02 August 2014

Public domains and copyright incentives

'Creating Around Copyright' by Joseph Fishman in 128 Harvard Law Review (Forthcoming) argues -
It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate amount of restriction. Drawing from work in cognitive psychology, management studies, and art history, this Article argues that contemporary copyright discourse has overlooked constraint’s generative upside.
The Article unpacks the concept of constraint into seven characteristics: source, target, scope, clarity, timing, severity, and polarity. These characteristics function as levers that determine a given constraint’s generative potential. Variation in that potential provides an underappreciated theoretical justification for areas in which copyright law is restrictive, such as the exclusive derivative work right, as well as areas where it is permissive, such as the independent creation and fair use defenses. The Article reveals that the incentives versus access debate that has long dominated copyright theory has misunderstood the relationship between creativity and constraint. Information may want to be free, but creativity does not.
'Enriching Discourse on Public Domains' by Pamela Samuelson in (2006) 55 Duke Law Journal comments -
Is there one public domain, or are there many public domains? The scholarly literature predominantly assumes there is only one, for references abound to "the public domain" in the singular. Yet, even a cursory review of this literature reveals that scholars sometimes define this term differently. So if there is only one public domain, but many definitions, perhaps one objective of scholarly discourse about the public domain should be to seek consensus on the one "true" definition. Professor James Boyle has provocatively suggested that there are many public domains, and has urged scholars to develop a rich vocabulary for distinguishing among them.
This article considers benefits of accepting the existence of multiple public domains and ways in which discourse about public domains might be enriched thereby. Part II provides a synopsis of thirteen conceptions of the public domain found in the law review literature, explaining each, generally by reviewing the explication of it offered by its principal proponent or discoverer. Part III organizes the definitions by recognizing that they cluster around three main foci: the legal status of information resources, freedoms to use information resources, even if protected by IP rights, and accessibility of information resources. Part IV discusses advantages of recognizing multiple public domains, among which are that they illuminate important social values served by these domains and a plethora of strategies for preserving them and the values they serve. To avoid the risks of confusion, Part IV also proposes adjectives to help differentiate among public domain concepts.
The public domains discussed by Samuelson in her 70 page article are -
  • PD 1: Information Artifacts Wholly Free from Intellectual Property Rights
  • PD 2: IP-Free Information Resources
  • PD 3: The Constitutionally Protected Public Domain
  • PD 4: Privatizable Information Resources
  • PD 5: Broadly Usable Information Resources
  • PD 6: Contractually Constructed Information 
  • PD 7: A Status Conferring a Presumptive Right of Creative Appropriation
  • PD 8: A Cultural Landscape 
  • PD 9: A Communicative Sphere 
  • PD 10: Publication of Governmental Information
  • PD 11: A Domain of Publicly Accessible Information
  • PD 12: The Unpublished Public Domain
  • PD 13: The Romantic (or Imperialist) Public Domain

Trust, Incapacity and National Security

In submissions to Australia's national legislature I have recurrently argued that trust in effective oversight of the law enforcement and national security agencies - and in their compliance with law - is foundational. It is one reason why we need to heed the expression of concerns by Australia's INSLM and IGIS and the IRTL (the UK counterpart) ... and why we need to strengthen rather than abolish the INSLM.

That trust is eroded by rogue operatives and regulatory incapacity. It is eroded by institutions that appear to have ignored the lessons of the past or place bureaucratic convenience above principle.

