25 May 2012

Advertising Homeopathy

In a recent item in the leading Australian interdisciplinary academic forum I noted the potential scope for Australian consumer protection law to address claims by vendors of homeopathic pills and potions, referring to action by the Australian Competition & Consumer Commission (ACCC) regarding the advertising of ‘bio magnetic therapy’ products [PDF] and the wrist "power band" that had been strongly promoted by celebrities. The ACCC politely commented that "Suppliers ... must ensure that they are not claiming supposed benefits when there is no supportive scientific evidence. Consumers should be wary of other similar products on the market that make unsubstantiated claims, when they may be no more beneficial than a rubber band".

The item about US and Canadian class action against a homeopathic influenza product is interesting because the tenet of extreme dilution that is central to homeopathy - "the more dilute the remedy, the greater its potency", aka the “law of the infinitesimal dose” - means that a pharmacologically active compound is undetectable in many homeopathic pills, potions and salves. If that compound can not be detected - and by implication is not present - claims that the product is chemically efficacious (as distinct from the placebo effect) are deceptive. Commercial deception can be addressed under consumer protection law.

(In relation to the placebo effect it is worth recalling the 2010 report by UK House of Commons Science & Technology Committee on homeopathy [PDF], which commented that “beyond ethical issues and the integrity of the doctor-patient relationship, prescribing pure placebos is bad medicine”.)

The North American litigation centres on the argument that the consumers of the flu 'remedy' are in fact paying for expensive sachets of coloured and flavoured sugar that contain no active ingredients. Marketing of the remedy as having active ingredients is deceptive.

From a therapeutic perspective those consumers might get greater benefits from keeping warm and hydrated, cuddling the family dog, getting some sleep or otherwise letting their bodies cure themselves rather than indulging in what - from a medical perspective - is the equivalent of voodoo.

An ACCC media release earlier this month stated that -
Homeopathy Plus! Pty Ltd has removed representations from its website that the Australian Competition and Consumer Commission considered to be misleading and deceptive and that could lead to serious health risks for consumers. 
The representations were made on the ‘Whooping Cough – Homeopathic Prevention and Treatment’ page which has since been removed from the Homeopathy Plus! website. 
“The combination of claims that the vaccine was ineffective and that the homeopathic remedies listed on the page were an alternative prevention and treatment regime elevated this matter to one of extreme concern,” ACCC Chairman Rod Sims said. 
The ACCC examined content on the Homeopathy Plus! website following a complaint from the medical profession. The ACCC considered that the Homeopathy Plus! claims that the current whooping cough vaccine is dangerous and ineffective, while the homeopathic remedy is a proven and safe alternative, were likely to be misleading or deceptive. 
Reliance on these claims may influence consumers to avoid the whooping cough vaccine and rely solely on the homeopathic approach for treatment and prevention of whooping cough, which is strongly discouraged by medical professionals. Whooping cough is a serious respiratory infection which can cause a long coughing illness and is life threatening for babies. 
The ACCC result was considerably assisted by the engagement of the Therapeutic Goods Administration and NSW Fair Trading with Homeopathy Plus! Pty Ltd in resolving this matter. 
The ACCC will continue to monitor the Homeopathy Plus! Pty Ltd site for potential breaches of the Australian Consumer Law.
Implicitly, parents may indulge themselves with the contemporary version of 1920s snake oil but should not injure their own children or other families through reliance on 'alternative medicine'. Vendors should not make deceptive claims.

23 May 2012

EU Citizenship

'The Present and the Future of EU Citizenship: A Bird’s Eye View of the Legal Debate' by Dimitry Kochenov scrutinises -
 the last ten years of the academic debate on EU citizenship law taking nine fundamental disagreements among scholars as staring points. It explores EU citizenship’s relationship with three groups of issues of fundamental importance, including the place of this concept within the fabric of EU law, the influence of this concept on the essence of the Union as a system of multilevel governance, and its impact on the lives of ordinary Europeans. A number of key works which influenced the Court and the legislator in the recent years is assessed to outline the likely direction of future research, as well as future EU citizenship’s development. Although the literature on the subject is overwhelmingly rich and diverse, this article aspires to provide a representative sample of issues of interest for the framing of the concept at issue from a supranational perspective, necessarily leaving national (or nationalistic) literatures aside.
In the Conclusion to a rich 68 page resource Kochenov comments that -
Agreeing with Williams, "the ECJ’s future challenges are both administrative and philosophical in nature". The same applies to legal scholarship. While philosophical challenges present a truly fundamental challenge, the majority of the literature, strangely, focuses on the administrative ones. To realize EU citizenship’s full potential this will have to change. As this overview has demonstrated, plenty of scholars are engaged with EU citizenship, yet, the most important problems underlying its essence are only tackled by very few commentators, led by Gareth Davies, Dora Kostakopoulou, Andrew Williams and Joseph Weiler. The constructive potential of EU citizenship is unlikely to be fully realized without a shift in the register of scholarly engagement with this important area of law. To be successful in shaping the Union in the years to come such commentary will have to be less ideological and less distracted by day-to-day events. Lastly, drawing inspiration only from the negative features of EU citizenship, opposing it to a State is potentially dangerous – a more balanced account of the concept has to be created.

