28 June 2016

Mandatory Blood Testing

From the 2nd Reading Speech for the Police Administration Amendment Bill 2016 (NT) on 27 June.
The purpose of the Police Administration Amendment Bill 2016 is to provide for the mandatory blood testing of a person who has, in proscribed circumstances, transferred a substance to a police officer, and to enable the analysis of that sample to determine if that person has an infectious disease.
Early detection will allow appropriate medical, physical and psychological treatment to be provided to that police officer. I will go through a few key features of the bill to provide clarity for those who do not appear to fully grasp its content. I will also provide responses to issues that have been raised, most notably by the nurses’ federation and the organisation supporting lesbian, gay, bisexual, transgender and intersexual populations.
A key feature of the bill is to organise a blood sample to be taken from a person by a medical practitioner, nurse or qualified person and the analysis of the blood sample for an infectious disease. The bill will also provide powers for police to apprehend and detain a person to enable the determination of an application of a disease test approval. Or, to apprehend and detain as long as reasonably necessary to enable the taking of a blood sample and to enable the disclosure of the results of the analysed blood sample to be provided to the authorised persons.
In the history of the bill and its consultation phase, the Northern Territory Police Association has long lobbied for police to be given broader powers in seeking non-consensual orders for intimate procedures on offenders who spit, bite or otherwise assault an officer in way likely to have transferred blood or any other bodily fluid to that officer.
The police association sought reform in line with the current model which is operating in Queensland. The bill is based on the Mandatory Testing (Infectious Diseases) Act 2014 from Western Australia. That follows a jurisdictional comparison where it was considered that Western Australia has the most appropriate model as it provides a level of transparency of the processes. In late 2015, the following organisations were targeted in consultation in relation to introducing similar powers under the Police Administration Act as in the Mandatory Testing for Infectious Diseases Act of 2014. They include the Police Association, the Law Society of the Northern Territory, the NT AIDS and Hepatitis Council, the Chief Magistrate and the Chief Justice, the Anti-Discrimination Commissioner and the Information Commissioner.
During that process, concerns were raised by the Law Society, the NT AIDS and Hepatitis Council, the Anti-Discrimination Commissioner and the Information Commissioner. I will go through the concerns that were raised, and I will provide a response.
One concern was about the infringement of a person’s rights by the conduct of a medical procedure without consent. The response is that there is already power under section 145 of the Police Administration Act which provides for this. Testing will only occur where there has been a transfer of a substance from a person to a police officer following an assault of the officer by the person or during the arrest or detention of the person. The procedure will be conducted by a medical practitioner, nurse or qualified person and oversight is provided where approval for the procedure is given by a Superintendent or above, or a Local Court judge in instances where the transferer is a protected person who is satisfied there are grounds for such disease testing.
In relation to the disclosure of a person’s private health information, analysis of the blood sample will be conducted by a pathology laboratory. Provision of the results will only be disclosed to the transferer or affected member, their respective health practitioner or psychologist, psychiatrist or social worker, and where required, notified to the Department of Health Centre for Disease Control. This will maintain, as much as possible, the confines of the doctor/patient relationship and ensure sensitive health information is limited to authorised persons. Information relating to a transferer’s medical result will not be placed on the PROMIS system or the police real time online management information system.
In relation to false positive or false negative results, it is acknowledged that there is potential for false positive and false negative results. The intent of this legislation is not to change how officers respond to biological exposure incidents, but to provide a means for early identification to reduce stress and anxiety for exposed officers and their families and contribute to decisions regarding treatment and appropriate counselling.
Transfer of bodily fluids from victims to a person to whom an officer is providing first aid was a question raised. This power does not apply to these situations and it is not a result of an assault against a police officer, or during an apprehension or detention of a person.
Police take all reasonable precautions against exposure to contagion such as personal protective clothing apparatus, and also Hepatitis B vaccinations appropriate to such situations.
There was a question about the transfer of a substance from a person to a police officer’s clothing or skin that is intact. The power in this bill does not apply in these situations.
A question has been raised about the reinforcement of a common misunderstanding of the way blood-borne viruses are transmitted. The Northern Territory Police Force is working with the Department of Health to provide guidance and education, such as appropriate material and information sessions on infectious diseases which may be transferred to police officers.
There are questions about detaining those not linked to serious criminal offending. Assaulting a police officer is an indictable offence, and in its own right a separate offence in the Criminal Code, section 189A. In some circumstances this can attract a penalty of imprisonment for up to 16 years, otherwise if found guilty summarily, three years.
In regards to inequity in appeal mechanisms for protected and non-protected persons, a high level of oversight should be provided to those who are be too young or not capable of fully understanding the implications of compliance.
