29 September 2012

Murk and Mitty

Posts in this blog over several years have noted incidents of 'stolen valour', ie people appropriating military honours and illicitly enjoying the respect due to those who have served under fire.

One example was Rex Crane, who received both esteem and substantial Commonwealth support. Michael Nicholson pretended to be a colonel and, using fake identity papers, gained entry to Randwick Barracks.  Reg Newton spun tales of derring do as a secret agent. Gordon Tisdell was recurrently but undeservedly featured in The Australian, the Sydney Morning Herald and even in the London Independent as a heroic Vietnam veteran.

Tisdell was quoted by AAP on Anzac Day 2010 (as a self-identified survivor of the Battle of Long Tan) as stating "You remember the times you had in the army and the mates you went away with. Some of them didn't come back". Later that year he was revealed to have not served in Vietnam – or indeed in any war. Rather than participating in fighting against the Vietcong, he spent his time on a dairy farm at Gloucester, New South Wales. I've commented elsewhere that dairy cows are fierce beasts, no doubt, but we can reasonably assume that they do not attack you with knives, grenades and other things that kill.

In his response to queries by SMH journalists Tisdell explained that -
I've never been a fraud in my life. I was just wearing my relatives' medals ... Defence came here today to see me. They said I'm not allowed to say anything. They brought the photographs out and showed them to me. They said not to say anything otherwise I get six months in jail.
There is now a large literature about people who have preyed on our good nature (or our howling credulity) in concocting ‘extreme memoirs’, including supposedly factual accounts of how they were victims of satanic rituals or other horrors, were fed by wolves or otherwise deserve our compassion and our dollars. An example of such identity exploitation is Norma Khouri, whose Forbidden Love: A Harrowing True Story of Love & Revenge in Jordan (New York: Random House 2002) recounts the author's life in Jordan, from which she fled after the honour killing of her closest friend. The book was an international best-seller, with Khouri touring the world after gaining temporary residence in Australia, appearing on network television in the US and in numerous interviews when not "in hiding" out of supposed fear for her life. Alas for the truth. Khouri was revealed to have a US passport (having lived in Chicago from 1973 until 2000 after leaving Jordan when she was three), a husband and two children (rather than being a virgin) and several US siblings.

In 2001 a panel of special masters from the California Commission on Judicial Performance(CJP) found that Judge Patrick Couwenberg of the Los Angeles County Superior Court "misrepresented his educational and military backgrounds to various sources, including the governor who appointed him". Couwenberg was charged with
(1) misrepresenting his educational background on his Personal Data Questionnaires when seeking judicial appointment; (2) falsely representing, in the course of seeking a judicial appointment in 1996, that he was a Vietnam veteran; (3) misrepresenting his educational background, legal experience and affiliations on his 1997 Judicial Data Questionnaire; (4) falsely representing to the judge who was to introduce him at the public enrobing ceremony that he was a Vietnam veteran who had received a Purple Heart; (5) falsely representing to attorneys that he went to Vietnam, had a master’s degree in psychology and had shrapnel in his groin received in military combat; (6) falsely telling a newspaper reporter that he was in Vietnam in 1968 and 1969; and (7) making false statements about his education and military experience in letters and in testimony to the commission during its investigation of his conduct. 
Couwenberg’s lawyers said that he deserved an opportunity to remain in office on the basis that his statements were not malicious but were "the product of a psychological impairment". The CJP found that Couwenberg lied to the commission in sworn testimony by claiming to have participated in covert operations with the CIA in Southeast Asia in 1967 and 1968. Couwenberg claimed that some of his misstatements were intended to be humorous and that others were typed onto official forms by his wife, based on statements he had made to her 20 years earlier

In the latest incident the Brisbane Times reports that the Hines twins - John and George - have been charged under the Defence Act 1903 (Cth) with falsely representing to be a returned soldier, sailor or airman and improper use of service decorations.

John Hines is reported as indicating that he will contest the charges, on the basis that he served in a specialist unit titled Military Assessment Surveillance Keep (MASK) in the 1960s. That unit was supposedly secret, advanced as the reason for why Hines does not appear in conventional Defence records about surveillance activity in Australia, Vietnam, Borneo, Mozambique, Cambodia, Nigeria and Thailand. Hines also claims to have spied on former prime minister Harold Holt. "I wasn't really comfortable with doing surveillance on the Prime Minister but those were my orders."

The brothers were reported to police after attending this year's Anzac Day parade in Brisbane in an unconventional uniform and medals.

Hines is reported as stating that it would be ridiculous for someone to make up his background.
I have nothing to hide ... to know about us you would have to be at a pretty high level," he said. "What sort of person would write a 1700 page manuscript over a couple of years, get uniforms made up, wear all these medals and go and stand out like a beacon at an Anzac Day parade purporting to be a regular Australian soldier? "I have never said and I have never written anywhere that I was part of the regular Australian army. MASK was backed by the Australian government, not the ADF, the UK government and the American government.
What sort of person indeed.
I'm a sensible type of person, I'm not a thief or a bloody axe murderer, I lead a normal life, I'm not a frustrated person, I've been a policeman I know the law, I'm not about to break the law and do something on such a grand scale and purport to be service man from the regular army.
The Times reports that
Hines said it took him so long to emerge with his story because he signed a "40 Year Secrecy Act" when he first joined MASK. 
There is of course no such Act in Australian law.

The ANZMI imposters watchdog site quotes Hines as stating that -
I had a Pension Hearing before the DVA where I produced an old rusty Battle Axe in a glass frame (which was MASK’s primary close quarter fighting weapon) with the words embossed into the metal ‘M.A.S.K. Special Forces – 1966’. It was a training axe. I spoke about MASK for quite a while, but the Female Chairperson hardly looked at me and the case was over before it started. 
Unofficially I have been told that I'm the highest decorated soldier in Australia - ever. CARO and MAS don't have anything past my CMF records and even some of them have been altered.


'Does the Right to Birth Registration Include a Right to a Birth Certificate?' by Paula Gerber, Andy Gargett & Melissa Castan in 29(4) Netherlands Quarterly of Human Rights (2011) 434-459 notes that -
International human rights law has long recognised the right of every child to have their birth registered. However, what is less clear is what this right encompasses. For example, does the normative content of the right to birth registration include a right to a birth certificate? This is a question that has become very relevant to Indigenous Australians many of whom are experiencing difficulties acquiring a birth certificate. This article argues that the right to birth registration, as set out in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, implicitly includes the right to a birth certificate. This conclusion is reached following an analysis of the work of the Human Rights Committee and the Committee on the Rights of the Child.
The authors conclude -
Both the HRC and the CRC Committee have indicated that the purpose of the right to birth registration is to ensure an individual can attain other human rights. in light of this, it is logical that the right to a birth certificate is a necessary component of the right to birth registration, because it is the certificate that is the essential evidence of birth registration, and therefore opens the gateway to the realisation of other rights. For this reason, the right to birth registration without a birth certificate is hollow, theoretical and illusory. 
This article has canvassed a significant array of authority that indicates that the HRC and CRC Committee both support this interpretation of the scope of the right to birth registration. implying a right to a birth certificate as part of the content of the right to birth registration is not just logical, but also principled. applying a teleological approach to interpretation would suggest that the right to a birth certificate is incorporated into the right to birth registration, in order to realise object and purpose of this norm. Furthermore, the extensive work of the CRC Committee and HRC, canvassed in this article, should inform the context and subsequent practice of the right, as it arguably amounts to subsequent interpretation. Nevertheless, there is a lack of explicit and unequivocal articulation of the legal justification for the inclusion of a right to a birth certificate as part of the right to birth registration. The sheer weight of authority suggests that the authors’ assertion that a right to a birth certificate forms part of the right to birth registration is a sound one. However, the CRC Committee should consider developing a thoroughly analysed General Comment that clearly articulates the precise content of the right to birth registration, as set out in article 7 of the CRC. Such an enunciation should expressly recognise that the right to a birth certificate is a necessary part of the right to birth registration. Some might argue that the ‘reading in’ of a right to a birth certificate is inconsistent with the text of article 24(2) of the ICCPR and article 7 of the CRC, however, such an interpretation would be theoretical and illusory, and inconsistent with a principled interpretation of the right. 
There is precedent for a treaty committee to use a General Comment as a vehicle to elaborate on the normative content of a right. For example, in 2002, the Committee on Economic, Social and Cultural Rights published General Comment 15 determined that a right to water should be read into article 11 (right to an adequate standard of living) and article 12 (right to the highest attainable standard of health) of the International Covenant on Economic, Social and Cultural Rights. In General Comment 15 the Committee set out a detailed legal justification for the conclusion that a right to water was ‘inextricably related’ to the right to adequate food, the highest attainable standard of health and the right to life.This is analogous to the inextricable relationship between birth registration and a birth certificate. a similar initiative by the CRC Committee would ensure that the right to birth registration expressly includes the right to a birth certificate. 
The express recognition of a right to a birth certificate in international law would assist in redressing the problems faced by many indigenous australians as highlighted above. Such recognition would affirm that in order to be consistent with international human rights law australia’s current birth registration systems should be altered to ensure there is ready access to a birth certificate. international human rights law provides governments with the normative standards to which they must adhere. The australian state and territory governments are more likely to re-structure their birth registration systems if it can clearly be demonstrated that their current practices do not comply with international human rights norms. Furthermore, it will help the Registrars of Births, deaths and marriages to see their work as impacting on fundamental human rights, rather than being a mere administrative process. Finally, for those indigenous australians who have been unable to obtain a birth certificate, the express recognition of a right to a birth certificate, as part of the right to birth registration, empowers them to pursue remedies for breaches of their human rights. Such action may ultimately culminate in them being able to obtain a birth certificate and all the benefits and entitlements that flow from having such a document.

