17 September 2011

Sony

Earlier this year I noted the dispute between Sony and its insurers over compensation regarding large-scale unauthorised access to Sony's global entertainment network.

The BBC and The Register now note that Sony has amended its network's terms and conditions, with consumers being initially required to waive the right to collectively sue over future security breaches.

Users of the network will have to agree to the amended terms the next time they log on. They will however be able to then manually opt out of the agreement within the following 30 days, by sending a letter to Sony's Los Angeles headquarters. That opt out letter will be able the sender to retain the right to participate in a class action suit without any need for arbitration.

In the absence of the opt out users will now have to try to resolve any legal issues using an arbitrator picked by Sony, prior to participating in a class action.

The new amendment - characterised as 'Binding Individual Arbitration' - specifies that -
any Dispute Resolution Proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action.
Bounding participation in online services through a requirement that users first submit to private arbitration is not exceptional or necessarily offensive. It is for example a feature of most domain name registration regimes.

Sony has however been criticised for the way that it has introduced the changes, criticised as obscurely presented for an audience with 'click fatigue' (ie young consumers who do not understand legal small print and are accustomed to signalling their consent by mechanistically clicking 'agree'). Some presumably won't bother to send an letter from the UK, Australia or other locations outside the US.

Sony might more effectively - in terms of legal disquiet and its corporate profile - have adopted a more positive approach to consent and allowed consumers to opt out electronically, particularly opt out after viewing a plain english explanation of the consequences.

Non-profit laundering

The Australian Institute of Crminology has released 'Misuse of the non-profit sector for money laundering and terrorism financing (Trends & issues in crime and criminal justice no.424) by Samantha Bricknell.

The 6 page note [PDF] is drawn from the AIC's Money laundering and terrorism risks to Australian non-profit organisations by Bricknell, McCusker, Chadwick & Rees, not yet available on the Institute's site.

Bricknell comments that -
The manner in which terrorist organisations finance their activities became a policy focal point after the terrorist attacks of 11 September 2001. Non-profit organisations, and charities in particular, were identified as potentially significant contributors to terrorism financing. This premise was based on known links between charitable giving and prominent terrorist groups, and the vulnerabilities of the non-profit sector to misuse.

Money laundering and terrorism financing (ML/TF) risks to the Australian non-profit sector are thought to be low. However, the impact of such misuse is inevitably high. One of the underlying premises in combating non-profit misuse has been the application of a response proportionate to risk. Australia has based its response on education, sector outreach and peak body codes of conduct, alongside more conventional forms of regulatory control.

This paper examines vulnerabilities to ML/TF misuse and the publicly available evidence for actual misuse. It is suggested that the Australian response could incorporate a more uniform commitment from the sector to adopting risk-based strategies, with government providing education for the sector that is based on the identification of specific points of vulnerability.

Elron and employment

Given my interest in belief systems - particularly legal and scholarly reception of religion and parapsychology - I've been reading the Fair Work Ombudsman's 88 page report [PDF] on employment aspects of Scientology.

The latter is the cult founded by L Ron Hubbard and featuring delights such as Xenu, who supposedly shipped billions of people to Earth some 75 million years ago, parked them around volcanoes and killed them using hydrogen bombs (their spirits remaining to haunt our contemporaries unless dispelled through application of a substantial payment to the uber-Scientologists in return for a form of spiritual cleansing).

The Ombudsman is a Commonwealth government agency established as part of the national workplace regulation reforms, an area of interest given my teaching employment law. Yesterday it released the findings of a lengthy investigation into allegations regarding the employment practices of the Church of Scientology (CoS). That investigation did not address the facticity of Scientology's beliefs. It was more restricted, exploring whether the CoS is bound to apply minimum working conditions under the Fair Work Act 2009 (Cth), awards or agreements (and whether the CoS is required to keep certain time and wage records as part of that regime). As importantly, the Ombudsman considered whether people working for the church are employees and whether they have been receiving benefits to which they are entitled under the Fair Work Act, awards or agreements.

The Ombudsman has characterised CoS entities which engage in trading activities as constitutional corporations for the purposes of the Fair Work Act and its predecessor legislation. It has gone to state that -
• some allegations raised by some witnesses fall outside the statutory time limit for consideration or cannot be sustained and are therefore unable to be pursued,
• it will continue to investigate allegations raised by one witness which relates to an entity known as Get off Drugs Naturally,
• it will refer to other relevant authorities allegations made against the CoS which fall outside its jurisdiction, and
• it will request that the CoS and its related entities conduct a comprehensive self-audit to ensure compliance with the Fair Work Act – and if employees are found to have been underpaid, for those underpayments to be rectified.
That self-audit should prudently be conducted at the earliest opportunity using a consultant that the Ombudsman approves and who has no connection to the church. The consultant should be briefed to -
• review the procedures for the engagement of workers and to properly determine the applicable Modern Award and National Employment Standards for each individual,
• review the status of existing employees to ensure they are receiving their lawful entitlements,
• recommend the introduction of changes to record-keeping and issuing of play slips and the Fair Work Information Statement to ensure compliance with the Fair Work Act, and
• recommend a framework to the Church which enables the identification of relevant legislation relating to all employee entitlements, such as long service leave.
That review reflects the formal Finding that the Ombudsman "considered, but was not persuaded, by submissions from the CoS that the Fair Work Act did not apply because the church 'is a religious entity ... and there isn’t any worker relationship or employer relationship'", given that documents and policies examined by Fair Work inspectors during the investigation "plainly contradicted" the CoS assertion.

The Ombudsman characterised the CoS as a "bureaucratised organisation" which "appears to have imported practices and procedures into Australia with little thought to workplace relations laws". A consequence of that indifference is arguably that -
Witnesses told the Fair Work Ombudsman they were directed to work up to 72 hours without a break to complete tasks assigned to them for as little as $10 a week at a time when the Federal Minimum Wage for a full-time adult before shift and weekend penalties was $543.78 for a 38-hour week.
Several features of the arrangements within the CoS entities were not consistent with volunteer or voluntary work and "a significant level of control and direction was applied to workers by more senior church members who held positions of authority".

The Ombudsman went on to comment that -
the complaints that have been investigated, and the receipt of further complaints, is indicative of systemic problems relating to the way labour has been obtained by the CoS and which has caused these arrangements to be the subject of external criticism.

At the very least, the volume of complaints should alert the CoS that there needs to be a change to the current practices relating to how they recruited and are receiving free labour from their followers, should they hope to reduce the number of complaints into the future.

Equally, the Fair Work Ombudsman offers advice to persons giving their labour for free to any religious organisation that they should be mindful of their intentions in doing so and to the extent possible, protect their own interests and immediately withdraw their labour if they perceive that their relationship ceases to be truly voluntary.

In many instances, the witnesses provided considerable free labour to the CoS over a period of several years where they either knew or ought to have known that they were unlikely to be paid for that work from an early stage.
In time-honoured bureaucratic tradition, the Ombudsman notes that -
Some claimed the use of unconscionable tactics by the CoS designed to retain their commitment. The Fair Work Ombudsman makes no findings in respect of those allegations, but advises that if workers providing services to religious or any other organisation consider that they are being subjected to intimidation or other illegal pressure to continue to provide their labour, they should contact police.

16 September 2011

COPPA

The US Federal Trade Commission (FTC) is seeking public comment on proposed amendments to the Children’s Online Privacy Protection Rule.

That FTC Rule gives effect to the Children’s Online Privacy Protection Act [COPPA], US federal legislation requiring operators of websites or online services directed to children under 13, or those that have actual knowledge that they are collecting personal information from children under 13, to obtain verifiable consent from parents before collecting, using, or disclosing such information from children.

The Rule implementing COPPA came into effect in 2000. It was reviewed in 2005; with another review last year. The FTC is expected to release final recommendations for broader online privacy regulations later this year.

The proposed amendments - some 122 pages [PDF] - seek to ensure that the Rule "continues to protect children’s privacy ... as online technologies evolve", through modifications in five areas -
• definitions, including the definitions of "personal information" and "collection"
• parental notice
• parental consent mechanisms
• confidentiality and security of children's personal information
• the role of self-regulatory "safe harbor" programs.
The expression of concern regarding parental consent coincides with the EU work on consent, e-marketing and data protection noted earlier this month and discussed in a forthcoming article in Privacy Law Bulletin.

The FTC summarises the major changes as follows.
Definitions

The COPPA Rule requires covered operators to obtain parental consent before collecting personal information from children. The FTC proposes updating the definition of “personal information” to include geolocation information and certain types of persistent identifiers used for functions other than the website’s internal operations, such as tracking cookies used for behavioral advertising. In addition, the Commission proposes modifying the definition of “collection” so operators may allow children to participate in interactive communities, without parental consent, so long as the operators take reasonable measures to delete all or virtually all children’s personal information before it is made public.

Parental Notice

The proposed amendments also seek to streamline and clarify the direct notice that operators must give parents prior to collecting children’s personal information. The proposed revisions are intended to ensure that key information will be presented to parents in a succinct “just-in-time” notice, and not just in a privacy policy.

