25 January 2015

Regulation

'How the WTO Shapes the Regulatory State' by Gregory Shaffer (UC Irvine School of Law Research Paper No. 2015-10) comments -
The World Trade Organization (WTO) arguably shapes regulatory governance in more countries to a greater extent than any other international organization. This chapter provides a new framework for assessing the broader regulatory implications of the WTO within nation states, as opposed to viewing the WTO as a form of global governance above the nation state.
It first examines seven types of changes required for national law and legal practice, which affect how the state raises revenue, how the state spends it, and the principles the state applies to regulation. The chapter then assesses four broader dimensions of regulatory change catalyzed by WTO rules:
(i) changes in the boundary between the market and the state (involving concomitantly market liberalization and growth of the administrative state);
(ii) changes in the relative authority of institutions within the state (promoting bureaucratized and judicialized governance);
(iii) changes in professional expertise engaging with state regulation (such as the role of lawyers); and
(iv) changes in normative frames and accountability mechanisms for national regulation (which are trade liberal and transnational in scope).
In practice, these four dimensions of change interact and build on each other. The chapter presents what we know to date and a framework for conducting further empirical study.

Tax Tales (The AAT has fun with Dick and Dora)

Noting [1] through [7] and [9] of WT86/1506, WT86/1507 and Commissioner of Taxation [1988] AATA 396; (1988) 19 ATR 3270; 88 ATC 355 as a quirky example of legal writing -
1. Once upon a time, there were two little children called Dick and Dora. They had a Mummy, a Daddy and a Family Trust. The Family Trust was very fond of Dick and Dora and, in 1979, it gave each of them $1000. That is called a "distribution". Their Mummy and Daddy also loved Dick and Dora very much. That is why Mummy and Daddy lent each of them $19,000. This involved a great sacrifice, for no matter how hard Mummy and Daddy searched through the house, they couldn't find the cash, so they had to borrow it, and that is a bad thing. So, with cap in hand, Mummy and Daddy went to the Family Trust and pleaded: "Please Mr Trust, can we borrow some money for our little children?" And the Trust, which was a good-natured trust, replied: "Sure buddy, that's OK". So they borrowed the money, onlent it to their children, who lent it back to the trust and they all lived happily ever after. The End
2. But even in fairy tales, there is usually a fly in the ointment. The "fly" in this tale is the fact that the trust didn't have the money either. Now that WAS a blow. But, as Milton once observed, when the devil is desperate, he'll eat flies, whether in the ointment or out. Now it so happened that Daddy, who owned a Finance Company, was a wizard with books of account. All he needed was a book, a pen and a few mirrors. If you watch carefully, you'll see how it is done.
3 It all began on June 2 1977, when the family trust credited Daddy's and Mummy's loan accounts with a lot of money, money that the trustee didn't have. That caused the trust account to be what grown-ups call "in the red" or "overdrawn". Now trustees who allow their trust account to be overdrawn are known as "naughty" trustees. This trustee knew that he was naughty, so he made himself a hot lemon drink, added an aspirin, stirred mightily and drank the magic potion down to the last drop. This is a well-known cure for overdrawn trust accounts and, hey presto, the account was in credit again. The whole process only took a few seconds and can be done by anyone who has a lemon, an aspirin, a clever trustee and an obliging bank manager. Watch how the trick was done in slow motion.
4. Mummy and Daddy each wrote out a cheque for $19,000 and gave one cheque to Dick and the other one to Dora. Then Dick, who was nearly four, and Dora who was not yet two, took these cheques and toddled off to the Bentley branch of the Australia and New Zealand Savings Bank Limited, looking to the left, looking to the right and left again to get to 1136 Albany Highway where they each opened a savings account. They signed the application forms and deposit slips and then put all that money in the hank in the cutest little handwriting you have ever seen. Young toddlers opening bank accounts, it seems, so counsel for the applicant assured me, is not at all unusual: "Banks encourage that sort of thing". Dick, who was a bright little lad, and streetwise beyond