Show and Tell

'The academic online: Constructing persona through the World Wide Web' by Kim Barbour and David Marshall in 17(9) First Monday (2012) argues that an online persona is essential for academics.
This paper explores the way individuals are part of the prestige economy generated by universities as institutions. It explores how the construction of online identities or persona is now an essential activity for the academic both from the perspective of university value and individual/career value. Five distinct types of academic persona are explored primarily through academics working in digital communication areas; through these cases and examples this new communication environment is explored. This paper concludes that institutions and individuals need to develop in the most pragmatic sense, online academic persona and ensure that these online ‘selfs’ are connected with authenticity to the professional work of the academic.
Five distinct types of academic persona in "the creation of authentic, intentional, constructed personas that extend the boundaries of an academic’s individual influence beyond institutional boundaries, and allows them to work more effectively in the radically changed worldwide academic environment"?

They are -
  • The formal self — The static self
  • The public self — The networked self
  • The comprehensive self
  • The teaching self
  • The uncontainable self
One colleague, underwhelmed with that bizspeak taxonomy, asked "what about the blase elf?".

The authors conclude -
There is little question that the landscape for the contemporary academic has shifted in a virtual way. As we have outlined here, the nature of academic life has become in many ways surrounded by online and mobile media culture as much as there continues to be patterns of engagement and activity that resemble previous eras of scholarship. These transformations in the way that academics conduct themselves could be seen invasively as a threat to the structures of institutions surrounding a given individual. There is an invasion from below with students increasingly structuring their study and personal lives through digital technologies. In other words, the classroom has altered, the lecture theatre has a different disturbing electronic cacophony, and the ‘conversation’ between academic and student has mutated into various online and off–line forms. Implied in this invasion are new communication technologies that have become more prevalent. Web sites, social networks, online videos, and the invigorated capacity in student life to make links and connections between various sources of information accelerate changes in communication ecology. This movement of information to knowledge is critical to both the student and academic experience. 
As we have indicated in this paper, the academic is negotiating a new intercommunicative environment and must navigate these spaces. It is precisely this communication terrain that now occupies center stage in the movement of ideas and information. This process is not solely student driven. The academy itself has moved online as well with online journals, virtual conferences, YouTube submissions, and collective peer assessment techniques analyzing academic work. Moreover, university Web sites are advancing in their sophistication and links to other forms of interactivity and structures of social networks. These changes are redefining institutional identities and the manner in which individuals construct their identities within higher education. In effect, higher education communication is increasingly being reorganized through patterns of online personal identity construction, publicity and dissemination. 
We see these changes in the movement of ideas as less invasive and more as an opportunity to present and build academic personae individually and institutionally. Although there are other forms of power operating within and between universities, at the core of higher education is a very elaborate prestige economy. Academic personas are the linchpin in this system of prestige that often have clear multiplier effects for departments, colleges and universities. We have mapped in this paper an array of possible academic personas that are already in play in the online world and demonstrate ways in which reputation and ideas are conveyed. We have linked this development of persona to other systems of presentation of the self that are now ubiquitous in contemporary culture. The presentational media forms of social network sites, such as Facebook, have become the models for micro–social networks such as Academia.edu that are involved in shaping the presentation of the academic. 
Our characterization of five types of online academic personas provides a path for understanding how these new constructions of professional academic identity can be both charted and conceived as exemplary for other academics to imagine their online selves. Critical to this imagination of an online professional self is to realize that there is not one technique or pathway. The academic persona, like other online persona, also has to connect authentically to an individual’s professional work. It is not hype or spin, but more an elaboration of what one is conceptualizing or thinking about, developing, and achieved. In the micro–publics of academia, the online persona will resemble other peer reviewed systems of knowledge production and be primarily judged on its merits.
'Law Faculty Blogs and Disruptive Innovation' (University of Denver Legal Studies Research Paper No. 12-27) by J. Robert Brown Jr. hails the blawg, commenting that
The role of blogging in legal academia has been much debated. Some view the discipline as the antithesis of scholarship, a medium that allows faculty to broadcast ignorant or confused opinions. Others have viewed blogging by law faculty more favorably, focusing on the approach as a means of promoting traditional scholarship. 
While the debate has been ongoing, the matter has largely been resolved by actual practice. In the realm of legal scholarship, faculty law blogs are a disruptive innovation. Disruptive innovation usually connotes the introduction of a new technology that eventually destabilizes an existing market. Often, the technology, when introduced, is inferior and not perceived as a threat. Over time, however, the technology improves and migrates from a market niche and becomes the reigning standard. 
Law faculty blogs arose in a state of nature and were often perceived as inferior technology used by faculty to convey random, often personal, views. Over time, however, a recognized class of law faculty blogs emerged, with at least one having been cited 45 times in court opinions and another having been cited by over 700 times in assorted legal publications. Widely read and regularly cited, they offered a superior method for the rapid dissemination of some types of legal analysis and facilitate the introduction of ideas into an ongoing debate. They also provide a form of intermediation that discourages low quality posts. Law faculty blogs provide a form of scholarship that fills a gap left by traditional law reviews. 
Law faculty blogs overcome the slow publication process and dense analysis that often prevents traditional law review articles from playing a role in an ongoing debate. Said another way, law faculty blogs have altered the continuum of legal scholarship and reduced the role of traditional law reviews. Efforts by law reviews to fight back through the implementation of online supplements has so far failed. 
Law faculty blogs have also had a disruptive impact on the determination of faculty reputation. Blogging allows law professors to route around the traditional indicia of reputation such as the frequency of publication in elite law journals. Providing a “prominence” dividend, faculty who blog are able to advertise their expertise through substantive posts and become better known to practitioners, academics and decision makers. This type of reputational benefit can be seen from the correlation between sustained blogging and SSRN downloads. 
Blogging can also disrupt law school rankings. With reputation the single largest component in the rankings, law blogging can be used by some law schools to increase name recognition in a cost effective manner. In other cases, blogging can increase awareness of a law school’s faculty, elevating the overall reputation of the institution. Both can improve a law school’s relative rank.


