21 September 2012


In Re Natalie [2012] NSWSC 1109 the NSW Supreme Court has made orders authorising medical practitioners to refuse to resuscitate a ten year old child suffering from porencephaly. The Court found that in the event of a life-threatening event, the child would suffer additional pain and suffering following resuscitation.

The judgment states that
 These proceedings concern a profoundly disabled girl currently aged ten who for the purposes of these proceedings has been called Natalie. 
Natalie suffers from a neurological condition called porencephaly. At birth she was diagnosed with hydranencephaly, which is a severe form of brain malformation whereby more than 90 per cent of her brain cortex was replaced with cerebral spinal fluid. 
Initially it was thought unlikely that she would survive more than a year. She has profound cognitive delay. It is estimated that she functions intellectually at the level of a six to 12 week-old baby. She suffers from numerous medical complications associated with this condition. She is almost blind, although it is said that she can tell the difference between light and dark and that she can follow a torch in a dark room. She is unable to speak or communicate otherwise than by primitive reflexes. 
Since she was 12 days old Natalie has been in the care of the second defendant who states that Natalie may show emotion by smiling, crying or making grunting noises. She suffers from epilepsy, hypertension and frequent seizures. 
Dr Alison Reid, a neurologist, said that Natalie suffers from partial complex seizures, averaging one to six daily. She has severe spastic quadriplegic cerebral palsy and suffers from viral and bacterial respiratory infections. She suffered a severe illness in September 2003, following which she became unable to suck or take in foods by mouth. She is fed through a PEG tube. 
The doctors and others involved in Natalie's treatment are agreed that it is remarkable she has lived as long as she has and that this is due to the quality of the care with which she has been provided by the second defendant. Dr Reid states that Natalie has only rudimentary neural structures, including some cerebellum and the brain stem and that she stays alive because there are functioning centres in the brain stem which are responsible for the continuing beating of the heart and for continuing respiration. 
Natalie produces excess mucus as a result of her medications and she can not swallow effectively. She requires suctioning of the excretions in order to prevent her from choking. The second defendant needs to suction Natalie regularly, that is to say on a moment-to-moment basis. 
Her treating paediatrician, Dr Christopher Ingall, deposes that she suffers in pain for at least an hour out of every day. She is given drugs to alleviate this but with variable results. She has been admitted to hospital on many occasions with respiratory-related illnesses. 9Natalie's natural mother relinquished care of Natalie to the Department of Community Services, as it was then known, shortly after her birth. She was then placed in the foster care of the second defendant. The Department of Community Services, in consultation with Dr Ingall and the second defendant, prepared an End of Life Case Plan in 2009. A number of caseworkers participated in the preparation of the plan. The child's natural mother had the opportunity also to participate. 
It was unexpected that Natalie should have survived as long as she has. Dr Reid says that every day of her life Natalie is at risk of complications of her condition and is at particular risk of sudden death on account of her epilepsy. She is at risk of further sepsis, and there is a possibility that the centres in her brain stem regulating her heart and lung functions will fail. Dr Ingall is also of the view that Natalie is at high risk of respiratory infections and complications. 
In the End of Life Case Plan/Advanced Care Directive prepared in July 2009 by the Department, there was an agreed objective to ensure that Natalie has a dignified comfortable death with as little suffering as possible. It was agreed that in the event of cardiac pulmonary arrest, it would not be appropriate for cardiopulmonary resuscitation, intubation or ventilation to proceed. 
The Director General of the Department of Family and Community Services has instituted these proceedings seeking orders that, in the event that Natalie suffers a cardiac arrest, her treating medical practitioners, paramedics and nurses be authorised to not resuscitate her and, for this purpose, they be authorised to not apply or use external cardiac massage, apply or use DC countershock, give adrenaline by any means, intubate and/or ventilate Natalie, unless they consider such treatment appropriate given Natalie's prevailing clinical situation. An order to the same effect is sought in the event that Natalie suffers respiratory arrest or another life-threatening event such as a prolonged seizure or aspiration. 
The orders proposed provide that she be provided with all medical care and treatment directed towards the preservation of her life and the promotion of her health and welfare up to the point of her suffering a cardiac arrest or respiratory arrest, or another life-threatening event such as prolonged seizure of aspiration. For the purpose of implementing those orders, an order is sought that Natalie's treating medical practitioners be authorised to put in place a "not for resuscitation" order and a "no pulmonary resuscitation" order and a "non-ventilation" order in relation to Natalie.  ... 
