17 May 2014

Open Access

In The Queen v Miroslav Jovanovic [2014] ACTSC 98 Refshauge J has provided a nuanced and elegant judgment regarding public access, through the media, to exhibits in a criminal trial.

In February 2014 an ACT jury found Miroslav Jovanovic guilty against of intentionally inflicting grievous bodily harm on Peter Manna at the Belconnen Bus Interchange. The trial featured two extracts of video from CCTV cameras at the Interchange.  Journalists from the Australian Broadcasting Corporation and The Canberra Times sought access to the exhibits to supplementing news stories about the conviction.

Media coverage in the previous year had included the report that
A man accused of a random, near-fatal stabbing at the Belconnen bus interchange earlier this month ignored his girlfriend's pleas of "don't stab him" before launching into the frenzied attack, according to police. 
Miroslav Jovanovic appeared in court on his 55th birthday on Friday over allegations he repeatedly stabbed a man waiting for a bus at the interchange on Lathlain Street on Sunday April 7. 
The alleged stabbing left the 38-year-old victim with six or seven open wounds, a punctured lung, and severed arteries between his ribs, according to court documents. He lost four litres of blood, and police say he would have died without emergency treatment. 
The attack appears to have no clear motive, and CCTV footage does not show the victim attempting to defend himself or fight back at any time, according to police. Police say the victim was standing at a platform about 4.50pm, when Jovanovic ran up behind him and punched him in the back of the head.
The attack apparently became more unpleasant after that punch … grand guignol, Canberra-style, in time for the public sector rush hour.

The requests by the journalists were opposed by Jovanovic's representative at the end of the trial. Refshauge J refused to permit access prior to sentencing. He received a formal request and the ABC provided a written submission.

The Court has now published reasons for granting access.