Smut

'Arcane Erotica and National ‘Patrimony’: Britain’s Private Case and the Collection de l’Enfer of the Bibliothèque Nationale de France' by Alison Moore in (2012) 18(1) Cultural Studies Review 196-216 considers -
the broad politics of the creation and maintenance of two large erotica collections in European national libraries across their histories and in relation to definitions of censorship and obscenity. It also examines the popular and intellectual discourses that have surrounded the Collection de l’Enfer and the Private Case of the British Library, and imbued them with a particular cultural mystique as repositories of secret, hidden and privileged erotic knowledge. Censorship and repression of sexuality cannot account for the policies of these libraries which have policed public morals through their restricted access conditions, even as the works they deemed obscene were published without any legal sanction. By classing their contents into a discreet category, these collections have helped to frame erotic signification as a separate body of meaning. In France the notion of the Enfer’s place within national patrimony has particularly abetted the discourses of mystique and allure around it. In Britain, the bibliographers who have discussed the Private Case have done so through assumptions of masculine heterosexual privilege and normativity.
Moore comments that
Both Kearney and Legman invoked the spectre of the perverse erotica as a part of a protest against the censorship and library access restriction of the kinds of materials that appealed to their own tastes. The difficulties of using erotica collections (for Kearney) and the frustrations of state censorship (for Legman) thus both enabled an invocation of unjust hypocrisy in the repression of wholesome desires at the hands of perverse elites. The nonsensical order in which cheerful antique heterosexual smut remained unlisted in catalogues and locked in a safe in the basement of the British Library while tacky SM pornographic films like Ilsa, She-Wolf of the SS could be purchased from mail-order catalogues, drove Legman and others to speculate that corrupt elites must be responsible for ensuring that their own perverse preferences were publicly circulated while more wholesome erotica lay out of reach. 
For Legman ‘normally erotic art and literature’—a large proportion of the kinds of works that filled the Private Case—were ever vulnerable to ‘the sadists who are running the show owing to the tremendous monetary and power advantage their cold immorality gives them over the majority of normal people’. This is clearly a rather loaded remark, suggesting that sexual perversion cohabits necessarily with the highest of political elites and that a lack of all morals, which is necessarily indicated by an SM erotic disposition, is indeed even the very source of power for political elites who control state institutions. It is curious that Legman and Kearney attributed privilege to those ‘other’ desires, given that it was they themselves, with their self-assumed ‘normal’ sensibilities, who were precisely the ones to gain privileged access to the exclusive Private Case at the height of its inaccessibility. 
This type of view about sadomasochistic desire as the cause and foundational pathology of authoritarian power was ubiquitous in postwar European cultures, and ensured that such fantasies both suffered from, and enjoyed, a level of taboo and exquisite unspeakability. As the work of Kriss Ravetto, Marcus Stiggleger, Andrew Hewitt, Carolyn J. Dean, myself and others have shown, the attempt, in one form or another, to create connections between aberrant sexual desire and Nazism has been a recurring theme throughout expression of World War II memory, in historical, philosophical, cinematic, media, political and literary forms. Legman’s and Kearney’s concern to assert a normative pleasure in association with their struggle for greater freedom from censorship and restricted access to erotic archives must be seen with the context of that larger Zeitgeist. But the assertion helped to suggest a view of erotica collections as secret, mysterious and arcane: if perverse elites were so keen to stop the masses from accessing their contents, then something both precious and forbidden must surely be contained within. 
When the BNF opened its Collection de l’Enfer for public exhibition in 2008, the sexual content of its texts was revealed in all its antiquarian splendour. Although the themes and acts depicted in works such as the 1749 Memoirs of Fanny Hill or the 1771 Venus En Rut are explicit and varied, they could hardly compete in the stakes of obscenity compared to the vast array of freely available pornography now available to anyone with an internet connection. But in a more subtle regard, the knowledge of old erotica may indeed unsettle modern assumptions, namely the still-common myth that the late twentieth century has brought more imaginative liberation into sexual practices and fantasies in the post-industrial world through the greater availability of sexual imagery and the collapse of social mores relating to sexual and bodily containment. This is the teleological myth of sexual progress mentioned by Foucault. Pre-nineteenth-century erotic fiction in particular has the capacity to diversify appreciation of sexual possibilities through the fundamentally differing visions of pleasure and technique that can be found in many early modern erotic texts. As the work of Peter Cryle has shown, the pleasure structures of eighteenth-century libertine arousal lacked all concept of ‘foreplay’ and of the sudden climactic finality of the modern concept of orgasm. Many of the works contained in the Enfer collection are of that genre Foucault described as the ‘ars erotica’, in opposition to the later, medicalised ‘scientia sexualis’ of nineteenth-century texts. Although we now have a range of diverse views of sexual possibility, normality, necessity and satisfaction at our global electronic disposal, the understandings that contemporary erotica suggests are also still conditioned by a range of continuing medical discourses of sex. The Enfer and the Private Case texts may not deliver on the promise of forbidden secrets that their reputation has so long suggested, but perhaps in their vision of playful games, rebounding pleasures and artistic techniques of seduction and arousal, there is nonetheless an antidote to the banality of post-industrial porn?