One instance of erosion is highlighted in a New York Times editorial this week, which reads in part -
In March, John Brennan, the C.I.A. director, was indignant when Senator Dianne Feinstein charged that the agency had broken into computers used by staff investigators from the Senate Intelligence Committee, which she leads. “As far as the allegations of C.I.A. hacking into Senate computers,” he said, “nothing could be further from the truth. I mean, we wouldn’t do that. I mean, that’s just beyond the scope of reason.”
Quite so ... how could presumably zealous and intelligent personnel be so stupid and act so illegally?
But reason seems to have little to do with the C.I.A.’s operations, as Mr. Brennan apparently discovered far too late. On Thursday, the Central Intelligence Agency admitted that it did, indeed, use a fake online identity to break into the Senate’s computers, where documents connected to a secret report on the agency’s detention and torture program were being stored. Mr. Brennan apologized privately to Ms. Feinstein and to Senator Saxby Chambliss, the vice chairman of the intelligence committee, and promised to set up an accountability board to determine who did the hacking and whether and how they should be punished.
The accountability and the apologies, however, will have to go much further. It’s not just two senators that the C.I.A. has offended by this shocking action. It is all of Congress and, by extension, the American public, which is paying for an intelligence agency that does not seem to understand the most fundamental concept of separation of powers. That concept means that Congress is supposed to oversee the intelligence community and rein in its excesses. It cannot possibly do so effectively if it is being spied on by the spy agency, which is supposed to be directing its efforts against foreign terrorists and other threats to national security.
The committee has been working since 2009 on a comprehensive history of the agency’s antiterror program during the George W. Bush administration, which involved illegal rendition to other countries, detention, and torture of suspects, all producing little useful intelligence. It has been frustrated at many points by stonewalling from the agency, which provided misleading information, hid important facts inside a blizzard of excess documents, and forced endless delays in the declassification process. The 6,300-page report still has not been made public, though parts of it may be released later this month, and it is expected to undercut the Bush administration’s claims that its actions were both legal and effective.
Late last year, the agency suspected that Senate investigators had obtained an internal C.I.A. review of the torture program. Senate officials said the review was in a database they were allowed to see, but realized that the C.I.A. had broken into a private Senate computer server and found the review. A summary of an agency inspector general’s report, released Thursday, said C.I.A. hackers even read the emails of Senate staffers. Then they exhibited a “lack of candor” to agency investigators.
In an extraordinary speech on the Senate floor in March, Ms. Feinstein accused the agency of having “undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.” The institutional affront even drew Republican criticism. If the charge was true, said Senator Lindsey Graham, Republican of South Carolina, “heads should roll, and people should go to jail.”
One of those heads may need to be Mr. Brennan’s. If he knew about the break-in, then he blatantly lied. If he did not, then apparently he was unaware of the lawless culture that has festered within the C.I.A. since the moment it was encouraged by George W. Bush and Dick Cheney to torture suspects and then lie about it. That recklessness extended to the point where agency officials thought nothing of burglarizing their own overseer.

Judicial writing

From Samuel B Kent's infamous judgment in Bradshaw v Unity Marine (147 F.Supp.2d 668, 2001 A.M.C. 2358) -
Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact -- complete with hats, handshakes and cryptic words -- to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins. ...
Defendant begins the descent into Alice's Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n. 1 (5th Cir.1998). That is all well and good -- the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court's water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie. Finally, Defendant does not even provide a cite to its desired Texas limitation statute. [FN2] A more bumbling approach is difficult to conceive -- but wait folks, There's More! ...
The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive. There is nothing in Plaintiff's cited case about ingress or egress between a vessel and a dock, although counsel must have been thinking that Mr. Liddy must have had both ingress and egress from the cruise ship at some docking facility, before uttering his fateful words. ...
Despite the continued shortcomings of Plaintiff's supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon -- Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff's briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.
Now, alas, the Court must return to grownup land. As vaguely alluded to by the parties, the issue in this case turns upon which law -- state or maritime -- applies to each of Plaintiff's potential claims versus Defendant Phillips. And despite Plaintiff's and Defendant's joint, heroic efforts to obscure it, the answer to this question is readily ascertained. ....
After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is GRANTED.
At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action versus his alleged Jones Act employer, Defendant Unity Marine Corporation, Inc. However, it is well known around these parts that Unity Marine's lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what's left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action. [FN4] 
FN 4 reads
In either case, the Court cautions Plaintiff's counsel not to run with a sharpened writing utensil in hand -- he could put his eye out.
Colourful, but not a model for Australian litigators and decisionmakers.