Parental Consent Mechanisms

The FTC also proposes adding new methods to obtain verifiable parental consent, including electronic scans of signed parental consent forms, video-conferencing, and use of government-issued identification checked against a database, provided that the parent’s ID is deleted promptly after verification is done. These supplement the nonexclusive list of methods already set forth in the Rule.

The FTC proposes eliminating the less-reliable method of parental consent, known as “e-mail plus,” which is available to operators that collect personal information only for internal use. This method currently allows operators to obtain consent through an email to the parent, coupled with another step, such as sending a delayed email confirmation to the parent after receiving consent.

To encourage the development of new consent methods, the Commission proposes establishing a voluntary 180-day notice and comment process whereby parties may seek Commission approval of a particular consent mechanism. In addition, the Commission proposes permitting operators participating in a Commission approved safe-harbor program to use a method permitted by that program.

Confidentiality and Security Requirements

To better protect children’s personal information, the Commission proposes strengthening the Rule’s current confidentiality and security requirements. Specifically, the Commission proposes adding a requirement that operators ensure that any service providers or third-parties to whom they disclose a child’s personal information have in place reasonable procedures to protect it, that operators retain the information for only as long as is reasonably necessary, and that they properly delete that information by taking reasonable measures to protect against unauthorized access to, or use in connection with, its disposal.

Safe Harbor

Finally, the FTC proposes to strengthen its oversight of self-regulatory “safe harbor programs” by requiring them to audit their members at least annually and report periodically to the Commission the results of those audits.
Among other areas of interest the amendments indicate that -
The Commission believes that, with respect to the subset of websites and online services directed to children or having actual knowledge of collecting personal information from children, broader Rule coverage of photos is warranted. In addition, the Commission believes that the Rule’s definition of “personal information” should be expanded to include the posting of video and audio files containing a child’s image or voice, which, similarly to photos, may enable the identification and contacting of a child.

Therefore, the Commission proposes to create a new paragraph (i) of the definition of “personal information” that states: A photograph, video, or audio file where such file contains a child’s image or voice;

This proposed change will ensure that parents are given notice and the opportunity to decide whether the posting of images or audio files is an activity in which they wish their children to engage.
The amendments document also states that -
In recent years, geolocation services have become ubiquitous features of the personal electronics market. Numerous commenters raised with the Commission the issue of the potential risks associated with operators’ collection of geolocation information from children.

Some commenters urged the Commission to expressly modify the Rule to include geolocation information, given the current pervasiveness of such technologies and their popularity among children. Others maintained that geolocation information is already covered by existing paragraph (b) of the Rule’s definition of “personal information,” which includes “a home or other physical address including street name and name of a city or town.”

Technologies that collect geolocation information can take a variety of forms and can communicate location with varying levels of precision. Generally speaking, most commonly used location tracking technologies are capable of revealing a person’s location at least down to the level of a street name and the name of a city or town. In the Commission’s view, any geolocation information that provides precise enough information to identify the name of a street and city or town is covered already under existing paragraph (b) of the definition of “personal information.” However, because geolocation information may be presented in a variety of formats (e.g., coordinates or a map), and in some instances may be more precise than street name and name of city or town, the Commission proposes making geolocation information a standalone category within that definition.

Those commenters who opposed the inclusion of geolocation information within COPPA’s definition of “personal information” argued that such information cannot be used to identify a specific individual, but only a device. However, as discussed above, the Commission finds this argument unpersuasive. Physical address, including street name and name of city or town, alone is considered personal information under COPPA. Accordingly, geolocation data that provides information at least equivalent to “physical address” should be covered as personal information.

Olympic Identity

'The End of Olympic Nationality' by Peter Spiro (forthcoming as a chapter in Kim Rubenstein [ed] Allegiance & Identity In a Globalised World Cambridge University Press 2012) argues that -
Sport supplies useful terrain on which to explore meanings of loyalty and identity. At the international level, the preferences of consuming publics break down along national lines. In perhaps no other context are states and their citizens as unified as they are with respect to international competition, overcoming political, social, and cultural cleavages. The Olympic Games represents an apex of this national solidarity.

This paper describes the hybrid public/private regime of Olympic nationality, the baseline of which requires athletes to be citizens of the countries for which they compete. The regime obstructs transfer of Olympic nationality in important respects. This regime has been justified as a shield against instrumental naturalization and lax state naturalization regimes, and ostensibly works to maintain some correlation between an athlete’s organic national identity and the flag for which she competes. But eligibility requirements relating to eligibility are easily gamed. They create barriers to movement and discriminate against naturalized citizens inconsistent with human rights norms.

The paper argues that nationality requirements should be abandoned. Olympic competition should move to a club sports model in which athletes can play for any national team that will have them. This change would not detract from the quality of Olympic competition nor would it diminish sentimental attachment to national teams.
In his introduction Spiro comments that
Recent Olympic games have produced a litany of stories highlighting putatively anomalous national affiliations of various competitors. It is not clear, however, why these cases should be considered anomalous. We don’t insist that our professional athletes hale from the cities that they play for. Why should we demand any more from Olympic athletes?

This chapter first describes the regime of Olympic nationality. This regime is hybrid public/private. It is largely parasitic on state nationality rules, but obstructs transfer of Olympic nationality in important respects. This regime has been justified as a shield against instrumental naturalization and lax state naturalization regimes, and ostensibly works to maintain some correlation between an athlete’s organic national identity and the flag for which she competes (by way of "protect[ing] the integrity of international competition", in the words of the statute of the International Ice Hockey Federation).

No doubt there are a mounting number of cases in which citizenship has been acquired on an instrumental basis for purposes of Olympic competition, where an athlete’s prior connection to her flag state is tenuous or nonexistent. Such activity may facilitate “muscle drain” from poor to richer countries; it may also advantage countries with more liberal or discretionary citizenship regimes. Nationality transfers have been derided as "country swapping," an exercise in flying “flags of convenience," "quickie citizenship," "passport bartering," and "athletic mercantilism." But efforts to combat these putative ills are themselves normatively problematic. To the extent that Olympic nationality is pegged to state citizenship, the rules will be variably applied. The overlay of Olympic nationality creates barriers to movement and discriminates against naturalized citizens inconsistent with human rights norms.

This is an important subject which has gone understudied. Olympic nationality is important in itself. The Games implicate huge stakes for all involved – states, particular sports, and individual competitors. Eligibility rules are a prominent feature of the sporting landscape. The Olympic nationality regime has been in an unstable condition, warranting study on its own terms. But Olympic nationality may also supply a useful optic on the condition of citizenship more generally. Put to work in this way, the trajectories of Olympic nationality cast doubt on the durability of citizenship in its traditional conception as delimiting the boundaries of human community. The chapter argues that Olympic citizenship is no longer sustainable, at least to the extent that it constrains the discretion of states in composing their Olympic representation. Olympic competition should move to a club sports model, in which athletes can compete for any team that will have them. The trajectory of Olympic citizenship supplies further evidence for the postnational proposition that citizenship is a waning institution.
He goes on to comment that -
As a general matter, states have been more inclined to commodify immigrant admissions than citizenship determinations. In the United States, for example, it is the green card that is (in effect) for sale, not the naturalization certificate. Global mobility breaks down along class lines; transnational elites can travel without restriction (for many a green card would add little value) where the nonpropertied face high barriers to entry. Citizenship itself except at the margins commands little market value.

In the Olympic context, citizenship is valuable only to the extent that it facilitates eligibility. In a hypothetically free market, some athletes would be willing to pay for citizenship, especially where it made the difference to allowing an individual to compete (primarily among second-rank athletes disadvantaged by the national quota system). With respect to top athletes, the market value is reversed, and some states would be willing to pay the athlete to accept citizenship by way of establishing Olympic eligibility. But citizenship is a formality. There is no reason why citizenship needs to be extended to the athlete beyond the requirements of the Charter and statutes of the sporting federations. It serves no purpose beyond eligibility. The individual is not being made a citizen on the expectation that she will establish or maintain a connection in any other way. There is no pretense of social membership

15 September 2011

Polls

With hype about Kevin Rudd as "preferred PM" in mind I'm rereading 'Opinion polls: issues and preferred party, and preferred PM, July 2004' (Australian Parliamentary Library Research Note no. 2 2004–05) by Sarah Miskin & Greg Baker, Miskin's 'Interpreting opinion polls: some essential details' (Research Note No. 52, 24 May 2004) [PDF] and the 46 page Victorian Parliamentary Library paper on Public opinion polls [PDF] by Rachel Macreadie from earlier this year.

Macreadie notes the suggestion by Murray Goot in 'Polls as Science, Polls as Spin' (1993) that we -
reject the idea that the polls are in pursuit of some pure, unmediated, pre-existing entity called public opinion and think of the polls instead as guides to what the public is likely to think about an issue given their exposure to certain sorts of information.
She comments that -
This paper examines public opinion polling in Australia and in other jurisdictions, and functions as a guide to interpreting polling results.