The reason that the orders are sought is essentially that if Natalie suffers from cardiac arrest or respiratory arrest, the intervention that would be necessary to preserve her life would be productive of additional pain and suffering to that which she currently experiences without any countervailing benefit. 
If Natalie suffered a cardiac arrest and cardiac massage were applied, for it to be of any benefit, the treatment would certainly result in the fracture of her ribs. These are very fragile. It would probably also result in the fracture of her sternum. If she were intubated and given ventilation, in the doctors' opinion, it would become impossible for the ventilation to be withdrawn, or at least extubation would prove impossible. Natalie would become confined to a hospital or a similar institution where she was dependent on the ventilator. In the opinion of Dr Ingall which I accept, she would need a line in her artery and a drip. It would be highly unpleasant. The removal of secretions is already an unpleasant experience for Natalie. It would be more painful, indeed highly painful, according to Dr Ingall, for her secretions to be removed when she was intubated. 
Dr Reid said that in her view no matter how one viewed the quality of life, it was an indisputable fact that Natalie presently has no quality of life. She asked herself the question: How then could Natalie be worse off than she is now? Dr Reid answered that question by saying: "This situation could arise, if in the event of a cardio pulmonary arrest resuscitation and ventilation were attempted. It is virtually guaranteed that extubation would prove impossible. [Natalie] would require tracheostomy and remain ventilated-dependent, institutionalised, and alone." 
If she survived the cardiac arrest, her clinical status would be worse than it is at present. Dr Reid also said: "If however she were to suffer the complication of a cardio pulmonary arrest she would not be managed with external cardio massage or DC counter-shock. These measures would increase her pain and suffering and if she were to survive her clinical condition would be worse than it is at the present time." 
She said that "extreme resuscitative measures are guaranteed (were she to survive) that she will go on living in a clinical state worse than the present (sic)".
 The application considered by White J was  brought in the Crown's parens patriae jurisdiction, exercised on two bases
The first is that the medical practitioners may be in real doubt as to whether they should act on a decision of the second defendant authorising them not to resuscitate Natalie if she suffers a cardiac arrest or respiratory arrest or other life-threatening event. They may consider in an emergency that they should not do so in the absence of an order from the Court making their position clear. In that respect the orders will clearly provide that they give an authority to medical practitioners and others not to take interventionist steps in the event of cardiac arrest or respiratory arrest or other life-threatening event, unless they consider that treatment to be appropriate given Natalie's then prevailing clinical situation. In other words the orders provide an authority which is itself subject to those medical professionals' clinical assessment. They are not a direction as to how doctors and others must act. 
The second reason why I think the jurisdiction ought to be exercised is that, as was put by counsel for Natalie, notwithstanding the second defendant has assessed it to be in Natalie's best interest that she not be resuscitated, her emotional attachment to the child might make it difficult for her to make that decision in Natalie's best interests when the time for decision arrives. 
The real question both as to whether I should embark on the exercise of jurisdiction and in the exercise of the jurisdiction is what is in Natalie's best interests. I agree with the submissions of all counsel that it is in her best interests for the jurisdiction to be exercised.
After considering precedent the Court indicated that
I am satisfied that if the steps were taken to attempt to resuscitate Natalie if she suffers a cardiac arrest or if she suffers respiratory arrest or another life-threatening event, the result would be to cause her increased suffering with no commensurate benefit. That is clear on the evidence in the case of any of the steps involving external cardiac massage, the application of DC counter shock, intubation or ventilation. 
It is not so clear on the evidence in relation to the application of adrenaline but as I understand Dr Reid's evidence the necessary resuscitative measures would result in Natalie moving to a worse clinical state than she suffers at the present. In the case of a cardiac arrest the brain will be impaired after as little as three minutes. In Natalie's case there is very little brain function left. Cardiac arrest that resulted in any further diminution of her brain function, even if she survived, would have to leave her in a worse state than she is at present with increased suffering. 
In the exceptional circumstances of this case and having regard to the extent of the child's disabilities, which are profound, and having regard also to the fact that the second defendant, who has provided such high quality care for Natalie that it has attracted great praise from the doctors who have given evidence, sees that it is in Natalie's best interest that she not be resuscitated in the event of such life-threatening events, I am satisfied that in this case the orders sought should be made.