'Regulating Genetics' by Kerry Abrams and Brandon L. Garrett argues that
Over the past decades, [US] government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Far from representing a clear-cut story of genetics "essentialism" or even "exceptionalism" in which genetic evidence is prioritized above the alternatives, these efforts have been plagued by conflict. For example, the federal government’s support of DNA databases has come at the expense of using both DNA and traditional police work to solve live criminal cases. Similarly, federal welfare laws require states to use DNA evidence to establish paternity to collect child support from "deadbeat dads," creating potentially destabilizing effects on families. Moreover, courts often do not treat use of genetic evidence as implicating individual rights, policy trade-offs, or federalism problems regarding allocation of power between the federal government and the states.
We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person based on genetics. Next, we set out a typology that can be used to better understand how genetic testing has been legally regulated across a wide variety of fields. We identify two modes of regulatory action: intentional and incidental. These modes can be further divided into two methods of regulation: data-focused and ethics-based. Data-focused legislation concentrates on the short-term benefits of developing information about a population’s genetic information; ethics-based legislation, in contrast, is concerned with the long-term consequences of using DNA, such as effects on privacy or individuals rights. The ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of crucial legal and social institutions. This Article offers a descriptive account of how regulation has shaped and been reshaped by uses of genetic identity evidence and a normative critique of this dynamic.
'Genuine fakes' by Amy Fletcher in (2010) 29(1) Politics and the Life Sciences 48-60 comments
This case study of the Australian Museum's Thylacine Cloning Project analyzes a frame dispute that emerged during public communication of a scientific project, which lasted from 1999 to 2005, and was premised on the idea of resurrecting an extinct species. In choosing the Tasmanian tiger--an iconic Australian marsupial officially declared extinct in 1986--the promoters of the cloning project ensured extensive media coverage. However, the popular and scientific attention generated by the idea of bringing back an extinct species challenged the Museum's efforts to frame the project in terms of scientific progress. The project repeatedly shifted from science to spectacle, as multiple stakeholders used the mass media to negotiate the scientific feasibility of trying to reverse extinction through the application of advanced biotechnology. The case study findings are relevant both to the emerging social issues surrounding the use of paleogenomics in wildlife conservation, and to the theoretical development of frame analysis as applied to scientific controversies. 
 'De-extinction: a novel and remarkable case of bio-objectification' by  Lucia Martinelli, Markku Oksanen and Helena Siipi in (2014) 55(4) Croatian Medical Journal 423-427 comments
 De-extinction is the process of creating an organism which is – or greatly resembles – a member of an extinct species. Contemporary biotechnology offers various promising alternatives for achieving this purpose, including the techniques that have already been applied to preserving endangered species. De-extinction requires an in-depth study of the biophysical conditions where the species can live and reproduce in relation to other species – including humans – and adapt to the environmental changes. In any case, risk and harm evaluation on the impact of the “re-birth” of species is necessary. There is a number of crucial ethical issues concerning de-extinction. They include the meanings of concepts such as “nature,” “species,” “evolution,” “biodiversity,” “death,” and “wildlife” in relation to human behavior and human impact on nature. In 2013, de-extinction became popular through press and public events; the National Geographic devoted a cover story to this topic and presented various possibilities and scenarios about the most suitable candidates. The Revive and Restore network, with the support of TED and in partnership with the National Geographic Society, convened the TEDxDeExtinction conference bringing together conservationists, genetic technology practitioners, scientists, and ethicists (http://www.ted.com/tedx/events/7650). Because the revival of extinct animals inspires imagination, de-extinction has been a topic of science fiction novels, such as John Brosnan’s Carnosaur (1984) and Michael Crichton’s Jurassic Park (1990) and their film adaptations. 
Following a systematic philosophical and ethical analysis on animal de-extinction in the context of ecological restoration, this article analyzes de-extinction from the standpoint of bio-objectification and considers how de-extinction is a case of bio-objectification.
'Resuscitation and resurrection: The ethics of cloning cheetahs, mammoths, and Neanderthals' by Sariah Cottrell, Jamie L Jensen and Steven L Peck in (2014) 10(3) Life Sciences, Society and Policy comments
Recent events and advances address the possibility of cloning endangered and extinct species. The ethics of these types of cloning have special considerations, uniquely different from the types of cloning commonly practiced. Cloning of cheetahs (and other endangered or vulnerable species) may be ethically appropriate, given certain constraints. However, the ethics of cloning extinct species varies; for example, cloning mammoths and Neanderthals is more ethically problematic than conservation cloning, and requires more attention. Cloning Neanderthals in particular is likely unethical and such a project should not be undertaken. It is important to discuss and plan for the constraints necessary to mitigate the harms of conservation and extinct cloning, and it is imperative that scientific and public discourse enlighten and guide actions in the sphere of cloning.
