28 January 2012

Organ Harvesting

'What makes killing wrong?' by Walter Sinnott-Armstrong & Franklin Miller in Journal of Medical Ethics (2011), in a provocative discussion of organ harvesting, argues that it is not morally wrong to kill people: "killing by itself is not morally wrong, although it is still morally wrong to cause total disability".
What makes an act of killing morally wrong is not that the act causes loss of life or consciousness but rather that the act causes loss of all remaining abilities. This account implies that it is not even pro tanto morally wrong to kill patients who are universally and irreversibly disabled, because they have no abilities to lose. Applied to vital organ transplantation, this account undermines the dead donor rule and shows how current practices are compatible with morality.
The article addresses ongoing disagreement among ethicists, lawyers and medical practitioners regarding organ donation after cardiac death (DCD), ie where a patient is neurologically damaged and cannot function without a respirator. Removal for transplantation of organs - eg hearts, livers, kidneys, gonads - from someone who has a pulse but is vegetative is controversial, with US practitioners insisting on a 'dead donor' rule (ie the person whose organs are being removed must be definitively dead). The authors comment that
the dead donor rule is routinely violated in the contemporary practice of vital organ donation. Consistency with traditional medical ethics would entail that this kind of vital organ donation must cease immediately. This outcome would, however, be extremely harmful and unreasonable from an ethical point of view [because patients who could be saved will die]. Luckily, it is easily obviated by abandoning the norm against killing.
They argue that rendering someone totally and permanently incapacitated is just as bad as taking a life. Killing a totally disabled patient does that person - although Sinnott-Armstrong & Miller would presumably disagree with the reference to 'person' - no harm: killing cannot disrespect the patient's autonomy because the patient is so incapacitated as to lack autonomy.

The authors dismiss notions that life is "sacred", arguing that the only relevant difference between death and life and death is the existence of abilities. A fundamentally neurologically-injured person no longer has those abilities.
if killing were wrong just because it is causing death or the loss of life, then the same principle would apply with the same strength to pulling weeds out of a garden. If it is not immoral to weed a garden, then life as such cannot really be sacred, and killing as such cannot be morally wrong.

27 January 2012

Dot Regulation

'Balancing Internet Regulation and Human Rights' by Aleksey Ponomarev indicates that -
It’s not a secret that with the development of the Internet the transition from freedom into control can be noticed. Having been considered as a completely independent medium of communication which lays outside of any state jurisdiction according to views of "digital libertarians" in the early days of the Internet, cyberspace is becoming fully, and extensively, regulated space that we have ever known. This article aims to analyze the current instruments of Internet regulation both legal and through Internet architecture, and to find a balance between necessity of regulation in one hand and obligation to follow human right standards on the other hand. For this purpose various Internet control and censorship techniques is discussed, as well as international human rights standards which might be jeopardize by exercising of such control. In the end the attempt to strike a balance between Internet regulation and human rights is has been made.
Ponomarev concludes that -
it is clear that the Internet can be a tool to expand our fundamental rights, empowering us with boundless information and connecting us with individuals and communities around the world. While it is a powerful and positive forum for free expression and exchange of ideas and knowledge, the Internet poses a profound danger to our fundamental rights, serving as a tool for criminals and even terrorists. Threats come also from private sector which restricts privacy and freedom of knowledge. However there is a common view about free and independent Internet, it is obvious that state regulation is inevitable. And least clear of all is how we can regulate the Internet in such a way that allows us to draw on its benefits, while limiting the very real and serious dangers of abuse. The regulation is complicated due to the inherent nature of the Internet — a decentralized, user-driven network that is under the control of no government and that transcends nearly all borders.

Although regulation of cyberspace is not easy task it does not mean that it is not needed. While it is true that market and social norms influence the Internet to some extent, in reality law and architecture are main regulators of cyberspace. Legal and technological measures are applied separately or in a combination. In some cases, for example when all parties are located within the physical territory of a particular state, regulation is rather effective, but when information comes from external sources it is almost impossible to control that flow of the Information. The law of the regulating state cannot be normally applied to foreign entity and states. Various technologies of the Internet filtering aimed to restrict the access of ‘harmful’ or ‘unwanted’ information or web-pages are neither effective, nor reliable (in case of geo-identification for example). Above-mentioned technologies cannot only be easily circumvented, but are also extremely costly and might violate fundamental human rights of Internet users.