'Facebook's Afterlife' by Jason Mazzone in 90(5) North Carolina Law Review (2012) 1643-1685 comments
 People spend an increasing part of their lives using Facebook and other online social networking sites. However, virtually no law regulates what happens to a person’s online existence after his or her death. This is true even though individuals have privacy interests in materials they post to social networking sites; such sites are repositories of intellectual property, as well as materials important to family members and friends; and historians of the future will depend upon digital archives to reconstruct the past. In the absence of legal regulation, social networking sites determine on their own what, if anything, to do with a deceased user’s account and the materials the user posted to the site. Yet allowing social networking sites to set their own policies with respect to decedents’ accounts does not adequately protect the individual and collective interests at stake. The law, particularly federal law, can and should play a stronger role in regulating social networking sites and in determining the contours of our digital afterlives. 
More than one billion people currently use social networking sites. They will all die. As people spend an increasing part of their lives in online communities, what happens to a person’s online existence after his or her death is of increased importance. For one thing, individuals have privacy interests in materials they post to social networking sites. For another, such sites are the repositories of photographs and other intellectual property. In addition, a social networking site may hold materials important to family members and friends of the deceased. Further, when we post to Facebook instead of writing diaries and letters, historians of the future will depend upon digital archives to reconstruct the past. 
There is virtually no law that determines how a decedent’s account at a social networking site is to be handled. In the absence of any governing legal rules, social networking sites are in the midst of figuring out on their own what, if anything, to do with a deceased user’s account and materials the user posted to the site. With more than 800 million users, Facebook is the largest of the social networking sites. Since it launched in early 2004, Facebook has taken different approaches to handling the accounts of deceased users. Currently, Facebook “memorializes” a deceased user’s Facebook page. This allows confirmed friends of the decedent to post comments to the page, with the idea that the page will serve as a tribute site to the decedent. Memorialization, however, deactivates access to other materials, notably those posted by the account holder during his or her life and previously accessible to the decedent’sfriends. Facebook users have registered a variety of complaints about the company’s handling of deceased users’ accounts. For example, some users would like to be able to determine in advance what will happen to their own Facebook pages when they die. Friends and family members of deceased Facebook users have complained that memorialization removes too much content from the decedent’s page and expressed the desire to have continued access to everything the deceased user posted during life. On the other hand, memorialization has also been criticized for providing a forum for commentary that lingers in cyberspace and remains associated with the deceased user’s name. 
Drawing particularly upon the experience with Facebook’s treatment of deceased users’ accounts, this Article examines whether and how the law should play a greater role in regulating our digital afterlives. Part I provides an overview of social networking sites and identifies the individual and collective interests that these sites implicate. Part II examines Facebook’s approach to deceased users’ accounts. It also discusses briefly the policies of other social networking sites, as well as those of other types of online services. Part II then turns to reactions among users to Facebook’s policy and some of the difficulties that the policy has created. Part III discusses the small number of laws that govern the disposition of a deceased user’s social networking account and identifies their shortcomings. Part IV offers some proposals for regulating a deceased user’s account, shows how these proposals could be implemented, and discusses their benefits.


'The Sidis Case and the origins of modern privacy law' by Samantha Barbas in Columbia Journal of Law & the Arts (forthcoming) notes that
In the years before World War I, William James Sidis was widely regarded as the most impressive child prodigy the world had ever seen. Sidis attended Harvard at age, ten spoke several languages, and was a mathematical genius. Between 1910 and 1920, he was an international celebrity, publicized in media around the world and renowned for his intellectual feats. Headlines pronounced him a “boy wonder.” 
Yet as an adult, Sidis’s life took a different turn. He neglected his mathematical talents and entirely retreated from public life. By the age of twenty, Sidis had become a recluse.  At 39, he was an adding-machine operator living alone in a shabby Boston rooming house. Sidis was awkward and unkempt. He devoted his free time to collecting streetcar transfers and trivia about an obscure Native American tribe. The New Yorker tracked him down in his apartment, interviewed him, and wrote a story about his “prodigious failure” in the magazine in 1937. The piece described his personal eccentricities in vivid detail. Humiliated and outraged, Sidis sued under the tort of invasion of privacy by public disclosure of private facts - the original Warren and Brandeis conception of the “right to privacy,” which permits damages to be awarded for the dignitary harms caused by the publication of true but embarrassing private information. Sidis lost; according to the Court, he had no right to conceal his private life from a public that was curious about him. “Regrettably or not,” wrote the Second Circuit Court of Appeals in a groundbreaking opinion that celebrated freedom of the press over privacy, “the misfortunes and frailties of neighbors and ‘public figures’” were subjects of interest to the public, “[a]nd when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.” 
The American press, it has been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure, is very weak. The media in the U.S. have a degree of latitude to report on intimate matters, without the threat of legal liability, that would be unimaginable in many other countries. In England, model Naomi Campbell won damages against a magazine when it published the details of her treatment for drug addiction. Princess Caroline of Monaco obtained a judgment from the European Court of Human Rights preventing the German press from publishing paparazzi photos of her. In the U.S., by contrast, public figures have been held to have almost no legal right to privacy. Courts have considered almost anything that takes place in a public place, or that could be said to shed light on an issue of public curiosity or significance, to be exempt from liability for invasion of privacy. The personal details and photographs of a rape victim, images of the extrication of a woman from a crashed car and a photograph of a soccer player with his genitalia exposed are among the intimacies that have been held to be newsworthy “matters of public interest” and thus nonactionable under privacy law. The failure of American law to protect personal life from unwanted publicity has been poorly explained. The standard reason given for the weakness of American privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But freedom of the press alone cannot explain why the right to publish has been interpreted as a right to print truly intimate matters or the right to thrust people into the spotlight against their will. Especially during a time of heightened concerns with privacy and Internet overexposure, we need a better explanation as to why the law has struck the balance between media exposure and privacy in the way that it has. One answer, this Article argues, can be found in the case of William James Sidis. 
The 1940 case Sidis v. F.R. Publishing, one of the best-known privacy cases in U.S. history, represents a foundational moment in the development of American privacy law. Sidis established the normative and doctrinal bases for the tort law of privacy as it currently exists. Sidis was the first case since the origin of the privacy tort in the 1890s to address the conflict between the right to privacy and freedom of the press and to come out on the side of free expression. In a conclusion that became the guiding principle of modern privacy doctrine, the Second Circuit held that the loss of Sidis’s privacy was an inevitable sacrifice to be made for The New Yorker’s right to publish freely and the public’s “right to know”—its right to access a broad range of information, a domain of knowledge nearly as expansive as its curiosities. In an insight that is now unexceptional but that was forward-looking at the time, the Sidis Court suggested that the ability to obtain facts of all kinds through the mass media, from serious news to even gossip and trivia, is the right and prerogative of a democratic people. 
The Sidis case represented a bridge between earlier, nineteenth century views and modern, twentieth century perspectives on the legitimacy and constitutionality of legal restrictions on publishing private information. The Court’s subordination of Sidis’s privacy to freedom of the press revealed the influence of a nascent civil libertarian First Amendment jurisprudence in the 1930s and 1940s, as well as an emerging social philosophy in that era- now common to the discourse on democracy and mass communications - that access to the “news,” broadly defined, is a prerequisite to social and political participation in a democratic society. In its suggestion that the public’s right to learn about the private life of the former genius was more valuable than his right to be let alone, and in its celebration of the free flow of facts, no matter how trivial or banal, the Second Circuit articulated what have, over time, become the ground rules for the modern information society. 
The story of the Sidis case has something to tell us not only about the development of privacy law but also about the culture of privacy, the public attitudes and sensibilities that have framed and shaped the law of privacy. It has often been said that Americans - exhibitionists to the core - do not really want privacy and are indifferent about having their secrets revealed. We are voyeurs who are happy to peer into others’ personal lives and care little about the privacy rights of others. The public reaction to the Sidis decision belies this conclusion. Despite enthusiasm for the kind of gossip and human interest journalism purveyed by The New Yorker, the outcome in Sidis was attacked by the public. Critics argued that The New Yorker and the courts had deprived Sidis of core personal rights - his right to control his public identity, his right to seek anonymity and his right to be forgotten. The public response to Sidis thus illustrates not so much public distaste for privacy, but rather confusion and tension - we want our gossip and our privacy too.


