29 May 2010

genetic mugshots

The Katie Sepich Enhanced DNA Collection Act of 2010 (dubbed by one critic the 'genetic mugshot' law) has passed the US House of Representatives.

The Act [text here] amends the Omnibus Crime Control and Safe Streets Act of 1968 to "provide for incentive payments under the Edward Byrne Memorial Justice Assistance Grant program for States to implement minimum and enhanced DNA collection processes".

Put simply, the proposed legislation authorises bonus payments to state governments for the collection and storage of genetic data from people suspected of crimes. The US Federal government would pay state governments to provide DNA samples (including drawing blood with a needle rather than 'spit collection' or mouth swabs) from adults "arrested for" certain serious crimes. Funding for that "incentivization" is reported as US$75 million. The data will be added to the FBI Combined DNA Index System (CODIS).

The legislation provides that the people whose data is collected would be at least 18 years of age. They would have been arrested for, charged with, or indicted for a criminal offense under State law that -
+ consists of murder or voluntary manslaughter or any attempt to commit murder or voluntary manslaughter.

+ has an element involving a sexual act or sexual contact with another and that is punishable by imprisonment for more than 5 years, or an attempt to commit such an offense

+ has an element of kidnaping or abduction punishable by imprisonment for 5 years or more

+ has an element involving a sexual act or sexual contact with another and that is punishable by imprisonment for more than 1 year, or an attempt to commit such an offense

+ consists of a specified offense against a minor (as defined in section 111(7) of the Sex Offender Registration and Notification Act (42 U.S.C. 16911(7)), or an attempt to commit such an offense

+ consists of burglary or any attempt to commit burglary.

+ consists of aggravated assault.
As you might expect, it's praise the CSI and pass the resolution, with Rep. Harry Teague of New Mexico (a cosponsor of 'Katie's Law') claiming that -
We should allow law enforcement to use all the technology available to them ... to reduce expensive and unjust false convictions, bring closure to victims by solving cold cases, better identify criminals, and keep those who commit violent crime from walking the streets.
Criticisms encompass claims that establishment of a national DNA database of suspected criminals would be regressive step, with concerns about ethnic or behavioural profiling, an "unwarranted certainty about the reliability of genetic information", problems with correction of data and with removal of information from the database.

The associated legislation thus provides that the Director of the FBI shall
promptly expunge from the index ... the DNA analysis of a person included in the index —
(i) on the basis of conviction for a qualifying Federal offense or a qualifying District of Columbia offense ... if the Director receives, for each conviction of the person of a qualifying offense, a certified copy of a final court order establishing that such conviction has been overturned; or
(ii) on the basis of an arrest under the authority of the United States, if the Attorney General receives, for each charge against the person on the basis of which the analysis was or could have been included in the index, a certified copy of a final court order establishing that such charge has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable time period.
A State "shall promptly expunge from that index the DNA analysis of a person included in the index by that State" if —
(i) the responsible agency or official of that State receives, for each conviction of the person of an offense on the basis of which that analysis was or could have been included in the index, a certified copy of a final court order establishing that such conviction has been overturned; or
(ii) the person has not been convicted of an offense on the basis of which that analysis was or could have been included in the index, and the responsible agency or official of that State receives, for each charge against the person on the basis of which the analysis was or could have been included in the index, a certified copy of a final court order establishing that such charge has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable time period.

the demise (yet again) of the national ID card

UK deputy Prime Minister, Nick Clegg, has promised that
This government will end the culture of spying on its citizens. It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide. It has to stop. So there will be no ID card scheme. No national identity register, a halt to second generation biometric passports. We won't hold your internet and email records when there is just no reason to do so. CCTV will be properly regulated, as will the DNA database, with restrictions on the storage of innocent people's DNA. Britain must not be a country where our children grow up so used to their liberty being infringed that they accept it without question. There will be no ContactPoint children's database. Schools will not take children's fingerprints without even asking their parent's consent. This will be a government that is proud when British citizens stand up against illegitimate advances of the state.
The UK Home Secretary Theresa May has accordingly announced that the National Identity Card scheme will be abolished within 100 days, with the existing cards to become invalid when the current legislation is repealed in the first session of the new Parliament.