19 September 2012


Another two incidents of fake death, including one of fake death by drowning.

The LA Times reports Cmdr. Michael P. Ward II was relieved of command of the nuclear submarine Pittsburgh, a week after taking up that duty last month, amid reports that he ended an affair with a 23-year-old Virginia woman by faking his death.

In contrast to a range of insurance frauds, where the supposedly dead person disappeared at sea - while swimming (for example UK MP John Stonehouse and Paul Terroni) or canoeing (John Darwin) or fishing - and reappeared to collect the loot, the married officer appears to have simply been a cad.

If the reports are accurate he met the woman through a dating site, initially used a different name when telling the woman he was separated and was in the US Special Forces, the relationship progressed and then went sour. She received
an email from his address purporting to be from a man named Bob who worked with Ward, according to the newspaper.
“He asked me to contact you if this ever happened,” the email said. “I am extremely sorry to tell you that he is gone. We tried everything we could to save him. I cannot say more. I am sorry it has to be this way.”
The email goes on to say, “He loved you very much,” and that Bob had something Ward had wanted to give to her.
The woman reportedly
drove with her family to Ward's house in Virginia, to pay her respects, and learned from the new owner that Ward was alive and had moved to Connecticut to take command of a submarine. She said she became ill, was hospitalized, and learned she was pregnant. She said she has since lost the baby ....
The intrepid submariner is now on administrative duties, having been relieved "due to lack of confidence in Ward's ability to command based upon allegations of personal misconduct".

In reporting the second incident the Times scoffs that
Raymond Roth accomplished a lot while supposedly dead, police say.
He drove to Florida, got a speeding ticket in South Carolina, and sent emails to his son back home in New York. On Wednesday, he added another feat to the list: He was arrested on charges of insurance fraud in a case that has highlighted a faked death gone comically awry, and dysfunctional family woes.
A day after his 22-year-old son, Jonathan, who is charged in the same case, was released on bond, the elder Roth faced arraignment in a Long Island court after a bizarre odyssey that began with a supposed swim off Jones Beach on July 28. Roth, 47, never came out of the water, his apparently distraught son told police when he called to report his dad missing that evening.
But four days later, after a search of the sand and ocean off of Jones Beach that involved divers, boaters, a helicopter, and police, the case began to unravel. Raymond Roth was stopped for speeding in South Carolina, and his stunned wife, Evana Roth, said she had found emails indicating a conspiracy involving her husband and stepson.
Raqymond and Jonathan allegedly "executed a plan to create the false impression that Raymond Roth had died", in an effort  to collect over US$50,000 life insurance.
Prosecutors say the younger Roth confessed to the scheme after being arrested Aug. 6, but he told them he had been forced to take part in it by his father. The father's attorney, meanwhile, has claimed that the insurance scam was the son's idea. "My client's intent was to disappear, not to cash in on a life insurance policy," Raymond Roth's attorney, Brian Davis, said Tuesday, the Associated Press reported. "It was never my client's intent to make a claim." Davis told the Long Island newspaper Newsday that Roth just wanted to escape the "pressures of bills" after losing his job as a manager at a telecommunications company. He said the fact that his client used his real name when he checked into a Florida resort showed there was no criminal intent.
Perhaps he was simply stupid, like the New Zealand guy who faked death by drowning and later applied for a  passport in his own name.

Streets and caches

'Google and Personal Data Protection' by Bart van der Sloot & Frederik Zuiderveen Borgesius in Aurelio Lopez-Tarruella (ed) Google and the Law: Empirical Approaches to Legal Aspects of Knowledge-Economy Business Models (TMC Asser Press/Springer, 2012) discusses -
the interplay between the European personal data protection regime and two specific Google services, Interest Based Advertising and Google Street View. The chapter assesses first the applicability of the Data Protection Directive, then jurisdictional issues, the principles relating to data quality, whether there is a legitimate purpose for data processing, and lastly the transparency principle in connection with the rights of the data subject. The conclusion is that not all aspects of the services are easy to reconcile with the Directive’s requirements.
The same volume features Marcelo Thompson's 'In Search of Alterity: On Google, Neutrality, and Otherness', Annsley Ward's 'The Viacom v YouTube Litigation and Section 512(c) DMCA: When the Safe Harbour Becomes a Permanent Mooring', Miquel Peguera's 'Copyright Issues Regarding Google Images and Google Cache' and Jeremy Phillips' 'Google AdWords: Trade Mark Law and Liability of Internet Service Providers'.

18 September 2012


On reading 'The Privacy Merchants: What is to Be Done?' by communitarian Amitai Etzioni in 14(4) Journal of Constitutional Law (2012) 929-951 I'm reminded of Mr Jourdain, who discovered - whodathunkit - that he had been speaking prose all his life.

Etzioni has discovered that entities in the private sector are disrespectful of privacy. Oh dear, it's not just Big Brother we need to worry about.