In relation to no discretion to the decision maker to evaluate the likely risk of infection, Northern Territory police will include a process for risk assessment to be made by an on-call physician prior to seeking a disease test authorisation. The information provided by the physician will be noted by the senior member on the application for a Disease Test Authorisation. It was not considered appropriate to legislate this process. It will form part of the internal policies and procedures under this new regime.
There was a final question about detaining a person for disease testing when the person has not been and will not be charged with an offence. A person has committed an offence by spitting at or biting a police officer.
It is interesting to go through the information that has brought us to the position where we are able to introduce this bill. The problem being solved through the amendment is an issue of workplace health and safety for Northern Territory police officers. We will support NT Police officers’ welfare following a biohazard incident, allowing early identification of potential transmission of an infectious disease to an officer or provision of prophylactic medication, treatment and counselling, further reducing stress and anxiety for exposed officers, especially their partners and families, including their children. We will allow notification of results from a transferor, identifying a positive test to an infectious disease to obtain appropriate treatment and counselling through the health system.
It is important to look at the circumstances in a numerical point of police officers who are spat at or bitten in the line of duty. In the financial year 2013-14 there were 27 cases of officers on the front line who were spat at or bitten, with a [potential transfer of saliva, blood or faecal material, which has caused disturbing and distressing situations.
In the 2014-15 financial year there were 35 incidents, and this current financial year, which is currently drawing to a close, there have been 37 incidents. Of those incidents in the 2015-16 financial year, needle and syringe injuries have had an occurrence of one. There has been one occurrence where an alleged offender has vomited on a police officer. There have been 19 occurrences where a police officer has been spat at or upon. There have been 15 occurrences where a police officer has been exposed to a potential transfer of blood. There has been one instance of a police officer being bitten.
I want to run through some example of these occurrences through the financial year. I will only read a few, and I will not include any identification in these examples. An offender who was placed under arrest resisted violently and in the process bit the police officer on the wrist, then, immediately after, bit the officer on the hand. The bite caused the member’s skin to break and expose blood. The member attended hospital to have the wound cleaned and bloods taken. That officer, under the current regime before this bill passes, will have to wait three months to identify whether or not he has been subjected to the transfer of a communicable disease.
I am not a police officer, but I can only imagine the amount of pain and suffering an officer goes through, emotionally, physically, psychologically as an individual and how does that impact on their families. Particularly from an intimate point of view with their partner, or with the play time they may have with their kids. I think that this legislation is a no brainer. I will give more examples to prove the point. In a second example, an offender was taken into protective custody and placed into the back of a police vehicle. Without warning, the offender spat through the cage directly into the member’s face with the spittle making direct contact with the member’s right eyeball, cheek and nose. The member attended hospital to have bloods taken.
The third example, while arresting an offender the member has been bitten by the offender under their left armpit. The bite caused instant pain, bruising, swelling and a 5 cm laceration. Medical treatment was obtained at hospital and a blood test completed, a tetanus injection was also received and the wound addressed, but this officer has to wait three months as well.
Another offender had a cut lip and spat a combination of blood and saliva into a member’s face, droplets of their spittle landed in their eye and their face. It is horrific to hear about the circumstances in which police operate in the Northern Territory, but I find it offensive to think there may have been the transfer of a communicable disease and currently there is no testing regime that can shorten the information cycle to be less than three months.
Another example, members attended a general disturbance and arrested a person. That person was placed in the rear of a police van with handcuffs due to their high level of aggression. While checking the welfare of the offender, the offender spat at the member, hitting the member in the face. When the police member made a second arrest the offender again spat at the police officer. The affected police member placed antibacterial lotion over their face and hands as aftercare, in an attempt to clean the spit from their face. The member’s mouth was open at the time; however there was no blood in the spit, only saliva.
They are a few examples of the circumstances police are facing on an everyday basis. This legislation is designed to fix that. I will go through some more information briefly. These are the concerns that have been raised by the Northern Territory AIDS and Hepatitis Council. There is a question about the bill perpetrating the common misunderstanding that HIV can be transmitted through contact with saliva, such as through spitting. As clearly stated in the Australian Society of HIV Medicine’s guiding document entitled Police and Blood-borne Viruses, which I will refer to as BBV, there are only certain bodily fluids that contain HIV in sufficient concentration to be implicated in an HIV transmission, that is, blood, semen, pre-ejaculation and vaginal fluids and breast milk. Saliva is not only of those.
The response to that is testing of a transferer is not simply triggered because an officer has been exposed to bodily fluids during their course of duty. The legislation provides for defined circumstances where an application for testing may be authorised such as if a person spits, throws or wipes a substance – that is, blood, spit or faeces – on that police officer and it enters their mouth or eyes or lands on an open wound.
Notwithstanding the proposed amendments specify BBV or blood-borne viruses, this is so the police force is open and transparent to the public about the standard testing that will be conducted on a blood sample. It is also consistent with the tests that are currently undertaken on a police officer’s sample following exposure.