So far there appears to have been no official statement regarding the demise of information held on the associated National Identity Register, which leveraged the bit of plastic that housed an encrypted chip with biometric data (photograph and fingerprints). The BBC reports that once the cards are "illegal" the National Identity Register will be "physically destroyed" - presumably the servers will be purged and re-used, rather than bureaucrats inviting sledgehammer-wielding NoID fans into the computer centres for a bout of 'smash & trash'. (One cruel reader of this blog offered to buy Mr Clegg a crowbar and hammer.)

May stayed on topic, boasting that -
This bill is a first step of many that this government is taking to reduce the control of the state over decent, law-abiding people and hand power back to them. With swift Parliamentary approval, we aim to consign identity cards and the intrusive ID card scheme to history within 100 days.
Some 'decent, law-abiding people' are of course more equal than others. The parallel card scheme for foreign nationals (characterised as 'biometric resident permits'), administered by the UK Border Agency, will continue.

Clegg has modestly characterised the reforms as part of "the biggest shakeup of our democracy since 1832". Let's see what happens once Sir Humphrey points out that compliance with EU and COE requirements restricts his autonomy and that there are sound administrative - or, more importantly, political reasons - for maintaining the plethora of databases.

28 May 2010

Erving Goffman

Gary Marx on Erving Goffman, from 'Role Models And Role Distance: A Remembrance of Erving Goffman' (1984) 13(5) Theory and Society 649-662 ...
I still recall his opening remarks to the class. With a wry smile he said "we will try and keep you entertained". I loved that. It reflected his sensitivity to the fact that student audiences are easily turned off, especially in Berkeley in the spring. It also seemed to say something about his need to be liked or, at least not be boring. The academy is not usually thought of as a place of entertainment, at least of a willful variety. Whatever most professors do, entertainment is usually secondary. But here a famous professor opens his class with a promise to entertain. Perhaps it was a way of showing role distance or applying the stage imagery he favored. He was expressing a shared sense that course work was often less than engaging. He wasn't about to be a purveyor of such materials or guilty of putting students to sleep.

The course was very demanding. Its lengthy and comprehensive reading list was a tour de force containing everything of importance in the field beginning with E. A. Ross's 1901 book on social control. What is more, Goffman really expected you to have read it all. Much of his lecture material was drawn from his then unpublished book Stigma. The method he used to study stigma was very different from that presented in other courses. It demonstrated that you could take an interesting topic and just write about it, without having hypotheses, an operational methodology or systematic quantitative data. It was a wonderful example of the unbridled sociological imagination rummaging hither and yon for interesting insights around a bounded theme. Concepts were important but it was premature to imbed them in a grand theory or to confine them to a single means of data collection.

Goffman presented himself as a detached, hard-boiled intellectual cynic; the sociologist as 1940s private eye. His was a hip, existential, cool, essentially apolitical (at least in terms of the prevailing ideologies) personal style. As a Canadian Jew of short stature working at the margins (or perhaps better, frontiers) of a marginal discipline, he was clearly an outsider. His brilliance and marginality meant an acute eye and a powerful imagination. He had a fascination with other people's chutzpah, weirdness and perhaps even degradation. He appreciated people who had a good thing going and those able to assert themselves in the face of what could be an oppressive social structure and culture. In a stodgy, timid, bureaucratic world the hustler has a certain freshness and perverse appeal. ...

Goffman's verbal and writing styles were very powerful. In class he played them beautifully - subtle wit, sarcasm, poker-faced delivery, and understatement had one on the edge of the seat. The class was entertaining. Goffman's humor and sharpness were without parallel. But this was always as a means to revealing some hidden and poignant truth. He offered a searing moral message regarding individual dignity. His slightly mysterious and mercurial character and the ability to shift selves or to hide his own self (a notion he probably would have rejected) increased his appeal.