his years, asked the bank manager what rate of interest he and his sister could expect on their money. The rate was disappointing and, doing a quick calculation on his cute little fingers, he concluded that he and Dora could make a much more profitable investment with the family trust. "Let's lend the money back to the trust" he whispered to his sister, hoping the manager could not hear him. After all, they had just opened two accounts and it WAS a bit embarrassing to close them down again so soon. But Dora, less worldlywise than her brother, and saving up for her second birthday party, was not convinced. It all seemed rather, well, disloyal. To cut a long story short, after some highpowered financial discussion between brother and sister, they agreed on a compromise - they would lend the family trust $18,995, and each leave $5 with the bank for lollies and other necessaries. As luck would have it, and by sheer coincidence, the family trust also had its bank account with the same bank and at the same branch so that the money didn't have far to travel. All of it - save the $5 left in the accounts - had time to play "Here We Go Round The Mulberry Bush" and "Round Robin Hood" and other children's games and still be home in time for dinner. It was all a lot of fun. So much fun in fact, that everyone played the same games the next year (1979), and the next year and the So that on June 15 1979, to be exact, each child was "paid" an amount of $23,743.75, which was, it seems, made up of the loan monies lent to the trust together with interest (not quantified) and something extra (presumably another "loan"). Each child then waddled off to the bank again to pay in the money, draw out $23,740, play Round Robin and go home. 5. No one was called to depose to these events, I have been asked to assume them because the various amounts referred to appeared as credits and debits in Dick's and Dora's accounts. The only variation from the 1978 year was that this time the withdrawal was credited, not to the family trust, but to Daddy's Finance Company, which duly recorded the loans for each child in its books and resolved to repay them on demand with interest at 11.95% in advance. Dick's savings bankbook, which was made an exhibit, shows - however fleetingly - a credit of $26,575 for 18 April 1980, which accurately reflects a "repayment" of the loan, together with interest at 11.95%. Meanwhile, back at the bank, the lolly money ($5) attracted interest, and each child's account was credited with 18 cents on 7 June 1979.
6. The events recorded above disclose that in the relevant year, each child received as income
(i) 18 cents bank interest
(ii) $1000 from the family trust
(iii) interest on money lent.
7. It is tempting to treat these events as a fairy tale and to dismiss it good-humouredly as an interesting variation on a fiscal theme in A minor; alternatively, one could equally conclude that the various acts done and entries made had no other purpose than to give the appearance of creating between the parties legal rights and obligations which the parties had no intention of creating and - in the case of Dick and Dora - had no legal capacity to create. However, this was not argued by the Crown, presumably because such a finding would result in revealing a tax liability against a party from whom the tax is no longer recoverable. In the result, the case was fought pragmatically, as a salvage operation, on the basis that the interest received by Dick and Dora constituted the net income from a trust estate, so that, when taken in conjunction with the distribution from the family trust, sec. 7A of the Income Tax (Rates) Act 1976 would apply in respect of the multiple trusts. ...
9. If one ignores all the hanky panky involved in these transactions in the year now under review (1979) and starts from first principles, we find two parents "lending" some $38,000 to two toddlers barely able to walk. These funds are then onlent to the father's finance company. I have not been informed about the mechanics by which these transactions were achieved other than being assured that it was all done by the infants themselves. So be it. Nevertheless, whilst I am prepared to assume that Dick and Dora are bright little children and well advanced for their age, I am taking notice of what must surely be notorious, viz that children of such tender years are incapable of engaging in such transactions unaided. I am therefore satisfied that there was at all times a person or persons unknown who manipulated these funds on behalf of these infants. I can think of no better description for such person(s) than "trustee".