22 May 2012

Shame

'Privacy, Shame and the Anxieties of Identity' by Lisa Austin argues that -
Many privacy advocates, and scholars, seek to liberate privacy from shame. We need to understand that privacy norms do more than insulate individuals from the exposure of shameful secrets and intimate information, the argument goes, in order to deal with contemporary privacy issues that concern the collection of information that is often not sensitive or intimate and may even be publicly available. This essay argues that privacy does not need to be liberated from shame - to the contrary, it is shame that can liberate privacy. A proper understanding of shame reveals that it involves a complex form of self-consciousness - how you feel about how others view you; it is triggered by a disjunct between how you would like others to see you and the consciousness that they do not see you in this way. Privacy norms can insulate us from shame because they protect our self-presentation from the disruptions that can cause us to feel shame. Accounts of privacy go wrong when they do not understand this idea of identity that is at stake in privacy norms. By relying upon different ideas of identity, such as self-revelation or self-determination, both control-based and limited-access accounts of privacy misunderstand the social dimensions of identity and end up with an impoverished account of privacy norms. By ignoring the centrality of identity, “contextual” accounts of privacy lose analytic rigour by running together a broad set of interests and norms under the category of “privacy.” A focus on the constitutive relation between privacy and identity can also show why the idea that privacy should be protected through legal rights is misplaced. Justifications for legal rights rely upon ideas of autonomy and harm but privacy’s focus on the conditions of self-presentation sound in an altogether different register. This essay argues that legal rights such as the tort of invasion of privacy lie, at best, on the periphery of the legal protection of privacy and that the emerging international standards of Fair Information Practices provide a better framework. The best way to understand this framework is not through the language of rights but through a set of alternative ideas about the role of law in enabling and empowering individuals to act within a context of settled expectations necessary for the production of identity and agency. The role of privacy law is not simply to protect identity but in fact to help produce it.
Austin concludes that -
Privacy is not best understood as a state of social withdrawal but as a set of norms that enable social interaction. Privacy norms ensure somemeasure of individual control over one’s social identity through securing settled expectations in relation to audience segregation that can then be negotiated by an individual - but can also protect the social and interactional aspects of self-presentation and so should not be conflated with simply enabling individual control. The legal model for this understanding of privacy is not legal rights like we find in tort law, for example, but the Fair Information Practices that have come to underpin data protection law internationally.
This analysis brings into view a very different role for law in relation to privacy than is often claimed. Instead of privacy law protecting an already-developed identity from outside pressure, privacy law can help produce identity as it is created through social interaction. Increasingly, our social interactions are mediated through technologies that disrupt the settled social expectations of audience segregation that have developed in the past. In response to this, what we need are information practices governed by law—not just positive laws but the basic legal values that animate ideas like the rule of law that create an environment of stable, predictable norms of audience segregation within which individuals can negotiate their social identities.
This analysis also points us in the direction of other related identity concerns that require more attention from legal scholars. Self-presentation functions well in an environment where the reactions of others can be reasonably anticipated based upon shared social understandings.
However, in many contemporary contexts involving information collection and use the reactions of others cannot be reasonably anticipated - instead of shared social understandings, we sometimes interact within contexts of severe information asymmetries. This is especially true in institutional settings. As others have maintained, increasingly individuals are “sorted” into different categories based upon their personal data, without access to why they have been sorted in this way, and sometimes with serious personal consequences. What this points to is the need to expand our analysis to critically examine these other aspects of identity. But this is an expansion that remains tethered to identity concerns and the manner in which these are undergoing a serious of profound changes and disruptions in the face of contemporary information and communications technology.
If liberal rights were the response to a different era, a challenge to social hierarchies that depended on strategies of abstraction from the particular identities and social contexts of individuals for its emancipatory effect, today we face different challenges. What we need to recover and reimagine is a vocabulary of identity, and a legal framework that supports and enables the conditions of identity, in order to respond to the new challenges of the information society.

Sangreal

In a past life UK Supreme Court judge Lord Sumption, whose recent lecture on national security is noted here, wrote an excellent book on pilgrimage and sacred relics, the basis for a market that Chaucer questioned in The Pardoner's Tale.

The Pardoner obligingly satisfied consumers by offering -
... a pillow-case
Which he asserted was Our Lady's veil.
He said he had a gobbet of the sail
That Saint Peter had when he went
Upon the sea, till Jesus Christ pulled him out.
He had a cross of metal set with stones
And, in a glass, a rubble of pig's bones.
And with these relics, any time he found
Some poor up-country parson to astound,
In one short day, in money down, he drew
More than the parson in a month or two
And thus, with feigned flattery and japes
He made the parson and the people his apes. 
Guibert de Nogent's 1106 Treatise on Relics had earlier noted that
Odo, Bishop of Bayeux, eagerly desired the body of St Exuperius, his predecessor, who was honoured with special worship in the town of Corbeil. He paid, therefore, the sum of one hundred pounds to the sacristan of the church which possessed these at relics that he might take them for himself. But the sacristan cunningly dug up the bones of a peasant named Exuperius and brought them to the Bishop.
The Bishop, not content with assertion, exacted from him an oath that these bones brought were those of Saint Exuperius. "I swear," replied the man, "that these are the bones of Exuperius: as to his sanctity I cannot swear, since many earn the title of saints are far indeed from holiness." Thus the thief assuaged the Bishop's suspicions and set his mind at rest. 
In the US there is currently a brouhaha about efforts to sell - via an online auction site - what is claimed to be a vial containing  blood from former President Ronald Reagan, the amiable buffoon and budget fantasist whose wife relied on astrology in guiding the big guy with a finger (intermittently) on the button.