There was a very human quality to the earthy details of everyday life that he forced us to attend to. It gave sociology a reality and believability that the more abstract and disembodied theoretical and quantitative approaches clearly lacked. In requiring that actors be understood and approached on their own terms, his naturalistic method had a hidden or implicit morality and a democratic relativism that granted a degree of dignity to actors, no matter how abhorent their behavior. Whether intended or not, the course went beyond conveying substantive information and offered directives on life.
Marx goes on to comment that -
Goffman beautifully illustrated for the student how the written word could have power. Writing, he taught us, could offer a way to quietly and safely express your personality and beliefs. You could satisfy your curiosity, express role distance and alienation, and comment on the ironies, paradoxes, and injustices that seemed so rampant. What was more, you could pretty much do this at your own pace and, under the mantle of being a sociologist, even gain a degree of respectability for it.

You could also be successful as a sociologist without becoming a dreaded organization man. Goffman always dressed casually outside of class and did not like to shave. His speech was neither pedantic nor formal and was larded with contemporary hip expressions. While it now seems trivial and almost inexplicable as an issue, I recall a long conversation in which I asked him if it was really necessary to join the ASA. He said no, you didn't have to belong, and cited some well known sociologists as examples.

As a teacher he had his weaknesses. He was both brilliant and learned, if humble about the state of the sociological art and the grave barriers to better understanding. There was little time for student involvement or reason to believe that beginning students could contribute much, absent direct experiential involvement with their subject matter. In class he did not try to draw the student out to see what he or she thought, or could do. Although he was to cite my term paper for his deviance course when he published Stigma, he made only a few cursory comments on the paper and those were hard to read. He was sparse with his praise and was a severe grader. Bennett Berger ('This Is A Fan Letter About Erving Goffman', Dissent, Summer 1973) reports that Goffman said he only gave As to students who taught him something.

What he did well as a teacher was communicate intellectual excitement and heighten one's consciousness of the craft involved in self presentations no less that the cruelty found in many social control efforts to manage others' identities. His material was very fresh. He obviously cared a great deal about it and was actively engaged with it. He used his courses to drive home an argument. As John Lofland observes he demonstrated the difference between "professing and merely teaching." ('Erving Goffman's Sociological Legacies', Urban Life, Vol. 13, no. 1, April 1984, 7-34.)

Yet this could have a negative side. His derisive treatment of psychological and psychiatric perspectives was very appealing at the time, but in retrospect this was not intellectually responsible. He presented a caricature. It is fine for a teacher to have a point of view, but this ought to come after a good faith effort to present alternatives. With respect to practical matters such as care taking criticism is easy. Pointing to the failures of intervention and total institutions is worthwhile. But if this is not linked to suggestions for reform or alternatives, it's a bit of a cop out, at least insofar as one seeks to milk the tit of moral indignation. His earlier deviance work did not show much sensitivity to the needs, demands, and contradictions faced by social controllers and those who set policy. Granted, impression management, fronts, manipulation, and self-serving ideas abound in total institutions. But is it sufficient to just point these out? It would have been nice if he had used his powerful empathetic skills to also describe how the world looks from the standpoint of those responsible for control.

In his dealings with students there were at least two Goffmans. One was wise, warm, and of good humor, eager to impart knowledge via morality tales and specific advice and make the student feel like he or she was within the chosen circle of persons in the know. His use of the inclusive term "student" to refer to himself and others involved in scholarly endeavors made you feel a part of the enterprise. The other Goffman was controlled, insensitive, and indifferent and made sure the student knew his place. Most of the "Tales of Goffman" are negative. In many of his dealings with others he did not reflect the sensitivity and concern for the underdog shown in his early written work.

27 May 2010

bigger than King Kong (but not quite as hairy)

From the 24 May Senate Environment, Communications & the Arts Estimates Committee hearing [PDF], on Google's global wardriving exercise ...