Refshauge J states that
An important issue for courts is that they are open to the public. The courts do their business in the open. The open justice principle is applied in many cases and in many different situations; the leading authority on the scope of the principle is Scott v Scott [1913] AC 417. It has been invoked to limit or preclude attempts to prevent members of the public from attending the proceedings of courts as in Dickason v Dickason (1913) 17 CLR 50. See also Russell v Russell (1976) 134 CLR 495 at 505.
This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at 200). ...
As Gibbs CJ said in Russell v Russell at 520
This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at 200). ...
It has to be said that ancillary to this is the role of the media. Indeed, as Spigelman CJ, with whom Handley JA and Campbell AJA agreed, said in John Fairfax Publications Pty Ltd v District Court (NSW) (Unreported, NSWCA, Spigelman CJ, Handley JA, M W Campbell A-JA, 15 September 2004) at [20]
The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.
Naturally not everyone can attend court proceedings and a fair and accurate report of court proceedings is an important part of the way in which the principle of open justice can be implemented. 
Indeed, the Full Court of the Federal Court of Australia suggested in R v Davis (1995) 57 FCR 512 at 514 that, as few members of the public have the time, or even the inclination, to attend courts in person, the open court principle, in a practical sense, demands that the media be free to report the proceedings of the court. 
Lord Widgery CJ said in R v Denbigh Justices; Ex parte Williams [1974] QB 759 at 765
Today, as everybody knows, the great body of the British public get their news of how justice is administered through the press or other mass media, and the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in open court. I find it difficult to imagine a case which can be said to be held publicly if the press have been actively excluded.
This importance is recognised in the fact that, despite risks of unfair inferences being drawn that a defendant is guilty, or of influencing potential jurors, a fair and accurate report of committal proceedings is permitted. See Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 25.
The open justice principle has limitations, however, and one of those limitations relates to court files and, therefore, exhibits. 
Open justice and access to exhibits 
Lord Coke was cited in Brown v Cumming (1829) 10 B&C 70; 109 ER 377 as authority for the view that the open justice principle allowed every person to have access to the records of courts. The Court there did not have to decide the issue, though a number of cases were cited to it which were at variance with that view. 
The view of Lord Coke has not prevailed. In R v Waterfield [1975] 1 WLR 711 the UK Court of Appeal held that members of the public have no right to look at exhibits. Thus, Lawton LJ said in the judgment of the Court (at 714)
When evidence is given orally, all in court hear what is said. When written evidence is produced it may or may not be read out. In most cases part of what is written is read out, but not the whole. When a piece of real evidence is produced a witness has to say from where it came. This having been done, the jury looks at the exhibit. Usually the judge does too and counsel in the case may do so. The exhibit, however, is not shown to other persons who may be in court. They may be able to see what the article is: it may be a pistol or a knife. Sometimes they cannot; and if what is produced is a folder containing photographs (a common form of exhibit) they will not know what the photographs show unless either the judge, counsel or a witness describes them ... The members of the public in court have no right to claim to be allowed to look at the exhibits. A film put in evidence has to be looked at by a jury and a screen and a projector are necessary to enable them to do so. Members of the public in court have no more right to see a film than they have to see any other exhibit; and the circumstances may be such that it would be impracticable, even impossible, to show the film in the courtroom itself.
Later, in GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984 at 995, Potter LJ, with whom Butler-Sloss LJ and Sir Patrick Russell agreed, held that, other than as read out in court, there was no way that the contents of documents tendered in court were available to members of the public and that the court had no right to provide such documents to the public without the consent of the parties. 
In the United Kingdom, the increasing use of documents which were pre-read by judges or not read out so as to enhance expedition and efficiency has caused the courts to rethink this access issue. Thus, in SmithKline Beecham Biologicals Special Advocate v Connaught Laboratories Inc [1999] 4 All ER 498 at 511-2, Lord Bingham CJ said
Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and of judges pre-reading documents (including witness statements) out of court, have become much more common. These means of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided. …
Nevertheless, the tension between efficient justice and open justice is bound to give rise to problems which go wider than Order 24, rule 14A. Some of those problems were explored in the judgement of Potter LJ in Gio Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd Intervening) [1999] 1 WLR 984. As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.
In Australia, the approach that the public has no right to see exhibits and like documents seems to have been accepted. Thus, in Herald and Weekly Times Ltd v The Magistrates Court of Victoria (2000) 2 VR 346 the Court of Appeal had to consider access to witness statements and the charge sheet handed up to the court as a “hand up brief” in committal proceedings in the light of s 125(1) of the Magistrates Court Act 1989 (Vic) which provides that all proceedings in the Magistrates Court are to be conducted in open court unless the Act provides otherwise. Charles JA, with whom Tadgell and Chernov JJA agreed, held at 361; [40]
There remains the question whether the Magistrates’ Court, by denying access to the documents sought by the appellants, was acting in breach of s 125(1) of the Act. The learned judge gave comprehensive and compelling reasons for his conclusions that s 125(1) does not extend to obliging the court to provide, upon request, reasonable access to copies of the charges sheet and witness statements. His Honour considered that a proceeding is properly conducted in open court if the public has a right of admission to that court which is reasonably and conveniently exercisable and did not think that an open court becomes ‘closed’ if a request by a member of the public or the press for such access were refused in a committal proceeding. For my own part, I agree with each of his Honour’s conclusions in this regard, and with the reasons given. In my view s 125(1) gives the appellants no right to such access in a committal.
That exhibits are not normally available for inspection was subsequently confirmed by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (deceased)) (No 2) (2003) 8 VR 571 at 587; [36] and more recently by Preston CJ in Caroona Coal Action Group Ltd v Coal Mines Australia Ltd (No 4) [2010] NSWLEC 91 at [44]. 
That approach, however, has come under pressure and scrutiny. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) FCA 609 at [4], Finkelstein J pointed out that [i]f it be that the common law does not permit access to written evidence or exhibits (that is to say to the material upon which the judge has relied to decide a case) then the rule of open justice will not effectively secure its objectives. 
His Honour pointed out that such a rule, if such it be, developed when a very different court manner was extant and that things were now very different. His Honour continued at [7]
The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position.
There are a number of cases that have since taken that general approach. See, for example, R v Elomar (No 3) [2008] NSWSC 1443, R v Benbrika (No 26) [2008] VSC 452.
Refshauge J went on to consider any human rights issues, commenting
While the interpretative provision in s 30 of the Human Rights Act 2004 (ACT) only applies to statute law, it seems to me that I can have regard to the human rights in that Act as a measure of the approach to be taken to relevant issues. 
Thus, s 16(1) does include a right to receive information. This right, which is equivalent to that included in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has been described by Sedley LJ in London Regional Transport v Mayor of London [2001] EWCA (Civ) 1491 at [55] as an important right which is the “lifeblood of democracy”. This has arguably been seen by the European Court of Human Rights as giving the press an enhanced right as “social watchdogs” or “public watch dogs” as the press was described in Tarsasag A Szabadsagjogokert v Hungary (Application No 37374/05, ECHR, Judgment 14 July 2009). 
 In the United Kingdom, it has been held that the press enjoy the rights under Article 10. See In re Guardian News and Media Ltd [2010] 2 WLR 325 at 337; [34] per Lord Rodger of Earlsferry. As was there said, however, this is a right which can be restricted, so that the courts, apparently legitimately, interfere with it when, for example, they make an anonymity order. 
 Nevertheless, in In re Guardian News and Media Ltd at 337; [34], Lord Rodger held that Article 10 did not require information not otherwise available to be provided to the press, hence the court declined to set aside the anonymity orders made by the Court of Appeal. 
In R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates Court [2011] 1 Cr App R 447, the Court of Appeal declined to overrule an order of the lower court refusing the press access to certain documents relied on by parties in certain extradition proceedings in the Magistrates Court, even though the documents had been referred to in open court. 
 The Court held that, despite the enhanced role of the press, greater than members of the public, it did not have a right to access the relevant documents which would require an extension of Article 10 rights. 
 It seems to me that the current application is not, on the present state of human rights law, assisted by the jurisprudence on s 16 of the Human Rights Act. 
 Statutory provisions, however, have now intervened and a number of courts have made rules which permit inspection, sometimes by leave of the court. Some courts have proceeded by practice direction. 
In this Court, files of the court are open for inspection. For criminal proceedings, r 4053 of the Court Procedures Rules 2006 (ACT) permits anyone to inspect files and see documents filed in the Registry, with some specified exceptions where leave is required. That the default position is that persons may inspect the files is consistent with the open court principle. 
An exhibit, however, does not seem to me to be a document ordinarily filed in the Registry; it is usually handed up in court. Even when exhibited to an affidavit, it is not usually filed with it, but handed up in court when the affidavit is read. See Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338 at 340-3; [10]-[23]. The common law then applies, it seems to me, to exhibits. ...
 In any event, it seems to me that I should approach the application on the basis that the public has a prima facie right to have access to exhibits that are tendered in open court, unless there has been some express direction of the court that they not be inspected. This is the approach adopted elsewhere in other courts. See, for example, R v Xu (No 1) (2005) 152 A Crim R 17 at 21; [23]. 
I have also been assisted in this task by certain Western Australian authority. In Nicholson v Morgan [2012] WASC 65 at [32], Corboy J analysed the relevant authorities and concluded as follows:
(a) an application for leave to access relevant documents is to be determined according to the interests of justice, which includes that justice be administered in the open so that ordinarily access will be granted to non-parties to material read in court or tendered in evidence; 
(b) the principle of open justice applies where access is sought to material that was not tendered in evidence or read or shown in court but which was placed before the judge for the purpose of the proceedings; 
(c) the interests of justice involve different considerations where access is sought to documents that have not been referred to, or used for the purpose of, proceedings in open court, so that the principles of open justice are not generally engaged when documents are filed in the registry but rather when they are used in or for the court; 
(d) it is not necessary to decide whether there is a presumption against granting access to documents which may only be inspected with leave, especially documents such as unread affidavits which may never be used or read and should ordinarily not be made public until then for the reasons set out in Dobson v Hastings [1992] Ch 394 at 401-2; and 
(e) caution must be exercised in granting access to documents on the court file which have not been used in open court. 
The occasions where access is not granted should, it has been suggested in cases such as R v LMW [1999] NSWSC 1111 and David Syme & Co Ltd v General Motors-Holden Ltd [1984] NSWLR 294 at 310 per Samuels JA, be wholly exceptional. I respectfully agree.   
The present application is, of course, not merely for access to the exhibits, but leave to copy them so that the video or excerpts, including single images, can be published. 
There is, it seems to me, a qualitative difference between a report in words and the publication of pictures or video, particularly where the images may be graphic. There are obvious images which should ordinarily be subject to exclusion, such as gruesome or sexual images or images of children. Care needs also to be taken to respect privacy, which may raise issues about images which include people who are no more than witnesses or are unconnected with the proceedings completely. 
For example, there are, in the video seen here, a number of people who are merely potential bus passengers waiting for their expected bus but who, because of the fact the incident happened to occur in front of them, were captured by the video. Of course, not many were or, perhaps, could be identified, not in some cases even by themselves as the CCTV video did not show a particularly clear picture and, in any event, it is not clear to me that a mere bystander could or would be shown in a detrimental light. 
Further, it does not seem to me that I should be too speculative. I could construct a scenario where it is possible that someone may be identified as being at the Interchange even though it turns out that they had told another person (perhaps a partner) that they were somewhere else at the time and that this could be harmful to them if the images are displayed. It seems to me that, in general terms, this goes too far. 
The question, then, is whether, in the circumstances of this particular trial and the particular exhibit sought, it is proper to characterise the circumstances as wholly exceptional so as to require me to decline to permit access. 
While access to inspect an exhibit in the absence of a suppression or non-publication order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is, therefore, to be generally permitted unless there are exceptional circumstances, the media will not be given permission to copy or uplift an exhibit as a matter of course and, it seems to me, this still remains a matter over which the court must exercise control. Nevertheless, in appropriate, perhaps many, cases, probably with an emphasis on open justice, such leave would be granted. 
I note that R v RIK [2004] NSWSC 75, Kirby J released video footage that was poignant and graphic where a person, harassed by a juvenile at a railway station, stood up and walked away and jumped on the railway tracks to make his way to the opposite platform but a train coming in the opposite direction collided with him before he reached safety. 
His Honour held that there were issues of public safety and deterrence. It was more powerful than any description of the same events. 
On the other hand, in R v Benbrika (No 26), Bongiorno J refused to release video footage which would identify an agent of the Australian Security Intelligence Organisation which would be contrary to s 92 of the Australian Security Intelligence Organisation Act 1979 (Cth). 
There is, also, an obvious difference between the release of such exhibits during a trial, when a jury is still empanelled, and after the trial. Some of the issues are discussed in R v Sam (No 5) [2009] NSWSC 543 at [19]-[22], [26], [28]-[29]. 
It is particularly relevant that the video material was played in open court where any member of the public could have seen it had they been in court. Spigelman CJ, with whom Mason P and Beazley JA agreed, considered in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 521; [32] that use of material in open court would often be determinative of the question whether the media should be given access to the material used, though that case concerned documents used in the court to which access was sought, rather than images which were to be copied from the exhibit. 
So far as the leave to have such access as will permit publication of the CCTV footage is concerned, I have been assisted by, again, the general approach of the courts that access should generally be granted. See, for example, Brown v Health Services Union (No 4) [2012] FCA 1376 at [44]-[46].
 He notes at [53]
I am also prepared to accept, as have other judges, that I should proceed on the assumption that the media will produce a fair and accurate report using the material. See, for example, R v Elomar (No 3) at [44], R v LMW at [18]. In Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643 at 652; [39]-[40], Austin J considered that it was inappropriate to assume that the media “cannot be trusted to report, or even understand, the refined distinctions upon which it is said that the law is required to operate”. This approach was adopted by Barrett J in Jagelman v Sheahan (in liq of Mooge Ltd (in liq) (2002) 41 ACSR 487 at 489; [12]. 
Unfortunately, not all media representatives can be assumed to act in an appropriate manner as Johnstone DCJ discovered in A M v Department of Community Services (DOCS); ex parte Nationwide News Pty Ltd (2008) 6 DCLR(NSW) 329 at [6]-[9]. .... 
In Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192 at [27] McLure J set out a series of factors which are relevant to the exercise of a discretion such as this. They were: 
(a) whether and if so to what extent the document has been referred to in open court; 
(b) the stage reached in the proceedings; 
(c) the contents of the document (to assess the nature and seriousness of any allegations made and whether there is any information on any subject matter which has the potential to damage the private or commercial interests of a party); 
(d) the nature of the proceedings;  
(e) whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process; 
(f) the purpose for which access is required. 
This approach was followed and expanded by Kenneth Martin J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 285. 
In following that approach, I note that the video footage was played in open court. The proceedings have now reached the stage of sentencing. The footage, subject to one matter of privacy, will not have a potential to damage private or commercial interests. The proceedings are, of course, criminal proceedings in which the public have a significant interest, especially where the crime was committed in a public place. In my view, the footage was very relevant to an understanding of the case.
 Refshauge J also considered privacy aspects, commenting
The parties raised as an issue the privacy of Mr Jovanovic’s then partner. They are no longer in a relationship and, indeed, she has now entered another relationship. For this reason, it is sought that no image of her be broadcast. In my view, that is a reasonable restriction.
After a cogent discussion of matters relating to Jovanovic’s associate, awaiting trial, Refshauge concludes that he permitted
an authorised person from the Australian Broadcasting Commission and The Canberra Times such access to the CCTV material exhibited in the trial as to allow them to be able to copy them and broadcast or publish them or images from them, save that no broadcast or publication is permitted of Mr Jovanovic’s partner and I made orders accordingly.