A 2010 report on Australian legal education …

'The Role of Practice in Legal Education: National Report for Australia' (Sydney Law School Research Paper No. 12/28) by James Douglas, Luke Nottage & M. Charles Tellier
highlights significant practice-oriented dimensions to legal education in Australia. Partly this arises because the traditional “gatekeeper” for entry into the legal profession has been the legal profession itself. Australian universities have played a growing gatekeeper role since the 1960s: basically, all lawyers must have completed an initial (LLB or JD) law degree. But the legal profession maintains significant control by requiring law degrees to include the “Priestley 11” compulsory courses. 
Australia also has growing affinities with a model centred on a third possible gatekeeper: the market (for law graduates). The US epitomizes this model because basically anyone can pass even the hardest state bar examination – but if only after multiple attempts or with poor results, that person will not beable to compete in the market and get a good job as a lawyer (especially if also a graduate from a less well-regarded law school or with poor university grades). Australia is similar because the proliferation of law schools particularly since the late 1980s. Australia also shows some influence from a model centred on a fourth gatekeeper: the state. This arises because the government funds universities, especially through limited numbers of Commonwealth Supported Places (CSP) for many students undertaking LLB or JD degrees – whereby students pay lower fees to the law schools, and the government pays them a subsidy per student. Yet full fee paying students are growing, and the situation remains very different from countries like Germany or Japan, where the state sets a national legal examination. 
Overall, the legacy of involvement from the legal profession and growing influence from market forces means that Australian law schools retain a strong emphasis on practice-oriented legal education. However, they are also increasingly integrated in wider academic communities, nationally and internationally, and the government also has interests in law students graduating with a broader perspective in order to pursue a growing range of careers. The net effect since the 1970s, as suggested in this paper, has been for law school education to more interdisciplinary and theoretical – although less so, for example, compared to the top U.S. law schools. Whether this balance is optimal or sustainable is difficult to assess, as this paper shows.


'Trademarks as Keywords: Much Ado About Something?' (Illinois Program in Law, Behavior and Social Science Paper No. LE12-15) by David Franklyn & David Hyman comments -
 Disgruntled trademark owners have filed more than one hundred lawsuits in the United States and Europe, claiming that their trademarks should not be sold by search engines for use as keywords. Despite the volume of litigation, there has been little independent empirical work on consumer goals and expectations when they use trademarks as search terms; on whether consumers are actually confused by search results; and on which entities are buying trademarks as keywords. Instead, judges have relied heavily on their own intuitions, based on little more than armchair empiricism, to resolve such matters.
We report on the results of a two-part study, including three online consumer surveys, and a coding study of the results when 2,500 trademarks were run through three search engines. Consumer goals and expectations turn out to be quite heterogeneous: a majority of consumers use brand names to search primarily for the branded goods, but most consumers are open to purchasing competing products. We find little evidence of consumer confusion regarding the source of goods, but only a small minority of consumers correctly and consistently distinguished paid ads from unpaid search results.
We also find that the aggregate risk of consumer confusion is low, because most of the ads triggered by the use of trademarks as keywords are for authorized sellers or the trademark owners themselves. However, a sizeable percentage of survey respondents thought it was unfair and inappropriate for one company to purchase another company’s trademark as a keyword, independent of confusion as to source. Although we do find some evidence of confusion, the types of confusion we document do not map neatly onto the categories recognized by U.S. trademark law. Our findings suggest that the development of the doctrine in this area has not been well served by the reliance of judges on casual empiricism in resolving these disputes. Much remains to be done to ensure that trademark doctrine “fits” the on-line context, and that it is applied in ways that are empirically grounded.

28 September 2012


'Patenting Nature: A Problem of History' by Christopher Beauchamp in 16 Stanford Technology Law Review (2013) comments that
The practice of patenting genetic material is currently under sharp attack. Recent litigation has forced the courts to grapple with the doctrinal basis for patenting DNA sequences identical to those found in nature. Faced with conflicting authorities and difficult policy questions, courts have leaned heavily on history to guide — or at least to justify — their decisions. 
This article explores the history in question. It traces the patent law’s changing treatment of “products of nature” in an attempt to untangle the origins of present-day patentability arguments. The evidence suggests that the historical foundations of the bar on patenting products of nature are surprisingly shaky. The article also reveals how isolated biological materials first came to be patented. This task, I argue, requires looking not only to court decisions, but also to the history of patent practice. My principal vehicle for doing so is the case of Parke-Davis & Co. v. H. K. Mulford Co, a century-old decision by Judge Learned Hand, which now stands as a central (and much disputed) precedent for the patenting of DNA sequences. Parke-Davis arose at a key moment in the sociology of intellectual property, when the American pharmaceutical industry first learned to embrace the power of patents. 
The article shows how Parke-Davis came to prominence in half-understood form during the biotechnology era, and how the decision’s original rationale suddenly seems poised to control the Federal Circuit’s latest thinking on gene patentability.
Beauchamp concludes -
Anyone looking for a historical “right” answer on the product-of-nature question will be disappointed. For all the spirited attempts to impose consistency on the case law of natural subject matter, it remains a kaleidoscope of doctrine: cases come at the question from different angles, in different historical contexts, with premises ranging from pragmatic to formalist and from patent-friendly to fiercely patent-skeptical. The same applies to the history of patent practice. Based on the evidence gathered above, we can say that patents for isolated (and/or barely modified) products of nature have been issued at some times, disdained at others, and have in some instances, such as the hormone patents of the 1930s, issued from the Patent Office even as the judicial climate turned against them. 
Even so, there are a few lessons we can draw from the history. Two stand out. One is that the historical foundations of the bar on patenting products of nature are surprisingly shaky. The prohibition on patenting laws of nature represented a separate set of concerns about scope and abstract claiming, which failed to supply either clear authority or a clear nature/application-of-nature guiding line for product patentees. Meanwhile, before the twentieth century, there was no jurisprudential category of “natural” products, only a set of rules about novelty and distinctiveness from the prior art that applied across technologies, without regard to natural origin. The purported great exception, Ex parte Latimer, was surprisingly marginal: unknown to the courts, it may have presented occasional claim-drafting challenges for patentees such as Takamine, but did not effectively block the patenting of broadly natural subject-matter, either in its own time or later. Only in the 1920s did a clutch of stronger product-of-nature statements emerge from the federal circuit courts, staking out categorical language against patenting products of nature, but giving no indication that they had a precedential basis to rest on. By that time, of course, the law had opened up a space for patenting isolated natural substances. Again, this development emerged without a natural/non-natural distinction being made; instead, the doctrine of “useful difference” arose in the chemical sector, was duly applied by Learned Hand in the Parke-Davis case, and proved to be a legal gateway for isolated biological compounds that could demonstrate sufficient practical usefulness to constitute patentable difference over the prior art. As a historical matter, the traditional understanding of the doctrine is backwards: rather than appearing as an “isolation and purification exception to the ban on patenting products of nature,” the isolation-and- purification patents came first, and the case law against patenting natural products arrived only later. 
Time will tell if the useful difference test becomes the framework for DNA patenting in the future. As I have suggested, the idea that great enough new utility can convey sufficient novelty on an isolated natural product is not a major feature of the two cases (Funk and Chakrabarty) allegedly guiding the Federal Circuit’s Myriad opinions. Reading those cases that way, as Judges Moore and Bryson arguably do, depends on imbuing them with the spirit of Judge Hand’s Parke-Davis ruling. This approach allows for a highly pragmatic rule of patentability, focused on rewarding valuable inventions if the circumstances warrant, and deployable (as Judge Moore’s opinion shows) to avoid the disruption and recrimination that would accompany mass invalidation of isolated DNA patents. Such pragmatism would be much in the tradition of Learned Hand. Whether it is the best course or not, the courts will have to decide. 
Finally, the history tells a story about how patent law and its wider context change each other. Formal legal doctrine aside, the events of the adrenalin battle left their mark on the medical and scientific world in which they arose. Patenting in the life sciences became an un-ignorable fact of life in the twentieth century, and—whatever the outcome of Myriad—will continue to be in the twenty-first. From where we stand now, it is striking to look back to the point when the American pharmaceutical industry and the medical profession turned away from patent-skepticism and embraced the propriety of patent rights. Standing at the threshold of these events, the Parke-Davis story reminds us that an intellectual property culture is not inevitable, but develops piece by piece. Learned Hand’s decision a century ago was another brick in the wall.


The Office of the Privacy Commissioner in New Zealand has released Case Note 235915 [2012] NZ PrivCmr 5 regarding a hospital employee's disclosure of personal health information to a mutual friend.

The woman whose information was disclosed was undergoing treatment at her local hospital for a serious illness. Her doctor dictated a file note about that illness and the proposed treatment. The note was transcribed by a hospital employee, who had been a close friend of the woman and was able to identify her from the dictation. The OPC case note provides no indication of the size of the hospital and local community, relevant because in a small hospital serving a small community 'everyone does or is likely to know one another'

 The hospital employee subsequently disclosed information to a mutual friend. That friend contacted the woman to express concern about her ill-health.