He explains that
Rights have been long understood, first and foremost, as protection of the private from the public, the individual from the State. True, we also recognize positive rights (such as socioeconomic rights) and the government’s duty to protect citizens from violations of rights by other actors besides the State. However, when violations of privacy are discussed, the first violator that typically comes to mind is “Big Brother” — that is, the State. This Article focuses on the growing threat to privacy from private actors, specifically profit-making corporations. It briefly outlines a range of options aimed at protecting individual privacy against encroachment by private actors, and it evaluates them within the prevailing normative, legal, and political context in the United States.
Etzioni concludes -
Corporations, especially those that make trading in private information their main line of business - the Privacy Merchants - are major violators of privacy, and their reach is rapidly expanding. Given that the information these corporations amass and process is also available to the government, it is no longer possible to protect privacy by only curbing the State. Suggesting that norms have changed and that people are now more willing to give up their privacy may be true, but only up to a point. The extent to which private aspects of one’s medical and even financial conditions are revealed is unlikely to be widely accepted as a social good. And violation of the privacy of dissenters and, more generally, of one’s political and social views (e.g., by tracking what people read) has chilling effects, whether or not the majority of the public understands the looming implications of unbounded profiling of most Americans. Self-regulation cannot come to the rescue because it assumes that individuals can sort out what corporations are doing behind the veil of their privacy statements, an unrealistic assumption. Banning the use of less sensitive information (in particular, about purchases) for divining more sensitive information (e.g., medical) — that is, outlawing Privacy Violating Triangulation — may serve, if combined with laws that add “patches” to the current patchwork of legislation, to cover new technological developments (e.g., social media). If such twin progress is possible, there will be much less reason to prevent the government from drawing on the databanks maintained by Privacy Merchants, because they would be limited to less sensitive information, and PVT of innocent Americans would be banned. Without such progress, one must assume that what is private is also public in two senses of these words: that one’s privacy (including sensitive matters) is rapidly corroded by the private sector and that whatever it learns is also available to the government.


The Age reports that Victoria's Transport Ticketing Authority(TTA), ie the public sector agency managing the myki transport smart card, is -
increasingly handing over information about myki users' movements to police, raising concerns that the smart card is being used as a tracking device.
The Transport Ticketing Authority says police have made 113 requests about myki users since the smart cards were introduced in late 2009. There have already been 71 requests for customer movements this year, more than three times the number of requests received last year.
Under the TTA's privacy policy, police can make a written request for information about a customer's movements without court oversight. The policy states that personal information about myki customers will be handed to police when ''an authorised police officer certifies in writing that the disclosure is reasonably necessary for the enforcement of the criminal law''.
TTA chief executive Bernie Carolan said police were handed information only when justified. ''Strong privacy controls are maintained at the TTA and any release of data to, for example, the police is only granted when sufficient justification is given. Release of the data is always approved by TTA senior management,'' he said.
Uh huh, so that makes it all ok?
Mr Carolan said the authority had declined police requests for customer information on nine occasions, including eight times this year. He would not provide details about why the requests had been declined, saying only they did not meet the required standard.
The card - used on trains, trams and buses - collects information on the movements of some2.2 million public transport users, including when and where they enter/exit the vehicle. Customers who register their myki card must provide their name and either a phone number or postal or email address. Some concession card holders must provide the TTA with their residential address.

There is scope for anonymous cards.

The Myki privacy statement indicates that -
We understand and respect your right to privacy and we are committed to privacy protection ...
Personal information held by Public Transport Authorities may be used or disclosed (including to each other) for the operation of myki; to verify entitlement to concession travel; for ticketing enforcement; in emergencies; otherwise as required or authorised by or under law; or with your consent.
There has of course been information sharing for several years. In 2010 for example the Herald stated that
Privacy concerns have been raised over Victoria's troubled myki "smartcard", with fears the new public transport system may be used as a Big Brother-style tool to watch commuters' moves.
The Transport Ticketing Authority has confirmed it will share commuters' travel itineraries and personal information with police.
It also may supply private information to agencies such as VicRoads, Ambulance Victoria and Metropolitan Fire Brigade.
The data-sharing scheme could result in passengers' names, phone numbers, ages and addresses being passed between agencies.
During a criminal investigation, police will be able to trace where and when commuters have swiped on and off the myki network.
Public transport "authorised officers" can have access to private information to investigate offences such as fare evasion.
Even jealous lovers could rort the system by snooping on their partner's travel dates, times and myki charges online.
In 2008 the Age commented that -
There are a range of genuinely difficult local issues that could have caused significant delays and respecifications with myki. One such issue is privacy. Myki is one of a wide range of radio frequency identification (RFID) reliant projects in transport, all of which raise similar issues. The familiar CityLink e-tag is another such system.
While myki, like Oyster, will track every trip, every day and for every person, the Australian public is more sensitive to such detailed overseeing than Britons.
The data myki can produce will be invaluable for collecting the travel behaviour data that is essential for transport management and planning, particularly given the uncertainties of climate change and how we will respond to it.
However, accumulation of such data is highly intrusive and almost irresistible to law enforcement agencies, and it can be time consuming to resolve such issues. In this case it is important to ensure that safeguards are in place — and verifiably known to be so. The myki website does not reassure that this is the case.