Public opinion polls, particularly those released in the lead up to an election, stimulate considerable debate and speculation amongst the media, the public and politicians. Opinion polls essentially attempt to capture public opinion, or the public’s mood, on a given issue at a particular moment in time. Opinion polls are regularly conducted on voting intentions and leadership preferences, but can be undertaken on any social or commercial matter that the polling groups or commissioners of such polls determine. The study of public opinion polling has drawn on journalism and market research and also attracts scholars of history, sociology, psychology and communications.

The primary focus of this research paper is public opinion polling in its political context. The paper is designed as an introduction to the study of public opinion and opinion polling and to provide Parliamentarians with a guide to interpreting and understanding opinion polls, their strengths and limitations. It looks specifically at polling groups in Australia, but also draws on developments and information from other jurisdictions. It cannot, in the space available, provide a comprehensive account of every aspect of this large topic, which has received an extensive amount of research. It does aim to draw on the most salient elements of that research, to assist Members in their duties.

This paper begins in Part A by briefly examining the development of the concept of ‘public opinion’, which importantly underpins the activity and industry of opinion polling. Part A then provides an overview of opinion polling and its modern development, beginning with the first ‘straw’ polls conducted in the 1820s. The essential distinction between quantitative and qualitative methods is discussed. Part B examines the many factors - methodological, social and situational - that account for variations in poll results, while Part C provides a guide to the main polling groups in Australia.

Part D examines the impacts of opinion polls in terms of elections, politicians, policy, polling failures and successes, and the role of journalists. This section also briefly looks at other forms of polling, including exit polls, focus groups, and the controversial practice known as ‘push polling’. Part D concludes by considering recent developments in measuring public opinion, such as social media, internet polling, real-time debate tracking and betting markets.

The Dog that doesn't bark?

From Deborah Kirkman's 1996 history [PDF] of the Australian Press Council -
The second recommendation of the Senate inquiry in respect of the APC was one connected with the second main area of criticism of the Council: its complaints facility. Aggrieved readers of publications have three options open to them. First, they can initiate legal proceedings against the newspaper or magazine, an option that is realistically only viable for the rich or the very poor. Second, they can approach the publication and try and obtain a correction, clarification or opportunity to reply. Or, third, they can make a complaint to the APC. It is the latter option that people turn to when they rule out option one and fail in their attempt at option two.

The inquiry, like most observers of the Council, appeared to assume that the only outcome of the complaints procedure was an adjudication. Yet nearly twice as many complainants have their complaints mediated or are prepared to withdraw them after receiving the newspaper’s response than refer their complaints to the Council. The inquiry found that the APC should "be given power to impose and enforce sanctions on the print media. This should be done by legislation if necessary".

The Chair of the Committee, Senator Barney Cooney, explained that the sanctions may include fines and even suspending publication for a short time. Professor Flint immediately attacked the idea of a statutory authority:
It’s a draconian power. My immediate reaction is that I don’t think in a democratic society that any authority should be vested with the power. If the council can be given that power, who else may be given the same power? Giving us the power to impose fines would turn us into a court. It wouldn’t work. It would mean complainants and media organisations turning up with QCs and arguing for days over such fines, making Council’s work longer and more expensive.
Or, as Geoff Hussey put it, "a statutory authority is contradictory to the whole concept of freedom of the press. A statutory authority would leave the government which imposes the authority with the power to influence the freedom of the press".

It is difficult to disagree with this argument, especially when consideration is given to the way courts operate in Australia. Involvement in the court system means a great deal of money and long delays often resulting in anxiety. The original concept of the APC was for an alternative to the court system, one which was accessible to all.

This is a good place to put in a word about the role of the Press Council’s secretariat. As noted above, it is not commonly known that, as the first people to touch base with complainants, the secretariat’s aim is to try and mediate between publications and the public. Where possible, an amicable solution is found ... either by way of a letter to the editor being published, a follow-up article being printed, a clarification made etc. Other complaints are outside the Council’s remit, such as those regarding television or radio, and the remainder are either not followed up by the complainant or the file is closed once the publication has responded and the complainant is happy to let the complaint rest. It is only when mediation by the secretariat is unsuccessful or the newspaper fails to satisfy the complainant’s concern that a complaint is considered by the Council which issues an adjudication on the matter.

If the powers of the Council were increased to include the imposition of fines, what would be the scale of the fines, who would be the trustee of the money, would it be spent and, if so, by whom and on what? If the fines were to be in the form of compensation to a complainant, would not the APC be inundated with complainants who were after monetary compensation as opposed to the concept of upholding an ethical press? The idea behind the imposition of fines is to give teeth to the "toothless tiger". The problem with the idea is that a fully equipped tiger might bite off the hand that feeds it! Even in the most litigious country in the world - America - opponents of Press Councils with punitive powers are to be found. In their article 'Press Councils: the answer to our First Amendment Dilemma?', John Ritter and Matthew Leibowitz make the point that the power of a press council to publicise its decisions gives the "toothless" watchdog something which is noticed - a loud bark. It is from this loud bark that press councils derive their real power 'developing public awareness of problems in the free press-fair press area'. Even the customers of the APC are in two minds on the issue. While a majority of respondents to the APC’s survey of complainants strongly indicated that the APC should be able to impose a fine if the decision goes against the publication, 59% were not primarily concerned with monetary compensation.

APC detractors have pointed out that the Council does not even have the power to enforce publication of its adverse adjudications. The APC counters that, in the period 1988-1993, for example, an average 91% of adverse adjudications were published in the newspaper or magazine concerned, or not published by agreement. Of the remainder, the publications refused to publish or there were specific reasons for non-publication such as legal advice not to do so. The public, it is suspected, would have a higher regard for the APC if it had the ability to enforce publication of adverse adjudications. When this idea was suggested to Geoff Hussey, he was very firm in his antagonism to such a move. "To make publication mandatory", he argued, "would move it away from being a self-regulatory body. It would necessitate government regulation, a statutory authority, one that is able to levy fines". What is being suggested in this essay is not the levying of fines, but a simple amendment to the APC’s principles that requires the publication of all adverse adjudications. As most publications already co-operate, making mandatory the publication of adverse adjudications should not prove to be a problem.

It would, likewise, increase the APC's prestige if a similar rule was enacted that required the entire adjudication be published (not an edited version) and in a prominent position. It is not surprising that only 4% of past complainants were very satisfied with the publicity the Council’s decision received compared with 30% who were very dissatisfied. Yet, if a situation arose again in which they had a similar complaint, 52% would take it to the APC. The picture is therefore not all bad for the Council. In fact, the complaints procedure itself is simple and very well explained. The inability to enforce publication of adverse adjudications is one area that could be bettered.
The Press Council's 2009-10 Annual Report [PDF] features the Charter of a free press in Australia adopted by the Council in 2003 and presumably relished by those who remember that freedom of the press belongs to those who own a press -
Preamble

Freedom of opinion and expression is an inalienable right of a free people.

Australia is committed to The Universal Declaration of Human Rights. Article 19 of the Declaration provides:
Everyone has the right of freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
In a truly democratic society open debate, discussion, criticism and dissent are central to the process of generating informed and considered choices. These processes are crucial to the formation of values and priorities and help in assessing and finding solutions to social, economic and political problems.

A free press means a free people and the people of Australia have a right to freedom of information and access to differing views and opinions and declare that the following principles are basic to an unfettered flow of news and information both within Australia and across the nation’s borders.

The Principles

1. Freedom of the press means the right of the people to be informed by the press on matters of public interest so that they may exercise their rights and duties as citizens.

2. The press shall not be subject to government licence and government authorities should not interfere with the content of news nor restrict access to any news source.

3. The press has a responsibility to the public to commit itself to self-regulation which provides a mechanism for dealing with the concerns of members of the public and the maintenance of the ethical standards and journalistic professionalism of the press.

4. It is in the public interest for the press to make available to the people a wide diversity of views and opinions.

5. It is the responsibility of the press to protect the people’s right to know and to contest encroachments upon that right by governments, groups or individuals.

6. Laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people’s right to know.
We might ask whether self-regulation by the major media groups - print or otherwise - is effective and whether a more meaningful regime would be outweighed by crimps on free speech. ACMA's incapacity in dealing with the 'Cash For Comments' affair isn't a distant memory. Reading the hand-on-heart ethics statement from News Limited -
News Limited group publications aim for the highest editorial and ethical standards. Editorial employees and contributors should be open-minded, fair and respect the truth. ...
1.1 Facts must be reported impartially, accurately and with integrity.
1.2 Clear distinction must be made between fact, conjecture and comment.
1.3 Try always to tell all sides of the story in any kind of dispute
I do wonder whether the princes of print are living up to their aspirations.

One response might be that we need a justiciable national Bill of Rights that enshrines privacy and freedom of speech (the latter not necessarily the same as the freedom that comes from owning a press, as distinct from a keyboard). Such a Bill might offset the preparedness of some governments to gut human rights Charters such as that in Victoria.

Crusades and controversies

Reading 'The Child Pornography Crusade and its Net Widening Effect' by Melissa Hamilton in 33(1) Cardozo Law Review 1-58.