The woman had not inform anyone apart from the health practitioner that she was ill and "was very upset that health information about her had been disclosed". The Privacy Commissioner noted that
Rule 11 of the Health Information Privacy Code 2004 prohibits a health agency from disclosing health information about an individual unless one of the specified exceptions applies. 
We did not consider that any of the exceptions were relevant and the hospital agreed. It accepted that its employee had breached rule 11, and caused emotional harm to the woman.
The woman and the hospital agreed to settle this complaint. The hospital provided an apology to the woman for the stress that had been caused to her, and also paid her some financial compensation. 
We closed our file on the basis that it had been settled.
There is no indication of the size of the compensation or of action by the hospital and its peers to prevent a recurrence of the problem.

'Protecting Patient Privacy in the Age of Big Data' by Nicolas Terry argues that
The next Administration will determine the future of privacy protection in the U.S. At first sight, much the same could have been said of all the administrations of the last five or six decades. In each case, the incoming president could have stepped up to the plate and made privacy a legislative or regulatory priority issue. Yet, none did (although a nod is due to the Clinton administration for its HIPAA rules). This time, however, the stakes are different. Failure to act during this Administration will send an almost irrefutable signal to the data collection and aggregation industries that “big data” will not be stopped or even slowed. As explained below “big data” refers to a revolution indata collection and processing that dramatically increases the privacy risks imposed on data subjects. 
This essay takes the position that, beyond its generalized threat to privacy, big data poses an exceptional group of problems for health care, its providers, researchers, and patients. Rightly or wrongly, policymakers have agreed that patient information is deserving of elevated protection compared to other data (so-­called health privacy exceptionalism). Yet, at the same time, the last two Administrations, one Republican and one Democrat, have promoted the dramatic growth of electronic medical records (EMR) with the specific aim of increasing the collection of clinical data and its broad sharing. As recently noted by the Institute of Medicine (IoM), “the U.S. health care system now is characterized by more to do, more to know, and more to manage than at any time in history.” Technology, not surprisingly, is viewed as holding the solution because “[a]dvances have made vast computational power affordable and widely available, while improvements in connectivity have allowed information to be accessible in real time virtually anywhere” affording “the potential to improve health care by increasing the reach of research knowledge, providing access to clinical records when and where needed, and assisting patients and providers in managing chronic diseases.” 
But, while policymakers are staking health care progress on big data, they seem less concerned about existential threats to the privacy of health information. The ramifications of big data are manifold. Perhaps two examples will serve to explain the thrust of this essay. First, our "medical selves" exist outside of the traditional (and HIPAA/HITECH-regulated) health domain, creating exploitable confusion as health information moves in and out of protected spaces.Second, big data positions data aggregators and miners to perform an end-­‐run around health care’s domain-­specific protections by creating medical profiles of individuals in HIPAA-­free space. After all, what is the value of HIPAA/HITECH sector-­specific protection designed to keep unauthorized data aggregators out of our medical records if big data mining allows the creation of surrogate profiles of our medical selves? 
Fortunately health information technologies (HIT) and patient privacy share a long history of bipartisan support and the next Administration will need to leverage that tradition to protect patients and their sensitive information in the face of growing data aggregation and sophisticated data mining. This battle has to be fought on three fronts. First, while HIPAA/HITECH provides increasingly robust protections against unauthorized uses of health information by a relatively narrow set of traditional health care provider data stewards, it does almost nothing to regulate the collection of health data. This is because the HIPAA Privacy Rule is a misnomer. It is not a privacy rule because it only protects against data disclosure not against data collection. It is therefore more appropriately described as a confidentiality rule. In the world of big data this is like bringing the proverbial knife to a gunfight. As a result it is time that the federal government put real limits on the collection and processing of personal information. 
Second, the U.S. has adopted a sector-­‐based approach to data protection. HIPAA, as amended by HITECH, and the “privacy” and security regulations made thereunder apply only to a narrowly constructed version of the vertical health care market. Such sector-­based approaches to regulation are frequently flawed because of poor calibration. Such is the case with health information. The health care sector and its stakeholders constitute an area considerably larger than the HIPAA-­regulated zone. As a result some health information circulates in what may be termed a HIPAA-­free zone. Further, the very concept of health sector specific regulation is flawed because health related or medically inflected data frequently circulates outside of the traditionally recognized health care sector. In both situations agreed upon health privacy exceptionalism is jeopardized.
Third, the IoM is correct that there is great value in patient information that could be extracted and used by responsible medical and public health researchers. Responsible public policy suggests that researchers should be able to request that information from patients. Many or most of the existing HIPAA and HITECH security and confidentiality protections will apply here. But neither current policy nor regulation supply the key component: a coherent choice architecture for dealing with appropriate patient decision-making regarding research use of personal or familial health data.
In suggesting legislative amelioration of these three issues this essay does not propose an exhaustive overhaul of HIPAA/HITECH. Rather, it suggests an incremental and additive approach. This includes adopting aspects of two privacy proposals recently published by the White House and the Federal Trade Commission (FTC).

25 September 2012


There are times when the literati can be just a touch too emo.

In the US fashionable neoluddite Kirkpatrick Sale and associates such as James Starkey and Charles Keil offer The Montpelier Manifesto
We, citizens of this American land, haunted by the nihilism of separation, meaninglessness, and powerlessness, subsumed by political elites who use corporate, state, and military power to manipulate our lives, pawns of a global system of dominance and deceit in which transnational megacompanies and big government control us through money, markets, and media, sapping our political will, civil liberties, collective memory, traditional cultures, sustainability, and independence, and as victims of affluenza, technomania, cybermania, globalism, and imperialism, do issue and proclaim this Document of Grievances and Abuses.
Boo yah, as one of my students says.

They go on to complain about -
  • A government too big, too centralized, too undemocratic, too unjust, too powerful, too intrusive, and too unresponsive to the needs of individual citizens and small communities 
  • One that is too big and corrupt to be fixed or reformed, certainly not by such fantasies as campaign finance reform or corporate-personhood amendments. 
  • One that has lost its moral authority, is corrupt to the core, and is owned, operated and controlled by Wall Street, Corporate America, and their political lackeys. 
  • One run by a single brain-dead national political party on life-support systems, sustained by national and Congressional elections that are sold to the highest bidder, disguised as a genuine two-party system. 
  • One that relies on and fosters the illusion that only the U.S. government can solve all or our problems all of the time, in the face of the fact that it is the U.S. government that is the problem. ...
But wait, as they say, there's more -
  • An economic system absolutely dependent for survival on consumption and affluenza (the illusion that the accumulation of more stuff, provided by big-box stores fostered by government globalization policies, can provide meaning to life), despite the knowledge that unrestrained growth in a world of finite resources is unsustainable and unworthy of pursuit. ...
  • Corporate-owned, government-subsidized agriculture with its use of toxic pesticides and fertilizers, anti-biotics, genetically-engineered seeds, systematic animal cruelty, and virtual absence of food safety regulations creating a menace to public health, the environment, and small farmers. 
  • An immoral, often clandestine and illegal, imperial system based on full-spectrum dominance, military overstretch, might-makes-right, and the proposition that the world wants to be just like us, leading us to provide support to dictators and authoritarian regimes in the Middle East, North Africa, and elsewhere in the world ...
The solution?
“Whenever any form of government becomes destructive … it is the right of the people to alter or to abolish it, and to institute new government … as to them shall seem most likely to effect their safety and happiness,” says the Declaration of Independence. Alteration and abolishment include the right to disband, or subdivide, or withdraw, or create a new government. 
Let us therefore consider ways peaceably to withdraw from the American Empire by (1) regaining control of our lives from big government, big business, big cities, big schools, and big computer networks; (2) relearning how to take care of ourselves by decentralizing, downsizing, localizing, demilitarizing, simplifying, and humanizing our lives; and (3) providing democratic and human-scale self-government at those local and regional levels most likely to effect our safety and happiness. 
Citizens, lend your name to this manifesto and join in the honorable task of rejecting the immoral, corrupt, decaying, dying, failing American Empire and seeking its rapid and peaceful dissolution before it takes us all down with it.
Bring on the crispy squirrels, deep-fried acorns and other free-range organic treats!