17 September 2012


'The House that Built Holmes' by Brad Snyder in 30 (3) Law & History Review (2012) 661-720 argues that
Justice Oliver Wendell Holmes Jr. became the first modern judge to attain iconic status. G. Edward White, the preeminent Holmes scholar of his generation, has argued that Holmes's canonization began with the "dramatic upsurge in the amount of commentary" in the late 1920s by reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved "the status of professional and cultural icons in the decade of the 1930s." This Article argues that Holmes's canonization began a decade earlier because of his association with a group of young progressives at the 'House of the Truth'. During the 1910s, Felix Frankfurter, Walter Lippmann, and other progressives turned a Dupont Circle rowhouse into a salon, invited Washington establishment figures to frequent dinner and cocktail parties, and adopted Holmes as the House's hero. They canonized Holmes to attack the Court's anti-labor decisions. Holmes participated in his own canonization to further his ambitions of elite recognition. At age seventy, he was frustrated on the Court and considered retirement. He wrote for what Laurence Baum has described as a discrete judicial audience at the House of Truth. Holmes's canonization matters because it exemplifies canonization as political instrumentalism. The House wanted constitutional change; Holmes wanted recognition.
Snyder comments that -
There are many different types of constitutional canons. The canonization of a judge, however, is different than the canonization of a judicial opinion. A judge is canonized the way that saints are canonized, achieving an iconic or sacred status. Most judicial opinions are canonized the way poetry or literature becomes part of the literary canon. A few opinions such as Brown v. Board of Education, however, achieve iconic or sacred status. Although I have previously bifurcated the constitutional canon into upper and lower canons, I now refer to two different types of canons: the sacred canon and the literary canon. Holmes and other judges join the former, his classic judicial opinions and other writings the latter. 
The beginning of Holmes’s canonization matters because it represents another example of canonization-not because of philosophical agreement but because of political instrumentalism. My previous canonization article highlighted an example of canonization as political instrumentalism, arguing that conservatives canonized Brown v. Board of Education. Beginning with William Rehnquist’s 1971 Supreme Court confirmation hearings, conservatives recognized that they could not participate in the constitutional conversation without affirming Brown’s validity. As a result, conservatives were able to get confirmed to the Court and control Brown’s interpretation. 
The House of Truth’s and Holmes’s mutual frustration with the Supreme Court led to his canonization. The House canonized him to launch a political attack on an antilabor Court. The Court had struck down state legislation under a liberty of contract theory and federal legislation based on a narrow conception of the Commerce Clause, legislation that would have furthered the House’s progressive aims of leveling the playing field between labor and management. Rather than use the Court as an engine for social or political change, the progressives at the House of Truth viewed the Court as an obstacle. Their electoral hopes of constitutional change had ended with Theodore Roosevelt’s failed 1912 presidential cam- paign. Canonizing Holmes replaced electing Roosevelt. With little hope in electoral politics or in finding five votes on the Court, the House of Truth’s progressives clung to his dissents in Lochner v. New York and other labor cases. The House’s canonization of Holmes exemplified nonjudicial consti- tutional change and an elitist version of popular constitutionalism. 
Holmes participated in his own canonization because his association with the House of Truth’s young progressives helped him achieve an elusive goal: immortality. At the age of 70, he was frustrated on the Court and considering retirement. Despite having authored groundbreaking legal scholarship with The Common Law and The Path of Law and having sat for nearly 20 years on the Supreme Judicial Court of Massachusetts (including several as chief justice), Holmes was a relatively obscure justice overshadowed by the reputation of his more famous physician–poet father. His “jobbist” philosophy, doing his job better than anyone else, had failed to win him widespread recognition. Although he never espoused their reformist ideas, Holmes liked his young friends and sought to please them with his opinions. He exemplified what political scientist Laurence Baum has described as “judges writing for discrete audiences.” The