mitigate the information asymmetry problems. 
First, there’s a need for education about behavioural targeting and online privacy in general. People can’t really choose if they don’t understand the question. Second, data protection law must be applied more vigorously. Companies that seek consent must do so in clear and straightforward language. Third, research is needed into better ways of presenting information to people. But even if all these measures were taken, considerable information asymmetries would probably remain. If people are asked to consent to data collection hundreds of times per day, even simple requests are overwhelming. 
Moreover, insights from behavioural economics suggest that even fully informed people face problems making privacy choices in their own best interests. Many biases influence our decisions. For instance, people are myopic and tend to discount disadvantages in the future. If people can only use a service if they “consent” to behavioural targeting, they might ignore the costs of possible future privacy infringements, and choose for immediate gratification. Furthermore, people tend to stick with the default. Many other biases influence privacy decisions. 
 Data protection law has answers to only some of these problems. If consent would be implemented as requiring affirmative action of the data subject (an opt-in system), the status quo bias would nudge people towards privacy friendly choices. But myopia suggests that if the use of a service is made dependent on consenting to behavioural targeting, many people might consent, contrary to their own stated interests. The framing effect suggests that people can be pushed towards decisions that they might later regret. In sum, insights from behavioural economics cast doubt on the effectiveness of informed consent as a privacy protection measure. Many people click ‘I agree’ to any statement that is presented to them. 
So what should the law do? A rather blunt reaction to myopia could be: prohibit companies from making the use of a service dependent on consenting to tracking. But sector-specific rules that prohibit certain behavioural targeting practices are also possible. However, prohibitions to protect people against themselves reek of unwarranted paternalism. On the other hand, it could be argued that some prohibitions would protect society as a whole. Some examples of possible prohibitions were mentioned. For instance, the tracking of children for behavioural targeting could be prohibited. Or it could be prohibited for online news services to engage in behavioural targeting. The examples show that it wouldn’t be easy to agree on prohibitions. 
Lastly, there might be a middle ground. Instead of introducing prohibitions, the lawmaker could use insights from behavioural economics. The law could set defaults, and make them stickier by adding transaction costs. For instance, the law could set formal requirements for consent, like a minimum of five mouse clicks, or a letter by registered mail. Such measures would leave freedom of choice intact, at least formally, but the status quo bias in combination with transaction costs would steer people towards privacy. When new rules are adopted, it can’t be ruled out that some services that rely on income from behavioural targeting couldn’t be offered for “free” anymore. This should be taken into account. 
In sum, the lawmaker has a range of options. There will probably always be a large category of cases where relying on informed consent, in combination with data protection law’s other safeguards, is the appropriate approach. For those cases, transparency and consent should be taken seriously. More effective ways of presenting information are needed. But this isn’t enough. Merely relying on data protection law to protect people’s privacy in the context of behavioural targeting doesn’t seem sufficient. If we decide, after debate, that it’s better for our society if certain practices don’t happen, prohibitions may be the best answer.