Hamilton comments that -
The criminal justice system’s effort to combat child sexual exploitation has taken on a primary and aggressive focus toward prosecuting those who violate child pornography laws. The deontological policy labels all child pornography offenders, whether they are producers or merely viewers, as morally bankrupt and a threat to the nation’s children. Yet the basis for the policy bears fundamental flaws, and this article explores them. The article first summarizes legislative efforts to bolster child pornography laws and lengthen sentences for violators. It then provides a synthesis of criminal justice initiatives that are expending substantial resources targeted toward investigating, prosecuting, and punishing child pornography offenders. The policy and the initiative rely on a presumption that child pornography consumers are in reality undetected pedophiles and child molesters who are at high risk of sexually abusing children.

This article challenges the presumption by comprehensively analyzing certain of the most commonly cited studies that purport to empirically support correlations between child pornography, pedophilia, and child molestation. It also highlights other empirical evidence, as well as some practical considerations, that instead tend to show that most child pornography offenders are at low risk of committing contact sexual offenses. In sum, the concentration on child pornography crimes appears to be a misinformed policy that fails to directly protect real children from harm.
She concludes that -
As a broad criminal justice policy perspective, an obvious curiosity emerges: Have we not learned from the war on drugs? In the drug war, the United States wages battle without differentiating much among producers, importers, distributors, or users. It is mostly a bottom-feeding exercise whereby low level drug users are easy targets and presumably useful to bolster statistical measures of performance for criminal justice personnel. Seldom has law enforcement apprehended those most responsible for causing the greatest harm, i.e., drug producers. For this reason, the drug war is widely considered an abject failure, costing billions of dollars and contributing to prison overcrowding, yet without substantial reducing demand. The analogy here is that the war on child sexual abuse snares the more easily identifiable child pornography downloaders and traders, thereby attracting law enforcement resources to these offenders. Yet there is little or no evidence that this approach has yielded the expected deterrence value or has succeeded in protecting children. On the other hand, potential long-term negative consequences are probable. Where it appears that law enforcement initiatives have taken on a child pornography-centric approach, the campaign against child sexual exploitation has lost sight of what should be the primary interest—protecting actual children from sexual abuse. At the same time, as child pornography consumers are not the high risk offenders as presumed, resources are misdirected at imprisoning scores of defendants who do not pose a risk of future harm. Policymakers would seem to have an incentive to allow more rational minds to prevail.

So what are the potential alternatives that may more equitably balance protecting children without net widening to low risk offenders? It may be useful to reconsider the variations of harm and moral culpability interests proposed early on in this article. Public debate would properly explore these hypotheticals further, in isolation and in combination.
• the viewer is a 18-year-old male, 30-year-old female, or a 50-year-old man
• the child is age 6, 11, or 17 years
• the picture is morphed to appear sexually explicit, is of a naked child alone, or is of a child being sadistically penetrated by an adult
The first variation is relevant for both normative and risk-based reasons. As for the teenager proposed, several legal commentators have protested the application of child pornography laws to teenagers who are running afoul of them by rather innocuous behaviors such as sexting.One writer insightfully remarked that ― "[i]t is likely that minors prosecuted for child pornography are [] collateral damage to the breadth of laws designed to target pedophiles". While interested in protecting underage defendants, this observation helps make a broader point. What is the true scope of the ―collateral damage‖ of overly broad child pornography laws and is it justified? In the example posed earlier, the age of 18 was offered for ideological reasons. Many of those who would propose different rules for teenage sexters would limit them to those under the age of majority, so they would not cover individuals classified as adults yet still young. But is an 18-year-old male (or even one who is 19 or 20, for that matter) who downloads provocative images of pubescent and post-pubescent teenagers so repugnant that he deserves a 5-15 year sentence (in the federal system) for receiving child pornography? Actually, it might be normatively unorthodox for him not to be sexually attracted to teenagers, particularly to those within his peer group. The 50-year-old man is the easiest on whom to impose social expectations, though considering the prevalence of men with sexual attractions to young females, it is still open to debate in terms of normative boundaries. The 30-year-old female poses unease in terms of the age difference, but, on the other hand, women are at very low risk of sexual contact offenses. Yet child pornography laws do not generally consider gendered differences in morality or risk.

The age of the child has important policy implications, too. As domestic child pornography laws generally define a child as anyone under 18, one aspect of net widening becomes clearer. Do public morals truly find equally egregious a sexualized photo of a mature 17-year-old as it does a sexually explicit image of a 6-year-old? Is the harm to each childtruly equivalent and do they deserve the same moral antipathy? Modern society may be troubled by evidence of teen and adolescent sexuality. But, the criminalization and application of strict sentencing regimes to all sexual images of those under the age of 18 is unwarranted as a criminal justice policy and likely not demanded by current cultural standards. Much of the problem stems from the grouping of newborns through 17-year-olds into a single protected class. This amorphous class obscures the reality that modern culture recognizes roughly three categories of maturity: children, pubescents, and teenagers. Sexual norms vary widely among them, yet child pornography laws often do not.

Possibilities for policy change include altering the legal age of a minor for child pornography law purposes (such as lowering the upper limit absolutely to a lower number, such as 16 as it was in the federal system before 1988) or at least creating categories of ages with far more significant gradated differences between them. This issue is certainly not a novel one for public discourse. Debates about the appropriate age for legal consent to sexual activity and corresponding discussion about age disparities between partners in statutory rape laws have enlivened political and social commentary in modern times. More particularly, the current struggle with sexting may already be evidence that political figures are willing to discuss the issue of age—regarding both offenders and victims—in child pornography laws. Alternatively, more laws could be revised toward prepubescence rather than specific years in age, though that obviously raises additional definitional issues to be addressed.

As for the consideration of the sexual character of the image involved, international experts have recently noted the importance in distinguishing between child sexual abuse and child sexual exploitation. The latter may or may not involve sexual abuse but it requires other activities that violate a child‘s sexual innocence. Surreptitiously taking a photo of a naked or partially nude child, perhaps at the beach or swimming pool, may be exploitative but would not constitute the deeper harm of sexual abuse. There is also a need to differentiate the degree of exploitation involved in the material. A popular categorization is offered by the Combating Paedophile Information Networks in Europe (COPINE Project). It ranks the type of images on a scale of 1 to 10 from least to greatest harm: Indicative, Nudist, Erotica, Posing, Erotic Posing, Explicit Erotic Posing, Explicit Sexual Activity, Assault, Gross Assault, Sadistic/Bestiality. A useful purpose for such a ranking is that, from a punishment theory standpoint, crimes and sentences are appropriately based on the level of suffering involved. Thus, a system that strives for proportional and rational punishment requires laws that differentiate between unequal harms. The practicality underlying the ranking also calls into question the presumption that production necessarily involves sexual abuse. To the extent the child can voluntarily consent to an image being taken or the image is morphed, no sexual abuse may occur even if it is somewhat exploitative.

Still, several concerns held by child pornography crusaders should be addressed. One is the argument that there is value to pursuing child pornography offenders generally in order to reduce the production market. The market thesis, though, is more speculative and ideological than supported by experiential data. The global non-governmental organization End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT) acknowledges that organized crime is rarely involved with child pornography. Furthermore, a United Nations report indicates skepticism that children are sexually abused for the sole purpose of making marketable product. The argument is also troubling on several other, though somewhat contradictory, grounds. Being illegal may also serve to encourage more consumers since many report that the unlawful nature is what makes the material more sexually enticing. From an economic theory perspective, just as the countrywitnessed with the war on drugs, the criminality itself could conceivably drive profits for those organizations who can charge for the material. In actuality, however, the Internet permits widespread trading and downloading of child pornography materials for free, thereby creating a disincentive to those who believe they can profit by creating new product. Nevertheless, even if the market theory were valid, it does not necessarily mean more live children will be used. Technological advances, even those generally available like Photoshop, permit producers to create quite realistic looking images, such as by morphing innocent photos of children to appear sexually explicit, compositing images using a combination of body parts from a child and adult, or digitally mastering entirely virtual, though lifelike, children.

Another argument for crusaders is the harm thesis, which contends that the Internet has increased the risk to children of the modern sexual predator. But research to date provides evidence to the contrary. Those attributes that are likely required to successfully engage young people online, establish a relationship, and convince them to meet make solicitors unlikely to be impulsive, antisocial, or violent. Besides, jurisdictions already maintain more specific statutes, along with harsh consequences, that criminalize these types of contacts. These include offenses involving the Internet-facilitated solicitation of minors for sexual contact and the grooming of children with the use of child pornography. Child pornography laws are therefore an unnecessary backdoor to deter those offenses. Further, the ideology of the modern sexual predator as a stranger lurking on the Internet is itself potentially dangerous to the safety of children. It obscures that the persons they might really need to be wary of are those closest to them since the vast majority of those who commit sexual abuse against the underage are family members, friends, and peers.

Additional impediments plague the theory that harsh consequences are necessary for child pornography because it whets the appetite of consumers to commit sexual abuse in the future. Any causal connection is far too contingent and remote. Besides, the contention that incarceration is justifiable based on the thesis that material with a deviant theme will cause the viewer to act out the theme is a slippery slope. It would theoretically countenance the criminalization of material with images of drugs, violence, terroristic activities, etc., that may equally invoke emotive responses and imitative behaviors.