Taking a more optimistic view, 'Yes, Vinton, There is a Human Right to the Internet' by Kay Mathiesen notes that
A recent United Nations report asserts that states have an obligation “to make the Internet widely available, accessible and affordable to all….” I defend this claim against critics, such as Vinton Cerf (one of the founders of the Internet) who has argued that “technology is an enabler of rights, not a right itself.” 
I argue that the right to the Internet derives from the right to communicate. Using James Nickel’s account of relations of support between rights, I show that the right to communicate provides essential support for all other human rights. I argue that, given this linchpin role of the right to communicate and the increasing importance of the Internet as a means of communication, states have both a negative duty to refrain from restricting citizens’ freedom to communicate on-line and a positive duty to see to it that citizens have access to Internet technology.


'Reconsidering the Right to Own Property' by Rhoda Howard-Hassmann considers "whether a there should be a separate international Covenant to elaborate on the human right to own property, which has languished since its inclusion in the 1948 Universal Declaration of Human Rights (UDHR)".

Howard-Hassmann indicates [PDF] that
Focusing on two contemporary cases; namely, the situation of semi-starvation faced by many citizens of Zimbabwe and the shortage of food in Venezuela, I argue that a human right to own property protects the economic human rights to adequate food and freedom from hunger, found in the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 11, 1 and 2. The right to own property is also key to the economic development necessary to ensure that human beings can supply themselves with food and otherwise support themselves. As such, it is a strategic human right, a right that protects other rights. I also argue that the right to own property is an intrinsic human right, valuable in itself as a component of human dignity. The paper ends with a brief proposal for an elaborated Covenant on the human right to own property.
She concludes with suggestions for a Draft Convention on the Right to Own Property
If the arguments considered above are convincing, then perhaps it is time to consider an elaborated human right to own property and to draft a Convention on such ownership. Such a Convention would have to take considerable care to protect those now considered not to own property, in the sense that they do not possess formal property titles. It would also have to take considerable care to protect vulnerable groups or collectivities. The Convention could include, as a start, the following principles.
  • Everyone has the human right to own property; 
  • Collectivities as well as individuals have the human right to own property; 
  • Everyone has the right to seek and acquire property without discrimination; No collectivity may be deprived of property because of its collective ethnic, national, or racial identity; 
  • No one (either individual or collectivity) may be deprived of property without due process of law and without adequate compensation as determined by law; 
  • No one (individual or collectivity) may be deprived of property on discriminatory grounds; 
  • Traditional possession and use of property must be taken into account when deciding who has rights—individual or collective--over a particular property; 
  • Corporate private property is not covered by this human right, as a corporation is not a human being.  
In conformity with Article 17, b of the UDHR, the Convention should also include some clauses protecting states’ rights to control property, namely:
  • Nothing in this Convention precludes governments’ rights to tax property; 
  • Nothing in this Convention precludes governments’ rights to expropriate property for public purposes, in accordance with the rule of law, so long as they pay adequate compensation for any property they take over. 
Finally, a draft Convention on the right to own property should include punishments for violation of that right. Above, I showed that massive, discriminatory and arbitrary violation of the right to own property in Zimbabwe since 2000 resulted in severe deterioration of the food supply, causing malnutrition, disease, and famine. It also resulted in individuals’ losing their houses and businesses, thus not being able to support themselves and their dependents in the cities. Similarly, massive and arbitrary deprivation of property in Venezuela resulted in deterioration of the food supply. Schaber suggests that “Massive violations of people’s property rights, particularly when they affect their fundamental rights, should be prosecuted,” and suggests the International Criminal Court (ICC) as the appropriate venue for such prosecution (Schaber 2011, quotation from p.194). Schaber’s concern is massive deprivation of the property rights of an entire people (nation) in oil concessions, but his suggestion could apply to all states that massively expropriate property, whatever the reason. It could also apply when such massive expropriation is limited in a discriminatory manner to particular categories of owners. 
When such massive expropriation undermines absolutely basic human rights such as the right to be free from hunger, there is good reason to bring its perpetrators before the ICC. At the moment, state-induced famine is not specified as a particular crime in the long list of crimes against humanity in the Rome Statute of the ICC. Famine would qualify merely as an “other inhumane act...intentionally causing great suffering, or serious injury to body or to mental or physical health” (International Criminal Court 1998, Article 7,1,k). Yet there is certainly justification for including intentional famine (deliberately using famine as means of extermination); and reckless creation of famine (continuing policies despite evidence of famine) as specific crimes (Marcus 2003, 246-7). Mugabe in Zimbabwe could be tried for reckless, if not intentional creation of famine. Ch├ívez in Venezuela could not, as food shortages there have not reached famine proportions nor is there evidence of massive malnutrition. 
In other cases, especially regarding indigenous peoples, massive expropriation of property in land can cause famine. In such cases, the expropriation is directed against specific national or ethnic groups and as such fits the definition of genocide in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (UNGC). According to the UNGC, genocide includes “causing serious bodily or mental harm to members of the group,” and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” (Article 2, b and c). Massive expropriation of land causes both bodily and mental harm to indigenous peoples deprived of their ability to cultivate food, and risks their physical destruction in whole or in part. The UNGC definition of genocide also includes “imposing measures intended to prevent births within the group” (Article 2, d); deprivation of land can cause starvation, which in turn renders women infertile. 
The UNGC require proof of intent in order to make a finding of genocide: there may be cases in which intent can be proven when states deprive indigenous peoples (or other categories) of the property that permits them to feed themselves. 
Thus, I propose two additional clauses to a Covenant on the right to own property.
  • Massive, arbitrary expropriation of property that causes famine or mass malnutrition is a crime against humanity; 
  • Massive, arbitrary expropriation of property on grounds of race, religion, ethnicity or nationality that causes famine is a crime of genocide. 
To conclude, there are both strategic and intrinsic reasons to reinforce the principle that there is a human right to own property. Had this been a principle during the early twenty-first century, the people of Zimbabwe might not have been malnourished and the people of Venezuela subjected to food shortages. Indigenous groups, peasants, women, and the poor might have had more security in their use of land. Moreover, people’s dignity and privacy, their identities, and their sense of themselves and their families would have enjoyed greater protection. With the security of private property, individuals, families, marginalized groups and collectivities would have been in a stronger position to act politically to protect themselves against both the state and more powerful private actors. It would seem appropriate to begin drafting an elaborated Convention on the human right to own property.