'What’s So Special about Reconstructing a Mammoth? Ethics of Breeding and Biotechnology in Re-creating Extinct Species' by Christian Gamborg in Oksanen and Siipi (eds) The Ethics of Animal Modification and Re-creation: Reviving, Rewilding, Restoring (Palgrave Macmillan) comments
Wild animals are objects of fascination and concern. Efforts are made all over the world to protect wild animals – especially the ones in danger of losing their habitats or their life – and even more so when it is the last member of a species or subspecies. Although difficult to assess, an educated guess places the current extinction rate to about a dozen species a day (Chivian and Bernstein 2008), although there is a great deal of uncertainty about this figure (May 2011). Species losses have their greatest effect when the species lost was previously abundant or had a so-called functionally irreplaceable role in the given ecosystem (Wardle et al. 2011). Certainly, a sense of urgency would seem to form part of the empirical basis for placing the science and practice of de-extinction well into the domain of environmental conservation. In addition there is an alleged moral imperative because humans in many, but not all, cases have (in)directly caused the species to disappear (Wolverton 2010). Hence, ‘repair’ of ecological damage and species extinction is seen as ‘an act of enlightened self-interest, as well as an ethical imperative’ (Cairns 2003). It can also be seen as a more pleasure-seeking reason: that by restoring or rewilding damaged ecosystems we may bring wonder back into our lives (Monbiot 2013). But is it for real? ‘Mammoths Soon to Come Alive’, ‘Breeding Ancient Cattle back from Extincti on’ (Faris 2010) or ‘Clone Zone: Bringing Extinct Animals Back from the Dead’ (Frozen Ark 2011) – headlines like this have the ring of slightly dated science fiction or the scrapped titles of a somewhat low key sequel to the hit movie Jurassic Park, now with the sabre-toothed tiger and the cave bear from the Pleistocene epoch (which spans the most recent glaciations). But there is increasingly less science fiction about the on-going projects around the world – as reconstruction technologies develop – that involve trying to resurrect: the Pyrenean Ibex, a kind of wild mountain goat known as a bucardo which was officially declared extinct in 2000; the thylacine, a hyena-like marsupial carnivore, which vanished as a species in the 1930s; the passenger-pigeon which went extinct in 1914; and several more – not least the woolly mammoth which disappeared during the Holocene warming. A race has started with some scientists claiming that they believe it is just a matter of years before it will be possible to produce a healthy, cloned mammoth by using tissue from the body of a four-month old mammoth, preserved by permafrost (Switek 2013).
Resurrection efforts are not just about ways of changing animals but about ways of changing nature. The re-creation of extinct species seems to steer right into a long-standing ethical debate about the (right) use of technology, about what constitutes a fair distribution of harms and benefits, and about the nature and extent of our responsibilities. This debate concerns on the one hand the moral status of (resurrected) animals and issues about how they should be treated; and on the other hand the value of nature and what kind of meddling is considered acceptable. One of the stated reasons for taking up the challenge and financially supporting this kind of research endeavour is one of getting more knowledge about extinct species. Another often stated, and more applied, purpose is that it could help to preserve nature; saving extinct species and with the insights from this saving species still around which are critical in numbers. Following an over-utilization and extermination of species, which was followed by comprehensive conservation and preservation efforts, as expressed by the Convention on Biological Diversity, a main nature management trend in Europe and in North America has been ecological restoration, such as habitat or landscape restoration and including species reintroduction. But not only is a change taking place in the actual practices and stated justifications as substantial losses of species are witnessed (Hoffman et al. 2010), there is also a move towards ‘breaking up’ old dichotomies between conservation and preservation, between active and passive nature management. Clearly, if it is only feasible to produce one individual these goals cannot be reached and the products of these efforts will only find homes in zoos, cabinets of rarities or museums. Nevertheless, if it was possible to produce a population it could be argued that it might, in theory, be seen as making a difference in restoring lost nature.
In this the chapter I will explore whether there is anything special about reconstructing a mammoth – that is, the issue of re-creating species – from two different, albeit related, angles. The first looks at the ethical aspects of specific techniques (breeding and modern biotechnology) to bring ab out such extinct species, particularly the use of cloning. This kind of technology gives rise to ethical questions. Are breeding-induced animal welfare problems acceptable? What ethical limits are in play here, and how should they be elaborated given the plurality of ethical perspectives? The other angle places species re-creation in the context of nature restoration, specifically relating it to the practice of back breeding, asking whether such radically reintroduced animals should be regarded as research animals, animals in our care or as wild animals. I will also consider how such restoration should be conceived, whether as ‘real’ nature or nature by proxy.