Guernsey-based PFC Auctions claims that the blood was taken from Reagan after the failed 1981 assassination attempt by John Hinkley. The executive director of the Reagan Foundation has reportedly vowed to stop "this craven act" -
If indeed this story is true, it's a craven act and we will use every legal means to stop its sale or purchase.
The PFC site features an image of the five-inch glass vial,  labelled with Reagan's name and described as housing "dried blood residue". Who owns the blood? Can the Foundation stop the sale, or even claim ownership? (Let's not think about whether the Foundation would be better occupied doing other things, albeit activities that wouldn't get global media attention and rally the faithful.)

I'm unfamiliar with the law of Guernsey - my image of that island is cute bovines and shiny brass plates in front of tax shelters - so cannot comment on the legality of flogging off Reagan's blood, Marie Antoinette's hair, Napoleon's pizzle or the numinous fingernails of Saint Exuperius. In relation to Australian law two thoughts spring to mind.

The first is the restriction on selling body parts (and people) online. As far as I'm aware there has been no attempt in Australia to auction off a fresh whole cadaver and you are unlikely to find human kidneys, eyeballs or skeletons at your local retailer. Sale of the 'preserved' or 'processed' corpse reminds law students, with a taste for the macabre, of lessons about  Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

The second is whether we regard blood, and in particular discarded blood, as property. Law has tended to differentiate between organs - non-renewable - and blood, nail clippings (sacred or otherwise) and hair, all regarded as renewable and of a lesser value. What is discarded typically is not regarded as the property of the person from whom that 'refuse' came and a generation of students has now grappled with the implications of Moore v Regents of the University of California and Ors 793 P 2d 479 (Supreme Court of
California, 1990) and other cases involving intellectual property or other rights relating to exploitation of leftovers.

What about Reagan? He's no longer around to assert property rights in his remnants or relics. On the face it the Foundation doesn't have a legal claim to the vial, the blood inside that vial or associated paperwork. Neither does Reagan's family. What's left of the vital fluid is instead typically going to be the property of the health service provider that extracted and processed the blood.

The PFC usefully supplies what is claimed as provenance information, a letter indicating that the seller's late mother worked at the laboratory that undertook blood testing for George Washington University Hospital after Reagan was shot.
These articles have actually been in my family’s possession since 03/30/1981, the day that President Reagan was shot in Washington D.C. Back in the 70’s and 80’s, my mother worked for Bio Science Laboratories in Columbia, Maryland. Her laboratory was the laboratory contracted by Walter Reed Army Medical Center as well as the George Washington University Hospital to handle blood testing as well as other types of testing. Her lab did the blood work and testing for President Reagan. The test tube and the lab slip that I have are for his blood work to be tested for lead on [Monday] 03/30/1981. The testing was completed and the test tube was sitting on my mother’s desk. At the end of the week, she asked the director of her laboratory if she could keep the paper work and the test tube. The director of the lab told her no problem and really never gave it a second thought. It has been in my family ever since. My mother passed away back in November last year [2010] and my father passed away in January 2009. Prior to their passing, they knew that it was the only thing that I wanted with regards to their personal property or money that they accumulated over the years…
About 3 to 4 months ago, I contacted the Reagan National Library and spoke to the head of the library, a Federal Agent. I told him what I had, how I came across it and so on. We spoke for about 45 minutes. The reason that I contacted the Reagan National Library was to see if they would like to purchase it from me. He indicated that if I was interested in donating it he would see to it that he would take care of all of the arrangements. Prior to hanging up the phone, he said to me, do me a favor, don’t move from where you are, I will call you back within 30 minutes but I have to make a couple of phone calls to seek legal counsel, consult with National Archives, the FBI and other three or four letter agencies that I have heard of. I said am I in any kind of trouble or will there be some black cars/suv’s or helicopters hovering above my home and he said not yet but possibly in the very near future depending on what he learned from the phone calls he had to make. I told him alright, I will not move from where I was sitting and would await his return call. He called back in 25 minutes and said that everything was ok, National Archives was not interested in what I had, nor was the Secret Service, the FBI and other agencies. Since 30 years had passed by, he thought that it was simply something that was of no importance at this time and that I was free to do with whatever I wanted with it. He then stated that he felt the family would be interested in it being returned to them and if I was interested in doing so to contact him and he would make all of the arrangements. I told him that I didn’t think that was something that I was going to consider, since I had served under Pres. Reagan when he was my Commander in Chief when I was in the ARMY from ’87-’91 and that I was a real fan of Reaganomics and felt that Pres. Reagan himself would rather see me sell it rather than donating it.
I'm reassured that the "black helicopters" won't be hovering over the seller's home, although I do wonder about the Addams Family grotesque implicit in the seller's claim that
Prior to their passing, they knew that it was the only thing that I wanted with regards to their personal property or money that they accumulated over the years. 
Yes, don't worry about the family photos (or the cold hard cash) ... covet the dinky glass container with the dried haemoglobin and rely on title passing via authorisation from the lab director.

Fakes

The US Senate Armed Services Committee has released a report [PDF] that decries counterfeit electronic components in military aircraft and blames China.