24 September 2012

International Criminal Legalism

'Judith Shklar on the Philosophy of International Criminal Law' by Samuel Moyn comments that
Judith N. Shklar’s Legalism (1964) is not only an underappreciated classic; it may even stand out as the single most significant reckoning with the politics of international criminal justice ever written. Hannah Arendt’s much more famous Eichmann in Jerusalem, published the year before Shklar’s book, dealt more probingly with the moral issues that arise in the course of such political trials. But if the Nuremberg Trials in particular stood out (in Shklar’s words) as “a great drama” in which “the most fundamental moral and political values were the real personae”, Legalism focuses much more interestingly and excitingly on the second category of concerns (155). Shklar did not ask world-historical questions about Nazism and the nature of evil, and went so far as to claim that the Eichmann trial did “not create any new problems for legal theory” (154-55). Shklar published too early to engage Arendt in Legalism, but later depreciated the achievements of Eichmann in Jerusalem, writing that its author “had nothing very new to say” about “some of the great puzzles raised by the trials of war criminals” because “[l]egal theory was not her forte”. And whether or not she was right, it does seem clear that Shklar’s attention to the politics of international law is now indispensable. 
As charges of genocide and crimes against humanity become a regular part of the contemporary world, inquiring into how a generally stable civilization surprisingly broke down as ordinary men stooped to outrageous offenses unique in the annals of history must cede to a different agenda as processes of criminal accountability routinely and systematically engage a world of repetitious and almost normalized infraction. Put differently, international criminal law is close to becoming a regular — perhaps even banal — feature of global politics. Yet most theoretically-inclined commentators on international criminal justice see themselves as Arendt’s followers, even though she provided no discernible account of the politics of the subject, which become more apparent every day. Which makes it even more confusing that no one has ever seriously explored the way that Shklar mounted her account of international political trials. 
 This essay endeavors simply to present a summary and reconstruction of Shklar’s main jurisprudential insights. In a broad sense, Shklar’s approach is part of a larger family of thought known as legal instrumentalism — a view that treats law, and in this case international criminal law, as a means to an end. I revive it in order to suggest the power of that instrumentalist perspective on international criminal law — although I also investigate the extent to which her own justification of the Nuremberg trials fits what scholars now know about it. Some have claimed that instrumentalism is hegemonic today in legal thought; but if so it is strange to report that it is generally absent in the philosophy of international criminal law. Because Shklar analyzed international justice simply as a vivid exemplary case for her larger goal of reconceiving the philosophy of law generally, it is important to begin with her critique of reigning schools of thought in the name of the legal instrumentalism she favored.
 Moyn concludes that -
The reception of Shklar’s book in the legal academy has been basically nugatory, though it was the most directly legal of anything she ever wrote by far. In international law, it fell on especially deaf ears: it was not reviewed in the American Journal of International Law and in fact has garnered one lone citation in that central organ in nearly five decades since the book’s publication. As for Shklar’s attempt to theorize the value of law in international relations and politics more broadly, it simply came too early, at a time of a wary opposition of formalists in law schools to ‘realists’ in political science departments. The one partial exception to the standoff, the New Haven school of international law, Shklar plausibly rejected for offering what amounted to a naturalism in disguise; as for Hans Morgenthau and other realists, Shklar tartly criticized them too — on the rather interesting grounds that their punctilious insulation of politics from other domains paralleled and even mimicked the positivist insulation of law from morality (92-93, 99, 123-26).  
Loneliness is the fate of the loner: it seems simple to chalk the fate of Legalism up to an originally botched reception in the academic field of its time, in which Shklar staked out an original position in part by dripping scorn on everyone else. In the long run, the supersession of its general perspective by critical legal studies did not help; meanwhile, once international criminal law became a going concern in the last twenty years, and in spite of having been made up from scratch, it rapidly assumed the sort of doctrinalism of other fields of law — a doctrinalism that forbade Shklar’s book much impact, even had people remembered it. (In the now decade-old Journal of International Criminal Justice, the book has likewise been cited once; as for the present journal, her name has never been mentioned.) If Legalism is sometimes acknowledged as a “classic”, it is because it is beloved by an underground cult rather than because the book ever went mainstream — not least with respect to the field of international criminal justice in which it might otherwise be taken as a founding and canonical text. 
But there are reasons to revive it. I have tried to write this essay somewhat in Shklar’s own style, which she acknowledged in her later preface to be controversial because of its “confrontation in the vocabulary of political theory, which is neither abstract nor specialized” (x-xi). She insisted, in her original preface, that while “a polemical and opinionated book”, Legalism was “not meant to be destructive” (vii). But she also claimed in conclusion that political theory “should not strive for novelty”, or at least, that her book merely hoped to be “evocative” (224). The “demand for ‘positive’ ideas for prescription and action”, she added, in an amusing moment few others could sustain, “expresses only the inner needs of those who find the doubting spirit and the tentative mode intolerable” (222). She simply meant her book to offer “honest criticism” as part of “a shared enterprise of argument and counterargument ... It cannot, therefore, end on a categorical note or with a rhetorical flourish” (222). 
Instead of ending on a categorical note myself, I would like to return to one implication of Shklar’s critique of legalism that I claimed eluded her — and that she a fortiori did not conceptualize at the level of international politics. Legalism, I suggested, not only does work but must work as a noble lie: philosophers, and perhaps associated guardians, know it is false but allow its many votaries to proceed as if it were true because only the myth makes their conduct possible. In the international realm, Shklar’s failure to draw this inference from her own argument seems especially glaring. How could a society suffering from an excessively political interpretation of law under the Nazis switch to a more humane and liberal politics by adopting a legalism they simultaneously knew was a myth but adopted purely and self-consciously as a matter of its political utility? It would serve them far better to accept that the rule of law is not only possible but crucial as a bulwark against catastrophe. To tell them the truth — that legalism is not a matter of the natural law that in fact pervaded German thought after the war but a noble lie valuable for its political consequences — might well destroy the very bulwark against evil its propagation as a myth is meant to achieve. Of course, it is a somewhat academic point: as I have suggested, Shklar was wrong to think Nuremberg’s legalism fomented the desirable changes she claimed for it. 
Today, the International Criminal Court, and international criminal law more generally, stand as some of the more aspirational projects there are in a dreary world. Along with international human rights, they successfully elicit the enthusiasm of many lawyers in academia and practice, as well as law students seeking an idealistic outlet for their professional training. Aside from conservatives who stand in a long tradition of hostility towards internationalist endeavors, along with a few empirical political scientists, no one approaches international criminal law as a political enterprise. Its supporters, almost to a man and woman, appear to believe that the best way to advance it is to deny its political essence, as if talking about international criminal law exclusively as extant law would by itself convert passionately held ideals into generally observed realities. So long as no one interested in the topic openly discusses international criminal law as a political matter, assesses its feasible political results, and compares it to actual and possible political alternatives, the project will lack plausibility, especially in the academic world where even socially valuable lies are not supposed to be tolerated. 
One difficulty with legalist myths — whether it is fatal or not is a matter of dispute — is that the people will get wind of the truth. Another, however, is that the mythmakers will not manage to step outside their own storytelling. Judith Shklar’s greatest value for international criminal law, going on fifty years after her book on the subject and more than ten years after her death, is to reckon with “the great paradox” of legalism: it “is an ideology ... too inflexible to recognize the enormous potentialities of legalism as a creative policy, but exhausts itself in intoning traditional pieties and principles which are incapable of realization” (112). At least international criminal law’s guardians should reckon with that paradox. If they showed what legalism, in its internationalist versions, can do, they would provide a more convincing case for it. And if they acknowledged what it cannot, they might well decide to put it in its place, in order to make room for other things.

23 September 2012

Big Data

The upbeat 'Big Data for All: Privacy and User Control in the Age of Analytics' by Omer Tene  & Jules Polonetsky in Northwestern Journal of Technology and Intellectual Property (forthcoming) argues -
We live in an age of “big data”. Data have become the raw material of production, a new source for immense economic and social value. Advances in data mining and analytics and the massive increase in computing power and data storage capacity have expanded by orders of magnitude the scope of information available for businesses and government. Data are now available for analysis in raw form, escaping the confines of structured databases and enhancing researchers’ abilities to identify correlations and conceive of new, unanticipated uses for existing information. In addition, the increasing number of people, devices, and sensors that are now connected by digital networks has revolutionized the ability to generate, communicate, share, and access data. Data creates enormous value for the world economy, driving innovation, productivity, efficiency and growth. At the same time, the “data deluge” presents privacy concerns which could stir a regulatory backlash dampening the data economy and stifling innovation. In order to craft a balance between beneficial uses of data and in individual privacy, policymakers must address some of the most fundamental concepts of privacy law, including the definition of “personally identifiable information”, the role of individual control, and the principles of data minimization and purpose limitation. This article emphasizes the importance of providing individuals with access to their data in usable format. This will let individuals share the wealth created by their information and incentivize developers to offer user-side features and applications harnessing the value of big data. Where individual access to data is impracticable, data are likely to be de-identified to an extent sufficient to diminish privacy concerns. In addition, organizations should be required to disclose their decisional criteria, since in a big data world it is often not the data but rather the inferences drawn from them that give cause for concern.

Orcs and CROs

Edmund Wilson famously dismissed Tolkien's The Fellowship of the Ring in a 14 April 1956 review in The Nation titled 'Oo those awful orcs'.
... these bugaboos are not magnetic; they are feeble and rather blank; one does not feel they have any real power. The Good People simply say 'Boo' to them. There are Black Riders, of whom everyone is terrified but who never seem anything but specters. There are dreadful hovering birds - think of it, horrible birds of prey! There are ogreish disgusting Orcs, who, however, rarely get to the point of committing any overt acts. There is a giant female spider - a dreadful creepy-crawly spider! - who lives in a dark cave and eats people.
... the climax, to which we have been working up through exactly nine hundred and ninety-nine large close-printed pages, when it comes, proves extremely flat. The ring is at last got rid of by being dropped into a fiery crater, and the kingdom of Sauron 'topples' in a brief and banal earthquake that sets fire to everything and burns it up, and so releases the author from the necessity of telling the reader what exactly was so terrible there. Frodo has come to the end of his Quest, but the reader has remained untouched by the wounds and fatigues of his journey. An impotence of imagination seems to me to sap the whole story. The wars are never dynamic; the ordeals give no sense of strain; the fair ladies would not stir a heartbeat; the horrors would not hurt a fly.
Now, how is it that these long-winded volumes of what looks to this reviewer like balderdash have elicited such tributes as those above? The answer is, I believe, that certain people - especially, perhaps, in Britain - have a lifelong appetite for juvenile trash. They would not accept adult trash, but, confronted with the pre-teen-age article, they revert to the mental phase which delighted in Elsie Dinsmore and Little Lord Fauntleroy and which seems to have made of Billy Bunter, in England, almost a national figure. You can see it in the tone they fall into when they talk about Tolkien in print: they bubble, they squeal, they coo; they go on about Malory and Spenser - both of whom have a charm and a distinction that Tolkien has never touched. 
I'm reminded of Wilson's sensible criticism in reading 'Cautionary Tales About Collective Rights Organizations' by Jonathan Band of Georgetown University Law Center, which centres on entities that are quite as scary as Sauron or the horrible horrible birds of prey and even more naughty.