Both legal and technological measures of the Internet regulation jeopardize rights and freedoms which constitute the highest values of free democratic society. Internet filtering methods such as Deep Packet Inspection as well as self-censorship measures constitute the highest danger for human rights.

Traditional rights to freedom of speech and expression, right to privacy and freedom of knowledge also should be protected in the Internet, as in the real life. Thus, all international human rights instruments apply to the cyberspace as well. Moreover one can witness the emergence of a new generation of rights – Internet rights. The said rights support the basic principles of the Internet architecture, guarantee the freedom of the Internet and free flow of information within cyberspace.

However all rights and freedoms are not absolute and are a subject to restrictions, cause there is tension between individual right and obligation of the state to exercise its functions social and security functions. Ways of finding a balance are provided in human rights instruments, however it is very difficult not to overstep the prescribed rules. According to the author’s view traditional rights should be reaffirmed and new Internet rights fixed by adapting a new international legislation focused on Internet. An attempt to unify possible exception from human rights should be made, harmonization of moral and national security limitation should also be reached. As Internet is international phenomena a collective efforts of states should be taken in order to regulate the Internet. The treaties might be realized in form of ‘soft law’ – declarations, recommendations, reports, as well as acts of international organizations, non-governmental organizations. It matters little whether these instruments are “non-binding” because this law is more likely to be enforced in the so-called ‘court of public opinion’ than in a judicial forum.

Special mechanisms should be designed to pressure states to refrain from violating rights. Civil organizations and human rights advocate representing the opinion of the society should be part of that mechanism. Moreover every user should be given a chance to participate in the process of regulation of the Internet influencing technologies of the Internet control.

Finally, people should not forget that the Internet was made for providing new opportunities for communication, business, information sharing, as well as for promoting human rights and freedoms all over the world. Thus any restrictions of both well recognized and innovative rights should be accurate and limited according to the interests of the society.

26 January 2012

HomoPanic

In a small and belated step the Qld Attorney-General Paul Lucas has announced that the State Government "is set to change" the Qld Criminal Code to "remove doubts about how and when a partial defence involving a sexual advance can be used and remove doubts about the so-called “gay panic” defence". Set but hardly in a rush, given the promise that the "Government would introduce a Bill to Parliament this year" ... presumably after the impending election, an election that many pollsters predict will result in the ALP's loss of office.

The Criminal Code currently provides for a partial defence of provocation that could be used to reduce a conviction from murder to manslaughter where a defendant claimed they were provoked into killing someone. The Attorney General somewhat disingenously comments that
members of the community had recently raised concerns that this could be used to establish a so-called “gay-panic defence”, where defendant claimed the victim made a homosexual advance towards them and provoked them into committing the act.
That advance need not be violent, involve any physical contact or be made by someone whose physical strength, age or other attribute gives them an advantage.

Criticisms of a 'homopanic defence' have been voiced for many years, including in Queensland Law Reform Commission recommendations [PDF] and in works such as 'Hatred, murder & male honour: Gay homicides and the "homosexual panic defence"' by Stephen Tomsen in 6(2) Criminology Australia (1994) 2, 'More Folk Provoke their Own Demise (Homophobic Violence and Sexed Excuses - Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)' by Adrian Howe in 19 Sydney Law Review (1997) 336 and the 1998 Final Report [doc] by the NSW Working Party on the Homosexual Advance Defence. Concerns regarding the defence include suspicions that no advance was made in particular instances and law should signal to male adults that a wink, caress or invitation does not justify homicide ... if you are a bloke who isn't interested, just say no rather than kicking someone to death. One writer highlighted the gendered nature of the defence with the quip that "if every woman killed every man who made unwanted physical advances to them there would be a lot of dead men around".

