31 December 2013

Exit ramps

From 'Forensic Topology: The bank burglar as urban planner' by Geoff Manaugh in (2013) 49 Cabinet -
In the 1990s, Los Angeles held the dubious title of “bank robbery capital of the world.” At its height, the city’s bank crime rate hit the incredible frequency of one bank robbed every forty-five minutes of every working day. As FBI Special Agent Brenda Cotton—formerly based in Los Angeles but now stationed in New York City—joked at an event hosted by Columbia University’s school of architecture in April 2012, the agency even developed its own typology of banks in the region, most notably the “stop and rob”: a bank, located at the bottom of both an exit ramp and an on-ramp of one of Southern California’s many freeways, that could be robbed as quickly and as casually as you might pull off the highway for gas. 
In his 2003 memoir Where The Money Is: True Tales from the Bank Robbery Capital of the World, co-authored with Gordon Dillow, retired Special Agent William J. Rehder briefly suggests that the design of a city itself leads to and even instigates certain crimes—in Los Angeles’s case, bank robberies. Rehder points out that this sprawling metropolis of freeways and its innumerable nondescript banks is, in a sense, a bank robber’s paradise. Crime, we could say, is just another way to use the city. 
Tad Friend, writing a piece on car chases in Los Angeles for the New Yorker back in 2006, implied that the high-speed chase is, in effect, a proper and even more authentic use of the city’s many freeways than the, by comparison, embarrassingly impotent daily commute—that fleeing, illegally and often at lethal speeds, from the pursuing police while being broadcast live on local television is, well, it’s sort of what the city is for. After all, Friend writes, if you build “nine hundred miles of sinuous highway and twenty-one thousand miles of tangled surface streets” in one city alone, you’re going to find at least a few people who want to really put those streets to use. Indeed, Friend, like Rehder, seems to argue that a city gets the kinds of crime appropriate to its form—or, more actively, it gets the kinds of crime its fabric calls for. 
Of course, there are many other factors that contribute to the high incidence of bank robbery in Los Angeles, not least of which is the fact that many banks, Rehder explains in his book, make the financial calculation of money stolen per year vs. annual salary of a full-time security guard—and they come out on the side of letting the money be stolen. The money, in economic terms, is not worth protecting.

De-extinction

Following up the September item on law and de-extinction …

'The Ethics of Reviving Long Extinct Species' by Ronald Sandler in (2013) Conservation Biology comments that
 There now appears to be a plausible pathway for reviving species that have been extinct for several decades, centuries, or even millennia. I conducted an ethical analysis of de-extinction of long extinct species. I assessed several possible ethical considerations in favor of pursuing de-extinction: that it is a matter of justice; that it would reestablish lost value; that it would create new value; and that society needs it as a conservation last resort. I also assessed several possible ethical arguments against pursuing de-extinction: that it is unnatural; that it could cause animal suffering; that it could be ecologically problematic or detrimental to human health; and that it is hubristic. There are reasons in favor of reviving long extinct species, and it can be ethically acceptable to do so. However, the reasons in favor of pursuing de-extinction do not have to do with its usefulness in species conservation; rather, they concern the status of revived species as scientific and technological achievements, and it would be ethically problematic to promote de-extinction as a significant conservation strategy, because it does not prevent species extinctions, does not address the causes of extinction, and could be detrimental to some species conservation efforts. Moreover, humanity does not have a responsibility or obligation to pursue de-extinction of long extinct species, and reviving them does not address any urgent problem. Therefore, legitimate ecological, political, animal welfare, legal, or human health concerns associated with a de-extinction (and reintroduction) must be thoroughly addressed for it to be ethically acceptable
'Reintroduction and De-extinction' by Dolly Jørgensen in (2013) 63(9) BioScience 719 argues
 We are entering an age in which species extinction may be reversible. De-extinction, as it has been labeled, can apply to any species for which DNA can be recovered, from woolly mammoths of the Pleistocene to thylacines and passenger pigeons from the twentieth century. These developments, which were showcased in March 2013 at a daylong conference called TEDxDeExtinction, held in Washington, DC, (http://tedxdeextinction.org), are exciting to some scientists and terrifying to others. If we are to embark on this de-extinction journey, an act some might label playing God, we need to establish the rules of the game. I want to suggest that the well-established standards for species reintroduction projects provide a solid foundation on which de-extinction can be built. 
Critics of de-extinction in the popular science media have quickly pointed out drawbacks. From an ethical perspective, they have pointed to potential violations of animal welfare standards, the potential drain on resources that could be used in the conservation of still-existing species, and the implication that species destruction might be seen as permissible if it is reversible. The ecological objections have included the lack of ecosystems in which the re-created creatures could live, the potential invasiveness of the species in the ecosystem, and the potential for new disease vectors. Exploration of de-extinction's ethical dilemmas will require serious scientific and public debate, including a significant contribution from humanities researchers, including philosophers and historians, who have the appropriate theoretical background for conceptualizing what is at stake. I will not tackle those ethical issues here. The solution to the ecological dilemmas, however, may already be at hand through the application of reintroduction standards.