3D Printing and US law

'Patents, Meet Napster: 3D Printing and the Digitization of Things' by Deven R. Desai and Gerard N. Magliocca in Georgetown Law Journal comments that
Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers dropped, individuals engaged with copyrighted work as never before. The business-to-business models of industrial copyright faltered and in some cases failed. Industries had to reorganize, and claimed foundations for copyright had to be re-examined. This Article examines a prime example the next phase of digitization: 3D printing and it implications on intellectual property law and practice.
3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain — sharing the plans on how to make something in exchange for exclusivity — may be meaningless in a world of digitized things. While these devices will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will force firms to rethink their business practices and courts to reexamine not only patent doctrine but also long established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and takedown provisions of the Digital Millennium Copyright Act to websites that host software enabling the 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now. …
3D printing is the next step in general-purpose computing. Michelangelo said that he made statues by removing the parts of the stone that hid the sculpture, but 3D printing promises to transform manufacturing by applying the opposite idea.136 Activities that were once the province of only a few are now in the hands of many. The patent system has been able to require disclosure of how a process works, because the cost to infringe was high. Now, cost structures that once required an inventor to find a deep-pocketed outside backer are gone. The design, manufacture, and distribution of goods is easier, faster, and less expensive than ever before.
The give and take between the copyright industries and Silicon Valley indicates that the DMCA, even with its arguable flaws, hit the sort of regulation proper for emerging technologies. For example, Google’s YouTube could have tried to rely on the DMCA and deny any responsibility for content on the site. Yet copyright lawsuits and questions about whether the DMCA was still fair forced a type of self- regulation. YouTube developed Content ID. In that system, copyright holders share digital fingerprints of their work with YouTube. When a user creates a file, it is compared against the fingerprint database. If it appears to be a match, the copyright holder is notified and then chooses how to proceed by either issuing a takedown notice under the DMCA, doing nothing, or choosing to place advertisements and/or links to buy the song on the page where the video is watched.
These tasks can be done at home, in a start-up, or a large business. Patent law and industries that rely on patents will have to adapt to this new environment or face potential obsolescence.
Given the disruptive potential of 3D printing and the large swaths of the economy affected by that technology, it will take just one or two industry groups to force a repeat of the mistakes of the copyright wars instead of applying the best lessons from them. Some may wish to follow the copyright industry’s strategy of seeking new laws to prosecute anyone who uses this new technology to infringe a patent. Some may demand technological solutions similar to digital- rights-management tactics deployed by the copyright industry. Some may want to attack intermediaries who provide the files for potential infringement. The DRM solution has not worked. Attacking blatant piracy sites is still an option, but demanding that intermediaries such as eBay or YouTube be shut down has been rejected as a solution. Thus the book, music, and film industries world have started to abandon such strategies, embraced digital distribution, and still make healthy profits.
3D printing should be lightly regulated because it enables precisely the kind of creation and progress of the useful arts and sciences that intellectual property is supposed to foster. The locus of that good work is shifting but that does not diminish that progress is occurring often faster and at less cost. The dawn of the Web increased and revealed the scale at which individuals and businesses engaged with, shared, and used copyrighted or trademarked intellectual property. At scale, the old models of enforcement and what constituted infringement had to be rethought. To have even the chance for the PC and Web industries to experiment,grow, and thrive, the specter of copyright lawsuits or trademark lawsuits had to be mitigated. Trying to stop or dictate the way a 3D printer is used unduly limits the potential of these general-purpose machines and mimics the failed DRM ideas of the copyright industry. The largest threat comes from uncertainty in the law. Revising patent law to have a high minimum amount-in- controversy as a jurisdictional threshold would create a de facto fair use standard for home and experimental 3D printing activities. In addition, a patent DMCA would strike a balance between rights holders and intermediaries. As has happened in the copyright world, such a law has fostered new marketplaces and revenue models that allow for greater sharing, remixing, and selling of intellectual property. Without these changes, 3D printing could be mired in fights over protecting old business models. And mistaken regulation could fall into path-dependent solutions where creators are told to use a 3D printer only for certain purposes. These changes, however, balance interests and create the space 3D printing needs to become the foundation for the next wave of general-purpose computing and creation.