01 August 2014


The UK Independent reports that under a year-long English pilot scheme offenders who "repeatedly commit alcohol-related crime will be forced to wear ankle tags that monitor if they are still drinking". under a pilot scheme.
 The "sobriety tags" aim at enforcing abstinence by measuring a person's perspiration every half an hour and testing for traces of alcohol. If any trace is discovered, an alert will be sent to the offender's probation officer and they can then be recalled to court, where they could face sanctions such as a fine or even be re-sentenced. 
The 12-month scheme is being trialled in four London boroughs - Croydon, Lambeth, Southwark and Sutton and is being backed by the Metropolitan Police and the Mayor of London, Boris Johnson. 
The tags register alcohol consumption, but do not keep track of people's movements or where they are. 
Up to 150 offenders could be fitted with the tags under the new scheme. They will be banned from drinking alcohol for up to 120 days, and the tag will test them to see if they flout the ban. 
Offenders will be screened before they are chosen to wear the ankle tag. People who are alcohol-dependent and need specialist support will not be a part of the scheme.
Other reporting indicates that the transdermal ankle tags measure the alcohol content of perspiration.

They are apparently an extension of the Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet.


In Mulholland v Funnell [2014] VSC 349 the Supreme Court of Victoria has refused to grant interlocutory relief restraining Paul Funnell from describing himself as the Federal President of the Democratic Labor Party (DLP).

On balance of convenience the VSC also allowed the DLP Victorian State Conference to occur, despite the opposition by the Secretary of the State Executive of the DLP Victorian Branch.

Doc Evatt must be rolling in his grave.

Preceding litigation includes Butler v Mulholland (No 2) [2013] VSC 662, Re Mulholland and Australian Electoral Commission [2011] AATA 879 and Mulholland v Australian Electoral Commission [2012] FCAFC 136.

29 July 2014

Medical misadventure in NZ

'Plus ça change, plus c’est la même chose: Negligence and treatment injury in New Zealand’s accident compensation scheme' by Joanna M. Manning in (2014) Medical Law International comments
 In 2005, cover for treatment injury replaced medical misadventure in New Zealand’s accident compensation scheme. The mischief was to remove the need for a claimant to prove a health practitioner’s or organization’s negligence to establish cover. The aim was to provide greater fairness for claimants, faster claims handling and a higher acceptance rate. A disturbing aspect of the case law interpreting the treatment injury criteria is that notions of negligence have crept back into the interpretation of these criteria and are becoming entrenched. The original purpose of the reform is in danger of miscarrying, unless these misguided interpretations are corrected by superior appellate courts. This is not simply a matter of being faithful to the intention of the reform but is necessary to maximize provider trust and cooperation in the claims process in the interests of claimants. A way to do this is to incorporate the concept of ‘preventability’ as defined in the Swedish, Danish and Finnish patient insurance schemes. It may prove impossible to eradicate fault altogether from treatment injury, but vigilance is required so that negligence is kept to a minimum. Negligence concepts might continue to play a role in the interpretation of the statutory exclusion from cover of personal injury that is an ‘ordinary consequence’ of treatment. Another is in relation to Accident Compensation Corporation’s (ACC’s) mandatory duty to report a risk of harm to the public. Any enthusiasm on behalf of ACC and the courts to ‘bring back negligence’ is ironically absent from the latter aspect of the scheme.


From the 34 page US General Accountability Office (GAO) Tax Debts Owed by DOD Employees and Contractors report (GAO-14-686R) -
GAO found that about 83,000 Department of Defense (DOD) employees and contractors who held or were determined eligible for secret, top secret, or sensitive compartmented information (SCI) clearances, or related interim clearances, had unpaid federal tax debt totaling more than $730 million as of June 30, 2012. DOD reported to GAO that about 3.2 million civilian and military employees and contractorsheld or were approved for similar clearances from January 1, 2006, to December 31, 2011, which was the time frame for GAO’s analysis. According to data from the Internal Revenue Service (IRS), about 34,000 of these 83,000 individuals (about 40 percent) with tax debt had a repayment plan with the IRS to pay back their debt as of June 30, 2012. GAO’s analysis cannot be generalized to individuals that were granted eligibility for security clearances and were non-DOD employees of the executive branch, employees of the legislative branch, or employees of the intelligence community. 
As part of this work, GAO also identified individuals with unpaid tax debts who also had access to classified information. DOD officials stated that individualshaving access to classified information pose a greater risk because they have more opportunity toactually compromise classified information than a person who is only eligible to access classified information. GAO found that about 26,000 of the 83,000 DOD employees and contractors with eligibilities who owed taxes (about 31 percent) had access to classified information, and they owed about $229 million in federal taxes as of June 2012. 
In September 2013, GAO reported that additional mechanisms could improve federal agencies’ ability to detect delinquent federal tax debts owed by individuals determined eligible for security clearance, but statutory privacy protections limit access to this information (GAO-13-733). During that prior work, officials from the Office of the Director of National Intelligence (ODNI) told GAO that they had formed a working group in 2012, in collaboration with the Office of Personnel Management (OPM) and other federal agencies to, among other things, explore whether an automated process for reviewing federal tax compliance could be established. GAO recommended that ODNI, in consultation with OPM and the Department of the Treasury, evaluate the feasibility of federal agencies routinely obtaining federal debt information from the Treasury Offset Program (TOP) system, or a similar automated mechanism. TOP is a centralized offset program, administered by the Department of the Treasury, to collect delinquent debts owed to federal agencies and states. Both ODNI and OPM concurred with GAO’s September 2013 recommendation.