The report claims that the number of "suspect counterfeit parts" in 1,800 cases exceeding 1 million. The Committee states that
Our report outlines how this flood of counterfeit parts, overwhelmingly from China, threatens national security, the safety of our troops and American jobs. It underscores China’s failure to police the blatant market in counterfeit parts – a failure China should rectify. 
Our committee’s report makes it abundantly clear that vulnerabilities throughout the defense supply chain allow counterfeit electronic parts to infiltrate critical U.S. military systems, risking our security and the lives of the men and women who protect it. As directed by last year’s Defense Authorization bill, the Department of Defense and its contractors must attack this problem more aggressively, particularly since counterfeiters are becoming better at shielding their dangerous fakes from detection.
The report features eight conclusions -
1: China is the dominant source country for counterfeit electronic parts that are infiltrating the defense supply chain. 
The U.S. Trade Representative (USTR) has said that China’s global manufacturing capacity “extends to all phases of the production and global distribution of counterfeit goods.” The Committee’s investigation uncovered overwhelming evidence that that is the case with electronic parts infiltrating the defense supply chain. The Committee tracked well over 100 cases of suspect counterfeit parts back through the supply chain. China was found to be the source country for suspect counterfeit parts in an overwhelming majority of those cases, with more than 70 percent of the suspect parts traced to that country. The next two largest source countries were the United Kingdom and Canada. The Committee identified instances in which both countries served as resale points for suspect counterfeit electronic parts from China. 
2: The Chinese government has failed to take steps to stop counterfeiting operations that are carried out openly in that country. 
One Committee witness described visiting China and seeing public sidewalks covered with electronic components that had been harvested from e-waste. Another witness said he saw whole factories in China of 10,000 to 15,000 people set up for the purpose of counterfeiting. Counterfeit electronic parts are sold openly in public markets in China. Rather than acknowledging the problem and moving aggressively to shut down counterfeiters, the Chinese government has tried to avoid scrutiny, including denying visas to Committee staff to travel to mainland China as part of the Committee’s investigation. 
3: The Department of Defense lacks knowledge of the scope and impact of counterfeit parts on critical defense systems. 
In a March 2010 report, the Government Accountability Office stated that “DOD is limited in its ability to determine the extent to which counterfeit parts exist in its supply chain.” The Committee’s findings support that statement. Reporting into the Government-Industry Data Exchange (GIDEP) program, which would allow DOD to track instances of counterfeit parts, is woefully lacking. During the period reviewed by the Committee, the Defense Logistics Agency (DLA), which is responsible for supplying DOD with most of its spare parts, neither consistently reported to GIDEP nor maintained a list of instances in which they had been supplied counterfeit electronic parts. And, in each of the three cases that the Committee investigated in depth, DOD was unaware that counterfeit electronic parts had been installed on certain defense systems until the Committee’s investigation. 
4: The use of counterfeit electronic parts in defense systems can compromise performance and reliability, risk national security, and endanger the safety of military personnel. 
The investigation uncovered dozens of examples of suspect counterfeit electronic parts in critical military systems, including on thermal weapons sights delivered to the Army, on mission computers for the Missile Defense Agency’s Terminal High Altitude Area Defense (THAAD) missile, and on a large number of military airplanes. The potential impact of suspect parts on the performance and reliability of defense systems is significant. For example, according to MDA, if suspect counterfeit devices installed on the THAAD mission computers had failed, the THAAD missile itself would likely have failed. According to the Navy, had counterfeit parts contained in electromagnetic interference filters failed on an SH-60B helicopter, the aircraft’s ability to conduct night missions and surface warfare missions involving hellfire missiles would have been compromised. 
5: Permitting contractors to recover costs incurred as a result of their own failure to detect counterfeit electronic parts does not encourage the adoption of aggressive counterfeit avoidance and detection programs. 
Taxpayers should not be burdened with covering the costs of a contractor’s failure to detect counterfeit electronic parts in their own supply chain. Moreover, government contracts that permit cost recovery in such circumstances contrast with agreements that some contractors enter into with their own suppliers. Raytheon’s General Terms and Conditions relating to nonconforming material states that the “[c]ost of repair, rework, replacement, inspection, transportation, repackaging, and/or reinspection by Buyer shall be at Seller’s expense.” Similarly, BAE’s General Provisions state that, in cases where a supplier delivers non-conforming work, BAE may “make, or have a third party make all repairs, modifications, or replacements necessary to enable work to comply in all respects with Contract requirements and charge the cost incurred to the SELLER.” 
6: The defense industry’s reliance on unvetted independent distributors to supply electronic parts for critical military applications results in unacceptable risks to national security and the safety of U.S. military personnel. 
The Committee identified approximately 1,800 cases of suspect counterfeit parts in the defense supply chain. Those parts were supplied by more than 650 companies, each of which relied on their own network of suppliers. DOD and defense contractors are frequently unaware of the ultimate source of electronic parts used in defense systems. The suspect counterfeit parts that were used in Electromagnetic Interference Filters (EIF) destined for the Navy’s SH-60B helicopters, for example, changed hands five times before the parts were bought by the Raytheon subcontractor who built the EIFs. Those parts
originated with Huajie Electronics in Shenzhen, China, a fact that neither DOD nor Raytheon was aware of prior to the Committee’s investigation. 
7: Weaknesses in the testing regime for electronic parts create vulnerabilities that are exploited by counterfeiters
The Committee reviewed test reports associated with the approximately 1,800 cases of suspect counterfeit parts identified in the investigation. Those reports reveal wide disparities in testing used by companies in the defense supply chain. Some companies require a range of testing, for example, exposing a part to aggressive solvents to determine whether markings are authentic or delidding part samples to examine their die. Other companies, however, are willing to accept parts that have only been subject to basic functional testing. The investigation also revealed deficiencies in the process used to determine whether and how parts are tested. For example, in the case of the counterfeit memory chips sold to L-3 Communications, the supplier in China selected and sent L-3 Communications’ U.S.-based distributor a sample of 18 parts to test. Once those parts were tested and validated as authentic, the China-based supplier sold the company more than ten thousand of the chips. L-3’s process at the time allowed the company to accept those chips without additional testing from an independent laboratory. 
8: The defense industry routinely failed to report cases of suspect counterfeit parts, putting the integrity of the defense supply chain at risk. 
The vast majority of the approximately 1,800 cases of suspect counterfeit parts identified in the investigation appear to have gone unreported to DOD or criminal authorities. For example, in the case of the suspect counterfeit part contained in the Navy’s P-8A airplane, Boeing failed to notify the Navy of the problem until the Committee began inquiring about the suspect counterfeits. Similarly, in the case of the suspect counterfeit memory chip contained in the C-27J, L-3 Communications did not notify the Air Force until the day before Committee staff was scheduled to meet with the Air Force program office responsible for that aircraft. Many cases also go unreported to the Government-Industry Data Exchange Program (GIDEP), a DOD program where government and industry participants can file reports about suspect counterfeits. While one industry witness told the Committee that sharing information on counterfeit parts through GIDEP “can help stop suppliers of counterfeit parts in their tracks,” only 271 total reports were submitted to GIDEP during all of 2009 and 2010.
Concurrently a forthcoming report by Breman et al in Lancet Infectious Diseases Journal reiterates past findings about the prevalence of counterfeit pharmaceuticals in the Third World, noting that over 35% of malaria drugs examined by scientists in South-East Asia were fake.