There is provision to include a broader definition of ‘infectious diseases’ by regulation which will allow the testing of infectious diseases that are not BBV, but is transmissible by saliva or faeces into the broken skin or mucous membrane of a police officer.
A second area of concern raised by the Northern Territory AIDS and Hepatitis Council was even if a positive BBV result is returned, it cannot establish whether an officer has contracted a BBV. A negative BBV result is also not conclusive as there is a window period for BBV tests of a minimum of three months.
That is correct in the test in time, but current protocol for an officer who has suffered a biohazard injury is to seek medical attention for a risk assessment and undergo testing or treatment if warranted. The intent of the legislation is not to change how officers respond to such incidents in the workplace.
There was a question about the HIV testing policy which states that informed consent is required for HIV testing, except when a legal order is made for testing. Generally taking blood from a person without their consent involves the criminal offence of assault and civil trespass. That is the question that was raised. The response is that the proposed amendments will introduce a power to test a person for an infectious disease, regardless of consent. If approved it is required to be served on the transferor to explain the purpose and effect of the approval, that force may be used and that failure to comply is an offence. It does not remove the need to request consent. This will form part of the application process when an officer seeks a Disease Test Authorisation.
Another question concerned individuals who test positive for HIV may be charged under general criminal law for exposure and transmission of HIV with laws that potentially criminalise people with HIV that undermine the suite of national BBV strategies.
My response is that the test results under this new power will not be placed on systems such as PROMIS nor available to police officers in general. A restricted list of authorised persons will have access to the results, including the transferor, the affected police officer and their respective health practitioners.
The results from this process cannot be used for any other purpose than a test for an infectious disease. There are significant penalties which follow the disclosure of information or use of blood sample for any other purpose.
Under these provisions there is no penalty should a positive result be returned from a transferor.
A final point responds to a point which raises the question of guidelines and procedures. To minimise the risk of an officer contracting HIV or other blood-borne viruses following an exposure the Northern Territory AIDS and Hepatitis Council provided a community-based training on BBVs on a fee-for-service basis. The Northern Territory police already have vigorous guidelines and procedures in place regarding the risk of infectious diseases and minimising exposure in a policing environment.
If the legislation is passed in Parliament today, further work will be undertaken with the Department of Health on education about infectious diseases.
I would now like to respond to questions raised by the Australian Nursing and Midwifery Federation. One of their concerns is that the bill will provide no further protection to police in contracting communicable diseases. The Federation say is it their protective equipment that helps to reduce and stop contamination.
My response is that the proposed legislation has been drafted with officer health and welfare in mind. The proposed legislation is based on keeping officer health and welfare in mind. It will support the workplace health and safety of police officers and their welfare following a biohazard injury, allowing earlier identification of potential transmission of such infectious diseases and provision of earlier treatment to be provided, which assists in further reducing the stress and/or anxiety for exposed officers and their partners and families.
The NT Police already have rigorous guidelines and procedures in place regarding risk of infectious diseases and how they better prepare for it. Some questions have been asked about whether police could wear safety masks when they leave the station, and I think that is a ridiculous request.
There is a subsequent question about concerns regarding putting health professionals under pressure to forcibly take blood for testing, saying this would be an ethical and human rights dilemma, besides possibly putting their registration at risk for professional conduct. There is already a provision under the Police Administration Act, most notably under section 145, which allows for the taking of a blood sample, known as an intimate procedure. For the purpose of providing evidence relating to an offence punishable by imprisonment, in the Traffic Act – a good example is section 29AAG, which requires a blood sample if a police officer reasonably believes the concentration of alcohol in the person’s breath or blood is such that a person has committed an offence against the act, or the officer has reasonable cause as a result of a positive indication from a saliva, to suspect the person’s body contains a prohibited drug.
Section 147FR(4) under clause 6 of the bill provides for a medical officer, nurse or qualified person to not be required to take a blood sample as authorised in the disease test authorisation until the practitioner, nurse or qualified person is satisfied that: (a) there is no serious risk that serious harm would be caused to the transferor, or another person, by the taking of the sample; and (b) the health of the transferor would not be adversely affected by the taking of the sample.
Protection from liability is also provided for medical practitioners, nurses or qualifies persons under section 148B, which is clause 7 of the bill. It states under ‘Protection from liability’: (1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act. ...
To those who say that this is not fair and is a breach of human rights, I have one very pointed message: if you do not like it do not spit on police, do not bite police, do not pass bodily fluid to police and do not pass faeces to police. It is abhorrent; police are out there protecting every single citizen in the Northern Territory. To think that police currently have to go through the pain and suffering of waiting three months is outrageous.