Hayekian Constitutionalism

'Radicalising Hayekian Constitutionalism' by Jonathan Crowe in (2014) 33(2) University of Queensland Law Journal 379-389 comments
The work of Friedrich A Hayek presents a compelling theory of the normative basis for constitutionalism and other related notions, such as the rule of law. It is difficult, however, to avoid a sense of incongruity when seeking to apply Hayekian notions within the context of the modern administrative state. Hayek is widely regarded as a conservative figure, although he famously rejected the label. A comparison between Hayek’s theory and modern modes of governance makes Hayek seem more radical than conservative, since deep reforms would be needed to instantiate anything like his preferred model. How radical, then, is Hayekian constitutionalism? That is the question I explore in this article.
The article begins by unpacking the normative foundations for Hayek’s theory of constitutionalism. I then examine the wider implications of the theory for politics and governance, focusing particularly on the role of the state in securing important social goods. I argue that Hayek provides a nuanced account of the place of the rule of law in social governance. However, his account of constitutionalism turns out to have more radical implications than he acknowledges. The article concludes by examining the relationship of Hayekian constitutionalism to the anarchist tradition in political philosophy. I suggest that Hayek’s arguments, considered in light of the striking failures of the contemporary corporatist state, give us reason to question his commitment to statism. Hayekian constitutionalists may have to become reluctant anarchists.
Crowe's 'Law Without the State' in (2014) 30(2) Policy 7-11 asks -
Could there be law without the state? This strikes many people as a strange question. Law is so closely associated today with the edicts of government authorities that it is hard to disentangle the two ideas. This article begins by exploring the conception of law that underpins this mindset. It offers an alternative understanding of law that makes it possible to conceive of a legal order without state authority. The article then asks what legal institutions might look like in the absence of the state and discusses some challenges to law in a stateless society. I argue that it is at least plausible to think that stable sources of legal order could be maintained in a stateless environment. This conception of law without the state provides a useful framework for thinking critically about the limitations of current state-centred legal institutions.

Consumers

'Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive' by Joasia Luzak (Amsterdam Law School Research Paper No 2015-02) comments -
Despite the growing academic criticism of using mandatory information duties as one of the main consumer protection measures in consumer law, the recently adopted Consumer Rights Directive (hereafter, the ‘CRD’) maintains this trend in Europe. The long and detailed list of information duties provided for traders in Articles 5 and 6 of the CRD applies to any sale and services consumer contracts that falls under the scope of application of the CRD. For traders, however, fulfilling this obligation may seem to be an exercise in futility due to little evidence that consumers read these disclosures and actually benefit from them. Instead of understanding the duty to disclose as a duty to inform consumers we could see it as a duty to reach consumers with the disclosure, so that consumers possessed the information contained in it when they needed it for reference. With this in mind it is important to inquire what efforts traders must undertake to ascertain that the disclosure reaches consumers and whether they could rely on an, at least partially, active behaviour of consumers in obtaining this information. This conundrum plays a special role in online transactions. The Consumer Rights Directive was adopted, among others, to update the so-far existing rules on consumer distance selling contracts to the modern technologies, especially the Internet. Recital 5 CRD specifically recognizes the importance of the future increase in online trade and for the first time in European consumer law the Internet is clearly mentioned as one of the means of concluding distance selling contracts in Recital 20 CRD.