Joel Breman of the Fogarty International Center at the US National Institutes of Health is reported as commenting that "These findings are a wake-up call demanding a series of interventions to better define and eliminate both criminal production and poor manufacturing of anti malarial drugs".

 On the basis of literature reviews and surveys the researchers found that in seven Southeast Asian countries some 36% of 1,437 samples (from five categories of drugs) were counterfeit. 30% of the samples failed a test of their pharmaceutical ingredients. In 21 sub-Saharan countries, 20% of a larger sample (2,500 drugs in six drug classes) were counterfeits and 35% were inadequate.

Sunlit

From the Guardian review of Middle Age: A Natural History (London: Portobello 2012) by David Bainbridge -
in this determinedly chirpy book, David Bainbridge wants to show that the years between 40 and 60 actually represent a kind of sunlit upland of "maximal" experience. Yes, we get fatter and slower and less able to read small print (this book is tactfully printed in a large size font). But our bodies stay in pretty good nick: if you get to 40, then you are very likely to get to 60. What's more, argues Bainbridge in a slightly over-emphatic way, as if talking to someone with early hearing loss, by the time we enter our fifth decade we will have developed cognitive capacities that allow us to think more cleverly than, if not quite as quickly as, we used to at 20. In a culture that depends on harvesting information rather than, say, turnips, this puts middle-aged people in pole position for a really rather lovely life.
Alas -
Already the author of several popular books – his most recent was on why teenagers are terrific – Bainbridge doesn't seem yet to have found a voice that elegantly bridges the gap between the language of academic and popular science. He veers too far to the arch – at one point using the phrase "dear reader", for which he should really be shot, even if he is 43 and therefore out of the age band where a man is most likely to meet a violent death. This chumminess is combined with a tic, derived from academic writing, of telling the reader what she is about to be told and then telling her afterwards that she has just been told it. This is particularly irritating given that the book is presumably targeted at the middle aged – the very people who are supposed to have inherited from their ancestors a laser-like ability to spot what really matters in any given situation.

Confidentiality

In Missingham v Shamin [2012] NSWSC 288 the Supreme Court of New South Wales has granted a permanent injunction to restrain the husband of mediation participant Dr Larissa Koroleva from breaching the confidentiality provisions of a deed of settlement.

Ward J found that publication of information - in Missingham v Shamin [2011] NSWSC 1208 - regarding the initial proceedings in defamation litigation did not absolve the woman's husband (Mr Alex Shamin) and that limited disclosure did not mean the confidentiality provision was of any lesser utility.

21 May 2012

Alibi-ya

In past conference papers I've noted the 'novelty identity documents' industry and 'alibi' services. It is therefore interesting to see today's ABC news item on a crackdown by Japan's police on alibi-ya services, ie businesses that -
provide women in the country's sex industry with a reputable but totally fictitious identity, designed to conceal their real job from their families. 
The companies provide things like fake business cards, references and employment certificates to sex workers, and have even been known to provide a fake boss for birthday speeches and other family events.
As in Australia and the UK, faux documents as such do not appear to be illegal. Fraudulent use of the documents and services is however an offence.