 'Deporting the Citizens within the European Union: A Counter-Intuitive Trend' by Dimitry Kochenov and Benedikt Pirker in Columbia Journal of European Law considers 'deportability'
The paper provides a detailed analysis of EU law on the deportations of EU citizens between the Member States taking the case of P.I. as a starting point. We approach deportations from a social science perspective, focusing on the notion of 'deportability' as an essential element of what citizenship is. Deportability and non-deportability is one of the last critical legally meaningful oppositions between citizens and non-citizen residents. Analysing the regulations on the potential deportatability of citizens provides a sketch of the core of what a particular citizenship status, including EU one, is about. What the latest developments in the case law unquestionably demonstrate is that the ECJ is working towards the elimination of the non-deportability guarantees in the Citizenship Free Movement Directive, de facto erasing the status of permanent resident EU citizens as a legally meaningful construct. This is in strong opposition to the strict prohibition of requiring EU citizens to leave the Union -- the core of Ruiz Zambrano and its progeny. The claim that 'internal' deportations within the EU are potentially less harmful than the deportations requiring citizens to leave the Union is baseless, as both can be equally disruptive in the context of concrete human lives. Deploying judicial means to remove protections against internal deportations is thus a totally counter-intuitive trend.
The authors comment that
The general vector in the development of citizenship of all the liberal democratic polities around the world during the last decades is clearly decipherable. As Joppke has demonstrated, this development is marked by the thinning out of the essential elements of the legal status as well as the opening up of a number of rights of citizenship to those who do not possess the formal legal status of citizenship.The majority of the rights classically associated with this status are not limited to the citizens anymore and have been opened up to resident non-nationals and others. As a result, only a very limited amount of rights—and at times duties - remains uniquely associated with the status of citizenship as such. The rights not granted to those who do not have the formal legal status, are the essential determinants of the citizenship’s contemporary content, approached as a legal status. A simple survey of such rights would result in a list, which is not long at all. It is usually limited to political rights, rights to occupy high offices (which presumably follows the same rationale in excluding non-citizens), and the unconditional right to enter and stay in the territory of the polity, which granted the status of citizenship its legal substance in the first place. Consequently, political rights coupled with the right to enter and stay are the key determinants of what the legal aspect of citizenship of a modern democratic polity is about. 
Having outlined the two, it is possible to establish a hierarchy between them from the point of view of an ordinary citizen. Political participation is limited by age and interest and has been falling gradually in all the democracies. In fact, democracy functions on the essential assumption that citizens are not actively involved, even if the contrary is the essence of its ideological component.Residence security, on the contrary, concerns all the citizens of all ages interested in residing in the territory of the polity whose citizenship they possess, which is usually the majority of citizens, should we speak about moderately successful polities and exclude the extreme cases. Approaching exclusive citizenship rights in such a way, it becomes clear that residence security is at the core of what the essential legal essence of the citizenship status is now about. It is the most important of the “few remaining privileges which separate citizens from settled non-citizens in contemporary liberal states.” 
... To put it differently, a sound argument can be made in favour of placing deportability and non-deportability among the essential paradigms guiding the contemporary understanding of citizenship as a legal status. Citizenship developed through the last century alongside the growing toleration of deportation of aliens, which, though initially viewed as an exceptional measure applied usually in times of war, managed to enter the mainstream of contemporary migration regulation. Start deporting citizens and citizenship largely evaporates as a meaningful legal category, which is why the absolute majority of states take the ban on the deportations of citizens very seriously: it is being non-deportable and not pushed to leave the territory of the state that makes you a citizen in this view,reaffirming citizenship’s normative qualities. 
Given that at the essence of citizenship is the borderline between those who “belong” and those who do not, deportability plays an essential role, providing a readily available marker of “otherness.” In order to function and be effective in this context, deportability should not necessarily be rigorously acted upon—far from that: “deportation is, from the state’s point of view, both ineffectual and essential.” Its presence as a mere possibility is already enough in order to shape the boundaries of belonging in contemporary societies, as well as intrude into human lives akin to the sword of Damocles. Numerous difficulties that necessarily arise in the context of acting on deportability have been outlined in the literature: Deporting people is surrounded by fundamental conflicts inherent in the very nature of liberal democratic states respecting human rights obligations. Either acted upon, or not, the symbolic importance of the prospect of deportation, its mere possibility, play an essential role in outlining with clarity the scope of those who are citizens of a polity, as opposed to merely residents. Deportation is thus “constitutive of citizenship” — i.e., construction of a citizen and the construction of a deportable subject go hand in hand and are indeed two parts of the same coin.