Must Carry Identity Documentation

'Demanding Identity Papers' by Jonathan Weinberg in (2015) 5(1) Washburn Law Journal 197 comments
Language in the [US] Immigration and Nationality Act appears to make it a crime if a non-citizen, present in this country, fails to carry government-issued immigration documents on his person at all times. The resulting body of law, though, is deeply incoherent; it assumes an administrative process that has not existed for many decades. Analysis of the provisions’ history and context supports the conclusion that they should not be read to impose obligations on persons who have entered the U.S. without authorization. 
Weinberg argues that
Federal statutory law includes a set of provisions that appear to mandate the registration and fingerprinting of every person, age fourteen or above, who is present in this country but is not a U.S. citizen. Those same provisions direct that noncitizens, while in the United States, “at all times carry with [them] and have in [their] personal possession” the immigration documents issued to them as part of that process.  That body of law, as administered today, is convoluted, confusing, and significantly incoherent. There’s substantial uncertainty regarding to whom it applies and under what circumstances. In this short Article, I will set out the statute’s requirements and explain its modern administration. I will then explain the history of the statutory provisions, so as better to explain how we got where we are now. Finally, I’ll address key questions as to the scope of the law today.
II The Puzzle of Alien Registration
Our starting points are sections 262(a) and 266(a) of the Immigration and Nationality Act (“INA”), which require that “ every alien now or hereafter in the United States ... apply for registration and to be fingerprinted.” Section 264(d) of the Act directs the United States, upon such registration, to issue the alien a “certificate of alien registration or an alien registration receipt card.” And section 264(e) directs “ every alien, eighteen years of age and over, [to] at all times carry with him and have in his personal possession an y certificate of alien registration or alien registration receipt card issued to him.”
These provisions seem straightforward enough; they inspired the state of Arizona, just a few years ago, to enact a law it called Senate Bill 1070, the Support Our Law Enforcement and Safe Neighborhoods Act. Section 3 of that statute created a crime of “failure to ... carry an alien registration document.” Arizona read the INA to say that it was a federal crime for a noncitizen, here in this country without authorization, to walk its streets unaccompanied by an “alien registration document” issued by the U.S. government, and it reasoned that it could make the same conduct a state crime. The U.S. Supreme Court, while striking down that law as invading federal authority, did not challenge Arizona’s understanding of the INA.
Yet sections 264(e), 262, and 266 are not so simple, and there is good reason not to take them at face value. For starters, their language does not match up with modern immigration procedures or documentation: the registration process Congress had in mind when it enacted those sections has not existed for many decades. If you look in the Code of Federal Regulations today to find out how a noncitizen can register in conformance with the law, you’ll find eleven different documents listed as “prescribed registration forms” — apparently, the filing of any of these eleven documents, during a wide range of possible interactions with the immigration bureaucracy, counts as “apply[ing] for registration” from the government’s perspective.
But the list is an awkward one at best. The first-listed of its forms is an inspection record issued under a special statute providing for the s tatus legalization of refugees from the 1956 Hungarian uprising.  That is great, I guess, for elderly Hungarian refugees, but — by contrast — the more important and commonly filed I-589 asylum application is not on the list as a “ registration form [] .”
The second item on the list is the I-94 form historically filled out by foreign visitors to the U.S. That would work well enough, except that the Department of Homeland Security (“DHS”) no longer directs most visitors to fill out that form today. Instead, it collects the relevant information from their airline - supplied electronic travel records.   Elsewhere on the list are documents that might more plausibly work as registration forms, such as the I-485 green card application. But not every noncitizen in the United States has had the opportunity to file one of those forms.
Crucially, the list includes no “registration forms” that could be filed by a person in the United States without authorization — and that includes people who have been granted relief under the Deferred Action for Childhood Arrivals (“DACA”) program, people with Temporary Protected Status, or others with deferred action. If section 264(e) is read to criminalize those persons’ failure to file a form on the list, it would contravene long standing government policy, some of it explicitly set out in the statutory law.  It would effectively criminalize unlawful presence in the United States, something Congress has consistently declined to do.  Moreover, I will point out later in this Article, it would violate the Fifth Amendment privilege against self-incrimination. 
Next, the federal government does not issue any single document called, or easily understood as, a “certificate of alien registration or an alien registration receipt card.”  If we return to 8 C.F.R. § 264.1, we see instead a list of eleven or twelve documents that are said to constitute “evidence of registration.” That list works a little better. It includes the I-551 green card, the I-776 employment authorization document, and “a valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport.”  In general, people legally admitted to the United States will have one of these.
Again, though, people who were not legally admitted will not have one — and that includes people with Temporary Protected Status or DACA relief, unless they have work authorization. Presenting oneself for deportation might generate an “evidence of registration” document, because the I-862 Notice to Appear (typically, the first step in the removal process) is on the list. But the mere fact that DHS has been made aware of an illegal entrant does not mean that it will issue an I-862.
In sum, many noncitizens resident in the United States, often with the acquiescence of the U.S. government, have no “ evidence of registration ”document or anything else resembling an “alien registration receipt card,” and no way to get one. If we focus on the text of section 264(e)’s carry requirement (that is, the rule that a noncitizen must “at all times carry with him and have in his personal possession any [registration document] issued to him”), it is pretty clear that a person can not be criminally charged for failing to “carry with him and have in his personal possession” a document he never got and could not get.
But the U.S. government seems not to see it the same way. From time to time, federal prosecutors charge illegal entrants with violations of both sections 262 (the registration requirement) and 264(e) (the carry requirement); defendants do not contest those charges, and the cases end in guilty pleas.  In other cases not involving section 262 or 264(e) charges, courts have accepted the argume nt that section 264(e) provided probable cause for the arrests of suspected illegal entrants.
Outside of the courtroom, U.S. Customs and Border Protection (“CBP”) treats sections 262 and 264(e) as imposing an obligation on all noncitizens, authorized or unauthorized, to carry immigration documentation at all times. 8 U.S.C. § 1357 gives CBP agents the right, on or off the border, to “interrogate any . . . . person believed to be an alien as to his right to be . . . in the United States.” It gives CBP the right, without a warrant, to stop and search any vehicle within “a reasonable distance from any external boundary of the United States.” CBP has defined that “reasonable distance” as 100 miles, and is said to operate 170 checkpoints within that 100-mile-wide zone (which includes nine of this country’s ten largest cities, and two-thirds of our population). And the law gives CBP the right to conduct warrantless search of any property, other than dwellings, within twenty-five miles of the border.
CBP routinely detains people encountered within 100 miles of a border whom an agent believes to be foreign-born if they do not have on their persons what CBP describes as “required identification papers.” Its paperwork commonly notes § 264(e) as justification for those detentions.