PRISM and presumed Non-citizenship

'Section 702 and the Collection of International Telephone and Internet Content' by Laura Donohue begins
by considering the origins of the current programs and the relevant authorities — particularly the shift of the content portions of the President’s Surveillance Program, instituted just after 9/11, to the Foreign Intelligence Surveillance Act (FISA). It considers the brief operation of the Protect America Act, before its replacement in 2008 by the FISA Amendments Act.
 The article then turns to statutory questions related to targeting, post-targeting analysis, and the retention and dissemination of information. It argues that the NSA has sidestepped the statutory restrictions with regard to targeting in three critical ways: by adopting procedures that allow analysts to acquire information not just to or from, but also "about" targets; by creating an assumption of non-U.S. person status; and by failing to construct procedures adequate to ascertain whether the target is located within domestic bounds.
Donohue comments that
h&n On June 6, 2013, the Washington Post and The Guardian captured public attention with headlines claiming that the U.S. National Security Agency (NSA) was collecting large amounts of U.S. citizens’ information.1 The Post reported that the NSA and Federal Bureau of Investigation (FBI) were “tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e- mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.” 
In conjunction with the articles, the press published a series of PowerPoint slides it claimed came from the NSA, describing a program called “PRISM” (also known by its SIGAD, US-984XN). The title slide referred to it as the most used NSA SIGAD. The documents explained that PRISM draws from Microsoft, Google, Yahoo!, Facebook, PalTalk, YouTube, Skype, AOL, and Apple—some of the largest email, social network, and communications providers—making the type of information that could be obtained substantial: email, video and voice chat, videos, photos, stored data, VoIP, file transfers, video conferencing, notifications of target activity (e.g., logins), social networking details, and special requests. The slides noted that the program started in September 2007, with just one partner (Microsoft), gradually expanding through to the most recent company (Apple, added October 2012), and that the total cost of the program was $20 million per year. As of 2011, most of the more than 250 million Internet communications obtained each year by the NSA under §702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act derived from PRISM. 
A follow-up article two days later printed another slide depicting PRISM and “upstream” collection of communications on fiber cables and infrastructure—i.e., “[c]ollection directly from the servers of. . . U.S. Service Providers.” In contrast to PRISM, upstream collection allows the NSA to acquire Internet communications “as they transit the ‘internet backbone’ facilities.” The NSA could therefore potentially ollect all traffic crossing particular Internet cables—not just information specifically targeted at particular Internet Protocol (IP) addresses or telephone number. This form of interception provides the intelligence community access to information that may be moving outside of the corporate partners employed in PRISM. The slide urged analysts to use both methods to obtain information. The potential yield was substantial: in the first six months of 2011, the NSA acquired more than 13.25 million Internet transactions through its upstream collection. 
Approximately two months after news of PRISM and upstream collection reached the public, the U.S. Director of National Intelligence, James Clapper, confirmed the existence of both collection programs, noting that PRISM had been in operation since Congress had passed the 2008 FISA Amendments Act. Clapper declassified eight documents providing more details: two memorandum opinions issued by the Foreign Intelligence Surveillance Court, communication between the Administration and Congress on the existence and operation of the programs, and the §702 minimization procedures. At the end of August 2013 Clapper announced that the intelligence community would release the total number of §702 orders issued, and targets thereby affected, on an annual basis. 
Although much of the information about PRISM remains classified, from what has been made public, via the press as well as declassification, suggests that the program pushes the statutory language to its limit, even as it raises critical Fourth and First Amendment concerns. Very little scholarship, however, has yet to emerge since June 2013 on the history of the legislative provisions and the questions that accompany the manner in which the intelligence community is interpreting and applying the statute—much less the profound Constitutional questions raised by the same. 
This Article fills the gap. It begins by considering the origins of the current programs and the relevant authorities—particularly the shift of the content portions of the President’s Surveillance Program, instituted just after 9/11, to the Foreign Intelligence Surveillance Act (FISA). It considers the brief operation of the Protect America Act, before its replacement in 2008 by the FISA Amendments Act. 
The Article them turns to statutory questions related to targeting, post-targeting analysis, and the retention and dissemination of information. It argues that the NSA has sidestepped the statutory restrictions with regard to targeting in three critical ways: by adopting procedures that allow analysts to acquire information not just to or from, but also “about” targets; by creating an assumption of non-U.S. person status; and by failing to construct procedures adequate to ascertain whether the target is located within domestic bounds. These interpretations undermine Congress’ express inclusion of §§703 and 704 and open the door to the collection of U.S. persons’ communications within domestic bounds. Looking beyond the statutory language, to the extent that the FAA is vague or ambiguous, different methods of interpretation raise concern. Noscitur a sociis, in this regard, offers little insight, but the doctrine of ejusdem generis suggests that the NSA’s adherence to the to/from or about method goes beyond the authorities provided by Congress. Even if one rejects originalist interpretations as intellectually antediluvian, and assumes a more dynamic model, the recent passage of the statute places the NSA’s interpretation on shaky ground. 
FISC itself has confronted the problem of statutory language with regard to the FAA’s prohibition of knowingly collecting entirely domestic communications. Although the NSA freely admits to the Court that it does knowingly collect wholly domestic conversations, FISC has responded that because, in any one intercept, the NSA has not developed the technology to know the origins and destination of each packet intercepted, its actions are consistent with the FAA. This interpretation violates the plain language of the statute and calls into question how meaningful FISC’s role is with regard to FAA targeting procedures. 
In the area of post-targeting analysis, the Article draws attention to four areas, asking, first, whether the aim of the analysis conducted by the NSA elucidates (and generates further concern in relation to) the scope of information included at the collection phase. Second, it notes the failure of the NSA’s prior minimization procedures to account for multi-communication transactions and raises question about the extent to which the statute adequately addresses situations in which the NSA collects information either in violation of FISC’s direction or in a manner later found by FISC to be inconsistent with the statutory requirements. Third, the Article addresses the use of U.S. person information to query data, noting Congress’s explicit prohibition of reverse targeting to prevent incursions into the use of §702 and asking whether then allowing such queries bypasses the statutory restrictions. Fourth, it looks at how what can be termed “recombinant” information changes the quality of information obtained under §702. 
In regard to the retention and dissemination of data, the Article raises further concerns. Increasing consumer and industrial reliance on cryptography gives rise to questions about the NSA’s automatic retention of encrypted data. This policy may quickly become the exception that swallows the protections otherwise granted to U.S. persons’ information. In addition, as a matter of statutory language (and not NSA implementation), the retention of all information under §702 implicating “foreign intelligence”—in light of the breadth of the statutory definition of the same— underscores the danger of looking to retention policies to delimit the type of information kept by the intelligence community. Finally, the use of the information obtained under §702 for criminal prosecution, while consistent with provisions applied to information obtained under traditional FISA, is not, at any point, subject to equivalent procedural protections. This discussion leads naturally to Fourth Amendment considerations. 
In the criminal realm, outside of narrowly circumscribed exceptions (discussed, infra), a search is presumptively unreasonable under the Fourth Amendment unless the government first obtains a warrant from a neutral, disinterested magistrate, based on a finding of probable cause of involvement in criminal activity. This applies to all criminal searches within the United States. It does not apply to non-U.S. persons without a significant attachment to the country and who are outside domestic bounds. Between these book-ends, Fourth Amendment doctrine presents in unique form, based on, e.g., whether the search centers on intelligence gathering or criminal prosecution, whether the target is a U.S. person or a non-U.S. person, where the search takes place, and the extent to which U.S. persons’ privacy is implicated. After briefly laying out the broader territory, the Article’s Fourth Amendment analysis focuses on the government’s contention that §702 collection takes place subject to a foreign intelligence exception to the warrant requirement. Noting that in nearly four decades that have elapsed since the Court raised the possibility of such an exception — and since Congress responded to this decision by enacting FISA — not a single case has found a domestic foreign intelligence exception. It points out that, as a matter of the international intercept of U.S. persons’ communications, practice and precedent prior to the FAA turned on a foreign intelligence exception to the warrant requirement that derived from the President’s foreign affairs powers. Criminal investigations overseas similarly did not require warrants. Nevertheless, the Courts required the search of U.S. persons overseas to be consistent with the Fourth Amendment requirement of reasonableness. Through §§703 and 704 of the FAA, Congress has since introduced stronger safeguards for U.S. persons targeted for foreign intelligence purposes. By defaulting to §702, however, and “incidentally” collecting U.S. persons’ international communications, the NSA is bypassing Congressional requirements. Acknowledging that the President and Congress share foreign affairs powers, the executive’s persistent use of §702 may be regarded in Justice Jackson’s third category under Youngstown Sheet & Tube Co. v. Sawyer
Even if one takes the position that the Warrant Clause is inapposite to collection of U.S. persons’ information under §702, the FAA and NSA practice must still comport with the reasonableness requirements of the Fourth Amendment. To the extent that the target is a non-U.S. person based outside of domestic bounds, and the communications are to or from the target, the programs appear to be consistent with the constitutional mandate. But to the extent that the NSA interprets the statute to include information about such targets, in the process collecting the communications of wholly domestic communications, as well as conversations between U.S. persons, the practice fails to meet the totality of the circumstances test articulated by the Court with regard to reasonableness. 
Although almost all of the public discussion of §702 has centered on the NSA’s use of its authorities under the statute (indeed, some of it questioning whether the NSA or the FBI has the authority to act), almost no attention has been drawn to the role of the Central Intelligence Agency. The Article concludes by highlighting how little is currently known about the CIA’s targeting, minimization, and retention and dissemination procedures—an omission which, in light of the significant statutory and constitutional questions accompanying the NSA’s use of the same, and restrictions on CIA collection of information about U.S. persons within the United States, raises further concern.

15 May 2014


'A workplace drug testing act for Australia' by Grant Allen, Jason; Jeremy Prichard and Lynden Griggs in (2013) 32(2) University of Queensland Law Journal argues that
 Testing employees on a mandatory basis for alcohol and illicit drugs in the workplace in Australia is not uncommon. However, in those industries where it does occur, such as mining, transportation, and correctional services, and with the understanding that the employer does have the right to insist that the employees be tested, what are the corresponding obligations vis-a-vis the employees' privacy and safety. What our analysis will show is that while privacy remains the prevalent employee concern, workplace drug testing can be justified for reasons of employer productivity, safety within the workplace, and the integrity expected of employees within industries where the community would be adversely sensitive to any notion that the employees were not observing the legal and moral code expected of law-abiding citizens (exemplars would be the police and those serving in correctional facilities). But justification alone is not enough. Workplace drug testing needs to be supported by appropriately argued and supported parameters as to when it can occur, how it can occur, what can be tested, and what can be done with the results. It is only by specifying these boundaries that we as a community will support and accept the intrusive nature of workplace drug testing. Law must have a role in setting those limits. To date the decisions on this practice have failed to do this.