19 August 2013

ANPR and theatrics

The federal Coalition's Crime policy statement calls for rollout of Austomated Number Plate Recognition (ANPR) at major air and shipping hubs, presumably followed by extension to other locations.
It is important that police and criminal intelligence agencies are told when vehicles associated with suspected or known criminals and gangs approach our ports or airports. 
This knowledge can help them monitor suspicious activity or deploy additional resources if necessary. 
Automatic numberplate recognition systems (ANPR) are one such way to effectively monitor vehicle approaches to airports and ports. If elected, the Coalition will commission an urgent scoping study for the roll out of ANPR to be operated by CrimTrac, for the approaches to airsides and waterfronts. This will enable law enforcement and criminal intelligence agencies to identify people and organisations whose attendance at these locations may be unauthorised or suspicious.
Given that there's nothing like function creep we will no doubt see the cameras used for other purposes.

CrimTrac is probably dusting off its expensive ANPR consultancy report already. A perspective is provided by 'ANPR: Code and Rhetorics of Compliance' by Christopher Parsons, Joseph Savirimuthu, Rob Wipond and Kevin McArthur in (2012) 3(3) European Journal of Law and Technology.

The authors comment that
 ANPR systems are gradually entering service in Canada's western province of British Columbia and are prolifically deployed in the UK. In this paper, we compare and analyze some of the politics and practices underscoring the technology in these jurisdictions. Drawing from existing and emerging research we identify key actors and examine how authorities marginalize access to information about the systems' operation. Such marginalization is accompanied by the rhetoric of privacy and security that are used to justify novel mass surveillance practices. Authorities justify the public's lack of access to information about ANPR practices and technical characteristics as a key to securing environments and making citizens 'safe'. After analyzing incongruences between authorities' conceptions of privacy and security, we articulate a means of resisting intrusive surveillance practices by reshaping agendas surrounding ANPR.
In 'war on organised crime' mode the Coalition indicates that
2. Fighting Organised Crime 
Organised crime and outlaw bikie gangs are a massive cost to our community in many different ways. 
Tackling organised crime requires significant commitment due to the sophisticated and extensive nature of these criminals’ operations. 
a. Local anti-gang squads 
The Coalition will establish Local Anti-Gang Squads to fight organised crime at the local level with the support and backing of national tools, resources and intelligence. 
Labor’s recent announcement of an anti-gangs taskforce is an inefficient way to deal with the national problem of organised crime. While organised crime does not recognise State and Territory borders, it manifests itself in different ways across Australia and involves a multiplicity of groups with diverse criminal interests. 
We will redirect $64 million to the Coalition’s Local Anti-Gang Squads initiative that will build a series of smaller, better targeted and regionally based anti-gang taskforces. They will work in partnership and consultation with State and Territory law enforcement agencies, while reporting to the Commonwealth’s central criminal intelligence and law enforcement agencies. 
Australia already has national law enforcement and criminal intelligence bodies deeply invested in fighting organised crime. However, dealing with organised crime is not necessarily amenable to a ‘one size fits all’ model. 
The simple facts are that a local approach to dealing with organised crime will be more effective if it can tap into national support, resources and intelligence. 
Commonwealth resources and money should be committed in a way that best supports the entirety of Australian law enforcement and respects the priorities and work of State and Territory agencies. 
The Coalition will fund these taskforces so they have access to the full suite of federal intelligence and operational resources available from the Australian Federal Police, the Australian Crime Commission, Customs, CrimTrac, the ATO and Centrelink. They will also collect and act upon intelligence from local law enforcement. 
The taskforces will share the benefit of new unexplained wealth legislation in order to disrupt criminal organisations and seize their assets. They will set ambitious targets to seize assets and disrupt criminal organisations.
In CCTV territory the statement indicates that
The Coalition’s Plan for Safer Streets will boost the efforts of local communities to address crime and anti-social behaviour by helping them to install CCTV and better lighting, funded from a pool of $50 million to help deliver effective solutions to local crime problems. 
The money will come from proceeds of crime so that the crimes of yesterday will help to prevent tomorrow’s crimes. 
Recent studies indicate that CCTV footage can be extremely helpful in solving crime: in the United Kingdom, a study found that almost 70 per cent of murders are solved using images captured by CCTV. Another study found that in London six crimes a day are solved using CCTV and that detectives consider the technology as valuable as DNA in solving crimes. 
The Coalition will establish a voluntary national register of CCTV locations accessible through law enforcement agencies’ computer mapping services to enable them quickly to identify likely sources of evidence. Those businesses who wish to register their locations will be able to display notices that their CCTV is registered with police, which may have additional deterrent effects. 
The Coalition’s Plan for Safer Streets will help protect communities from crime.
The statement also indicates that
The Coalition will make sure that people with a relevant criminal history can never receive a security clearance to work at port and airport entry points.
Under Labor, people with a relevant criminal history are able to get a security clearance to work on ports and in airports where cargo comes into the country. On some occasions, these people have been found acting corruptly to help criminals and make smuggling operations easier. The Coalition will ensure that the criteria for issuing people with security clearance to work on Australia’s wharves are upgraded and tightened. Tough laws will apply that will make sure applicants with a relevant criminal history are never given a Maritime Security Identification Card or an Australian Security Identification Card.
The Coalition strongly believes that stopping criminals from smuggling guns and drugs at our ports and airports is a vital step toward suppressing organised and violent crime.