CBP agents have told foreign students that the law requires them to carry the I-20 forms provided to them by their schools to support their visa applications. They have emphasized to foreign nationals in the United States that the registration law requires them to carry their passports or visas even on a “walk to the grocery store.” More generally, CBP believes that its agents have a duty to “verify the immigration status of the individuals they encounter.” Its view is that agents are empowered to arrest a person, and detain her at the station, whenever that person cannot produce documents establishing her legal status, and the agent cannot verify her status through a radio call requesting a database check. Because database checks are frequently inconclusive, CBP agents frequently detain persons with legal status but without papers on their persons demonstrating that status.
According to a study of CBP enforcement activity in the Buffalo region, the vast majority of the agency’s enforcement targets in that region are persons of South Asian, East Asian, African, and Caribbean backgrounds.  Those persons are subject to what amounts to a blanket requirement that, if they are within 100 miles of the border, they must carry papers or risk detention. All of this is based on a highly problematic reading of the relevant statute, and imposes on noncitizens a documentary surveillance regime that could not constitutionally be imposed on Americans.
Weinberg's 'Proving Identity' (Wayne State University Law School Research Paper No. 2016-09) comments 
United States law, over the past two hundred years or so, has subjected people whose race rendered them noncitizens or of dubious citizenship to a variety of rules requiring that they carry identification documents at all times. Such laws fill a gap in the policing authority of the state, by connecting the individual’s physical body with the information the government has on file about him; they also entail humiliation and some degree of subordination. Accordingly, it’s not surprising that we’ve almost always imposed such requirements on people outside our circle of citizenship -- African-Americans in the antebellum South, Chinese immigrants, legally resident aliens. Today, though, there’s reason to think that we’re moving closer to a universal identity-papers regime.
We’ve all been displaying identification documents a lot lately. You have to show ID in order to vote (though some argue that such rules unconstitutionally suppress minority voting power). Federal law requires that you show ID in order to accept employment (and there are some in Congress who would go further, requiring anyone in the U.S. to display a new national ID card before taking any job). More and more, we’re getting used to demands that we verify our identity at different moments of our daily lives.
And the nature of the docume ts that we need to show is changing. Visitors to U.S. military bases need to identify themselves to be admitted; historically, a state driver’s license has sufficed. If you live in Chicago, though, and display your Illinois driver’s license at the gate of the naval training center there, you’ll be turned away. The U.S. government recently ruled that it won’t accept the Illinois driver’s license for this purpose because, it says, Illinois driver’s licenses don’t satisfy federal standards.  The federal government has announced that in the future it will disqualify residents of certain states from using their driver’s licenses to pass through airport security.  So it’s not merely that the law requires us at various moments of our lives to show identification documents, but the federal government increasingly is seeking to dictate how those documents are issued.
If you’re not a U.S. citizen, but you are physically present in this country, federal law is stark: it requires you to carry, at all times, in yo ur personal possession, federally-issued documents establishing your identity and your immigration status.  This isn’t at all new. Looking back through U.S. history, people whose race rendered them noncitizens or of dubious citizenship have been subject to a variety of similar rules that they carry identification documents: free blacks in the antebellum period,  and Chinese immigrants beginning in 1892.  The current law requiring noncitizens to carry ID can be traced to a 1952 effort to save the country from Communism. White U.S. citizens as well sometimes have been subject to legal sanction if found without ID, including men of draft age during WWI and (nominally) from 1940 to 1975, and the disreputable poor in some jurisdictions during the 1970s and early 80s.
Current pushes for new ID requirements, like the older ones, tend to be attached to immigration and national security initiatives, and to be heavily rooted in race. Arizona’s 2010 Support Our Law Enforcement and Safe Neighborhoods Act  was exemplary. Enacted in an environment of widespread police racial profiling and unlawful stops, detentions, and arrests of Latinos,  it made it a state crime, enforceable by state police, for any non-U.S. citizen to fail to carry federal immigration documents.  Current U.S. Border Patrol enforcement can be seen through the same lens. Agents understand themselves to have the authority to detain, and demand papers from, anyone they encounter within 100 miles of a border who appears to be foreign-born; unsurprisingly, their enforcement targets skew brown.
How should we understand these mandates? Historically, we’ve most commonly used identity-papers requirements to control those outside our legal circle of citizenship -- African-Americans in the antebellum South, Chinese immigrants, legally resident aliens. All of these groups have been perceived as including members who were subversive, encroaching or illegal, but who would be too hard to identify and classify without the aid of forced identification. In the military draft context, we sought to use a less problematic version of the same technique to identify citizen “slackers” – to avoid a feared splintering of citizenship by means of (perceived) shirking from crucial national obligation and sacrifice. We’ve thus used identity - document controls to maintain hold over noncitizens, and to cleave to the group what the majority perceived to be unreliable citizens.
But there’s more going on. ID requirements are threatening, on multiple fronts, to those forced to identify themselves. From one perspective, the foundational aspect of identity cards is that they connect one’s physical body with a government database. Without a requirement that persons carry identity papers, a law enforcement officer encountering an anonymous citizen has no access to the database-stored information that would provide basis for arrest. With such a requirement, that information is visible to the officer, and it puts the holder’s body at risk.
From another perspective, the law enforcement’s ability to demand identity cards relates to issues of dominance and hierarchy. A free people, Americans tend to believe, can move about without having their bona fides questioned, without having a police officer able to demonstrate his authority and their subordination by forcing them to display identification. That understanding, indeed, is reflected in Supreme Court case law.
Either way, it’s unsurprising that we’ve been much more willing, throughout our history, to impose identification requirements on minorities – on the Other, on those outside our circle of citizenship – than on ourselves. A few years ago, the Senate drafters of a comprehensive immigration reform bill urged that every person who sought to work in the U.S. – citizen and noncitizen alike – should have to get a new machine-readable identification card bearing his biometric information and establishing his legal authorization to work.  But while the larger bill in which that proposal was embedded passed the Senate, the ID-card proposal did not: it was dropped.  Similarly, aspects of the 2005 REAL ID law seen as tending to create a national ID card have seen continuing resistence and pushback in some states and local communities. 
And yet it’s still fair to say that we‘re seeing a drift towards greater acceptance of ID requirements for all; indeed, those challenged REAL ID provisions are still on track to be implemented. How should we understand that development? In this paper, I’ll tell the story of identity-papers rules in the U.S., and draw some conclusions.
Part I of the paper will beg in by examining the pre-Civil War rule s imposed on many free blacks requiring that they carry documentation; part II will consider the more encompassing identity-papers requirement applied to Chinese migrants starting in 1892. Part I II will shift to World War One, and a regulation providing that all men of draft age carry draft registration certificates at all times. Part IV will look to the requirement, dating from the McCarthy era and still in force, that noncitizens register with the U.S. government and carry their registration cards at all times. Part V will consider the Vietnam-era draft card controversy, and a set of state and local laws in force roughly contemporaneously requiring vagrants and undesirables to provide identification on demand. Part VI, finally, will consider REAL ID and identity demands in the modern context.