The ABC quotes alibi-ya operator Shintaro Sakamoto as commenting that -
We provide assistance to mainly hostesses and prostitutes. 
We help them to rent apartments, and we help them get their kids into nursery schools. We do this by helping them with their identity. 
Women who work in the sex industry or as a hostess don't want their father and mother to find out about it, and so we get many requests asking us to please create a more respectable identity 
The ABC explains that-
In other words, Mr Sakamoto's company sets the client up with a totally fake job and background - one which is acceptable to real estate agents and nursery schools which might baulk at dealing with a sex worker. 
Alibi-ya like Mr Sakamoto's even offer phone services. 
When, for example, parents ring the office their daughter supposedly works at, the alibi-ya will be ready with the deception, explaining their daughter is in a meeting and will call back shortly. ... The alibi-ya will then ring the woman's mobile and tell her to call home. Even the caller ID is fixed so it looks like the woman is calling from the landline in her fake office.
As in the West, alibi-ya service providers disclaim illegality -
Sakamoto insists that his business is merely about providing people on the margins of Japanese society with a respectable identity. 
"We don't provide this service when it's clear from the beginning that the purpose is for fraud, assets or money," he said.
"We limit cases to those clients who simply want to hide their work from their family."

And to do that there have even been cases of alibi-ya sending along a fake boss to weddings and other family gatherings to make speeches, all to keep up the charade.
Several years ago I chased the London Times profile of fakealibi.co.uk (archived here), bizarrely promoted as "the World's Only Legitimate Alibi Service" and "the only website that gives you assistance, in whatever you are doing" ...
With the pressures of modern life many of us have occasion to stray from our long term partners and dally with a brief sexual or emotional relationship with a third party, this is often a short term affair, inconsequential to our long term plans and relationships, but with modern communications, and media, it has become increasingly difficult to be able to carry on such a temporary dalliance, without risk of detection. Any chance of such a relationship becoming public knowledge in any way whatsoever can put an incredible strain on all parties concerned.
Family life, the home, business and children's welfare can all be put on the line for what may indeed have been a totally inconsequential short term flurry of sexual or emotional feelings.
We have been established to provide a way out of this situation, we offer a Service which can help to protect your loved ones from undue anxiety, and help to ensure the stability of a long term relationship and financial security, by offering secure and professional handling of "Alibi's" for you.
The service supposedly claimed over 21,000 satisfied customers who used it to provide cover for extramarital liaisons (including fake invites to conferences, provision of false accommodation info and misleading phone calls to a client’s partner). Judging by its site it also offered private investigation services in the US, UK, Belgium and Australia.

If you were a wannabe Danger Mouse FakeAlibi asked -
Have you ever dreamed of living an alternative, secret life? The majority of our agents are normal people living ordinary lives, some are bankers, teachers even TV presenters - but when they receive the call from us - they know an exciting adventure is about to begin. 
Although most of our agents work part time and whenever the need arises for their help they always free their time for us, but some are now working full time - they are our "Special Agents"
As of two months ago we now have a structure of command for our organisation ... F.A Commander - Joint Commander - Diamond Agent - Special Agent- Secret Agent - Agent - Trainee/Administration
A FakeAlibi rep reportedly commented that “We have a solicitor who advises us and if we have a job that we feel is a bit too edgy, we consult him”. There is no indication of what happens if it was misled.

The service is of course was dedicated to using its powers for good, rather than for evil -
The people who come to us are already having affairs. In some cases we are helping to save marriages. People having affairs are often not doing so because they want to destroy everything but because of any number of other reasons. They might be frustrated because of the long-term illness of their spouse or lonely because their partner is always away. They want to preserve their marriages and there might be children involved. People could get hurt if everything came out, and by helping to conceal the affair or fling we are actually assisting the stability of family life. 
Associate ReplicaDocs offered "novelty documents" that looked the same as legitimate UK bank statements, utility bills, payslips and drivers licenses. A single bank statement, utility bill and payslip cost £79.99. "Novelty" didn't come cheap: a "fully editable" template for multiple documents cost £499.

The site cautioned that
You must observe and comply with all applicable regulations and legislation. ... You agree in ordering any novelty documents from us, that without exception they are not to be used for financial gain, fraud, deception or any other criminal activity. 
Short-lived competitor fakeutilitys.com (archived here) offered a "Fake UK Photo Card Driving Licence" claimed to be "100% accurate to the originals ... guaranteed to be identical in everyway to the real issue 'dvla' licences" for a mere £300, birth certificats, insurance forms, bank statements and education certificates. Again, expensive novelties.

Theidshop.com boasted that
We can replicate most any passport upon request and proper pricing. Our Fake Passports are of the highest quality and look very near identical to an official one. In addition we can work on a one-on-one basic with you to create a completely custom passport job. Use our fake passports in conjunction with our fake ID's for a complete "New Identity" Package. Upon request we can create a complete identity solution. This can include a fake novelty id, fake passport and several other different forms of identification such as credit cards, checkbooks, utility bills and fake corporate documents if needed. Let us stress that creating our custom packages are only for individuals that are serious about creating complete turn key identify [sic] packages. 
Other vendors such as doctorsnotestore.com have marketed 'novelty' medical certificates, available online for people prepared to pay $40 or upwards for a 'sick note'.

20 May 2012

Sumption on post 9/11 Foreign Affairs in Court

Listening to 'Foreign Affairs in the English Courts since 9/11', an LSE lecture by Lord Sumption.

Sumption is a noted historian, justice of the UK Supreme Court and lead barrister in Seven Network Limited v News Limited [2007] FCA 1062 (aka the C7 case).