progressives at the House of Truth, in turn, helped Holmes eclipse the repu- tation of his father and cement his judicial legacy. ... After Holmes’s 70th birthday, he had found a specific audience in the House of Truth’s progressives, a group of experts who appreciated his esoteric language, colorful epigrams, and intellectual shorthand. He was now writing for an intelligentsia who appreciated his opinions most, who quoted them, wrote articles about them in the Harvard Law Review and New Republic, and made him more famous than his father. Writing for his discrete audience at the House of Truth helped Holmes achieve what he most wanted (and what Posner says judges maximize): prestige. Holmes was not motivated by money or mass popularity but by the desire for a lasting reputation among his elite peers. Or, as he put it, “the only reward that counts for much is when those whom he deems competent say that he has touched the superlative.” The recognition that he sought was not only among legal elites but also elites in American society. He was deeply moved when he received the Roosevelt Medal in 1925, stole the show during the national radio program celebrating his ninetieth birthday, and enjoyed Roosevelt’s visit to his home on his 92nd birthday. The House of Truth’s progressives provided Holmes with both types of elite recognition and even the mass publicity that he claimed not to need but still wanted. Holmes had found an intellectual cheering section that spread the gospel of his greatness. 
Holmes wrote most often for his audience at the House of Truth in dissent. His dissents resonated with them, consoled them in defeat, and gave them ammunition to build his reputation and to attack the Court’s doctrinal intransigence in labor and free speech cases. Fortunately for Holmes, he enjoyed writing dissents more than majority opinions. “One of the advantages of a dissent,” he wrote Laski, “is that one can say what one thinks without having to blunt the edges and cut off the corners to suit someone else.” Upon becoming chief justice, Taft agreed: “He has more interest in, and gives more attention to his dissents than he does to his opinions he writes for the Court, which are very short and not very helpful.” Holmes’s best-known opinions are his dissents not only because the House of Truth publicized them but also because his language and his epigrams could be as colorful as he wanted them to be. Holmes knew which dissents mattered to Croly, Frankfurter, Hand, Laski, Lippmann, the Harvard Law Review, and the New Republic. They let him know which cases they were interested in by writing to him in advance of oral argument or before they had read certain opinions. He sent them copies of those opinions. He basked in their praise. And, in the area of free speech, his interest grew when theirs did. It is possible that the House of Truth’s interest in labor and free speech cases may have affected his votes in those cases. It is even more likely that the House’s interest in those subjects may have caused Holmes to write a full-fledged dissent rather than join one of Brandeis’s or (as was common then) simply note his dissent at the bottom of the majority opinion. As much as the House’s progressives played on his ego and vanity, he played on their enthusiasm and mutual frustration with the Court. He knew they would outlive him and carry on his legacy. 
Fortunately for Holmes, he had several factors in favor of his canonization. First, he was fortunate to inherit an extraordinary set of genes that enabled him to live for nearly 25 years past his 70th birthday. His longevity gave his canonization a long incubation period. It allowed him to tackle many legal issues (economic regulation, labor relations, privacy, and free speech) with modern resonance and brought him to the attention of the young progressives who created and perpetuated the Holmes legend. 
If, like his best friend John Chipman Gray, he had died in 1915 of a heart attack, Holmes would have fallen short of his goal of escaping his father’s shadow and achieving his own lasting fame. He would be known today for The Common Law, The Path of Law, and his Lochner dissent - great achievements all - but he would not be known as one of twentieth century America’s greatest jurists. He would largely be considered a nineteenth-century jurist on par with the first Justice Harlan. 
Second, Holmes was savvy enough to recognize that he needed the progressives at the House of Truth as much they needed him. He cultivated and wrote for the approval of this discrete audience because he needed their approval to achieve what he had worked so hard and so long for: the elusive mystique and immortality that causes him to be the object of continued fascination by legal scholars and historians and to be quoted in high-profile Supreme Court opinions.