Collective rights organisations (CROs) - aka copyright collecting societies - are an integral feature of Australia's copyright regime and despite criticisms that are sometimes both valid and painful have overall done a job.

Band has looked on the dark side, highlighting bad societies - scary and sharp-toothed beasts - in warning that
Collective licensing has been suggested as a possible solution for the obstacle copyright law places in the path of new uses of works enabled by innovative technologies. Collective licensing does have the potential to reduce transaction costs when a large number of works are licensed to a large number of users, thereby benefiting both rights holders and users. However, the actual track record of collective rights organizations (CROs), the entities that manage collective licenses, reveals that they often fail to live up to that potential. Although there are a wide variety of CROs operating under divergent legal frameworks, many unfortunately share the characteristic of serving their own interests at the expense of artists and the public.
The CROs are well-funded and well-organized, and have succeeded in promoting themselves and the collective licensing model. The objective of this compilation is to tell the other side of the story – to provide balance to any policy discussion that addresses collective licensing and CROs. The episodes collected below reveal a long history of corruption, mismanagement, confiscation of funds, and lack of transparency that has deprived artists of the revenues they earned. At the same time, CROs have often aggressively sought fees to which they were not legally entitled or in a manner that discredited the copyright system. While properly regulated CROs in some circumstances enhance efficiency and advance the interests of rights holders and users, policymakers must be aware of this history as they consider the appropriateness of CROs as a possible solution to a specific copyright issue.

Facing the regulators

The NY Times reports that Facebook has "promised European regulators that it would forgo using facial recognition software and delete the data used to identify Facebook users by their pictures".
The agreement comes as Facebook is under pressure from Wall Street to profit from its vast trove of data, including pictures, and also from regulators worldwide over the use of personal information.
The decision in Europe applies to the “tag suggestion,” a Facebook feature that deploys a sophisticated facial recognition tool to automatically match pictures with names. When a Facebook user uploads a photo of friends, the “tag suggestion” feature can automatically pull up the names of the individuals in the image. ... The company quietly and temporarily pulled the plug on “tag suggestion” for all Facebook users several months ago. The company said on Friday it was to “make improvements to the tool’s efficiency” and did not say how soon it would be restored. However, the company promised European regulators on Friday that it would reinstate the feature on the Continent only after getting their approval.
Facebook declined to say under what circumstances the “tag suggestions” would be back online in the United States or elsewhere.
Facebook’s promise to the European regulators is part of an investigation into whether the company’s data collection practices comply with European privacy rules. It was made with regulators in Ireland, where the company has its European headquarters.
“We will continue to work together to ensure we remain compliant with European data protection law,” Facebook said in a statement.
The Times comments that
Photo tagging is important for Facebook in the sense that it allows the social network to better analyze with whom its users interact in the real world.
In addition to scrutiny from European regulators, Facebook has also come under fire from consumer protection groups and lawmakers in the United States over its use of facial recognition technology. At a hearing on Capitol Hill last July, Senator Al Franken, Democrat of Minnesota, described Facebook as the “world’s largest privately held database of face prints — without the explicit consent of its users.” [PDF]
On Friday, Mr. Franken said in an e-mail statement that he hoped Facebook would offer a way for American users to opt in to its photographic database.
“I believe that we have a fundamental right to privacy, and that means people should have the ability to choose whether or not they’ll be enrolled in a commercial facial recognition database,” he said. “I encourage Facebook to provide the same privacy protections to its American users as it does its foreign ones.” ...
Last year Franken commented
I want to be clear: there is nothing inherently right or wrong with facial recognition technology. Just like any other new and powerful technology, it is a tool that can be used for great good. But if we do not stop and carefully consider the way we use this technology, it may also be abused in ways that could threaten basic aspects of our privacy and civil liberties. 
I believe that we have a fundamental right to control our private information - and biometric information is already among the most sensitive of our private information, mainly because it is both unique and permanent. You can change your password. You can get a new credit card. But you can’t change your fingerprint, and you can’t change your face. Unless I guess you go to a great deal of trouble. 
Indeed, the dimensions of our faces are unique to each of us — just like our fingerprints. And just like fingerprint analysis, facial recognition technology allows others to identify you with what’s called a “faceprint,” a unique file describing your face. 
But facial recognition creates acute privacy concerns that fingerprints do not. Once someone has your fingerprint, they can dust your house or your surroundings to figure out what you’ve touched. 
Once someone has your faceprint, they can get your name, they can find your social networking account and they can find and track you in the street, in the stores you visit, the government buildings you enter, and the photos your friends post online. Your face is a conduit to an incredible amount of information about you. And facial recognition technology can allow others to access all of that information from a distance, without your knowledge and in about as much time as it takes to snap a photo. 
People think of facial recognition as something out of a science fiction movie. In reality, facial recognition technology is in broad use today. If you have a drivers’ license, if you have a passport, if you are a member of a social network, chances are good that you are part of a facial recognition database.
In the latest coverage the Times states that
Personal data is Facebook’s crown jewel, but how to use it artfully and profitably is arguably its biggest challenge. Facebook has access to a tremendous amount of information about its one billion users, including the photos they upload every day. Marketers have pushed for greater access to that data, so as to tailor the right message to the right customer. Consumers and lawmakers have resisted, to different degrees in different countries around the world. ...
Several independent application developers are experimenting with how to use facial recognition technology in the real world, and have sought to use pictures on Facebook to build products of their own.
For example, one company in Atlanta is developing an application to allow Facebook users to be identified by cameras installed in stores and restaurants. The company, Redpepper, said in a blog post that users would have to authorize the application to pull their most recent tagged photographs. The company said its “custom-developed cameras then simply use this existing data to identify you in the real world,” including by offering special discounts and deals.
Ireland's Office of the Data Protection Commissioner at the same time published the 186 page outcome of its Review of Facebook Ireland’s (FB-I) implementation of recommendations made in the Office’s December 2011 audit.

The Office is significant because Facebook's European operations are based in Ireland, a lite-touch privacy regime.

The Review was concerned with a comprehensive assessment of Facebook’s compliance with Irish Data Protection law and by extension EU law.

The Irish Data Protection Commissioner stated
I am particularly encouraged in relation to the approach [Facebook] has decided to adopt on the tag suggest/facial recognition feature by in fact agreeing to go beyond our initial recommendations, in light of developments since then, in order to achieve best practice. This feature has already been turned off for new users in the EU and templates for existing users will be deleted by 15 October, pending agreement with my Office on the most appropriate means of collecting user consent. By doing so it is sending a clear signal of its wish to demonstrate its commitment to best practice in data protection compliance.
The Deputy Commissioner stated that
the outcome reflects months of detailed engagement between Facebook Ireland and this Office. The discussions and negotiations that have taken place, while often robust on both sides, were at all times constructive with a collective goal of compliance with data protection requirements. There were a number of items on which progress was not as fully forward as we had hoped and we have set a deadline of 4 weeks for these matters to be brought to a satisfactory conclusion.
It is also clear that ongoing engagement with the company will be necessary as it continues to bring forward new ways of serving advertising to users and retaining users on the site. The value of such engagement to identify and deal with any data protection concerns prior to launch of new products and services is fully accepted by FB-I.
People who are familiar with officialspeak will notice the reference to "robust", "at all times  constructive", "months of detailed engagement" and the clear need for "ongoing engagement".

We might ask why Facebook hasn't switched off facial recognition everywhere.