His lecture  [PDF] begins -
“The laws”, wrote the French novelist Honoré de Balzac, “are spiders’ webs, laid out to catch to catch little insects, which the great insects pass through unscathed”. In the law’s bestiary, there are few greater insects than the state. There is a school of thought that holds that the state is not only the greatest insect but also the most poisonous one. For a number of years the conduct of foreign affairs has served as one of the great forensic battlegrounds between those who take that view and successive governments who, understandably, do not.
There are a number of reasons why this should have recently become an issue. In the first place, in the short life of the present century, foreign affairs have generated moral issues of passionate concern to a significant part of our population, far more than any comparable period since the Second World War. Nuclear weapons development, relations with autocracies with poor human rights records, and the use of armed force in Iraq are just three of the more obvious examples. We may not believe, with Machievalli, that no subterfuge is too gross to be deployed in the interest of the state. But the polar opposite is just as problematic. It is exceptionally difficult to operate a morally pure foreign policy. Relations between states necessarily involve a measure of compromise between different and sometimes opposing values, even when one is dealing with countries that are both democracies and allies. The response of western democracies to the threat of international terrorism has at times been characterised, particularly in the United States, by a degree of ruthlessness that raises major moral issues of its own and is hard to reconcile with either their legal traditions or ours. Secondly, the growing emphasis in English public law on transparency, combined with the wide scope of the English rules of disclosure in litigation and the diminishing role of public interest immunity has exposed the workings of government in an area of human activity which has for centuries depended on the confidentiality of communications and the secrecy of intelligence-gathering operations. In a recent case, a Divisional Court took the view that the press had a distinct interest in the question whether communications about intelligence between the American and British governments, which had been the subject of a PII certificate by the Foreign Secretary should be published. I doubt whether this would have occurred to an earlier generation of judges. Third, and partly because of these factors, the operations of government in the domain of foreign policy and intelligence-gathering, have aroused intense distrust and suspicion in the press, an important section of the public and, it is fair to say, of the judiciary. This distrust is not easy to dispel without compromising the confidentiality of communications with foreign governments and the secrecy that is bound to protect intelligence work if it is to be effective. Fourth, the background to all of these developments, has been the exponential growth of judicial review over the past thirty years, which has led many people to look to the courts to inject a higher morality into public decision-making, untrammelled by the impurities of the political process. Law is animated by a combination of abstract reasoning and moral value-judgment, a heady mixture which seems a great deal more attractive and more honourable than the messy compromises that are in practice required to maintain relations with foreign states. In England, the significance of this factor is greatly increased by the breadth of the English rules about standing in judicial review proceedings. Just about any one can apply for judicial review if he has either a personal or an institutional concern which the outcome. This approach necessarily exposes the courts to a great deal of litigation which is essentially politics by other means. It opens the government to challenge in the courts by pressure groups, often concerned with a single issue, which have no interest in the process of accommodation between opposing interests and values that is fundamental to the ability of nations to live in peace. Fifth, and arguably the most important single factor, the enactment into English law of the European Convention on Human Rights, has obliged the court to scrutinise foreign policy decisions impacting on domestic human rights, in a way that would not have been required before. I shall say more about this factor later in this lecture.
It is a matter of speculation, but I suspect that if Britain were still a world power, the interests of the state would receive a larger measure of respect from both the public and the courts, as they once did in England and still by and large do in the United States. The projection of national power, whether hard or soft, no longer strikes most people as a major public interest on a par with, say, the protection of human rights at home and abroad. It is not my function to either welcome or regret these changes. I simply note that they have occurred and command broad assent among most of the politically informed population. They are therefore inevitably part of the background against which judges have to decide the growing number of cases relating to English foreign policy which come before them. 
Until recently, foreign policy was one area in which government did indeed pass unscathed through Balzac’s spider’s web. The same was broadly true of the attendant domains of defence and intelligence. Almost every governmental act in the field of foreign relations is an exercise by ministers of the prerogative powers of the Crown. At one time, it was thought that that fact alone made it immune from judicial scrutiny. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, the House of Lords held that the mere fact that the legal authority for an act of government was the prerogative of the Crown did not make it immune from judicial review, but that the subject matter of some prerogative powers might have that effect. Three out of the five members of the Committee expressed the view that foreign affairs were not susceptible to judicial review. This, according to Lord Roskill, was because “their nature and subject-matter is such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner” (at p. 398). This judicial instinct was not peculiar to England. It is a feature of the law of a number of continental jurisdictions with highly developed systems of public law, including the Netherlands and Italy. It exists in most common law countries, and in particular in the United States, where the rules about standing are much tighter than they are in England, and the relative immunity of the executive’s foreign policy decisions from judicial scrutiny is probably the most robust part of the political questions doctrine. As Justice Jackson said in the Supreme Court in the famous 1950 case of Johnson v. Eisentrager 339 US 763, 789, “it is not the function of the judiciary to entertain private litigation... which challenges the legality, the wisdom or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.”
The English courts, in keeping with their traditional suspicion of large constitutional theories, have not been very good at explaining why the courts should be any more reticent in dealing with the Foreign Secretary’s decisions than those of, say, the Secretary of State for Work and Pensions. Two approaches can be discerned in the various judicial statements on the matter. One is based on the concept of non-justiciability, and the other on the constitutional division of powers. ...