27 June 2016

UK Asylum Seeker Data Breach

In TLT and others v Secretary of State for the Home Department Mitting J in the EWHC (QB) has ordered the UK Home Secretary to pay a total of £39,500 to six asylum seekers whose confidential information was accidentally published on a Home Office website and then republished on US document sharing site.

The incident resembles the Australian Department of Immigration and Border Protection disclosure of personal information about 10,000 asylum seekers noted in 2014 and featured in items here, here and here.

In the UK judgment the six claimants were part of a cohort of around 1,600 people whose details featured in a spreadsheet released in October 2013.

The litigants comprised three individual women and a family group. They were from different countries and had made an application for asylum.  The release featured comprised the claimant’s name, age, whether they were seeking asylum, details of the processing and the area in which the application was made by four of the litigants. For the other two litigants the applicants were not named but described as family members.

The data was removed from the Home Office site after two weeks.

As with the Australian data breach, the litigants expressed concern. The Court heard that at least one foreign government may have accessed the information and accordingly detained family members .

Mitting J found that the breach was a misuse of personal information and contravened the Data Protection Act in relation to all six claimants. He made awards of damages of £12,500 in two cases, £6,000 in one case, £3,000 in two cases and £2,500 in respect of the child.

The Court also ordered the Home Secretary to pay all costs, including an additional amount of costs and interest in one instance because a reasonable offer to settle had not been accepted.

Death and Digital Artefacts

'Death and Privacy in the Digital Age' by Natalie M Banta in (2016) 94(927) North Carolina Law Review comments
Americans store an overwhelming amount of sensitive, personal information online. In email accounts, social networking posts, blogs, shared pictures, and private documents, individuals store (perhaps unwittingly) the secrets and details of their lives in an unprecedented manner. During an individual’s life, these accounts are seemingly under the direct control of an account holder. Privacy is occasionally threatened, but people continue to use online services and pour personal information into their online accounts.
When developers created these online services and platforms, it is unlikely that they gave much thought to what would happen to accounts when an account holder died. Yet, the treatment of these accounts after an account holder’s death is an increasingly pressing issue in today’s society as more and more Americans die with active, password-protected accounts in their name. In determining how these assets will be handled at an individual’s death, powerful principles collide — including privacy, contract, property, and freedom of information.
This Article discusses how privacy interests are traditionally terminated at death and explores how they should be revived and reshaped in a digital future. It argues that to align posthumous privacy interests with the needs of a digital future, the law must ensure that succession principles apply to privacy as well as property rights, and that decedents’ individual intent for the fate of digital assets is honored. The Article acknowledges that private contracts may be a sufficient tool to protect privacy after death in some instances, but argues that the lodestar in any discussion of posthumous privacy should be testamentary intent. In the absence of testamentary intent, state legislatures should enact default rules of digital asset succession that accord with the family-centered paradigm of inheritance.

TodayFM, the Royals and Privacy

The 'Case Note - Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd: Administrative Body as ‘Prosecutor, Judge and Jury’?' by Jeremy Leith in (2016) 38 Sydney Law Review 255 considers the 2012 prank call by a Sydney broadcaster that raised questions about privacy, identity and self-regulation.