Kirby J in Green v R [1997] HCA 50; (1997) 191 CLR 334; (1997) 148 ALR 659; (1997) 72 ALJR 19 commented that -
For the law to accept that a non-violent sexual advance, without more, by a man to a man could induce in an ordinary person such a reduction of self-control as to occasion the formation of an intent to kill, or to cause grievous bodily harm, would sit ill with contemporary legal, educative, and policing efforts designed to remove such violent responses from society, grounded as they are in irrational hatred and fear.

In my view, the 'ordinary person' in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed; treat it at first as a bad joke; be hurt; insulted. He or she might react with the strong language of protest; might use such physical force as was necessary to effect an escape; and where absolutely necessary assault the persistent perpetrator to secure escape. But the notion that the ordinary 22 year old male (the age of the accused) in Australia today would so lose his self-control as to form an intent to kill or grievously to injure the deceased because of a non-violent sexual advance by a homosexual person is unconvincing. It should not be accepted by this Court as an objective standard applicable in contemporary Australia.
Last week Lucas received a recommendation from a special committee established in November 2011. He has now commented that -
We made it crystal clear from day one that the Queensland Government does not believe that anyone should be able to use a claim of non-violent homosexual advance to reduce a conviction from murder to manslaughter.

That’s why we listened to the expert advice of the Queensland Law Reform Commission in 2008 and ensured strengthened legislation was passed so words alone could not amount to a partial defence.

However, I received a number of representations from the gay community last year and consequently set up an expert committee comprised of key stakeholders to examine the laws.

The committee has completed its review and based on the recommendations of legal expert and retired Court of Appeal Judge John Jerrard, we will be amending to law to ensure the intent of the partial defence provisions are clear.
Section 304 is to be amended to ensure that an unwanted sexual advance will not be enough to establish provocation unless there are exceptional circumstances (eg "where a battered woman who knows that refusal of a sexual advance from her partner is a precursor to assault and she takes immediate action to stop this from happening”).

Spooks

The Prime Minister has released an unclassified 48 page overview of the Report of the Independent Review of the Intelligence Community (IRIC), promoted as "the first comprehensive review of the Australian intelligence community since the 2004 Flood inquiry into Australia’s intelligence agencies".

Much of the activity of most national intelligence/security agencies is secret ... secret from "independent" observers, from competing agencies in the 'intelligence community' and of course from the public. That means in the near term it is impossible for anyone outside the magic circle to rigorously appraise claims about the benefits of particular initiatives and determine whether money is being well spent. Responses to independent reviews are thus as much a matter of faith as of hard fact. (With the benefit of history - through for example the release of archival material, memoirs by intelligence operatives at the end of their careers and the occasional public inquiry after something has gone embarrassingly wrong in a way that couldn't be spun - it is clear that many spooks were misdirected, incompetent, egregiously wasteful or dismissive of legal frameworks.)

The Prime Minister's media statement indicates that the review found the agencies are "performing well following a period of significant growth to deal with the security challenges of the 9/11 decade".
• Australia and its citizens are safer than they would otherwise have been as a result of intelligence efforts
• Our intelligence capabilities have contributed significantly to the global security effort
• Australia has built intelligence capabilities broadly commensurate with our growing security challenges
• The current basic structure of the Australian Intelligence Community (AIC) remains appropriate, including the operational mandate of agencies
They would say that, wouldn't they.