Senator FISHER
Minister, given the concerns that have been raised about the potential privacy issues and the concerns that have been ventilated as to what use Google will put this information and for how long they will keep it or have their wonderful way with it, what do you propose to do about it? ...
Senator Conroy
I note that the German minister has referred it to the criminal authorities for illegal data collection. ... This has been worldwide. Google takes the view that they can do anything they want — they do not evil to themselves. I do have a little bit of information. You actually cut into an answer I was hoping to give, but I will take you through the information that I have. It is possible that this has been the largest privacy breach in history across Western democracies. After being caught out by European privacy commissioners, Google has admitted that their Streetview cars — the ones that drive down your street and photograph your house without your permission so that they can make it available worldwide for use in their Streetview product — has also been collecting information from people using wi-fi connections; that is, your personal data, including, potentially, emails. ... Ten privacy commissioners around the world recently wrote to Google about their concerns. Many privacy commissioners, including Australia's, are investigating Google for data breaches. Google have admitted to doing this and claim it was a mistake in the software code, meaning that it was actually quite deliberate; the code was collecting it.
Senator FISHER
Can you explain that?
Senator Conroy
The computer program that collects it was designed to collect this information.
Senator FISHER
Are you disputing Google's claim that it was inadvertent?
Senator Conroy
Yes. I am saying that they wrote a piece of code designed to do it.
Senator FISHER
So, it was deliberate in your view?
Senator Conroy
It is interesting to note that this claim that it was a mistake came only after the data protection authority in Germany asked to audit Google's data. They continually say publicly, 'Trust us.' This comes on top of recent controversies relating to the Google Buzz product, which made public the details of the people users most emailed and chatted with on their social networking site. I can fully explain the policies being adopted by a company like Google. In December 2009 their CEO, Eric Schmidt, told CNBC, 'If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place.' At the World Mobile Conference in Barcelona in February the same CEO falsely denied any privacy breach with Buzz. He stated, 'People thought that somehow we were publishing their email addresses and private information, which was not true’, when it was true. He said, 'It was our fault that we did not communicate that fact very well, but the important thing is that no really bad stuff happens in the sense that nobody's personal information was disclosed.' I repeat that it was. Google Buzz exposed one user's location to her abusive ex-partner, and it was only after worldwide condemnation of Google that they actually apologised. People should not mistake the approach being taken by Google on a range of issues around the world.
Senator FISHER
Obviously there is little love lost between you and Google.
Senator Conroy
No, it is fair to say I am just chronicling the activities of Google worldwide. I have not finished yet.
Senator FISHER
I gathered not.
Senator Conroy
At the Abu Dhabi media summit ... in March 2010, Google CEO Eric Schmidt said, 'Google sees itself really differently from other companies, because we see ourselves as a company with a mission about information and not a mission about revenue or profits.' Yet at the third quarter earning call for Google on 15 October 2009, Eric Schmidt told Wall Street analysts on the phone hook-up, 'We love cash.' Mr Schmidt, in December, said this — I noted this previously, but I am not sure that you heard this, Senator Ludlam, so I want to repeat it: 'If you have something that you don’t want anyone to know, maybe you shouldn't be doing it in the first place.'
Senator LUDLAM
You read that 30 seconds ago.
Senator Conroy
I was not sure if you were in the room when I read it the first time. Schmidt also absurdly claimed to be misunderstood over Google Buzz and he went on to say, 'People thought that somehow we were publishing their email addresses and private information.' ...
Schmidt made the statement about how they were not really doing these things and the abusive ex-partner got someone’s address. Schmidt said that after a civil liberties group had already issued a warning about Buzz's serious problems with private information and after Google's own spokesman, Todd Jackson, had said, 'Google was very, very sorry for getting millions of users rightfully upset.' Google were also questioned at the Abu Dhabi media summit. Mr Schmidt was asked about the company's worrisome stash of private data on its users: 'All this information that you have about us, does that scare anyone in the room?' The response from Mr Schmidt was: 'Would you prefer someone else? Is there a government that you would prefer to be in charge of this?' Frankly, I think the approach taken by Mr Schmidt is a bit creepy. ...

This is a company that says 'do no evil', but tries to pretend that it is not motivated by profit and that it knows best and 'you can trust us' when it comes to privacy. Unfortunately there are no safeguards. You are dealing with company policy. There are more issues that I will come to when we get to YouTube later. When it comes to their attitude to their own censorship, their response is simply, 'Trust us'. They state on the website, 'Trust us'.
Senator LUDLAM
Terrible!
Senator Conroy
They consider themselves to be above government. They consider that they are the appropriate people to make the decisions about people's privacy data, that they are perfectly entitled to drive the streets and collect private information by photographing over fences and collecting data/information. This is probably the single greatest breach in history of privacy. That is why so many governments around the world have reacted in the way they have to a company like Google.
Senator FISHER
So, you say they consider themselves above government. Are they above the Telecommunications Act?
Senator Conroy
Not in the slightest; not in this country.
Senator FISHER
Have you referred these actions for investigation as a potential breach of the Telecommunications Act?
Senator Conroy
As I said, the Privacy Commissioner has written to them seeking further information, and we will be liaising with the Privacy Commissioner to see where that gets to before we take any further action.
The exchange has not been accompanied by any commitment from either side of the Senate to stop Google (or you or I) from continuing to legally "drive down your street and photograph your house without your permission"