16 September 2012


France's Commission nationale de l’informatique et des libert├ęs (CNIL) - aka the French national Data Protection Authority - has released its glossy 82 page Activity Report for 2011.

Amid the almost kinetic promo in the report there are some interesting statistics and comments on preoccupations over the past year. CNIL identifies data breaches, the right to be forgotten, cctv  and abusive data collection as the focus of official and community attention in 2011.

 of 2011 and have remained dominant issues in 2012. 159 persons: the workforce of the CNIL notes that its staffing has doubled over the last seven years, to 159 officials. Further growth is expected because the organisation has been 'tasked' wioth supervision of street video-surveillance systems, ie cctv on highways and  streets, and because it is now overseeing the French data breach reporting regime (with mandatory reporting by the telecommunications sector since last year).

CNIL received 5,738 complaints (26%  filed online).  Complaints regarding the 'right to be forgotten'  increased by 42% on 2010, with complaints regarding cctv up by 30%.

The organisation undertook 385 public and private sector audits, 25% more than in 2010. The focus was on
  • security of health data (audits were conducted in health care establishments and health data providers)
  • debt collection agencies and private investigators
  • enterprises that transfer data outside of the European Union
  • enterprises handling consumer data, primarily e-commerce websites. 
The largest penalty was  100,000 euros (on Google for wireless data collection as part of its Street View initiative). There were 18 other decisions with sanctions, including 5 financial penalties (ie a lower rate than the Information Commissioner in the UK). CNIL Issues 65 formal 'notices to comply'.

Blowin in the wind

The UK Information Commissioner has announced imposition of a £250,000 Civil Monetary Penalty on Scottish Borders Council under the Data Protection Act. Pension records of the Council's former employees were found "in an over-filled paper recycle bank in a supermarket car park".

The Council had employed an outside company to digitise the records but "failed to seek appropriate guarantees on how the personal data would be kept secure". The Information Commissioner commented that
The Data Protection Act requires that, if you decide to use another organisation to process personal data for you, you remain legally responsible for the security of the data and for protecting the rights of the individuals whose data is being processed.
But Scottish Borders Council put no contract in place with the third party processor, sought no guarantees on the technical and organisational security protecting the records and did not make sufficient attempts to monitor how the data was being handled.
It is believed more than 600 files were deposited at the recycle bins, containing confidential information and, in a significant number of cases, salary and bank account details. The files were spotted by a member of the public who called police, prompting the recovery of 676 files. A further 172 files deposited on the same day but at a different paper recycling bank are thought to have been destroyed in the recycling process. 
The ICO Assistant Commissioner for Scotland stated
This is a classic case of an organisation taking its eye off the ball when it came to outsourcing. When the Council decided to contract out the digitising of these records, they handed large volumes of confidential information to an outside company without performing sufficient checks on how securely the information would be kept, and without even putting a contract in place.
It is only good fortune that these records were found by someone sensible enough to call the police. It is easy to imagine other circumstances where this information could have exposed people to identity fraud and possible financial loss through no fault of their own.


Fashionable UK 'third way' think tank Demos has released an 80 page report [PDF] on attitudes to information sharing.