Affinity

Alongside the 100 page Indian Supreme Court decision [PDF]  overturning the Delhi High Court's decision on section 377 of the Indian Penal Code I've encountered ‘A Gang of Judicial Assassins’: George Bateson and Colonial Sodomy Laws' by John Waugh in Intimacy, Violence and Activism: Gay and Lesbian Perspectives on Australian History and Society (Monash University Publishing, 2013) 25 edited by Graham Willett and Yorick Smaal.

The Supreme Court decision is poorly written and poorly conceptualised in terms of human rights protection under the Indian Constitution, dignity, privacy, 'Indian values' and the impact of the Code on consenting male adults.

Waugh comments -
 One night in November 1860, Melbourne police burst into the room where George Bateson, a 42-year-old Englishman, was in bed with a young man. Bateson was arrested and later convicted of sodomy. In prison, he poured out his outrage in a long series of letters in which he claimed to be the innocent victim of a conspiracy. 
This paper puts Bateson’s case in its legal context by outlining the laws that applied to sex between men in colonial Australia, and considers two highly unusual aspects of the case: the police entrapment of Bateson, and the cache of letters in which he gives his version of the events leading to his conviction.
Waugh notes -
One Monday night in November 1860, George Bateson, a 42-year-old stock agent, was walking along Bourke Street in Melbourne’s theatre district. He got into conversation with William Gardner, 19, a ship’s carpenter, who had been at the theatre. Bateson invited him to have something to drink; they went to a pub and then went walking near the city’s first exhibition building, in William Street, where, Gardner said, Bateson hugged and kissed him. Seeing a light in the sky, they walked to Batman’s Hill (near today’s Southern Cross Station) and watched a ship on fire in the distance. They finally separated around 2 am, after arranging to meet the following night. 
On Tuesday night the two men went to the theatre, where Bateson bought Gardner a ticket and a glass of ale. After the show, they had a cup of coffee and then went to the hotel where Bateson was staying. They had another glass of ale, and Bateson asked Gardner to stay the night with him. The two spent the night together in bed, during which (according to Gardner) Bateson had anal intercourse with him. The following morning they arranged to meet again on Friday. 
This much of the story could, with a few variations, be a seduction tale from many different times and places, but the conclusion brings it back to its actual setting, at a time when sodomy was a hanging offence. On Friday Bateson and Gardner went to the theatre again, then back to Bateson’s hotel and to bed. While they were in bed together, two detectives burst into the room, where they found Bateson on top of Gardner. They arrested the two men and took away the sheets, which a doctor later testified had semen on them. 
Gardner had gone to the police on Wednesday morning. They told him to keep his appointment with Bateson on Friday, when they would be watching. The two detectives hid in a closet outside Bateson’s room, and on a prearranged signal from Gardner they rushed in and arrested both men. Bateson was charged with sodomy and later convicted. His mandatory death sentence was commuted to fifteen years hard labour, the first three in irons. 
Robert French noted Bateson’s case briefly in his pioneering paper on archival sources for gay history in 1992, highlighting its connection with the theatre world, but extensive records that were unavailable to French give the case an added and somewhat different significance. My focus here is not on the questions of identity, sexual repertoire, language, legal severity and the development of subcultures to which attention has been given in other studies of colonial Australian prosecutions for sex between men. Instead, I put Bateson’s case in its legal context by outlining the laws that applied to him and others at the time, and I consider two aspects of the case that make it very unusual for its period: the police entrapment of Bateson, and a cache of letters which give his version of the events leading to his conviction. The official disapproval of Bateson’s entrapment indicates one of the reasons why this kind of police activity was much less common in the mid-nineteenth century than it became a century later. Bateson’s letters prompt some observations on the reasons why the voices of the accused are usually missing from the records of colonial sodomy prosecutions.