26 May 2010

Recruitment panopticism

Microsoft reports in Online Reputation in a Connected World [PDF] that research in December last year found that 79% of US hiring managers and job recruiters in its sample - which may or may not be representative - reviewed online information about job applicants.
Most of those surveyed consider what they find online to impact their selection criteria. In fact, 70 percent of United States hiring managers in the study say they have rejected candidates based on what they found.
The MS survey involves interviews with around 1,200 hiring and recruitment managers and 1,200 consumers in the United States, the UK, Germany and France (all over 25 years old, half less than 30 years old).

MS claims that
+ The recruiters and HR professionals surveyed are not only checking online sources to learn about potential candidates, but they also report that their companies have made online screening a formal requirement of the hiring process.
+ Of U.S. recruiters and HR professionals surveyed, 70% say they have rejected candidates based on information they found online. Though not as frequently, respondents from the U.K. and Germany report the same trend.
+ Recruiters and HR professionals surveyed report being very or somewhat concerned about the authenticity of the content they find.
+ In all countries, recruiters and HR professionals say they believe the use of online reputational information will significantly increase over the next five years.
+ Positive online reputations matter. Among U.S. recruiters and HR professionals surveyed, 85% say that positive online reputation influences their hiring decisions at least to some extent. Nearly half say that a strong online reputation influences their decisions to a great extent.
+ Consumers surveyed have mixed opinions about the appropriateness of recruiters and HR professionals examining some types of online content. Most find it reasonable that recruiters and HR professionals check information on professional sites. There is greater concern, however, about recruiter scrutiny of photos, videos, and other personal content including blogs, personal social network pages, organizations they are affiliated with, financial information, and the like.
+ Consumers surveyed use a variety of methods to monitor and manage the information posted about them online. Most notably, they use multiple personas, search for information about themselves, adjust privacy settings, and refrain from posting content that they believe could damage their reputation.
+ Though most consumers surveyed do manage their reputation at least to some extent, there are a significant percentage of respondents (between 30% and 35% depending on nationality) who don't feel their online reputation affects either their personal or professional life. Consequently, they are not taking steps to manage their reputations.
The types of information claimed by survey participants as influencing their recruitment decisions include -
+ concerns about the candidate's lifestyle
+ inappropriate comments and text written by the candidate
+ unsuitable photos, videos, and information
+ inappropriate comments or text written by friends and relatives
+ comments criticizing previous employers, co-workers, or clients
+ inappropriate comments or text written by colleagues or work acquaintances
+ membership in certain groups and networks
+ discovered that information the candidate shared was false
+ poor communication skills displayed online
+ concern about the candidate's financial background.
Despite comments in my keynote at last Friday's Watch This Space Children & Privacy conference I don't entirely believe in Santa Claus. I am therefore inclined to raise an eyebrow in reading the MS report's claim that "Recruiters and HR professionals say they tell candidates if online content factored into their rejection", with 86% of those surveyed in the US claiming that they informed the candidate of the reason for rejection, 66% of those in the UK, 63% in France and 36% of recruiters and HR professionals in Germany. The nature of what unsuccessful candidates are told is unclear. Was it 'we found something on the net that we didn't like' or something specific? We didn't like your hair colour ... or your skin colour ... or that you've been frequenting the same legal but stigmatized locales as David Campbell?

Supposedly "Nearly 90% of U.S. recruiters and HR professionals surveyed say they are somewhat to very concerned that the online reputational information they discover may be inaccurate. An equal number claim they take steps to corroborate its authenticity".

However, the extent to which recruiters verify information and the effectiveness of those steps areunclear, as are opportunities for people to 'clear their names' if a factual error has been made or information has been misinterpreted. MS states that "The research did not investigate what steps they take to validate the authenticity of the information they find".