The Australian Competition and Consumer Commission has issued a draft determination that would allow collectively negotiation with grain buyers by royalty managers on behalf of plant breeders under the Plant Breeders’ Rights Act 1994 (Cth).

The proposed authorisation allows Seedvise, as an agent for royalty managers, to enter into collective negotiations with individual grain buyers. It provides immunity from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010 (Cth).

The ACCC notes that breeders typically distribute their variety to grain farmers on the condition the farmer pays the breeder a royalty on each tonne of the variety harvested by that farmer harvests, i.e. an end point royalty (EPR). The breeders appoint royalty managers to monitor and collect the EPRs.

 Grain buying companies can collect EPRs but are under no obligation to do so and will only participate if royalty managers can provide them with sufficient incentive.

ACCC Commissioner Dr Jill Walker comments that
Collective negotiation by Seedvise will allow grain buyers to deal with multiple royalty managers on the same terms, greatly reducing the grain buyers’ administrative cost of participating in EPR collection. 
The authorisation will improve the efficiency and effectiveness of the EPR system by reducing costs for royalty managers and farmers, increasing EPR collection rates, and allowing plant breeders to focus more resources on breeding new and more productive varieties. 
The ACCC is proposing to grant authorisation for five years.


'Treason, Expatriation and 'So-Called' Americans: Recovering the Role of Allegiance in Citizenship' by Ashwini Vasanthakumar  in (2014) 12 Georgetown Journal of Law & Public Policy comments
Allegiance is an essential element of citizenship, featuring in its statutory definition and invoked in its rituals. Most scholars have dismissed allegiance as a vestige from a feudal past. Certainly, the last several decades have witnessed a revolution in citizenship: access to citizenship has been liberalized, and citizenship is now widely recognized as a ‘right to have rights’ that states are loath to infringe upon. Allegiance would seem to have no place in this context. In this Article, I seek to recover the role of allegiance in citizenship and demonstrate its continued legal and normative relevance. I develop two illustrative conceptions of allegiance by analogy to political obligation and civic virtue. I then undertake a close reading of select Supreme Court decisions in treason and statutory expatriation — contexts in which the betrayal or transfer of allegiance is of moment. I draw upon these decisions to further illuminate the concept of allegiance as well as to identify its normative implications for citizenship. Through inchoate allusions to allegiance, states recently have deprived individuals of their citizenship and undermined the protections that status once afforded. Clarity about allegiance is necessary to avoid abuse; this Article begins a preliminary investigation.
Vasanthakumar  argues
American citizens have recently been described as citizen sovereigns, secure in a status that guarantees them the ‘right to have rights.’ This security is the culmination of a general trend in the twentieth century of embracing liberalism in citizenship, both in terms of access to the status of citizenship as well as in what that status entails. In general, citizenship can no longer be denied to individuals on the basis of their national origin, religious beliefs, or political ideologies. Importantly, the state cannot act unilaterally to revoke the status of citizenship, or to reduce the rights and privileges it affords. This evolution in citizenship and nationality laws — observed across liberal democracies — has been heralded as a triumph for individual rights; where nationality once was the exclusive domain of a sovereign state, it is recognized increasingly as a human right, infringements of which are regulated by international law. As with other areas of international law, sovereignty has shifted from the state to the individual, even in those matters, such as determinations over nationality, that once were exclusively under the purview of the state.
For all this apparent indestructibility, however, citizenship is under threat, and citizens no longer can be assured of either their status as citizens nor of its attendant rights and privileges. The imperatives of national sovereignty, and national security in particular, have recently asserted themselves in liberal democracies. At its extreme, this is suggested by targeted killings of American citizens abroad. But these imperatives of state sovereignty also inform more routine administrative determinations. For example, the Home Secretary in the United Kingdom is empowered to deprive British nationals of their citizenship, including native-born citizens. Defending these powers, governments have rejected the conception of citizenship as a right. They have instead insisted that “citizenship is a privilege not a right” and introduced distinctions between citizens — between the ‘upstanding’ and the undesirable, the true Americans and their ‘so-called’ counterparts. These distinctions are invoked to justify taking actions against some citizens but not others, including actions that deprive them of their citizenship or of the basic protections this citizenship typically affords. The justification for these actions may take the form of a legal claim — for example, that lethal force against American citizens abroad is sometimes lawful — or may be an exercise of rhetoric, aiming to persuade others that these actions are not morally objectionable. In both law and politics, allegiance is invoked to justify drawing distinctions between the undesirable and the upstanding, and to authorize taking actions against some whilst extending protections to others.
In this Article, I explore the concept of allegiance: Who owes allegiance? What does owing allegiance entail? How does allegiance to the polity co-exist with the affection, loyalty, and attachment other communities inspire? And does allegiance provide a morally attractive basis for drawing distinctions between citizens—for looking beyond formal status to identify ‘true’ citizens? This Article begins a preliminary investigation into the concept of allegiance. Through a close reading of select Supreme Court decisions on treason and statutory expatriation, I seek to illuminate key features of the concept of allegiance, to illustrate its continued legal relevance, and to identify the different conceptions of allegiance and citizenship the Supreme Court implicitly relies upon. On its face, allegiance might seem to bear little relevance to contemporary citizenship. I focus on allegiance for two reasons: first, it has long been essential to definitions of citizenship but has been largely ignored, and second, in spite of the relative inattention from theorists, allegiance may be a promising concept from which to develop a thicker conception of citizenship. Let me elaborate briefly on these two points.
Allegiance is an essential element of citizenship. American nationality, for example, is tautologically defined with reference to allegiance: an American national is statutorily defined as any “person owing permanent allegiance to the United States.” Indeed, allegiance retains ritual importance — in pledges and oaths, for example — and continues to be subject to legal and political contestation, suggesting that references to allegiance are not purely ceremonial. Defining citizenship in terms of allegiance is not merely a vestige of a feudal past.
For all this, the concept of allegiance has not been subject to sustained scrutiny, even though vagueness as to its meaning creates opportunities for abuse. In his magisterial survey of the crime of treason in America, for example, William J. Hurst notes that in the Constitutional Convention’s deliberations on the treason clause “the idea of ‘allegiance’ itself receives no exposition.” Elsewhere, allegiance is merely likened, with little elaboration, to such diverse political concepts as identification, solidarity, loyalty and obligation. This lack of exposition is troubling for two reasons. For one, it means that American citizenship is defined with reference to a concept that remains opaque. It is unclear, for example, what owing allegiance consists in, whether allegiance is a necessary, sufficient, or merely desirable feature in citizens, and whether citizens can owe allegiance to more than one polity. Answers to these questions would sharpen our understanding of allegiance, and hence, of citizenship. They would potentially inform policies regarding naturalization, denationalization, multiple nationality, and amnesty for unauthorized residents. Without fuller exposition, however, allegiance may be invoked in policy debates in arbitrary or inconsistent ways. The lacuna in our understanding of allegiance invites, at a minimum, incoherence; more troubling, it also allows for otherwise indefensible assumptions and stereotypes to be smuggled in. If the element of allegiance in citizenship suggests a conception of citizenship beyond formal status, but that element is left undefined, then countless individuals may find themselves cast as ‘so-called’ citizens because their religious adherence, political ideologies, or national identity call into question their allegiance. Vagueness about the meaning and role of allegiance in citizenship lends itself to abuse.
Avoiding abuse, however, is not the only impetus for an inquiry into allegiance. Allegiance also warrants closer inspection because it may provide a promising basis for an alternative to liberal citizenship. A number of academics and policy makers have urged for a thicker conception of citizenship, criticizing liberal citizenship as morally impoverished and political unfeasible. They have explored several bases for a more robust conception of citizenship, including nationalism, communitarianism, and constitutional patriotism. Nationalists ground a thicker conception of citizenship on shared national identity; communitarians, on shared values, traditions and practices; and constitutional patriots, on a shared commitment to the universal values embodied by a constitutional order.
There are many variations and nuances to these accounts, which I will not explore in this Article. Let me here note only that each of these accounts has exclusionary potentialities that the concept of allegiance may more easily avoid. Allegiance mimics liberal accounts of political obligation by requiring a voluntary undertaking on the part of the citizen and situating the citizen in relationships of reciprocity with the state and with fellow citizens. Unlike most liberal accounts, however, it also seems to call for the citizen to hold a particular attitude towards the state, and is therefore more demanding than liberal citizenship. This attitude is available to putative citizens who do not share a national identity, do not participate in dominant traditions and practices, and who do not endorse the political values embodied in a polity’s constitutional order. As such, I suggest, allegiance potentially provides the basis for a more robust conception of citizenship but one that is more inclusive than prominent alternatives. Allegiance thus holds out the promise of a relationship between citizens and their state that is consensual but not contractual, that is held together by shared commitments if not a shared culture, and that is both principled and particular. This promise warrants further inquiry.
Clarifying the meaning and role of allegiance in contemporary citizenship challenges the dominant liberal conception of citizenship. Instead of being the ‘right to have rights,’ citizenship might call for certain attitudes and actions. This thicker conception of citizenship may have a number of implications for practices surrounding citizenship. For example, it potentially restricts access to citizenship by heightening the criteria for both naturalization and for regularizing the status of unauthorized residents. It might also hinder citizens’ ability to retain formal ties to other polities, to maintain multiple nationalities, and to work in foreign governments. And finally, it might make the removal of citizenship easier. In short, recovering the role of allegiance in citizenship would likely check the liberalizing trend towards citizenship celebrated by many as a victory for individual rights. In this respect, then, it might seem to mimic the problematic distinctions between true and ‘so-called’ Americans I identified at the outset. Indeed, perhaps it lends them a veneer of theoretical respectability. On the contrary. Distinctions between real and ‘so-called’ citizens loom large in the public imagination and in political discourse, and they are invoked — sometimes to great effect — to justify the infringement of fundamental rights. These distinctions appeal, inchoately, to a thicker conception of citizenship. Providing a coherent account of this conception allows us to determine whether it is normatively defensible and desirable, to more clearly identify its limits, and to therefore avoid the arbitrary distinctions and deprivations that it otherwise invites.
I develop this account through a close-reading of select Supreme Court decisions in cases of treason and statutory expatriation. I draw upon the Court’s discussions for three reasons. First, these discussions provide insight into what role, if any, allegiance plays in more contemporary practices and notions of citizenship. Second, they provide relatively coherent expositions that aid in illuminating various aspects of the concept of allegiance. And finally, they provide concrete illustrations of the legal and political consequences of giving effect to different notions of allegiance. Let me emphasize that I do not use the Court’s decisions to trace the development of its jurisprudence on allegiance, or to identify the ramifications of this jurisprudence for other areas of law.19 Rather, I treat the Court’s decisions as particularly coherent, authoritative and illustrative pronouncements on the contemporary meaning and relevance of allegiance.
I argue that the Court’s discussions of allegiance involve two competing conceptions of allegiance: a thin conception of allegiance that collapses into political obligation and a thick conception of allegiance that appeals to notions of civic virtue. The Court’s holdings seem to signal a move — widely celebrated — towards a liberal conception of citizenship that reduces allegiance to political obligation. I argue, however, that the Court does not fully abandon the language of allegiance or the thicker conception of citizenship to which it gives rise. The Court thus leaves open the door to, among other things, involuntary expatriation and the abuses that inchoate distinctions between true and ‘so-called’ citizens license. The Court’s decisions, however, are helpful in outlining two competing conceptions of allegiance and in identifying the implications these conceptions have for such questions as who owes allegiance, when it is betrayed, and when it is abandoned.
This preliminary investigation into allegiance proceeds in the following way. In Part I, I briefly consider the contexts in which concerns about allegiance and betrayal are invoked, and outline the claims about allegiance made in contemporary political and academic discussions. Here, I focus on the advent of multiple nationality. I then outline in Part II two conceptions of allegiance and illustrate the normative implications of each for political membership and community. In Part III, I analyze the Court’s jurisprudence of treason, and in Part IV, its jurisprudence of statutory expatriation, focusing on how allegiance is defined and relied upon. I conclude by reflecting on what these opinions reveal about the contemporary concept of allegiance, the implications of invoking allegiance in law and politics, and areas of further inquiry.