Naturally, there is an entirely different approach society can embrace in response to a social problem. Instead of addressing it primarily as a criminal justice issue, a public health model may be more suitable. While it is beyond the scope of this article to fully address what such a response would entail, it is of note that there have been some great successes around the world in addressing relevant harms and risks. These include school-based programs to teach students about sexual issues and how to protect themselves from sexual harm, as well as public education campaigns that aim to improve the safety of youth on the Internet. According to the Internet Safety Technical Task Force, a professional collaboration tasked by the states' attorneys general to report on safe practices in social networking, web companies are active in employing effectual technological methods to seek out and restrict materials that may include child pornography and otherwise limit potential contacts with juveniles. In terms of the risk of child pornography consumers, sexual treatment specialists are working to improve prevention, treatment, and intervention strategies.284 It is of import that sexual offender clinicians believe that sexual interests are often malleable in nature and can be modified.

Cutting up the Charter

The Scrutiny of Acts & Regulations Committee of the Victorian Parliament has released its 246 page report [PDF] on the Review of the Charter of Human Rights & Responsibilities Act 2006 (Vic).

The report recommends a fundamental - and in my opinion, deleterious - winding back of the Charter.

The Committee's terms of reference were to -
inquire into and report by 1 October 2011 on the first four years of operation of the Charter of Human Rights and Responsibilities Act 2006, including:
1. the matters referred to in s 44(2) of the Charter Act

2. the effects of the Charter Act on
a) the development and drafting of statutory provisions
b) the consideration of statutory provisions by Parliament
c) the provision of services, and the performance of other functions, by public authorities
d) litigation and the roles and functioning of courts and tribunals
e) the availability to Victorians of accessible, just and timely remedies for infringements of rights
3. the overall benefits and costs of the Charter Act; and

4. options for reform or improvement of the regime for protecting and upholding rights and responsibilities in Victoria.
The Chair's summarises the response to those Terms as follows -
1. Section 44 (2) of the Charter requires the consideration of the expansion of the Charter rights and how, with their Charter obligations and tested and enforced.

SARC finds that the case for adding new categories of rights, reviews and proceedings to the existing Charter has not been made.

2. The impact of the Charter on the development of legislation, Parliament, public authorities, courts and tribunals and remedies.

Various recommendations are made to address the problems identified pursuant to this term of reference, such as; the redrafting of the provisions on reasonable limits and obligations of public authorities in plain, localised language, reconsideration and revision of the interpretation provision to preserve traditional interpretation methods and the primacy of the purpose of statutory provisions, replacement of the complex definition of public authorities with a clear statutory list of each body and function, transfer of the Supreme Court’s role in making declarations of inconsistent interpretation to an independent non-judicial body reporting to a Parliamentary Committee, and express identification of specific remedies (if any) to be made available for breaches of the provisions for obligations of public authorities.

3. The overall costs and benefits of the Charter.

The difficulty in identifying costs and benefits, as noted in numerous submissions, was demonstrated by the Government submission which detailed costs of $13,488,750. This figure captured part of the total direct costs to date and did not include indirect costs. As a consequence, SARC was unable to make any specific conclusions about the costs and benefits of the Charter.

4. Options for reform or improvement of the regime for protecting and upholding rights and responsibilities in Victoria.

Having made recommendations pursuant to the above terms of reference, SARC presents for consideration two options for reform and improvement of the human rights regime in Victoria.

Option 1, preferred by the minority, retains the current Charter framework with the significant reforms and simplification recommended in chapters 3, 4 and 5.

Option 2, preferred by the majority, retains the provisions for scrutiny of new law while removing the obligations of public authorities and returning the courts and tribunals to their traditional role. These changes create flexibility and enable the consideration of additional rights and new forms of dispute resolution with the prospect of justiciability removed.
Sarah Joseph, Julie Debeljak & Adam Fletcher of the Castan Centre offered the cogent comment that -
In essence, the majority of the Committee recommends stripping most of the operative provisions from the Charter, leaving only the Executive and Parliamentary scrutiny functions. The whole point of a Charter or Bill of Rights is to improve transparency and accountability regarding the human rights impact of government actions. The Committee’s proposal would remove layers of accountability for the Executive, Parliament and public authorities in Victoria, sending the message that the Charter is not to be taken seriously.

The Committee’s recommendation (Recommendation 35) to remove the judiciary’s independent oversight role is regrettable. For the Executive and Parliament to commit to a statement of fundamental rights, but to deny independent scrutiny of their actions, risks rendering the document pointless. A key reason to protect human rights is to ensure that minorities, the unpopular, and the vulnerable can be heard, and the majoritarian-driven executive and parliament cannot guarantee this. Moreover, the judiciary is not supreme under the current Charter: the Parliament can override its decisions and, in the case of a Declaration of Inconsistent Interpretation, ignore them.

The proposal, again in Recommendation 35, to remove all obligations on public authorities in s.38 and to repeal the (already weak) cause of action in s.39 further neuters the incentive for the rights-respecting administration of government. The protection of rights is largely about protecting the individual against unjustified government decision making. If the State has no human rights obligations when making decisions that impact on the individual, what is the point of having rights?
They conclude that -
All in all, the Committee appears to want to go back to the days when Victorians had very little legal redress with regard to human rights abuses. As it stands, the Charter does not allow the Courts to overrule Parliament, nor does it allow individuals to institute civil proceedings for a breach of their human rights. What it does do is provide an extra layer of transparency and accountability in the hope that this will encourage the Government to act consistently with human rights. Yet the Committee recommends that the Government reduce this relatively low level of independent scrutiny, and reduce the obligations and independent scrutiny of public authorities; any reasonable person must question its motives.

Gender identity

The Australian Foreign Minister and Attorney-General have announced new guidelines "to make it easier for sex and gender diverse people to get a passport in their preferred gender".

The Guidelines are not currently available on the Passport Office site, an indication that adoption of the 'open government' or 'government 2.0' philosophy still has some way to go. Search on that site and the message is -
The policy for sex and gender diverse applicants wishing to obtain a passport in their preferred gender is being reviewed. Advice on the new policy will be released shortly.

In the interim, sex and gender applicants who require information or advice on how to obtain a passport in their preferred gender should email Passport Strategy, Policy and Coordination Section on passports_policy@dfat.gov.au
The Ministers' media release states that -
Under the guidelines, sex reassignment surgery will no longer be a prerequisite to issue a passport in a person’s preferred gender.

“Sex and gender diverse people now have the option of presenting a statement from a medical practitioner supporting their preferred gender,” said Mr Rudd.

“This amendment makes life easier and significantly reduces the administrative burden for sex and gender diverse people who want a passport that reflects their gender and physical appearance.”

The initiative is in line with the Australian Government’s commitment to remove discrimination on the grounds of gender identity and sexual orientation.

“Most people take for granted the ability to travel freely and without fear of discrimination,” Mr McClelland said.

“This measure will extend the same freedoms to sex and gender diverse Australians.

“While it’s expected this change will only affect a handful of Australians, it’s an important step in removing discrimination for sex and gender diverse people.

“Importantly, this policy addresses a number of the recommendations contained in the Australian Human Rights Commission’s Sex Files report.”
In reporting the development the ABC states that -
People will be able to choose what gender they want to be listed as on new Australian passports, even if they have not undergone a sex change.

In the past, Australians could only change their gender on their passports if they had had a sex change operation or were travelling to get one.

Now the Department of Foreign Affairs and Trade (DFAT) has introduced new guidelines so that instead of surgery, all that is needed is a letter of support from a medical practitioner.

The changes mean Australians can identify their sex of choice and select Male, Female or X.

Labor Senator Louise Pratt says international travel can be downright dangerous for people whose appearance does not match the gender listed on their passport.

"There have been very many cases of people being detained at airports by immigration in foreign countries simply because their passports don't reflect what they look like," she said.

"It's very distressing, highly inconvenient and frankly sometimes dangerous."

Senator Pratt is the first member of Federal Parliament to have a transgendered partner, who was born female but has transitioned to male.

"This is really pleasing for people like him. It now means we can travel overseas without any problems." ...

Passports are considered secondary documents of identification.

Birth certificates are the most important and they come under state law, which in most states says they cannot be changed without accompanying surgery.

Connor Montgomery has undergone hormone treatment and now lives as a man. He welcomes the passport changes, but says the national right to alter a birth certificate has to follow.

"You know, having that little bit of paper, to some people it seems insignificant but for us it is so important, it feels like the last missing piece of the jigsaw," he said.
Identity is important to individuals rather than just to states.

Cyber White Paper

The Australian Government has released a 38 page public discussion paper [PDF] as part of development of the Cyber White Paper.

That White Paper will
look at how Governments, businesses and individuals can realise the full benefits of cyberspace while at the same time ensuring current and emerging risks can be managed. ... The Cyber White Paper will cover a broad range of areas including consumer protection, cyber safety, cyber crime, cyber security and cyber defence.
The discussion paper "invites submissions on a range of issues regarding the importance of cyberspace to Australia's social well-being, economic prosperity and broader national interests".
The Public Discussion Paper is your opportunity to tell the Government what you think are the key opportunities, priorities and challenges in cyberspace. The Discussion Paper is intended as a 'conversation starter', designed to allow all Australians to participate in an open discussion on how we can jointly develop a vision that optimises Australia's digital future and allows Australians to connect with confidence.
The White Paper exercise is promoted with the statement -
With the rollout of the NBN gaining pace, Australians will become even more connected with the benefits of cyberspace.