21 January 2015

ACTA

'Lobbying and Lawmaking in the European Union: The Development of Copyright Law and the Rejection of the Anti-Counterfeiting Trade Agreement' by Benjamin Farrand in (2015) Oxford Journal of Legal Studies seeks
to examine the issue of ‘lobbying’ in the EU legislative process, using an interdisciplinary analysis of the development of copyright laws as a way of explaining why and how some lobbyists are more successful than others in having their preferences taken into account in legislation. As this article will demonstrate, the keys to successful lobbying in this field are information exchange, the ability to frame issues at an early stage in the legislative process (agenda setting) and the political salience of an issue. By assessing not only where legislative initiatives in copyright reform have been successful, such as the passing of the Information Society, Enforcement and Term Extension Directives, but also where legislative initiatives fail, as in the case of ACTA, it will be demonstrated that legislative success is not a simple case of ‘big business getting what it wants’, but of varying levels of political salience. Where the salience of an issue is low and voters consider that issue comparatively unimportant to other issues, industry representatives are able to effectively frame legislative outcomes. Where salience is high, and an issue important to voters, this ability is substantially reduced. By approaching copyright law development in this way, it is possible to reconceptualise the role of lobbying in the EU legislative process.
Farrand comments
As the last section demonstrated, copyright lawmaking in the EU is characterised by low political salience and influential industry representative organisations able both to set the legislative agenda and provide information pertinent to that agenda. To use Culpepper’s term, it is an area of policy defined by quiet politics, in which policymakers defer to industry expertise even where other expertise is provided. This does not suggest, however, that ‘big business always gets what big business wants’. As discussed, political salience is changeable, based on changing circumstances or even changing media coverage of an issue. To provide an example both of this changing salience, and of the ability to set the legislative agenda which did not result in successfully passed legislation, it is possible to use the example of the recent vote of the European Parliament on ACTA.
ACTA began as a series of informal talks between the USA and Japan in 2006 on the topic of counterfeiting and piracy in the context of international trade, with the discussion of a potential bilateral or even plurilateral treaty. By June 2008, these informal talks became a formalised negotiation between the USA, Japan, the EU, Canada, Australia, Mexico, Morocco, New Zealand, the Republic of Korea, Singapore and Switzerland. However, these negotiations were secretive, with each party held to a strict confidentiality requirement, to the extent that legislative bodies in each state were uninformed about the details of the negotiations. However, certain industry representative organisations had privileged access to the negotiation documents in the capacity of ‘cleared advisors’. These cleared advisors included representatives of the Intellectual Property Alliance (IIPA), IBM and Time Warner. According to Blakeney, these cleared advisors, such as IIPA, were active participants in the ACTA negotiations, suggesting considerable agenda-setting power on the part of these industry representatives. The public only became aware of the existence of the negotiations with a leak of a statement of initial positions released by WikiLeaks in May 2008. Substantive content came in the form of leaks by online activist organisations such as La Quadrature du Net (LQDN) of draft deliberations in 2009 and 2010, and the release of an interim draft by the EU in April 2010. Information contained in these deliberative drafts revealed that the intention of the Agreement was not only to bring in enforcement provisions to deal with counterfeit goods in transit between states, but also to apply to infringements of copyright committed online. According to Article 2.14 of this Draft, parties could impose criminal sanctions ‘at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale’, which was intended to include wilful copyright and related rights infringements ‘that have no direct or indirect motivation of financial gain’. This appeared to extend substantially the scope of criminal liability for copyright infringement, making it a de facto criminal offence. ACTA began to be frequently criticised in academic literature, particularly over the secrecy of negotiations, and the deliberate attempt to sidestep both the World Intellectual Property Organization and World Trade Organization in order to prevent substantive input from countries such as China and India. The text of the Agreement was substantially modified following the publication of earlier drafts, with Article 23(1) stating that criminal sanctions should be applied in cases of copyright or related-rights ‘piracy’ on a commercial scale, intended to include ‘at least those carried out as commercial activities for direct or indirect economic or commercial advantage’. It was determined that these sanctions should apply in cases of infringement of copyright online under Article 27(1). Nevertheless, this Draft continued to be criticised, with concerns over the scope of possible criminal sanctions and enforcement136 as well as the possible impact on user privacy.