CoE Declaration

The Council of Europe (CoE) Committee of Ministers has released a 'Declaration' on 'Risks to Fundamental Rights stemming from Digital Tracking and other Surveillance Technologies'.

The Declaration states that
1. The propensity to interfere with the right to private life has significantly increased as a result of rapid technological development and of legal frameworks which are slow to adapt. 
2. Data processing in the information society which is carried out without the necessary safeguards and security can raise major human rights related concerns. Legislation allowing broad surveillance of citizens can be found contrary to the right to respect of private life. These capabilities and practices can have a chilling effect on citizen participation in social, cultural and political life and, in the longer term, could have damaging effects on democracy. They can also undermine the confidentiality rights associated to certain professions, such as the protection of journalists’ sources, and even threaten the safety of the persons concerned. More generally, they can endanger the exercise of freedom of expression and the right to receive and impart information protected under Article 10 of the European Convention on Human Rights
3. In this connection, it is recalled that, in accordance with Article 8 of the European Convention on Human Rights, Council of Europe member States have undertaken to secure to everyone within their jurisdiction the right to respect of private and family life, home and correspondence. Restrictions to this right can only be justified when it is necessary in a democratic society, in accordance with the law and for one of the limited purposes set out in Article 8, paragraph 2, of the Convention.
4. As a corollary to the Convention and relevant case law of the European Court of Human Rights, member States have negative obligations, that is, to refrain from interference with fundamental rights, and positive obligations, that is, to actively protect these rights. This includes the protection of individuals from action by non-state actors. 
5. People nowadays rely on a growing range of both fixed-location and mobile electronic devices which enhance their possibilities to communicate, participate and manage their everyday lives. However, a growing number of these devices are equipped with software that are capable of collecting and storing data, including personal data (e.g. keystrokes that reveal passwords) and private information such as user generated content, websites visited, and geographical locations that potentially allow tracking and surveillance of people. This data can reveal delicate and/or sensitive personal information (such as financial, health, political, religious preferences, sexual habits) which can be aggregated to provide detailed and intimate profiles of them. 
6. Tracking and surveillance technologies can be used in the pursuit of legitimate interests, for example to develop new services, improve user experience or facilitate network management, as well as law enforcement. On the other hand, they may also be used for unlawful purposes that lead to illegal access, data interception or interference, system surveillance, and misuse of devices or other forms of malpractice; for example, geo-location tracking could be used to stalk women and make them more vulnerable to gender-related abuse and violence. 
7. In all cases, the modalities for processing personal data should comply with relevant Council of Europe standards. This implies ensuring that law enforcement’s own tracking and surveillance measures respect the applicable human rights safeguards, which should provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which should incorporate the principle of proportionality. It also concerns strict respect for the limits, requirements and safeguards set out in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and in its Additional Protocol as well as regard for other instruments such as Recommendation CM/Rec(2010)13 on the protection of personal data in the context of profiling. 
The Committee of Ministers accordingly [at 8] -
  • alerts member States to the risks of digital tracking and other surveillance technologies for human rights, democracy and the rule of law and recalls the need to guarantee their legitimate use which benefits individuals, the economy, society at large, and the needs of law enforcement;
  • encourages member States to bear these risks in mind in their bilateral discussions with third countries, and, where necessary, consider the introduction of suitable export controls to prevent the misuse of technology to undermine those standards;
  • welcomes steps taken by data protection authorities in some member States to raise awareness of the implications of tracking and surveillance technologies and to investigate these practices to ensure compliance with the provisions of Convention No. 108 and their national legislations;
  • draws attention to the criminal law implications of unlawful surveillance and tracking activities in cyberspace and the relevance of the Budapest Convention in combating cybercrime;
  • welcomes measures taken by both State and non-State actors to raise awareness among users, and, a fortiori, within the private sector and among technology developers about the potential impact of the use of such technologies on human rights and the steps which can be taken at the design stage to minimise the risks of interferences with these rights and freedoms (e.g. “privacy by design” and “privacy by default”);
  • recalls the Council of Europe Internet Governance Strategy 2012-2015 which includes a number of action lines relevant to the challenges identified in this Declaration and looks forward to the concrete results of the work of the competent Council of Europe bodies.