Given the importance of the internet to Australia's economic prosperity, we must ensure people continue to embrace the tremendous opportunities cyberspace offers.

Globally, cybercrime has already overtaken the drug trade as the most profitable form of all crimes.

Cyberspace is a shared domain and no single nation can address the security challenges alone.

The White Paper will allow us to provide an even stronger input into international efforts to fight cybercrime and ensure cyber security across borders.

The Department of the Prime Minister & Cabinet is leading development of the Cyber White Paper, which is expected to be released in the first half of 2012.
Submissions will be open until cob 14 November.

Overall the discussion paper is bland. In relation to "privacy and identity security" it states -
How we think about the online environment has clear implications for our understanding of the levels of privacy we are afforded when online. Many of us consider that because we might use an Internet-connected device in the privacy of our own home, then we are also afforded that same privacy online. However, in reality any information stored on an Internet-connected system is vulnerable to a broad range of malicious parties including cyber criminals. Further, the storage of citizens’ private information is now often outsourced to third parties by traditional holders of information, such as doctors’ surgeries and banks.

Consequently, the confidentiality of an individual’s information is contingent not only on the security practices of the individual, but also on the security practices and awareness of the institutions holding their data. This further highlights the shared responsibility governments, businesses, NFPs and individuals have in ensuring a secure and trusted online environment.

In an era where our online identity is central to accessing information and services, ensuring the integrity of that identity is increasingly important. The loss or compromise of our online identity can have wide-ranging implications, including financial loss, emotional distress and reputational damage.
The paper offers a series of "key issues and questions" -
Issue: A growing portion of our lives and civic experience is conducted in the online environment. This environment has a unique set of characteristics, including anonymity, and allows people to interact socially unhindered by geographic distance.
• Question: How can we promote a concept of digital citizenship, reach agreement on acceptable online behaviour and encourage people to assume greater responsibility for that behaviour?

Issue: The online environment can create a sense of dislocation from our actions; the ability to act anonymously online can embolden bullies and sometimes abusive, offensive or illegal behaviour can go unchecked.
• Question: How can governments, the private sector, the NFP sector and the broader Australian community work together to promote responsible and accountable digital citizenship and reduce harassing and malicious online behaviour?

Issue: Children and young adults are prolific users of social networking sites and as a result can be exposed to a range of online risks, including abusive behaviour.
• Question: How can we help carers and parents to appropriately supervise young people and minimise these online risks?
• Question: How can we promote social responsibility and encourage young people to protect themselves and each other by speaking out against cyberbullying?

Issue: Social networking sites are almost entirely facilitated by the private sector. Although many of the larger sites have some capacity to monitor and limit abusive behaviour, some others do not.
• Question: How can the owners of social networking sites be more engaged in meeting community expectations that their platforms will not be used for abusive or illegal activities?

Issue: Social networking sites and increased social connectivity provide increased opportunities for people to collaborate, share ideas and produce socially valuable outcomes.
• Question: What new and innovative opportunities do social networking tools provide to improve the social wellbeing of Australians?
• Question: How can NFPs ensure the security of online fundraising activities conducted through social networking sites?

Issue: Governments are progressively implementing online services in response to community expectations. However, many individuals do not trust their private data will be appropriately managed.
• Question: How can governments improve citizens’ and businesses’ trust that their private data will be secured and only used for agreed purposes?

Issue: The digital economy presents both wide-ranging opportunities for increased productivity and innovation across the Australian economy and the risk of the loss of sensitive commercial data.
• Question: How can small business awareness of commercial online opportunities be balanced with awareness of potential online risks and mitigation strategies?
• Question: How can governments, industry, NFPs and consumer groups boost consumers’ confidence to engage in e-commerce?

Issue: Industry and governments need to strike the right balance between improving awareness of and protecting against cyber threats, while also encouraging consumers to take advantage of the benefits of the digital economy.
• Question: How can governments and the private sector continue to build and maintain confidence in the digital economy while also raising awareness among consumers and small businesses of the nature of cyber threats?
• Question: How can we improve and encourage the reporting of data breaches in Australia?
• Question: How can e-businesses more effectively work together to develop a self regulatory feedback system that provides a way of sharing their experiences with other online traders?

Issue: Police resources are finite and cyber crime investigations are inherently time and resource intensive. Consequently, the growth in cyber crime activity poses significant challenges to Australia’s state and territory and federal police services.
• Question: What does the Australian public expect from policing and consumer protection agencies in relation to preventing and investigating cyber crimes?

Issue: One of the primary impediments to e-commerce is consumers’ fear their financial or personal details may be at risk when conducting business online. Anonymity will remain a key part of the Internet, but trust and confidence in the digital economy may be undermined if people’s financial and personal details remain at risk of being stolen by criminals.
• Question: What options are there for increasing consumers’ trust in conducting business online?
• Question: How can consumers be encouraged to take more responsibility to protect their information?
• Question: What are the options for broadening industry’s efforts to provide customers with a greater level of trust and confidence in the security and privacy of their online transactions?
• Question: What information would help consumers and small businesses better protect themselves and enhance their trust and confidence online?

• Question: What do consumers and small businesses expect from their Internet Service Providers (ISPs), software and hardware providers and the government to assist them to maintain or enhance their confidence online?
• Question: How can governments and industry work together to make Australia a difficult place for cyber criminals to target?

Issue: Damaging criminal activities are often aided by the use of botnets, built as a result of many individuals unwittingly operating virus-infected computers. The AFP estimates that the overall risk of cyber crime to the Australian economy is more than a billion dollars a year. This is likely to grow substantially as Australia’s digital economy expands.
• Question: What are the options for limiting the collective economic and societal costs of widespread individual security lapses?
• Question: What role do individuals, businesses and, more specifically, ISPs and large online companies, have in limiting the collective harm compromised computers have on the Australian economy and to the broader wellbeing of the Australian community?

Issue: The effects of cyber crime and scams often extend beyond the immediate financial impacts. Many instances of online crime go unreported, so the full extent of the problem is not known.
• Question: How can Commonwealth and state and territory governments encourage victims to report incidences of cyber crime and scams and better assist them with support and advice?
• Question: How can Commonwealth and state and territory governments obtain the information and data required to form a more precise assessment of the extent of the economic and social harm caused by cyber crime?

Issue: Small businesses often lack access to the security controls employed by government or other larger enterprises, yet consumers expect small businesses to secure their data and transactions appropriately.
• Question: How can government, ISPs, financial institutions and small businesses collaboratively create an environment where small businesses are empowered to operate in a safe and secure manner online?

Issue: Much of the public discussion on cyber threats and risks to date has focused on national security issues. This important dimension has inadvertently hidden the reality that at its most basic level, security and safety online is reliant on the awareness of individuals. As a result, many businesses and consumers are not as mindful of cyber threats as they could be.
• Question: How can the Commonwealth, states and territories and industry effectively communicate the interdependent nature of individual and national cyber security? How can the importance of individual behaviour be highlighted in creating a secure,
trusted and resilient online environment for all Australians?
Question: How can citizens better protect themselves from cyber threats?
• Question: Are individuals adequately aware of cyber threats and the steps they should take to protect themselves? If not, why not?

Issue: The attractions of the Internet in terms of openness, access to information (of all qualities) and informal governance are also creating tensions with traditional government responses to community interests.
• Question: What model of Internet governance is in the best interests of all Australians?
• Question: How can we get the right balance between Australia’s social, economic and security needs when developing an Australian vision for the online environment?

Issue: Increasingly, policy makers have turned to discussing what agreements governing behaviour in the online environment might look like, the principles they should be based on, the boundaries they would place on behaviour and how they can be promoted. This will be a gradual and long-term process, and different stakeholders are likely to want different outcomes from any agreement.
• Question: What sort of approach should be taken to developing agreements on behaviour in the online environment?

Issue: The demand for skilled cyber professionals in both the public and private sector will continue to grow at a rapid rate and it is likely that those companies – many of which will be based overseas – offering the best financial incentives will attract the best of Australia’s ICT graduates. However, a purely market-led distribution of skilled cyber workers may not meet the broader digital needs of Australia as a nation.
• Question: What strategies should be pursued by governments, industry and academia to ensure adequate levels of domestic expertise are available to maximise the opportunities of the digital economy and address risks to Australia’s digital infrastructure?
• Question: What new forms of government-industry cooperation and dialogue are required to ensure the Australian cyber skills base is developed to meet Australia’s broader national interests?

Issue: Australians’ level of digital literacy is growing, yet many elderly and vulnerable Australians are unaware of the opportunities and risks inherent in digital technologies.
• Question: How can we ensure all sectors of the Australian community have the necessary skills and security awareness to optimise the benefits of the digital economy?