Such an investigation would have been more valuable, albeit more frightening, than simply generating an extended media release by asking recruiters whether they look at the web. Ideally we'd move beyond the pseudo-academic self-congratulation expressed as -
This research provides a solid foundation for understanding the expanding role of online reputation. It highlights areas of ethical and legal concern that need public discourse. It identifies new areas of conversation and negotiation for friends and family members so that as they use online tools, they do so in a way that respects the privacy and online reputation of others. And the research provides valuable insight into developing effective educational messaging and advice for consumers about how to protect and manage their online reputation.

Where the wild things are

Reading 'University Colleges as Dangerous Places' by Anthony Potts in Anthony Potts & Tom O'Donoghue [ed] Schools as dangerous places: a historical perspective (Amherst: Cambria Press 2007) 365-383 and Ben Wildavsky's The Great Brain Race: How Global Universities Are Reshaping the World (Princeton: Princeton University Press 2010). The latter strikes me as the academic version of Friedman's fatuous The World Is Flat or The Lexus and the Olive Tree: Understanding Globalization. The University Business Is Flat? The Lexis and the Ivy League? More analysis, please, less acceptance of spin by administrators and a greater engagement with counter-claims about globalisation, meritocracy and the liberating effect of trophy buildings and trophy institutions.

Kraken & Co

In preparation for a talking head gig on a TVNZ documentary next week I've been looking at items that delight the alfoil beanie crowd. A friend has kindly pointed me to a UK Press Association item from the Royal Navy, denying that there's a central repository of reports about kraken and other sea monsters -
The Royal Navy may hold records about possible sea monsters but it does not collect them centrally, it has been revealed.

Sailors can note unusual sightings on the ocean waves in their ship's logs, the Navy said.

But they are not required to do so and none of the information is assembled in a central archive devoted to sea monsters.

Any sightings of strange marine animals reported to the Navy by the public are passed on to the UK Hydrographic Office, which provides charts and other navigational services for mariners.
So much for the fins n tentacles version of the X Files.

The item on "the Navy's policy on giant creatures of the deep" is attributed to an FOI request by a marine biologist seeking information regarding undisclosed records about "abnormally large or dangerous sea monsters hundreds of metres under the sea". If you're a conspiracist any denial by The Forces of Darkness or their dupes (ie the RN) mean nothing, alas, so the response is unlikely to deter the true believers.
In reply an official wrote: "The RN (Royal Navy), and MoD in general, does not maintain any form of central repository of information purely devoted to sea monsters.

"Personnel might be inclined to record unusual sightings in ship's logs but there is, as far as we know, no actual requirement for them to do so, and it would be beyond the resource constraints of an FoI request to check every line of every RN log book for any such references since 2005.

"However, the RN does invite people to report sightings of marine mammals, and it's possible this could include unusual sightings."

I saw a man who wasn't there ...

Like many people I use pseudonyms in some online interactions, for example in circumstances where I don't quite trust the good intentions or competence of a site operator who requires name and other identifiers.

I thus wasn't particularly surprised to receive the following email at one of my addresses -
Dear FRED SMITH,

It is my pleasure to inform you that you are being considered for inclusion in Who's Who in the World, 28th Edition (2011).

From the publisher of Who's Who in America since 1899, Who's Who in the World is relied upon by business leaders, journalists, academics, and other professionals for its accuracy and currency of information. It continues to be recognized as the world's premier biographical reference source, and is found in the collections of many of the world's leading libraries and corporations.

To be considered for inclusion as a listee in this prestigious publication, you need only provide the requested information by completing the Biographical Data Form by June 21, 2010 ...

Your information will be evaluated according to selection standards Marquis Who's Who has developed over 110 years as the world's premier biographical publisher. If you are selected for the new 2011 Edition, we will contact you prior to the book's release in November 2010.

Being honored in Who's Who in the World offers you:
- An authoritative summary of your credentials for business contacts
- An historical archive of your achievements, recorded for generations to come
- Exclusive offers only available to members of Marquis Who's Who

I congratulate you on the achievements that have brought your name to the attention of our editorial committee. We look forward to hearing from you.