Digital Estates

In the US the Uniform Law Commission, an entity that drafts uniform legislation for the US states , has released [PDF] a proposed Fiduciary Access to Digital Assets Act (FADA) that would grant fiduciaries broad authority to access and control digital assets and accounts in the event of an individual's death.

The proposed legislation would clarify who can access online accounts post-mortem, creating four categories of fiduciaries -
  • a personal representative of a deceased person’s estate
  • someone carrying out a power-of-attorney
  • a trustee 
  • someone appointed by a court to act on behalf of a protected person.
Areas of contention include whether  assets should be treated the same irrespective of whether they are physical or  digital (with some fiduciaries not having automatic access under state law to digital assets)  and whether terms & conditions (typically on a clickwrap basis) will enable service operators to circumvent  law by requiring users to sacrifice future access by the fiduciary (especially by enabling the operator to preemptively close an account on death).

The Commission states -
The purpose of this act is to vest fiduciaries with the authority to access, manage, distribute, copy or delete digital assets and accounts. It addresses four different types of fiduciaries: personal representatives of decedents’ estates, conservators for protected persons, agents acting pursuant to a power of attorney, and trustees. As the number of digital assets held by the average person increases, questions surrounding the disposition of these assets upon the individual’s death or incapacity are becoming more common. Few laws exist on the rights of fiduciaries over digital assets. Few holders of digital assets and accounts consider the fate of their online presences once they are no longer able to manage their assets. And these assets have real value: according to a 2011 survey from McAfee, Intel’s security-technology unit, American consumers valued their digital assets, on average, at almost $55,000.  These assets range from online gaming pieces to photos, to digital music, to client lists, to bank accounts, to bill-paying, etc. There are 30 million Facebook accounts that belong to dead people. The average individual has 25 passwords. Some service providers have explicit policies on what will happen when an individual dies, others do not; even where these policies are included in the terms of service, most consumers click-through these agreements.
Only a minority of states has enacted legislation on fiduciary access to digital assets, including Connecticut, Idaho, Indiana, Oklahoma, Rhode Island, Nevada, and Virginia, and the existing statutes grant varying degrees of access to different types of digital assets. In addition, other states, including Massachusetts, Nebraska, New York, and Oregon, have considered, or are considering, legislation. Existing legislation differs with respect to the types of digital assets covered, the rights of the fiduciary, and whether the principal’s death or incapacity is covered.
This draft is for review by the Drafting Committee at our March meeting. The draft is divided into sixteen sections. Sections 1-3 contain general provisions and definitions, including those relating to the scope of the fiduciary’s authority. Sections 4-7 establish the rights of personal representatives, conservators, agents acting pursuant to a power of attorney, and trustees. Section 8 contains provisions relating to the rights of the fiduciary to recover property. Section 9 addresses compliance, and Section 10 grants immunity to custodians. Sections 11-16 address miscellaneous topics, including the effective date of the Act and similar issues. The act addresses only the rights of the four types of fiduciaries, and it is designed solely to provide access without changing the ownership of the underlying asset.