Issue: Being viewed as a world leading digital economy in the way that Singapore is in our region, is critical to attracting overseas investment, both in our ICT sector and more broadly because of the enabling role of digital technologies.
• Question: Besides rolling out the NBN, what role does the government have in promoting opportunities for individuals and businesses to compete in the global information communications technology marketplace and to increase the attractiveness of Australia as a destination for digital investment?

Laundries

In Chen v Director of Public Prosecutions (DPP) (Cth) [2011] NSWCCA 205 telecommunications businessman You Qing Chen has successfully appealed against conviction for money laundering under s 400.5(1) of the Criminal Code (Cth).

The New South Wales Court of Criminal Appeal found that the Commonwealth Director of Public Prosecutions, partly through poor drafting of particulars, failed to make out the offfence.

Basten JA states that -
On 10 June 2010 the appellant was found guilty by a jury in the District Court of an offence under the Criminal Code Act 1995 (Cth) of dealing with money intended to become an instrument of crime, the value of the money being in excess of $50,000. On 3 November 2010 he was convicted and sentenced to a period of imprisonment for 2 years, 6 months to date from 25 October 2010. His Honour also fixed a non-parole period of 1 year, 6 months which is due to expire on 24 April 2012. In addition, the appellant was ordered to pay a fine of $25,000.

On 21 March 2011 an application for leave to appeal against conviction and sentence was filed. By that stage he had served almost 5 months of the 18 month non-parole period. The notice contained six grounds of appeal against conviction. On the same date, 21 March 2011, written submissions were filed in support of the appeal, although neither the grounds nor the submissions adequately articulated the two bases upon which senior counsel for the appellant ran the appeal against conviction. Nevertheless, and quite properly in the circumstances, the Commonwealth Director of Public Prosecutions raised no objection to the first ground as then identified.
Garling J indicated that -
In an expanded way, s 400.5 of the Criminal Code requires that the prosecution prove, on the facts of this case:
(a) the appellant dealt with money and other property; and

(b) the appellant intended that the money or other property would be used in the commission of, or to facilitate the commission of, an indictable offence; and

(c) the value of the money and other property was $50,000 or more.
But s 400.13 of the Criminal Code provides that it is not necessary for the prosecution to establish that there was an intention that a particular offence would be committed, or else that there was an intention that a particular person would commit the offence.

A distinction can be observed, which is an important one, between the phrase "an indictable offence" and "a particular offence". The usage of the different terms provides a clear path to the meaning of the latter phrase.

The prosecution must establish the evidence of a specific intention in the appellant to commit an indictable offence but not a particular offence.

It is an error to interpret the provisions of s 400.13 of the Criminal Code as a statutory form of excuse which permits the prosecution, proceeding under s 400.5 of the Criminal Code, to refrain from identifying an indictable offence in the commission of which, or the facilitation of the commission of which, the money or other property is constituted as an instrument of crime.

Unless the prosecution identifies the relevant indictable offence, then it is not open to a jury to conclude that the money or other property constituted an instrument of crime.

The effect of s 400.13 of the Criminal Code is only to excuse the prosecution from proving a particular offence, that is, an offence particularised by reference to a person, date, time, place, and any other specific fact, matter or circumstance which would need to be particularised either in the indictment or else to enable an accused to prepare a defence to a specific charge.

The prosecution in this case made no attempt to identify an indictable taxation offence, which could have made the appellant's conduct come within the relevant definition. On the contrary, the vague assertions of the prosecutor, together with the generality of the submissions to the jury by the prosecutor, and the consequent summing up by the trial judge of that part of the prosecution's case, were cast in such a way that it was not open to the jury to convict the appellant on that alternate basis.

Had careful attention been be paid to the terms of the more serious charge and the elements required to be proved, then either the particulars of the money laundering charge may have been different, or else only the structuring offence would have been proceeded with. It is the prosecution's failure to address these matters which means that the appeal must be upheld and the orders proposed by Basten JA made.

False Papers

The SMH reports that a former bodyguard of colourful entrepreneur Richard Pratt has appeared in Burwood local court after allegedly being discovered with false passports, stolen NSW police files, military weapons and explosives. Sean Shane Bowman reportedly faces 60 charges.
According to court documents tendered in Burwood local court, police discovered at least 20 guns, including an M4 automatic military rifle. This was allegedly alongside more than a thousand rounds of ammunition and a number of military smoke grenades and "flash bang" devices. ...

Mr Bowman, 38, also allegedly had false passports from Britain, France and Ireland, and a false Afghani passport under the name of Mohammed Anwar Najib which police allege was to set up a false bank account with the Commonwealth Bank.

According to the police statement of facts, Mr Bowman also had a number of restricted NSW police files which are suspected as stolen and a significant amount of police gear.

He is also alleged to have had a series of fraudulent identification documents from US and international law enforcement agencies including the CIA, Interpol and the National Security Agency.

Police claim that Mr Bowman was using these in order to trick people into thinking he was a law enforcement officer.

Also uncovered in the search, according to police, were proceeds of crime valued at $205,950.

Dotcom Fever

Andrew Odlyzko, whose perceptive studies of dot com fever I've noted elsewhere, has released Charles Mackay's own extraordinary popular delusions and the Railway Mania [PDF].

He comments that -
Charles Mackay's book Extraordinary Popular Delusions and the Madness of Crowds enjoys extraordinarily high renown in the financial industry and among the press and the public. It also has an extraordinarily low reputation among historians.

This paper argues that Mackay's sins of commission were dwarfed by his sins of omission. He lived through several giant investment manias in Britain, yet he did not discuss them in his books. An investigation of Mackay's newspaper writings shows that he was one of the most ardent cheerleaders for the Railway Mania, the greatest and most destructive of these episodes of extreme investor exuberance.

Mackay's story provides another example of a renowned expert on bubbles who decides that "this time is different." His moves through a sequence of delusions help explain the length and damage of the Railway Mania. He was a free market and technology enthusiast, and faced many issues that are important today, such as government ownership or regulation, interconnection, standardization, structural separation, and analogs to net neutrality. A crushing national debt and high unemployment in an economy pulling out of a deep depression (and in perceived danger of falling into another one) were very important in shaping attitudes towards railway expansion. The analogies and contrasts between Mackay's time and ours are instructive.
He concludes that -
Always an enthusiastic supporter of technological and economic progress, as well as of free markets, he started out with moderately cautious expectations in the fall of 1844, but then developed into one of the most rabid proponents of railway expansion. He fully partook of the principal delusion of the Mania, namely that a huge expansion of the railway network could be carried out with profit to both the nation and investors. He never wavered in this belief, even as events and opinions of others led to him to modify some of his positions and fall into other delusions. He did not recover his senses during his time at the Argus.

Mackay’s blindness to the fatal defect of the Mania was essentially universal among his compatriots, and appears common during financial manias, part of the conviction that “this time is different” [39,45]. It is notable that while he put serious thought and effort into combating the poetry of Wordsworth and the warnings of The Times that he perceived as hostile to rapid railway expansion, he did not even bother refuting the (relatively rare) warnings that the new lines would be unprofitable. He apparently did not think they were credible enough to be worth attacking. Can bubbles be recognized before they they inflate too far? That is still an open question. However, it is clear that without searching for bubbles, one will not find them. Most observers of the past decade did not even look, and neither did Mackay.

Mackay’s enthusiasm for railway expansion was likely sustained from 1846 on by the prospect that the bountiful profits from this industry would relieve the burden of an oppressive national debt. This enthusiasm was probably also reinforced by his vision of being able to control undesirable behavior of an infrastructure monopoly through modifications of charters of the expected waves of new entrants. This vision enabled Mackay to stick to his laissez faire views. It is amusing that it was only the Sunday trains issue that led him to abandon his cherished doctrine and call for government intervention.

Mackay’s story helps explain why British investors were so slow to recognize and acknowledge their impending doom. At the height of the Mania, in the fall of 1845, the most prominent skeptics, such as James Morrison, James Wilson, and The Times, were warning investors that fast railway expansion would lead to declines in share prices through the pressure of capital calls and the disruption of financial markets. When share prices started to decline, as they predicted, the cause for the decline was assumed to be the one they had presented, namely the pressure of the “calls,” the demands from railways for money from shareholders. But the fundamental problem of the industry was that the new projects were not going to be profitable. Even after calls stopped, railway share prices remained at the depressed levels seen in 1849–50 in Fig. 1. The decline in prices visible in that figure was likely the result of increasing numbers of investors guessing or deducing that profits were going to disappoint. But public discussion was fixated on the issue of calls, and the realization of the size of the investment disaster was slow to come [40].

Mackay was more gullible than most, as the discussion of Mesmerism and other topics in this paper demonstrates. However, even far deeper and more perceptive of his contemporaries, such as James Morrison and James Wilson, also suffered from the main delusion of the Mania. Railways were not just investments with promising profit prospects for individual investors, they were a dazzling new technology that was transforming society, “annihilating time and space,” in a phrase that was heard frequently at the time. Bentinck, Disraeli, and others credited them during the discussions of how to relieve the Irish Famine with having miraculously pulled Britain out of the deep depression of the early 1840s. Few were able to resist the siren song. The one who managed to stay sober the best was Dionysius Lardner, see [37]. His 1846 survey of the railway industry [22] pointed out most of the fatal defects of the Railway Mania. Lardner had once been an insider in the British scientific establishment, but then disgraced himself and ended up spending several years traveling in the U.S. At the time of the Mania he was living in Paris. His varied experiences, status, and location likely all contributed towards maintaining a distance from the British herd, and enabled him to see what was wrong.