The Prime Minister commented that -
the Australian intelligence community played a vital role in keeping Australians safe and protecting Australia’s security interests. The review demonstrated that the investment in the intelligence community over the past decade had resulted in more capability and increased performance.
The overview [PDF] notes that the Review was primarily concerned with six agencies – Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS), the Defence Imagery and Geospatial Organisation (DIGO), the Defence Intelligence Organisation (DIO), the Defence Signals Directorate (DSD) and the Office of National Assessments (ONA). After consultation with what a dyspeptic reader might characterise as the usual suspects the authors considered "six key issues" -
1. How well the intelligence community is positioned to support Australia’s national interests, now and into the future;
2. Development of the intelligence community over the last decade, including implementation of intelligence- related reforms;
3. Working arrangements and relationships between the intelligence agencies and policy and operational areas of government;
4. Working arrangements and relationships between the intelligence agencies and their international partners;
5. Arrangements and practices within the intelligence community for collaborative work, including legislative arrangements; and
6. Level of resourcing dedicated to the intelligence community and apportionment of resources across the community, noting that any future proposals would need to be offset consistent with the Government’s overall fiscal strategy.
They conclude that -
• The intelligence community has grown substantially over the last ten years in response to increasing demand, mainly in relation to terrorism, fighting wars and countering espionage (including cyber attacks), proliferation of weapons of mass destruction and people smuggling
• The investment made in building up the intelligence agencies has been justified and rewarded with more capability and increased performance
• That capability and performance has enabled Australia’s agencies to make an effective contribution as a member of the international intelligence partnerships and their relationships with those partners are at a very high point which some interviewees described as ‘the strongest they have ever been’
• The investment made in the intelligence agencies has resulted in improved capability and performance in Australia but it also gains Australia access to intelligence from international partners (through its contribution to common intelligence objectives) which Australia could never acquire by itself
• The intelligence agencies are working well together. They understand the need to cooperate and are paying close attention to developing fusion centres and other cooperative working arrangements (such as the Counter-Terrorism Control Centre) which have been developed over the last few years and will continue to evolve in future
• The intelligence agencies are also beginning to work more effectively with the other members of the recently expanded National Security Community. This evolution will take time – as is the case with any requirement for a significant shift in corporate behaviour – and it should be focused on those areas of common activity where closer cooperation can produce better results. The Review did not detect any lack of willingness to further develop these cooperative working arrangements
• The principal new challenges for the next five years or so will be to better align the AIC’s priorities with the new geo-political and technological realities facing Australia as a middle power with global interests.
Readers wanting insights into the AIC might benefit from consulting Democratic Oversight of Intelligence Services (Leichhardt: Federation Press 2010) edited by Daniel Baldino, Terror, Security & Money: Balancing the Risks, Benefits & Costs of Homeland Security (Oxford: Oxford Uni Press 2011) by John Mueller & Mark Stewart, reports by ASIO and its peers to the Parliamentary Joint Committee on Intelligence & Security (JCIS) or even works such as Top Secret America: The Rise of the New American Security State (New York: Little Brown 2011) by Dana Priest & William Arkin - the latter illustrative of confusion, proliferation and intelligence community driven real estate development.

24 January 2012

Messaging

The Australian Communications & Media Authority (ACMA) has announced acceptance of an enforceable undertaking [PDF] from Vodafone Hutchison Australia (VHA) to "rein in wayward dealers telemarketing the products of Vodafone and 3 Mobile after receiving complaints about unsolicited calls from consumers on the Do Not Call Register". Those calls were in contravention of the Do Not Call Register Act 2006 (Cth).

The undertaking is a reminder that Vodafone, along with its peers, is still having trouble with the behaviour of its dealer network - evident in the data breach highlighted in past posts on this blog. ACMA Chair Chris Chapman stated that -
The cornerstone of the undertaking is that VHA will be auditing and reporting back to the ACMA on all its dealers’ telemarketing activities. If it finds any of its dealers potentially breaching the Do Not Call Register Act, it must report the dealer to the ACMA immediately
Given ACMA's past permissiveness Vodafone is presumably quivering in its Doc Martens.

Under the enforceable undertaking Vodafone has also committed to -
- require all its subsidiaries and dealers to keep comprehensive records of the telemarketing calls made
- implement robust procedures around recording VHA’s customers’ consent to be called by, or requests to opt out of receiving, telemarketing calls from VHA, its subsidiaries or any dealer.
ACMA has meanwhile announced acceptance of an enforceable undertaking, including correctional measures, from Nokia.
ACMA commenced an investigation into the Finnish company’s SMS marketing activity after complaints that customers could not work out how to unsubscribe from ‘tips’ sent by Nokia. In particular, the messages did not include details of how Nokia could be contacted, as required by the Spam Act 2003.

The investigation found that while a number of the ‘tips’ provided customers with factual information about their mobile phone handsets, some of them amounted to promotion of Nokia’s products and services, including mobile phone accessories, and that the messages therefore needed to include an unsubscribe facility.