Dignity in the US Supreme Court

'The Jurisprudence of Dignity' by Leslie Meltzer Henry in (2011) 160 University of Pennsylvania Law Review 169 comments
Few words play a more central role in modern constitutional law without appearing in the Constitution than "dignity." The term appears in more than nine hundred Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.
This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity and then proposing a typology of dignity based on an analysis of how the term is used in those opinions. The study reveals three important findings. First, the Court's reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in con trast to its past use, dignity is now as likely to be invoked by the more conservative Justices on the Court as by their more liberal counterparts. Finally, the study demonstrates that dignity is not one concept, as other scholars have theorized, but rather five related concepts. The typology refers to these conceptions of dignity as institutional status as dignity, equality as dignity, liberty as dignity, personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity  to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court's use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, that arise from shifting conceptions of dignity.
Henry states that
Justice William J. Brennan, Jr., frequently emphasized that the fundamental value at the crux of American law is "the constitutional ideal of human dignity."' He believed that the Constitution, and par- ticularly the Bill of Rights, expressed a "bold commitment by a people to the ideal of dignity protected through law."  Perhaps to give doctrinal heft to a word that appears nowhere in the Constitution, Justice Brennan invoked "dignity" in an astounding thirty-nine opinions during his tenure on the Court. Despite the breadth of cases to which he applied the term, Brennan's tireless efforts to advance a legal notion of dignity often were discounted either because the term appeared in his dissenting opinions, or because when dignity appeared in the majority opinions Brennan authored, his opinions represented the "liberal wing" of the Court's jurisprudence.
After a brief period of hibernation during the Burger and Rehnquist Courts, the use of dignity is once again on the rise. The Roberts Court has issued opinions that invoke dignity in thirty-four cases, nearly half of those in the last two Terms alone. We would be mistaken, however, to see this as a reascendance of Justice Brennan's "dignity." To the contrary, dignity is now more likely to appear in majority than in dissenting opinions, and as likely to be invoked by Justice Scalia as by Justice Ginsburg.
Dignity's increasing popularity," however, does not signal agreement about what the term means. Instead, its importance, meaning, and function are commonly presupposed but rarely articulated. As a result, contrasting views about dignity's definition, usefulness, and ultimate purpose have emerged.
For some commentators, dignity is nothing less than "the premier value underlying the last two centuries of moral and political thought," an essential "basis of human rights," and one of "those very great political values that define our constitutional morality." Like Justice Brennan, legal theorist Ronald Dworkin has declared that "the principles of human dignity.., are embodied in the Constitution and are now common ground in America."
Indeed, few concepts dominate modern constitutional jurisprudence more than dignity does without appearing in the Constitution. The Supreme Court has invoked the term in connection with the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, Fourteenth, and Fifteenth Amendments.
Other scholars and jurists, however, view dignity as a concept in crisis. Philosopher Ruth Macklin considers dignity "a useless concept" because it does nothing more than offer "vague restatements  ... more precise... notions."  Law and ethics professor John Harris echoes Macklin's concern, pointing out that the word is "universally attractive" because it is "comprehensively vague." Meanwhile, philosopher Helga Kuhse contends that as long as dignity is invoked by people on opposite sides of a debate it is "nothing more than a short-hand expression for people's moral intuitions and feelings."
Despite deep disagreement about its normative, practical, and jurisprudential value, dignity's growing presence in Supreme Court decisions has received scant attention. The literature on dignity is primarily written by philosophers and theologians, who discuss dignity as a moral value divorced from legal application," or by international and comparative law scholars, who examine dignity's role in human rights declarations and in foreign laws. The prominence of dignity in American constitutional law has gone largely unanalyzed. This leaves us without a comprehensive understanding of why the Court has embraced dignity, what types of actions threaten dignity, and how the Court weighs dignity in relation to other values. Most importantly, we lack a systematic account of dignity's varied meanings against which to ponder these questions.
This Article has two related ambitions, both directed at clarifying the conceptual chaos surrounding dignity's complicated usage. The first goal is to provide an approach that captures the range of ways in which the Court invokes dignity. The second is to explore dignity's judicial function in contemporary constitutional jurisprudence. Part I of this Article critiques existing theories of dignity and proposes an alternative, Wittgensteinian approach to conceptualizing the term. Standard accounts contend that dignity is either reducible to another concept, such as autonomy, or has a core meaning that is applicable across all contexts. Although these views are tidy and attractive, they tend to draw dignity's boundaries too narrowly or too broadly.
This Article argues against a positivistic claim to dignity's core meaning and instead contends that dignity has multiple meanings that, in Wittgenstein's words, share "family resemblances" to each other. While some dignitary harms can be completely described by one type of dignity, others admit of complementary meanings. Because this heterodox approach to conceptualizing dignity begins by exploring the use of dignity in practice, rather than in the abstract, it maintains a degree of coherence absent from the standard approaches.
Part II offers a typology of dignity that explores the compendium of pluralistic values that the Court embraces when it speaks of dignity. It provides the results of the first study to examine the use of dignity in every Supreme Court case from the last 220 years in which the word appears in an opinion. This research reveals that while a single concept of dignity with fixed boundaries does not exist, five different conceptions of dignity emerge that, although distinct, admit of some similarities.
Part II proceeds to set forth these conceptions of dignity, which I refer to as institutional status as dignity, equality as dignity, liberty as dignity, personal integrity as dignity, and collective virtue as dignity. I first trace each conception to its epistemic origins in philosophy, theology, or political theory, and articulate its central features. Then, relying on the Court's opinions, I illustrate that each conception of dignity has a particular judicial function oriented toward safeguarding substantive interests against dignitary harm. Teasing out dignity's different threads permits us to see the work that each conception of dignity is performing for the Court. It also demonstrates why viewing dignity as only a "liberal" or "egalitarian" value is cramped and stultifying. In contrast, the typology I propose provides the tools to evaluate what is normatively and doctrinally at stake in a variety of contexts and equips us with a framework for future discussions.

CFMEU and CBUS data breach

Funding in Tuesday's Budget for the Royal Commission of Inquiry into Trade Union Governance and Corruption ($53.3 million over two years) dwarfs that of the abandoned Office of the Australian Information Commissioner.

As the RC proceeds we will presumably hear evidence following up the claims earlier this week that -
The private financial details and home addresses of hundreds of non-union workers were allegedly leaked by one of the nation’s biggest super funds to building union boss Brian Parker as part of an industrial campaign. The allegations will be forwarded to the Australian Federal Police and the Australian Privacy Commissioner by Lis-Con, the construction company targeted by the campaign. 'The alleged breach will spark debate about unions' control of industry funds.' '
Fairfax reports that it has obtained "a leaked database" with the private details of over 400 CBUS superannuation fund members allegedly given to the NSW Construction Forestry Mining and Energy Union branch secretary without the knowledge of those members, most of whom are not union members. CBUS manages over $20 billion for around 700,000 contributors.
A signed statutory declaration, provided by a union whistleblower who assisted [CFMEU NSW Branch  Secretary] Parker after he allegedly obtained the leaked information, states it was used to help formulate an industrial campaign against a company that had been fighting the CFMEU in legal cases in several states. 
"State secretary Brian Parker told me that he had a contact in CBUS who could discreetly ... leak him the information he asked for," the statutory declaration says. 
"A short time after this, he came to my office and gave me a printed copy of the information he said was supplied to him. He said to me to keep this document secret and not tell anybody else." 
It has been confirmed the database was used by the NSW CFMEU to call the private phone numbers of South Australian, Queensland and NSW employees of construction company Lis-Con. The NSW CFMEU branch allegedly received the information from CBUS after senior union leaders met in Sydney last year to discuss ways to attack Lis-Con. Relations between the company and the union became extremely hostile when the company's management lodged defamation writs against the CFMEU in Queensland and Western Australia. 
The union whistleblower said: “They were a company the union wanted to squash. The leaked information was intended to put enough pressure on them so the word would get out that they were not a company contractors should use.” The construction workers were quizzed about their entitlements to get them to put pressure on the company's management. In a small number of cases, the workers allegedly were falsely told the call was being made on behalf of CBUS.
Parker has issued a statement denying any knowledge of the allegedly leaked database or how it arrived at the CFMEU.

Fairfax states that there is no suggestion the CBUS board knew of the leak, with a CBUS spokesperson indicating the allegations will be the subject of an internal investigation.
"The sole purpose of the disclosure of any personal information [of workers] ... is to ensure the payment of fund members’ superannuation entitlements," the spokesman said. "Any disclosure made or used for purposes other than this would be of serious concern to CBUS. "The fund has only recently become aware of the specific allegations raised. They are currently subject to investigation and review at a number of levels, including being subject to internal investigation." 