Sincerely,

Fred Marks
Editor-in-Chief

P.S. Inclusion in Who's Who in the World, of course, carries neither cost nor obligation to you of any kind. Our goal is to have full representation of noteworthy men and women across all fields and industries.
Given that the 'Fred Smith' at the particular address has no achievements whatsoever and indeed does not exist we might wonder about reliance "by business leaders, journalists, academics, and other professionals" on the "prestigious" directory's "accuracy and currency of information".

The phantom Fred Smith is delighted to be counted with "noteworthy men and women across all fields and industries" and to receive the editor's congratulation "on the achievements that have brought your name to the attention of our editorial committee". Less puffery in building a database might however enhance the credibility of "the world's premier biographical publisher".

25 May 2010

Marks, magic and cultural integrity

A 21 page paper by Mitchell Smith of Bond University about 'Trade Marks and the Protection of Cultural Integrity', now available on SSRN, considers "the role of the trade mark in both facilitating and resisting cultural change".

Smith paper - to me somewhat anodyne - states that -
In considering the South African case of Laugh It Off Promotions CC v. South African Breweries International, the role of trade mark legislation and its interpretation by the courts is discussed in light of the balance between the rights of trade mark owners and cultural integrity. Furthermore, the legislative approaches in protecting indigenous cultures in the United States, Columbia and New Zealand are considered. While New Zealand arguably provides for greater protection of indigenous cultures through its recently enacted trade mark legislation, it is argued that laws broader in scope could be more effective in protecting cultures from not only exploitation, but from any use of trade marks that may degrade cultural integrity. However, the role of intellectual property law as a mechanism for extensive cultural protection is debatable in itself.
He goes on to comment that -
Indigenous groups often follow their own customary systems of highly regulated 'cultural intellectual property', where those people who are able to make certain creations are restricted, as are the ways particular creations can be used. Furthermore, indigenous creations are often representative of something beyond physical form that requires a greater respect. This system of protection evidently differs from the western system of intellectual property, where something becomes part of the public domain if not protected by intellectual property, usually where it does not meet specific criteria or protection has expired. Cultural clashes thus exist where entities (often non-indigenous) obtain trade marks relating to indigenous culture in satisfying the western intellectual property requirements, while at the same time breaching indigenous cultural rights.

Trade marks have allowed for the appropriation of a number of indigenous names and images by non-indigenous corporate interests to promote their automobiles, alcoholic beverages, and natural food products, to name a few uses. Some designs and words may be sacred in indigenous cultures, and the idea of a registered sacred indigenous word or design as a trade mark is often considered offensive. Dougherty states that such exploitation dehumanises and disparages indigenous peoples, and devalues the ideas and beliefs of their culture.81 Long provides the example of the commercialisation of cultural traditions of Maoris in New Zealand, Native Hawaiians and Native Americans in the United States, and indigenous cultures of Latin America, going as far as to state that their cultural and religious significance has been virtually erased from public memory.
There is a more provocative stance in 'Magical Thinking in Trademark Law' by Katya Assaf III, also available on SSRN, which argues that -
People in all societies have a strong tendency toward magical thinking. This human tendency is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us beautiful, successful, happy, etc. Employing anthropological research, this article suggests that such advertising creates a system of beliefs closely resembling a totemic religion. In this religion, brands perform the role of sacred objects.
Assaf goes on to claim that -
The article further demonstrates that trademark law supports and encourages the commercial religion of brands. Trademark law initially aims at preventing consumer confusion as to the source of goods. Yet, today famous trademarks are extensively protected against non-confusing associations. This article argues that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and various trademark doctrines, I suggest that famous marks are legally treated as magical, sacred objects. This approach amounts to legally endorsing the religion of brands. I submit that this result is undesirable and probably even unconstitutional in light of the neutrality principle. ...

In this article, I have focused on magical beliefs in the particular context of advertising and brands. We all know that advertising persuading us that products of a certain brand work miracles should not be believed. Despite ads suggesting otherwise, our rational minds perfectly understand that Bayer does not work wonders, that Magic Secret cream can hardly cause any astringent sensation and that there is no happiness in a Coca-Cola bottle. And yet, because of our natural tendency toward magical thinking, the influence of such claims may be difficult to resist.