The EU and 22 of its Member States signed ACTA in Japan at a formal ceremony in January 2012. It was assumed at this point that the EU ratification of the Agreement was certain. ACTA had the full support of the business community, and the Commission, which regarded the rapid conclusion and implementation of the Agreement as being ‘an important step in improving the international fight against IPR infringements’. Furthermore, the European Parliament had released a resolution in 2010 reiterating the need to ensure effective protection of intellectual property rights and considered ACTA a step in the ‘right direction’. This would appear to indicate that the legislative agenda had been set, and that activist organisations would be unlikely to prevent the ratification of the Agreement. However, by April 2012 ACTA was described as being ‘on its knees’. What had changed? A key development in the EU rejection of ACTA appeared to have originated in the USA. In October 2011, Representative Lamar Smith introduced a Bill in the House of Representatives called the Stop Online Piracy Act (or SOPA). This Bill contained a provision that would require ISPs to block access to websites used to infringe copyright or trademark through the use of a measure that would prevent a domain name being resolved to an IP address. Critics viewed this as draconian, arguing that it had the potential to be used for censorship. Major internet service providers in particular were concerned about their potential liability under the Bill. So concerned were certain providers that 18 January 2012 was a day of concerted and coordinated action by thousands of websites, including Wikipedia and Reddit, which became inaccessible, presenting a black background and text describing the potential effect of the Bill and providing information for contacting Representatives. Google also ‘censored’ its logo in protest. Due to the high profile of this action, on 20 January 2012, Representative Smith announced that the Bill would be postponed ‘until there is wider agreement on the solution’. The relation to ACTA reflects the nature of the internet as a global communications system—websites did not become inaccessible in the USA alone, but were also inaccessible in the EU. Given the high profile of the USA-based action, European citizens became aware of ACTA. When Donald Tusk, Prime Minister of Poland, announced his intention to ratify ACTA, declaring it a ‘success of the Polish EU Presidency’, an online campaign was initiated in Poland, including the creation of a Facebook page ‘Nie dla ACTA’, which received 100,000 views in less than 48 hours. Online activists coordinated offline action, culminating in ‘15,000 demonstrators in Krakow and 5,000 in Wroclaw’, and an increase in media attention in the rest of Europe. It has been argued that this political mobilisation began in Poland due to a combination of socioeconomic and historical factors, including the fact that copyright was used as a tool of political censorship by the government of Poland during the latter years of Communist rule. This concern translated into concerns over copyright overreach, negative implications for freedom of speech and concerns over process, as evidenced by a statement made by one of the organisers of the ACTA protests that ‘[t]hey promised debates—nothing. They promised openness—nothing. Democracy is being destroyed, the deputies don’t know what they are signing, and all this will lead to a situation when bloggers, scientists and entrepreneurs will be qualified as criminals’. As a result of domestic pressure, Tusk announced in early February that ACTA would not be ratified by Poland as it did not reflect ‘the realities of the twenty-first century’. Germany, Latvia and the Czech Republic announced they would delay, if not block, the ratification of ACTA and the Slovenian ambassador to Japan publicly apologised for signing, referring to it as an act of ‘civic carelessness… [there was] too little transparency’. Street protests continued throughout the EU, with a ‘day of action’ on 11 February, with reports of more than 25,000 protestors in Germany, 4,000 in Bulgaria and thousands more throughout France, the UK, Romania and other Member States, coordinated by activist organisations such as LQDN, FightForTheFuture.org and the Open Rights Group.
The success of civil society in raising awareness about an issue of concern is largely determined by the ability to disseminate information. According to Bennett and Toft, digital communications technologies such as social media platforms can help to coordinate (and blur the distinctions between) online and offline action, particularly when facilitating cross-border actions. The use of Facebook as a communications mechanism, and the spread of information through blogging activities and tweets, facilitated by organisers such as LQDN, can result in the swift mobilisation of political activists who can ‘spread the message’ and organise political activities. Actors such as LQDN then become key nodes in a network of activists, providing both communications infrastructure and information to other activists. What these activists ‘lack in terms of traditional organisational resources they often gain in networking capacities through the use of social technologies to facilitate the maintenance and activation of [ties between civil society activists]’. In this context, protest constitutes a form of ‘outsider’ strategy, a method by which concerns over a legislative policy can be voiced or questions raised as to the legitimacy of a policy through disruptive action. These strategies do not in themselves change legislation, but raise media (and therefore citizen) attention, increasing the salience of an issue. The more media attention an issue receives, the more likely it is that a population will see that issue as important. In this case, protests in Poland helped draw attention to the Agreement as well as frame ACTA as a threat to freedom and democracy due to the secrecy of its negotiation and overreaching internet copyright enforcement provisions. The outsider strategy of protest allowed for protestors to frame the media message as one of threat to citizen freedoms, and substantial media coverage discussing ACTA in the terms used by protestors further assisted in bringing the issue to the attention of the general public, and subsequently to the reporting of the protests in other EU Member States, helping to form the informational basis for civil society organisation. In the period from the