The story of Mackay’s extraordinary popular delusions is amusing. But it is also instructive. It shows how crowd effects and personal biases influence decision making in times of rapid change and poor information. It suggests that it would be worthwhile to investigate the reactions of various other individuals from the Railway Mania period. There seemed to be a great reluctance among participants in this episode of extreme investor exuberance to even acknowledge their involvement in it and to analyze what happened. As just one example, John Stuart Mill’s publications and correspondence do contain a few interesting passages about railways, but we have to go to archival sources, as in [6], to learn that he was involved in some of the most speculative railway projects with the Glenmutchkin flavor. More investigations, especially in cases, such as that of Charles Mackay, where we can find extensive contemporary documentation about particular individuals’ thoughts and writings, could help illuminate the Railway Mania and lead to a better understanding of manias in general.

14 September 2011

Silly

From an item on 'India Is Geek Nation' in the fan magazine known as Fast Company -
The subtitle of my book [ie Geek Nation: How Indian Science is Taking Over the World by Angela Saini] is a bit bombastic, but the contents are more balanced. I look at scientific research and technologies that are having a big effect on ordinary people's lives - the good as well as the bad - and the ambitious projects that the government hopes will help secure India's future superpower status. At the end of the day, I'm just a journalist. I'm not trying to argue a point, but rather to take an honest picture of a country through my geeky lens.

What was the most surprising thing you uncovered while researching your book?

There wasn't a day in my research that I wasn't surprised by something. I traveled the length of India, north to south, and met such fascinating characters. What impressed me most is that so many Indian researchers have such a social aspect to their work. They want to help India's poor and vulnerable, as well as to do good science.

One interviewee, Sujatha Narayanan, was a tuberculosis researcher I met in Chennai. A few years ago, when she didn't have enough healthy volunteers for her work, she started running tests on herself. One day she found some TB bacteria in a tube that had been in her throat, which meant she may have accidentally infected herself. She had to undertake a grueling drug treatment for months, which she believes triggered her diabetes. She put her life on the line for her work, but it has not diminished her passion or her commitment to science.
An ethos in which researchers use themselves as lab rats in the absence of "enough healthy volunteers" and "accidentally" infect themselves with tuberculosis is at best problematical. Too much time spent watching B-grade movies, not enough attention to protocols?

Statism

From Tony Judt's 2008 Reappraisals -
For much of the second half of the twentieth century, it was widely accepted that the modern state could — and therefore should — perform the providential role; ideally, without intruding excessively upon the liberties of its subjects, but where intrusion was unavoidable, then in exchange for social benefits that could not otherwise be made universally available. In the course of the last third of the century, however, it became increasingly commonplace to treat the state not as the natural benefactor of first resort but as a source of economic inefficiency and social intrusion best excluded from citizens’ affairs whenever possible. When combined with the fall of Communism, and the accompanying discrediting of the socialist project in all its forms, this discounting of the state has become the default condition of public discourse in much of the developed world.

Going geospatial

Two geospatial items in the NY Times ...

The first concerns Google -
Google defused a confrontation with European privacy regulators by announcing on Tuesday that it would give the owners of Wi-Fi routers worldwide the option of removing their devices from a registry Google uses to locate cellphone users.

The change was made less than four months after European regulators warned that the unauthorized use of data sent by Wi-Fi routers violated European law. Google and other companies use the signals from Wi-Fi routers as navigational beacons, helping them pinpoint the locations of nearby cellphone users.

Google’s concession, while motivated by strict European privacy laws, will have an effect beyond the Continent because Google plans to offer the option worldwide, including in the United States.

In a blog post, Peter Fleischer, the Google global privacy counsel, said the Wi-Fi signals that the company used did not identify people.
The post states that
Every day millions of people around the world use location-based services, which rely on a user’s estimated location to provide a better product experience. Google Maps for Mobile, for example, helps people find themselves on a map and then locate places nearby.

Estimating the location of someone using a service can be done in several different ways. As GPS is not always available and locations derived from cell towers aren’t very accurate, Google (like other Internet companies) uses publicly broadcast Wi-Fi data from wireless access points to improve our location-based services. By using signals from access points, smart phones are able to fix their general location quickly without using too much power.

These signals can make products much more useful - by enabling public transport authorities to show you when a bus is expected to arrive at your nearest bus stop, for example.

Even though the wireless access point signals we use in our location services don’t identify people, we think we can go further in protecting people’s privacy. At the request of several European data protection authorities, we are building an opt-out service that will allow an access point owner to opt out from Google's location services. Once opted out, our services will not use that access point to determine users’ locations.

We’ll be making this opt-out available globally, and we’ll release more detailed information about it when it’s ready to launch later this autumn.
The Times comments that -
Google last year gave [German] consumers the option of excluding photos of their properties, apartments and businesses from its StreetView online map service before it went live last fall.

The controversy over Wi-Fi data collection flared again this year when officials in Germany and France began investigating Apple, the maker of the iPhone, after researchers uncovered files on the popular smartphone that routinely logged the location of users. Those locations were calculated in part using the location of Wi-Fi routers nearby.

In May, the privacy advisory panel to the European Commission said the unauthorized collection of the location data of individual cellphone users violated Europe’s privacy law, which forbids the commercial use of private data without the owner’s consent in advance.

Apple, which attributed the iPhone’s collection of geographic data to a software error, stopped the automatic collection of Wi-Fi data about iPhone users by fixing the software. The French privacy regulator, C.N.I.L., and privacy officials in Bavaria, the southern German state leading the investigation in Germany, dropped their investigations.

If many owners of Wi-Fi access points decided to opt out of Google’s database, it could make it harder for users of Android phones to get a fix on their locations, and thus limit Google’s ability to sell location-based advertising. But the phones can also determine their location using cell towers and satellites.
Ihe second item, Jeffrey Rosen's 'Protect Our Right to Anonymity, looks ahead to United States v. Jones, for hearing in the Supreme Court in November. It is characterised as -
a case that could redefine the scope of privacy in an age of increasingly ubiquitous surveillance technologies like GPS devices and face-recognition software.
It concerns police tracking, via a GPS device in the absence of a valid warrant, of a suspected drug dealer's vehicle for a month. The information was used to convict the person of conspiracy to sell cocaine. The court will considere whether the surveillance violated the Fourth Amendment, which prohibits unreasonable searches and seizures of "persons, houses, papers, and effects".

Rose comments that -
It’s imperative that the court says yes. Otherwise, Americans will no longer be able to expect the same degree of anonymity in public places that they have rightfully enjoyed since the founding era.

Two federal appellate courts have upheld the use of GPS devices without warrants in similar cases, on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective.

But in a visionary opinion in August 2010, Judge Douglas H. Ginsburg, of the United States Court of Appeals for the District of Columbia Circuit, disagreed. No reasonable person, he argued, expects that his public movements will be tracked 24 hours a day, seven days a week, and therefore we do have an expectation of privacy in the “whole” of our public movements.

“Unlike one’s movements during a single journey,” Judge Ginsburg wrote, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.”

Judge Ginsburg realized that ubiquitous surveillance for a month is impossible, in practice, without technological enhancements like a GPS device, and that it is therefore qualitatively different than the more limited technologically enhanced public surveillance that the Supreme Court has upheld in the past (like using a beeper to help the police follow a car for a 100-mile trip).

The Supreme Court case is an appeal of Judge Ginsburg’s decision. If the court rejects his logic and sides with those who maintain that we have no expectation of privacy in our public movements, surveillance is likely to expand, radically transforming our experience of both public and virtual spaces.
Rosen goes on to highlight online surveillance, commenting that Facebook -
announced in June that it was implementing face-recognition technology that scans all the photos in its database and automatically suggests identifying tags that match every face with a name. (After a public outcry, Facebook said that users could opt out of the tagging system.) With the help of this kind of photo tagging, law enforcement officials could post on Facebook a photo of, say, an anonymous antiwar protester and identify him.

There is also the specter of video surveillance. In 2008, at a Google conference on the future of law and technology, Andrew McLaughlin, then the head of public policy at Google, said he expected that, within a few years, public agencies and private companies would be asking Google to post live feeds from public and private surveillance cameras all around the world. If the feeds were linked and archived, anyone with a Web browser would be able to click on a picture of anyone on any monitored street and follow his movements.
He notes the Wyden-Chaffetz Geolocation Privacy and Surveillance Act, that -
would require the government to get a warrant before acquiring the geolocational information of an American citizen or legal alien; create criminal penalties for secretly using an electronic device to track someone’s movements; and prohibit commercial service providers from sharing customers’ geolocational information without their consent — a necessary restriction at a time of increasing cellphone tracking by private companies.