Leith comments
In December 2012, radio station Today FM broadcasted a recorded telephone conversation between hospital staff members treating the Duchess of Cambridge and radio presenters impersonating Queen Elizabeth II and the Prince of Wales. This case note examines Today FM’s challenge to the statutory authority of the Australian Communications and Media Authority (‘ACMA’) to make a determination, as a precondition to taking administrative enforcement action, that the broadcaster had committed a criminal offence in recording the telephone conversation. It provides an analysis of the Full Federal Court of Australia and High Court of Australia judgments, giving particular attention to the application of the principle of legality as a presumption of statutory interpretation. The majority judgment of the High Court rejected the Full Court’s particular application of the principle of legality and the concurring judgment of Gageler J delivered a broader critique of the application of the principle to constitutionally imposed structural limitations on legislative power. In upholding the statutory authority of the ACMA, the High Court also provided confirmation as to the validity of the comparable powers of administrative bodies operating at both the state and federal level.
 He goes on to write that Today FM
broadcast a recorded telephone conversation between presenters of the ‘Summer 30’ radio program and staff members of a hospital at which the Duchess of Cambridge was an in-patient for a condition related to her pregnancy. Impersonating Queen Elizabeth II and the Prince of Wales, the presenters elicited an overview of the Duchess’ medical treatment from an on-duty nurse. [ACMA] commenced an investigation into the broadcasts following widespread publicity of the breach of patient privacy and the suicide of an on-duty nurse who had been recorded and broadcast in the Summer 30 segment, who blamed the presenters in a suicide note. In a preliminary investigation report, the ACMA formed the view that Today FM had contravened a criminal offence provision contrary to its licence conditions, which prompted the broadcaster to challenge the statutory authority and constitutional validity of this administrative power. In ACMA v Today FM, the Full Bench of the High Court of Australia held that the ACMA was authorised to make a determination that Today FM had committed a criminal offence for the purposes of administrative enforcement action. The High Court also held that the statutory power to do so was not an attempt on the part of the Australian Parliament to confer judicial power on a body that is not a court under ch III of the Australian Constitution.
This case note examines the judgments of the Full Court of the Federal Court of Australia (‘Full Federal Court’) and the High Court of Australia. Part II provides an overview of the factual background to the case and the statutory basis of the ACMA’s investigatory and enforcement powers. Part III and IV analyse the Full Federal Court and High Court judgments, which provide differing approaches to statutory interpretation with respect to the scope and applicability of the principle of legality.
Part V discusses the importance of ACMA v Today FM for administrative bodies with similar statutory powers to the ACMA, on which the Full Federal Court’s interpretation had the potential to cast doubt. In allowing the appeal, the High Court has provided clarity regarding the legality of administrative bodies operating across Australia to make determinations as to whether criminal offences have been committed as a precondition to taking administrative enforcement action. This issue was of such importance that the Attorneys-General of the Commonwealth of Australia, Western Australia, Queensland and South Australia intervened in support of the ACMA’s submissions.
Part V also outlines the implications of the case for future jurisprudence on statutory interpretation. Specific attention will be given to the principle of legality, which is a device of statutory construction that requires legislation be construed so as to avoid an infringement of common law rights and freedoms unless such an infringement is expressed by the legislature in ‘clear and unequivocal language’. In its narrower construction of the relevant provisions, the Full Federal Court applied the principle of legality to the constitutional doctrine that judicial power is vested exclusively in the courts. In the absence of clear language to the contrary, the Full Court held that ‘it is not normally to be expected that an administrative body’ would be granted the power to make its own determination as to whether an offence had been committed. The majority judgment of the High Court rejected the Full Court’s application of the principle of legality to the ACMA’s statutory authority. The concurring judgment of Gageler J went further than the majority, criticising more broadly the application of the principle of legality to rights sourced in constitutional limitations on legislative power.

21 June 2016


An interesting study of correlation rather than causation is provided by 'Pharmaceutical Industry–Sponsored Meals and Physician Prescribing Patterns for Medicare Beneficiaries' from Colette DeJong, Thomas Aguilar, Chien-Wen Tseng, Grace A. Lin, W. John Boscardin and R. Adams Dudley in (2016) JAMA Intern Medicine.

The authors comment 
The association between industry payments to physicians and prescribing rates of the brand-name medications that are being promoted is controversial. In the United States, industry payment data and Medicare prescribing records recently became publicly available.
To study the association between physicians’ receipt of industry-sponsored meals, which account for roughly 80% of the total number of industry payments, and rates of prescribing the promoted drug to Medicare beneficiaries.
Design, Setting, and Participants
Cross-sectional analysis of industry payment data from the federal Open Payments Program for August 1 through December 31, 2013, and prescribing data for individual physicians from Medicare Part D, for all of 2013.
Participants were physicians who wrote Medicare prescriptions in any of 4 drug classes: statins, cardioselective β-blockers, angiotensin-converting enzyme inhibitors and angiotensin-receptor blockers (ACE inhibitors and ARBs), and selective serotonin and serotonin-norepinephrine reuptake inhibitors (SSRIs and SNRIs). We identified physicians who received industry-sponsored meals promoting the most-prescribed brand-name drug in each class (rosuvastatin, nebivolol, olmesartan, and desvenlafaxine, respectively).
Data analysis was performed from August 20, 2015, to December 15, 2015.
Receipt of an industry-sponsored meal promoting the drug of interest.
Main Outcomes and Measures
Prescribing rates of promoted drugs compared with alternatives in the same class, after adjustment for physician prescribing volume, demographic characteristics, specialty, and practice setting.
A total of 279 669 physicians received 63 524 payments associated with the 4 target drugs. Ninety-five percent of payments were meals, with a mean value of less than $20. Rosuvastatin represented 8.8% (SD, 9.9%) of statin prescriptions; nebivolol represented 3.3% (7.4%) of cardioselective β-blocker prescriptions; olmesartan represented 1.6% (3.9%) of ACE inhibitor and ARB prescriptions; and desvenlafaxine represented 0.6% (2.6%) of SSRI and SNRI prescriptions. Physicians who received a single meal promoting the drug of interest had higher rates of prescribing rosuvastatin over other statins (odds ratio [OR], 1.18; 95% CI, 1.17-1.18), nebivolol over other β-blockers (OR, 1.70; 95% CI, 1.69-1.72), olmesartan over other ACE inhibitors and ARBs (OR, 1.52; 95% CI, 1.51-1.53), and desvenlafaxine over other SSRIs and SNRIs (OR, 2.18; 95% CI, 2.13-2.23). Receipt of additional meals and receipt of meals costing more than $20 were associated with higher relative prescribing rates.
Conclusions and Relevance
Receipt of industry-sponsored meals was associated with an increased rate of prescribing the brand-name medication that was being promoted. The findings represent an association, not a cause-and-effect relationship.