initial announcement of the existence of ACTA up until December 2011, there were in total 25 stories about ACTA on BBC News and in the Guardian and Telegraph newspapers. In comparison, between January 2012 and the rejection of ACTA in July, there were 39 stories, almost double the number in six months than there were in the previous three years, and the majority of them negative. This raised the profile of ACTA as a political issue and the high-visibility public actions in the Member States was used as a way of generating additional forms of political action. LQDN created the ‘piphone’, which could make Voice Over IP (or VOIP) calls to MEPs, as well as providing a searchable database that users could use to identify their MEP in order to raise their concerns about ACTA. This proved to be a successful strategy, as LQDN coordinated EU citizens’ contacting of MEPs both during the committee stages of the European parliamentary process and again prior to the final vote. According to a press release by the European Parliament, there was ‘unprecedented direct lobbying by thousands of EU citizens who called on it to reject ACTA, in street demonstrations, e-mails to MEPs and calls to their offices’. As a result of these pressures, the Committees on Civil Liberties, Justice and Home Affairs, Industry, Research and Energy, Legal Affairs, Development and International Trade all recommended that the European Parliament reject ACTA. This recommendation was followed on 4 July, when ACTA was rejected by 478 votes to 39.
The rejection of ACTA can be explained in terms of political salience. As was seen with the examples of the three Directives, copyright law is generally an issue of low salience that does not register with the average European voter. For this reason, industry representatives are able significantly to influence the passage of legislation. In comparison, ACTA became a politically salient issue, generating protests in Europe that were then covered by the media, leading to more widespread protests and inducing citizens to contact the European Parliament, a body that has a historically weak connection to voters. In particular, media coverage referred to the concern of protesters that the Agreement represented a threat to democracy and freedom of speech. This discourse in turn was reflected by MEPs. In April, rapporteur and MEP David Martin stated that the ‘intended benefits of this international agreement are far outweighed by the potential threats to civil liberties… the European Parliament cannot guarantee adequate protection for citizens' rights in the future under ACTA’. The European Parliament, constituting a body of elected representatives, is susceptible to pressure by voters. Where interest in a particular issue is low, it is likely to vote according to the information provided by expert bodies or lobbying organisations. Where the salience is high, however, and citizens demonstrate their interest in, and preferences concerning, a particular policy then they are more likely to listen to the public on that issue. This would appear to indicate that where an issue becomes ‘high profile’, the usual tactics of quiet politics are ineffective. As the media coverage was unfavourable, and represented the views of protestors rather than industry, the ability to mould public perception of the issue was also lost. ACTA had become a high salience issue. Nonetheless, it is important to state that, although ACTA was of high salience, it does not mean that copyright more generally has become a high salience issue. Speaking after the rejection of ACTA, David Martin stated that ‘this was not an anti-intellectual property vote. This group believes Europe does have to protect its intellectual property but ACTA was too vague a document’. European Parliament President Schulz also indicated that the key issue in the rejection of ACTA was the question of transparency and democratic participation rather than intellectual property law, stating:
The decision to reject ACTA was not taken lightly. It followed an intensive, inclusive and transparent debate with civil society, business organisations, national parliaments and many other stakeholders… All over Europe, people were engaged in protests and debates. The mobilisation of public opinion was unprecedented. As the President of the European Parliament, I am committed to dialogue with citizens and to make Europe more democratic and understandable.
This would appear to indicate that while ACTA was a high salience issue, the decision to reject the Agreement cannot be considered as representing a shift in intellectual property policy at the EU level. The success of the ACTA protests and resultant media coverage was in providing a simple and effective framework for considering the impact of the Agreement, namely that of freedom and democracy. However, in doing so the subject of dispute became ACTA specifically and the threat posed by this one document rather than any perceived threats resulting from overly broad copyright protection. Activists therefore petitioned for the rejection of ACTA by the European Parliament and the European Parliament responded by rejecting ACTA. It did not act as a catalyst for rethinking copyright, its aims or the appropriateness of its enforcement mechanisms. It is submitted that copyright lawmaking will continue to be an issue dominated by quiet politics and, as a result, industry organisations will continue to be successful in having their preferred outcomes taken into account. Passing a resolution on the negotiations between the USA and EU on the Transatlantic Trade and Investment Partnership, the European Parliament stated that ‘intellectual property is one of the driving forces of innovation and creation and a pillar of the knowledge-based economy, and that the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights’. It would appear, then, that despite the very visible conflict and, indeed, change in legislative policy over ACTA, the legislative approach to copyright law issues in the EU ultimately remains unchanged.