18 August 2013

Affinity and US Citizenship Barriers

'LGBT Identity in Immigration' by Bijal Shah in (2013) 45 Columbia Human Rights Law Review comments that
The partial invalidation of the Defense of Marriage Act (DOMA) and national focus on comprehensive immigration reform has brought lesbian, gay, bisexual, and transgender (LGBT) immigrants to the forefront. This Article is the first to substantiate the historical impact of LGBT identity on access to United States citizenship and to undertake a close examination of its contours and consequences. 
This Article focuses on the interplay of LGBT identity and the two major paths to immigration in the U.S.: asylum and partner-based benefits. Patterns in LGBT access to citizenship have generally been at odds with cornerstone U.S. immigration and domestic civil rights trends. LGBT identity has long benefited those individuals seeking U.S. citizenship via the asylum process, despite a concurrent lack of similar identity-based rights and protections for LGBT people within the U.S. However, LGBT identity has also obstructed individuals seeking even temporary residence on the basis of same-sex relationships with Americans, even though partner-based benefits are a cornerstone of immigration law. This dynamic has been based on two factors. The first factor is the legal reduction of asylees’ LGBT identities to a tolerable, one-dimensional “status,” fully separated from problematic or “deviant” LGBT conduct. The second is the continued national censure of this LGBT conduct, which includes the establishment of romantic partnerships, growth of extended families and development of visible LGBT communities. To substantiate this claim, this Article traces the concepts of status and conduct throughout the Supreme Court’s major LGBT rights decisions, including the recent ruling in United States v. Windsor, and applies this study to the immigration context. 
Further, the uneven LGBT access to citizenship resulting from these factors has generally contradicted the U.S. government’s international human rights discourse. This contradiction, in turn, has illustrated a complex form of American exceptionalism resulting from the executive branch’s consistent refusal to employ the significant discretion it enjoys in the immigration context to improve LGBT access to immigration benefits. Although Section 3 of DOMA has been overturned, these dynamics will continue, in part because of the great role that states’ rights play in partner-based immigration determinations. Within the context of this analysis, I present a backward-looking critique outlining immigration law and policy strategies that would have mitigated the longstanding conflict between the U.S.’s expression of pro-LGBT human rights principles and implementation of anti-LGBT immigration policy, regardless of DOMA. Then, I look to the post-Section 3 future and articulate the path required to reach equal LGBT access to partner-based immigration benefits.