The report argues that
Finding the right balance between guaranteeing the economic and social benefits of information sharing and ensuring consumer concerns are respected requires a sophisticated understanding of what people know and think about the subject. Knowing where the public stands, therefore, is vital to companies and policymakers, particularly in fields with a fast pace of change in technology and business models.
To help inform these decisions, O2 [ie a mobile phone company] commissioned the polling company Populus to conduct the largest ever survey looking into the public’s attitudes towards personal information. It is a representative sample of over 5,000 members of the public aged 18 and over, undertaken in March 2012. The results provide new insight into the public’s attitudes towards sharing information. 
Demos'  findings are underwhelming, a mixture of received wisdom, marketspeak, the trite and the obvious -
1 There is no single attitude to sharing personal information: the public has a very varied and diverse set of attitudes and behaviours
Members of the public fall into one of five categories each characterised by a distinct set of views about personal information:
  • ·Around 30 per cent of the population are ‘non-sharers’. They are knowledgeable about data protection, view much of their data as personal and take measures to protect it.
  • Around 22% of the population are ‘sceptics’. They do not have a single view about whether data are personal or impersonal – but they are sceptical about whether or not government and companies can be trusted. Unlike the non-sharers, they do not use online services much. They share data and information if the personal benefits of doing so are clear to them, but they want measures to give them simple, direct and regular control over their data. 
  • Around 20% of the population are ‘pragmatists’. They do not know all the details of how their data are used, but take small measures to protect their privacy. They prefer efficient services to complete privacy. 
  • Around 19% of the population are ‘value hunters’. They understand the value of their data, and the benefits of sharing it. They are not overly concerned about risks to personal information being shared – but want to get the most in return. 
  • Around 8% of the population are ‘enthusiastic sharers’. They categorise a lot of their information as impersonal, and subsequently are comfortable with sharing it. They are amenable to sharing more information in future, but are concerned about the ways in which those data could be misused.
These groups have often very different views about issues relating to privacy and personal information. Some general themes emerge, with variations across the different groups set out where significant.
2 The public does not have a clear understanding of how personal data or information is defined
What constitutes ‘personal’ information varies from person to person: there is no clear set of principles or ideas that marks certain types of information as personal or non-personal. However, in general terms, the public tends to consider information that might allow someone to be personally identifiable or details about their personal lives – such as phone numbers or how many children one has – as personal: 83% of the public consider health records as personal; 62% consider a landline number as personal. By contrast, the public tends to view information about behaviour – often generalisable or aggregatable – as less personal: 45% of the public believes that your current location is personal, and only 30% agree that information about the products and services you buy is personal. Different segments have highly diverse views, however: 73% of non-sharers felt that location details were personal,whereas just 12% enthusiastic sharers thought so. Similarly, only one per cent of enthusiastic sharers felt the films, books and music you like is personal information, compared with 42% of non-sharers.
3 The public is aware that personal information and behavioural data are used for commercial purposes, although understanding about what this means in practice is limited
The results suggest that knowledge about the general principles of data use is fairly widely known. For example, 85% are aware that online purchasing history data are collected and used, and 81% cent are aware of supermarket loyalty schemes. Knowledge about Gmail-based advertising is lowest, although over two-thirds (67%) of the public are aware of it. However, in the workshop, participants knew and understood less about the specific ways in which personal information is collected and used.
4 In general, the public sees only limited benefits of sharing personal information and behavioural data
When asked about the benefits to consumers of sharing personal information and behavioural data, members of the public are fairly negative. Only 41% could see the benefits of supermarket loyalty schemes, while only 19% could see the benefits of Gmail-content-based advertising, despite the fact that users can sign up to accounts for free. Similarly to all the other findings, these results mask significant differences across the segments: 71% of enthusiastic sharers compared with only 25% of nonsharers could see the benefits of online purchasing data being used to suggest future purchases.
5 People are sharing more than ever, but there is a ‘crisis of confidence’ in the way that personal information and behaviour data are being used
Populus asked respondents a series of questions about the extent to which they were comfortable with how personal information and behavioural data are being used. The highest level of comfort is for supermarket loyalty schemes: 27% of the public are comfortable with Tesco Clubcards, but only 10% are comfortable with Gmail scanning email content for the purposes of targeted advertising. Executive summary This is notwithstanding that significant numbers of people share information anyway, and expect to share more in future. Indeed, 85% of the public use store loyalty cards, despite these worries. Nearly one in two (48%) adults expect to be sharing more personal data with companies in ten years’ time (and 47% expect to do so with the government). Fewer people expect to be sharing less data with private companies (19%) and the government (15%) by 2022. The results are very similar to the range of data people expect to be sharing in a decade’s time.
6 Losing control of personal information is the most significant concern for the public
For example personal data being used without permission (80%) or being lost (76%). Scores for government data were roughly the same. Value hunters were markedly less concerned than other groups. Only 13% of this group were concerned about companies losing personal information, compared with 76% overall.
7 The public will welcome measures to give them more control over personal information and behavioural data, especially knowing what is held about them, and the ability to withdraw it if they wish.
The overall results suggest the public have some significant worries about the status quo. The public recognise that sharing personal information is important – and that there are some benefits – but there is a lot of discomfort and unease about the terms on which that is currently taking place. There was high demand for a variety of reassurance measures overall. Of particular value was the ‘ability to withdraw data’ (73%) and to ‘see what information is held on me’ (70%).
8 There is no single policy solution
Public views about personal information and behavioural data are highly varied. Unsurprisingly, therefore, measures to protect personal information did not command universal support. Educating people worked well for some groups, but not for others. No single solution works well for everyone.
On that basis the report offers several conclusions.
There is a crisis of confidence in information sharing: regulators and companies need to respond in a dynamic and flexible way that reflects the diversity of views held by the public.
Data and information sovereignty is the next big consumer issue. The Populus survey suggests that people share an increasing amount of information about themselves – and expect to share even more in the future. However, there is a crisis of confidence: the public is uncomfortable about the way personal information and behavioural data are collected by government and commercial companies. There is a danger that this loss of confidence will lead to people sharing less information and data, which would have detrimental results for individuals, companies and the economy.
The solution is to ensure individuals have more control over what, when and how they share information. Privacy is not easily defined. It is a negotiated concept that changes with technology and culture. It needs continually updating as circumstances and values change, which in turn requires democratic deliberation and a dialogue between the parties involved. Single, blanket solutions are not likely to work. Consumers are a highly diverse group, with very different attitudes towards information sharing, different types of concerns, and different degrees of willingness to share information. Some people want to share more than others, because they believe they will benefit from a ‘value exchange’ transaction. Others are happy to share a huge amount of information about themselves, irrespective of personal benefits.
As the demographics of internet use continue to expand, this diversity of opinions will also grow.
Regulators and businesses need to find a flexible, dynamic framework, which recognises the diversity of views on the issue, and consider how people can customise and negotiate their relationship with organisations, so that it is and feels mutually beneficial.
We believe that three key principles can help establish this approach to data sharing: offering informed choice, having meaningful options and elucidating the mutual benefit of doing so.