17 January 2015

Next Generation Privacy?

'Next Generation Privacy: The Internet of Things, Data Exhaust, and Reforming Regulation by Risk of Harm' by McKay Cunningham in (2014) 2(2) Groningen Journal of International Law argues 
To many, the EU's 1995 Directive has failed. While the global trend toward adopting laws similar to the Directive suggests that many nations value privacy rights, commentators and empirical studies reveal significant shortcomings. The Directive is simultaneously over-inclusive and under-inclusive. It outlaws harmless activities while allowing exceptions that threaten to swallow the rule. Edward Snowden revealed a disrupting example showing that national governments enjoy wide latitude to collect and use personal information under the guise of national security.
The problem of protecting private information is exacerbated by technology that continues to leapfrog. Information privacy is made continually more difficult with each new app and innovation. The Internet of Things is more probable than speculative. Everyday objects — thermostats, garage doors, beer mugs — communicate with the Internet through sensors. Radio-frequency identification is a predicate to computer identification and assimilation of everyday physical objects, enabling the use of these objects to be monitored and inventoried by computers. Tagging and monitoring objects could similarly be accomplished by other technologies like near field communication, barcodes, QR codes and digital watermarking, raising the legitimate argument that informational privacy — at least as envisioned in the 1995 Directive’s absolute terms — is impossible.
Informational privacy cannot be accomplished by declaring it a fundamental right and outlawing all processing of personal information. To legally realize and enforce a privacy right in personal information, incremental, graduated, and practical legislation better achieve the goal than sweeping proclamations that have applications to actions unrelated to the harms associated with the absence of the right. With information privacy in particular, a capacious claim of right to all personal information undermines legal enforcement because the harms attending lack of privacy are too often ill-defined and misunderstood. This paper reviews the shortcomings of the EU Directive, reviews new privacy challenges posed by the Internet of Things, and posits a regulatory regime based on risk of harm.

Truthiness Again

Given my interest in survivor fraud (Wilkomirski, Head, DeFonseca, Khouri, Armstrong), memoir (Mortenson) and credulity I was interested to see the announcement by publisher Tyndale House that it will belatedly stop selling The Boy Who Came Back From Heaven: A Remarkable Account of Miracles, Angels, and Life beyond This World by Alex Malarkey and Kevin Malarkey.

The best-seller is an example of the 'heavenly tourism' genre in which a child recounts a visit to heaven - typically a postmortem visit, with the deity idiosyncratically allowing the tot to return to earth with good news. The visit is presented - breathlessly - as a matter of fact, rather than belief or allegory. Elsewhere I've cruelly described another example as a form of religious kitsch.

In this instance Alex's supposed visit took place while he was in a coma after a car accident that left him paralyzed. He supposedly saw his father (the co-author) get caught by an angel - presumably you don't need a seatbelt or airbags if an angel is looking after you - during the crash.

Revelations? The gates of heaven are "tall" and "looks like it has scales like a fish". He met Christ and Satan (the latter apparently making a special guest appearance after crash-site conversation with Alex). Angels are "big and muscular, like wrestlers" ("if you didn't know they were friendly, they would be scary").

Alex has now recanted, stating "I did not die. I did not go to Heaven". Quelle surprise.

Tyndale is reported as stating
We are saddened to learn that Alex Malarkey, co-author of ‘The Boy Who Came Back from Heaven,’ is now saying that he made up the story of dying and going to heaven. Given this information, we are taking the book out of print.
Devout consumers presumably won't be starting a class action.