Modern advertising largely attempts to direct our natural inclination to believe in magic toward brands of consumer goods. When it succeeds, brands take on magical dimensions. Like all magic, the magic of brands may have entirely real effects. For instance, the magic of Rolex may make one more self-confident; the magic of Coke makes it taste better than Pepsi; the magic of Tiffany raises women's heart rates.

The legal approach in this field is somewhat contradictory. While dealing with advertising that builds up the magical aura of brands, the legal system adopts Alice's view and wholly ignores the human tendency toward irrational thinking. Since people are not supposed to believe the impossible, there are no restrictions whatsoever on attempts to make the consumer believe in the magic of brands. Yet, while protecting famous brands against unauthorized uses, the legal system radically changes its approach. Although the traditional purpose of trademark law is to protect brands as informational devices allowing rational purchasing decisions, this strictly functional view has long been abandoned. Today, trademark law essentially recognizes the magical dimension of brands as an entirely real and valuable asset, subject of private property and legal protection. Corporations invest much money and effort in creating the magic of their brands, and trademark law protects the outcome of this investment against misappropriation and injury. Doing so, it implicitly adopts the Queen's view that people can believe the impossible: it's only a matter of practice.

This inconsistent legal approach is obviously undesirable, but the question is, what view should the legal system choose – Alice's or the Queen's? Although empirical research has found much support for the Queen's view, this article has argued that Alice's approach should generally be preferred as a legal standard. The legal system is not a looking-glass. Its purpose is not to perfectly reflect every single trait of the real world. The legal system should regulate human behavior according to certain standards, which do not necessarily have to accurately reflect the human nature. Not all aspects of the human behavior should be subject to legal regulation.

The legal system generally assumes human rationality. This presumption should not be abandoned. When special circumstances do not require otherwise, the legal system should treat people as rational beings, however unrealistic this assumption may be.
The whole field of irrational, magical and religious beliefs should be generally left outside the scope of legal regulation. Such beliefs are neither verifiable nor falsifiable, and the legal system should refrain from taking sides in their respect. And usually, it does. For instance, both, preaching and attacking the Christian religion is legally allowed. In the past, this was different: while preaching the Christian religion was, of course, permitted, the crime of blasphemy prohibited mocking it. This asymmetry reflected the perception of that time, according to which Christianity was part of the legal system. Similarly, permitting to build a magical aura around brands and then restricting uses that may harm this aura essentially turns the belief in the magic of brands into part of the legal system. This result is undesirable. The legal system should assume a neutral position in relation to this kind of beliefs.

Trademark law should stop attempting to determine the merits of its protection according to the actual consumer's perception of brands. Real as they may be, magical beliefs in brands should be left outside the scope of legal regulation. Trademark law should protect only the purely informational dimension of brands. It should treat the consumer as a rational being, who uses trademarks to make educated purchasing decisions. By contrast, associations, emotions and all sorts of irrational and magical beliefs brands evoke should have no legal significance.
Meanwhile copyright critic Brendan Scott offers charts mapping the number of words in Australian copyright statutes. It is unclear whether the mapping moves beyond an item for parlour games (IP trivial pursuit?), given that there is no indication of whether the growth in words since the Statute of Anne (or since 1905) is out of sync with the wordiness of other statutes. Has the typical Commonwealth enactment become wordier over the past century? Is wordiness necessarily bad, for example if it results in greater clarity?

Grubbiness

Apropos the preceding post, I do like the following tweet -
Jason Akermanis tells gay men to live a lie. David Campbell shows us how you're treated when you do
and Marieke Hardy's post on the ABC site. Nice dissection of the "strategic ellipses" (no ellipses below the hipses, perhaps) in Paul Kent's grubby 'expose'.

Meanwhile Mr Akermanis is reported by the Daily Telegraph as indicating that it was terrifying to have 'missiles' (ie eggs) thrown in the darkness at his house and car. (Being on the receiving end of flying bricks, concrete and beer bottles is traditionally reserved for gay men or just for people that homophobes suspect are gay.)

The stouthearted Akermanis explained that -
I'm not happy and I didn't get a wink of sleep after it happened.

It was pretty terrifying, to be honest, to hear all that noise coming because it's such a quiet neighborhood we live in.
Without condoning violence ... Jason, get a grip.