14 May 2014

NZ Mediation

'Towards a History of Mediation in New Zealand's Legal System' by Grant Hamilton Morris in (2013) 24 Australasian Dispute Resolution Journal 86-101 comments
The history of mediation in New Zealand reflects a number of influences and developments. While prototypes of mediation can be found in New Zealand’s early industrial relations, the modern mediation movement is primarily a result of state-led reform in a variety of legal areas. Much of this reform has been influenced by overseas models emphasising New Zealand’s role as a “fast-follower” of alternative dispute resolution trends rather than an initiator. The rise of mediation in New Zealand has been ad hoc and pragmatic with a distinct lack of systematic development. This pragmatic change was a response to pressures such as the cost and delay involved in litigation, and major social trends challenging traditional ways, including traditional approaches to resolving disputes. Mediation continues to play a vital role in the New Zealand legal system but the exponential growth of the 1980s and 1990s has slowed as mediation begins to clearly locate and confirm its “territory” in the New Zealand legal system.


Posts over several years have noted disagreements about conceptualisation and practicality of a narrow or broad 'right to be forgotten', in particular mechanisms that would enable individuals and businesses to require search engine operators such as Google to suppress to particular third-party sites/pages when providing lists of search results.

As I discussed in an article in Privacy Law Bulletin some time ago, that requirement would not delete all sites, pages and comments. It would however inhibit identification by many searchers, given that people who are not savvy and/or diligent often rely on superficial searches of the web that don't extend much beyond scanning the first two pages of Google search results.

The requirement has been criticised as a commercial burden and an inappropriate restriction of free speech. Proponents have characterised it as an appropriate compromise, given that it may be impractical for an individual to successfully take action against publishers and other entities in different jurisdictions.

The European Court of Justice (Grand Chamber) has now disregarded the Opinion of 25 June 2013 warning against the 'Right' and in Case C‑131/12 - Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González - found for Gonzalez, i.e. recognised the right in relation to search engines.

The Opinion was discussed here.

Importantly the court has not required other parties - such as newspapers, broadcasters and bloggers - to expunge contested personal information from their pages and has accordingly not established a comprehensive, readily enforceable 'right to be forgotten'.

The Agencia Española de Protección de Datos (AEPD) - counterpart of national data protection bodies such as CNIL and the OAIC - had ordered Google "to adopt the measures necessary to withdraw personal data relating to Mr Costeja González from its index and to prevent access to the data in the future".

Neither the AEPD nor the Court have ordered that all content on the web to which González objects should be expunged. However, Google should ensure that Google does not point to particular sites when it provides search results.

The judgment notes that  EU Directive 95/46
has the object of protecting the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data, and of removing obstacles to the free flow of such data, states in recitals 2, 10, 18 to 20 and 25 in its preamble:
‘(2) … data-processing systems are designed to serve man; … they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to … the well-being of individuals; ... 
(10) … the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [, signed in Rome on 4 November 1950,] and in the general principles of Community law; … for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community; 
… the principles of protection must be reflected, on the one hand, in the obligations imposed on persons … responsible for processing, in particular regarding data quality, technical security, notification to the supervisory authority, and the circumstances under which processing can be carried out, and, on the other hand, in the right conferred on individuals, the data on whom are the subject of processing, to be informed that processing is taking place, to consult the data, to request corrections and even to object to processing in certain circumstances’.
The Court goes on to note that
On 5 March 2010, Mr Costeja González, a Spanish national resident in Spain, lodged with the AEPD a complaint against La Vanguardia Ediciones SL, which publishes a daily newspaper with a large circulation, in particular in Catalonia (Spain) (‘La Vanguardia’), and against Google Spain and Google Inc. The complaint was based on the fact that, when an internet user entered Mr Costeja González’s name in the search engine of the Google group (‘Google Search’), he would obtain links to two pages of La Vanguardia’s newspaper, of 19 January and 9 March 1998 respectively, on which an announcement mentioning Mr Costeja González’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts. 
By that complaint, Mr Costeja González requested, first, that La Vanguardia be required either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data. 
Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. Mr Costeja González stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant. 
Importantly, in its 30 July 2010 decision the AEPD rejected the complaint in relation to La Vanguardia (i.e. did not require the publisher to expunge the print/online coverage or publish an apology, correction or annotation). The Court notes that the AEPD viewed La Vanguardia's publication as
legally justified as it took place upon order of the Ministry of Labour and Social Affairs and was intended to give maximum publicity to the auction in order to secure as many bidders as possible.
On the other hand, the complaint was upheld in so far as it was directed against Google Spain and Google Inc. The AEPD considered in this regard that operators of search engines are subject to data protection legislation given that they carry out data processing for which they are responsible and act as intermediaries in the information society. The AEPD took the view that it has the power to require the withdrawal of data and the prohibition of access to certain data by the operators of search engines when it considers that the locating and dissemination of the data are liable to compromise the fundamental right to data protection and the dignity of persons in the broad sense, and this would also encompass the mere wish of the person concerned that such data not be known to third parties. The AEPD considered that that obligation may be owed directly by operators of search engines, without it being necessary to erase the data or information from the website where they appear, including when retention of the information on that site is justified by a statutory provision. 
The Court notes that
Google Spain and Google Inc. brought separate actions against that decision before the Audiencia Nacional (National High Court). The Audiencia Nacional joined the actions. 
That court states in the order for reference that the actions raise the question of what obligations are owed by operators of search engines to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users indefinitely. The answer to that question depends on the way in which Directive 95/46 must be interpreted in the context of these technologies, which appeared after the directive’s publication. 
In those circumstances, the Audiencia Nacional decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling.
It concludes that
processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous (see, to this effect, Joined Cases C‑509/09 and C‑161/10 eDate Advertising and Others EU:C:2011:685, paragraph 45). 
In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life. 
Following the appraisal of the conditions for the application of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 which is to be carried out when a request such as that at issue in the main proceedings is lodged with it, the supervisory authority or judicial authority may order the operator of the search engine to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages published by third parties containing information relating to that person, without an order to that effect presupposing the previous or simultaneous removal of that name and information — of the publisher’s own accord or following an order of one of those authorities — from the web page on which they were published. 
As has been established in paragraphs 35 to 38 of the present judgment, inasmuch as the data processing carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites and affects the data subject’s fundamental rights additionally, the operator of the search engine as the controller in respect of that processing must ensure, within the framework of its responsibilities, powers and capabilities, that that processing meets the requirements of Directive 95/46, in order that the guarantees laid down by the directive may have full effect. 
Given the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation, effective and complete protection of data users could not be achieved if the latter had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites. 
Furthermore, the processing by the publisher of a web page consisting in the publication of information relating to an individual may, in some circumstances, be carried out ‘solely for journalistic purposes’ and thus benefit, by virtue of Article 9 of Directive 95/46, from derogations from the requirements laid down by the directive, whereas that does not appear to be so in the case of the processing carried out by the operator of a search engine. It cannot therefore be ruled out that in certain circumstances the data subject is capable of exercising the rights referred to in Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 against that operator but not against the publisher of the web page. 
Finally, it must be stated that not only does the ground, under Article 7 of Directive 95/46, justifying the publication of a piece of personal data on a website not necessarily coincide with that which is applicable to the activity of search engines, but also, even where that is the case, the outcome of the weighing of the interests at issue to be carried out under Article 7(f) and subparagraph (a) of the first paragraph of Article 14 of the directive may differ according to whether the processing carried out by the operator of a search engine or that carried out by the publisher of the web page is at issue, given that, first, the legitimate interests justifying the processing may be different and, second, the consequences of the processing for the data subject, and in particular for his private life, are not necessarily the same. 
Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.
In the light of all the foregoing considerations, the answer to Question 2(c) and (d) is that Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. ...
As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public by its inclusion in such a list of results, it should be held, as follows in particular from paragraph 81 of the present judgment, that those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.