20 June 2016

FBI Biometrics

The US Government Accounting Office (GAO) has released a 68 page critique of FBI biometrics practice - FACE Recognition Technology:FBI Should Better Ensure Privacy and Accuracy.

The report examines:
1) the FBI's face recognition capabilities; and the extents to which
2) the FBI's use of face recognition adhered to privacy laws and policies and
3) the FBI assessed the accuracy of these capabilities. 
To address these questions, GAO reviewed federal privacy laws, FBI policies, operating manuals, and other documentation on its face recognition capability. GAO interviewed officials from the FBI and other federal and two state agencies that coordinate with the FBI on face recognition.

The report comments
The Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) operates the Next Generation Identification-Interstate Photo System (NGI-IPS)— a face recognition service that allows law enforcement agencies to search a database of over 30 million photos to support criminal investigations. NGI-IPS users include the FBI and selected state and local law enforcement agencies, which can submit search requests to help identify an unknown person using, for example, a photo from a surveillance camera. When a state or local agency submits such a photo, NGI-IPS uses an automated process to return a list of 2 to 50 possible candidate photos from the database, depending on the user's specification. As of December 2015, the FBI has agreements with 7 states to search NGI-IPS, and is working with more states to grant access. In addition to the NGI-IPS, the FBI has an internal unit called Facial Analysis, Comparison and Evaluation (FACE) Services that provides face recognition capabilities, among other things, to support active FBI investigations. FACE Services not only has access to NGI-IPS, but can search or request to search databases owned by the Departments of State and Defense and 16 states, which use their own face recognition systems. Biometric analysts manually review photos before returning at most the top 1 or 2 photos as investigative leads to FBI agents.
DOJ developed a privacy impact assessment (PIA) of NGI-IPS in 2008, as required under the E-Government Act whenever agencies develop technologies that collect personal information. However, the FBI did not update the NGI-IPS PIA in a timely manner when the system underwent significant changes or publish a PIA for FACE Services before that unit began supporting FBI agents. DOJ ultimately approved PIAs for NGI-IPS and FACE Services in September and May 2015, respectively. The timely publishing of PIAs would provide the public with greater assurance that the FBI is evaluating risks to privacy when implementing systems. Similarly, NGI-IPS has been in place since 2011, but DOJ did not publish a System of Records Notice (SORN) that addresses the FBI's use of face recognition capabilities, as required by law, until May 5, 2016, after completion of GAO's review. The timely publishing of a SORN would improve the public's understanding of how NGI uses and protects personal information.
Prior to deploying NGI-IPS, the FBI conducted limited testing to evaluate whether face recognition searches returned matches to persons in the database (the detection rate) within a candidate list of 50, but has not assessed how often errors occur. FBI officials stated that they do not know, and have not tested, the detection rate for candidate list sizes smaller than 50, which users sometimes request from the FBI. By conducting tests to verify that NGI-IPS is accurate for all allowable candidate list sizes, the FBI would have more reasonable assurance that NGI-IPS provides leads that help enhance, rather than hinder, criminal investigations. Additionally, the FBI has not taken steps to determine whether the face recognition systems used by external partners, such as states and federal agencies, are sufficiently accurate for use by FACE Services to support FBI investigations. By taking such steps, the FBI could better ensure the data received from external partners is sufficiently accurate and do not unnecessarily include photos of innocent people as investigative leads.
The GAO comments that 
According to the FBI, [automated face recognition] technology can help law enforcement agencies identify criminals in their investigations. GAO was asked to review the FBI's use of face recognition technology. ... GAO is making six recommendations, including, that the Attorney General determine why PIAs and a SORN were not published as required and implement corrective actions, and for the FBI director to conduct tests to verify that NGI-IPS is accurate and take steps to determine whether systems used by external partners are sufficiently accurate for FBI's use. DOJ agreed with one, partially agreed with two, and disagreed with three of the six recommendations. In response, GAO clarified one recommendation, updated another recommendation, and continues to believe that all six recommendations remain valid as discussed further in this report.
It recommends
To improve transparency and better ensure that face recognition capabilities are being used in accordance with privacy protection laws and policy requirements, we recommend that the Attorney General:
• Assess the PIA development process to determine why PIAs were not published prior to using or updating face recognition capabilities, and implement corrective actions to ensure the timely development, updating, and publishing of PIAs before using or making changes to a system.
• Assess the SORN development process to determine why a SORN was not published that addressed the collection and maintenance of photos accessed and used through NGI for the FBI’s face recognition capabilities prior to using NGI-IPS, and implement corrective actions to ensure SORNs are published before systems become operational.
To better ensure that face recognition capabilities are being used in accordance with privacy protection laws and policy requirements, we recommend that the Director of the Federal Bureau of Investigation conduct audits to determine the extent to which users of NGI-IPS and biometric images specialists in FACE Services are conducting face image searches in accordance with CJIS policy requirements.
To better ensure that face recognition systems are sufficiently accurate, we recommend that the Director of the Federal Bureau of Investigation take the following three actions:
• Conduct tests of NGI-IPS to verify that the system is sufficiently accurate for all allowable candidate list sizes, and ensure that the detection and false positive rate used in the tests are identified.
• Conduct an operational review of NGI-IPS at least annually that includes an assessment of the accuracy of face recognition searches to determine if it is meeting federal, state, and local law enforcement needs and take actions, as necessary, to improve the system.
• Take steps to determine whether each external face recognition system used by FACE Services is sufficiently accurate for the FBI’s use and whether results from those systems should be used to support FBI investigations