‘SMS allows businesses to reach their customers no matter where they are or what they are doing,’ said ACMA Acting Chairman, Richard Bean. ‘But with that opportunity come responsibilities under the Spam Act, including the obligation to include an unsubscribe facility in marketing messages.’
Nokia has undertaken to -
- appoint an independent consultant to audit its systems and processes
- develop a plan to carry out the independent consultant’s recommendations
- train its employees engaged in SMS marketing about complying with the requirements of the Spam Act
- make a payment of $55,000.

Canadian Privacy

In Jones v. Tsige, 2012 ONCA 32 the Ontario Court of Appeal has found that Ontario law recognises a right to bring a civil action for damages for the invasion of personal privacy (ie the so-called 'privacy tort').

The judgment concerns the appeal from that by Justice Kevin M.V. Whitaker of the Superior Court of Justice dated 23 March 23 2011 reported at 2011 ONSC 1475, 333 D.L.R. (4th) 566.

The 2012 judgment the Appeal Court indicates that -
In July 2009, the appellant, Sandra Jones, discovered that the respondent, Winnie Tsige, had been surreptitiously looking at Jones’ banking records. Tsige and Jones did not know each other despite the fact that they both worked for the same bank and Tsige had formed a common-law relationship with Jones’ former husband. As a bank employee, Tsige had full access to Jones’ banking information and, contrary to the bank’s policy, looked into Jones’ banking records at least 174 times over a period of four years.

The central issue on this appeal is whether the motion judge erred by granting summary judgment and dismissing Jones’ claim for damages on the ground that Ontario law does not recognize the tort of breach of privacy.
The Court went on to comment that -
For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender”: “The Law and Privacy: the Canadian Experience” at p. 1. See also Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.
In discussion it adds that -
I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. ...

These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

Finally, claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press. As we are not confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims. A useful analogy may be found in the Supreme Court of Canada’s elaboration of the common law of defamation in Grant v. Torstar where the court held, at para. 65, that “[w]hen proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.”
In conclusion -
In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:
1. the nature, incidence and occasion of the defendant’s wrongful act;

2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;

3. any relationship, whether domestic or otherwise, between the parties;

4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified. ...

It is my view that in this case, Tsige committed the tort of intrusion upon seclusion when she repeatedly examined the private bank records of Jones. These acts satisfy the elements laid out above: the intrusion was intentional, it amounted to an unlawful invasion of Jones’ private affairs, it would be viewed as highly offensive to the reasonable person and caused distress, humiliation or anguish.

In determining damages, there are a number of factors to consider. Favouring a higher award is the fact that Tsige’s actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. On balance, I would place this case at the mid-point of the range I have identified and award damages in the amount of $10,000. Tsige’s intrusion upon Jones’ seclusion, this case does not, in my view, exhibit any exceptional quality calling for an award of aggravated or punitive damages.

Coptalk

The Canberra Times reports that Warren Allistair Tamplin has pleaded guilty in the ACT Magistrates Court after accessing "secret information from the national police database while working for the Australian Federal Police".

Tamplin worked as a protective services officer; according to a statement of facts tendered in court he "repeatedly accessed records from the database over three years from 2007 to 2010, using his AFP email address to send the information to a personal email account". He pleaded guilty to charges of recording proscribed information in breach of police regulations.

The CT notes that Tamplin committed one of the offences on the same day that he completed an AFP online security course, in which participants learned it was illegal to distribute police information.

Details of the accessed information were suppressed. He reportedly had emailed some of the information, classed as protected or highly protected, to other people outside the police force.
He was eventually discovered after a fellow staffer received an email purporting to be from the New York Police Department, which included a link to Tamplin's website and an invitation to join an email list.

Investigators audited Tamplin's official AFP email account and found that he had been sending information from the police database to himself and others. Tamplin told investigators that he had set up a security industry website as a personal project with a view to starting his own business after he left the federal police.

He said the website was based on news and information about terrorism, mostly obtained from the search engine Google or news sites.

He had also created an email distribution list to share information with other law enforcement workers.

Tamplin told investigators there was ''no truth in the news and he needed to 'get out what really happened'''. But he also said he did not make any money from the records he sent out and believed the information was ''open source'' and ''as good as gossip''.

He conceded that management would take a ''pretty dim'' view of his behaviour and acknowledged that he did not have the authority to copy the information.