28 December 2013

Ethics

'Moral Autonomy in Australian Legislation and Military Doctrine' by Richard Adams in (2013) 6(3) Ethics & Global Politics 135 comments that
 Australian legislation and military doctrine stipulate that soldiers ‘subjugate their will’ to government, and fight in any war the government declares. Neither legislation nor doctrine enables the conscience of soldiers. Together, provisions of legislation and doctrine seem to take soldiers for granted. And, rather than strengthening the military instrument, the convention of legislation and doctrine seems to weaken the democratic foundations upon which the military may be shaped as a force for justice. Denied liberty of their conscience, soldiers are denied the foundational right of democratic citizenship and construed as utensils of the State. This article critiques the idea of moral agency in Australian legislation and military doctrine and is concerned with the obligation of the State to safeguard the moral integrity of individual soldiers, so soldiers might serve with a fully formed moral assurance to advance justice in the world. Beyond its explicit focus on the convention of Australian thought, this article raises questions of far-reaching relevance. The provisos of Australian legislation and doctrine are an analogue of western thinking. Thus, this discussion challenges many assumptions concerning military duty and effectiveness. Discussion will additionally provoke some reassessment of the expectations democratic societies hold of their soldiers.
Adams argues that
No soldier can act for justice yet commit to action he or she considers evil. And, no just society can expect the soldiers who defend its ideals to turn a blind eye. Volunteering military service, soldiers pledge - or at least they should pledge - to act conscientiously to advance just causes by just means. Soldiers, therefore, face a challenge in Australian legislation and doctrine, which is insufficiently attentive to soldiers’ moral concerns, failing in particular to consider the dilemma of soldiers who are commanded to participate in operations they consider unjust. 
Though, as Adam Smith observes, the idea of ‘right’ or ‘justice’ is equivocal and interpreted in several relevant ways, the concept is foundational to the democratic ideal. Magna Carta offers celebrated expression holding, at Chapter 40, that ‘to no one will we sell, to no one deny or delay right or justice’. Thus, in a democratic society, legislation and doctrine should operate to secure the background conditions within which the military can function well, as a just instrument and for justice. This is not to suggest that legislation or doctrine can be perfectly just. There is no chance of agreement on what such instruments would be like. Yet, manifest injustice - such as the asphyxiation of soldiers’ conscience - can be redressed, and if it cannot be removed, at the very least such clear injustice can be minimised. 
Considering ideas of social justice, the present article is informed by the ideas of John Rawls who advanced the notion of justice as fairness, and whose basal concern was for the equal liberty of conscience: ‘one of the fixed points in [a] considered judgment of justice’. Rawls recognized that a just society will take the moral convictions of citizens seriously, and enable individuals to examine and to act upon these deeply held beliefs. In Justice as Fairness: A Restatement, Rawls described the equal liberty of conscience as a primary good and constitutional essential. He advanced a view of people as morally responsible and equally free to exercise moral judgment. The moral independence of soldiers is suppressed by Australian legislation and doctrine, which advance an argument typical amongst modern western militaries. 
Exploring the arguments of Australian legislation and doctrine, which together operate to curtail the rights of soldiers, this article accepts that just institutions, which advance individual liberty and fairness, are essential to just societies, which in turn are critical to global justice. The article’s importance derives from the fact Geoffrey Robertson observes, that ‘at the beginning of the twenty-first century, the dominant motive in world affairs is the quest - almost the thirst - for justice. [This thirst is] replacing even the objective of regional security as the trigger for international action’. 
The article is focused on provisions of the Australian Defence Act, and on argument advanced in military doctrine ‘pitched at the philosophical and high application level’. Doctrine, which is subordinate to legislation, ‘states the ADF’s philosophical military approach to the operating environment’. Taken together, ideas set down in legislation and doctrine, are critically important as part of what Walzer called the war convention: the ‘norms, customs, professional codes, legal precepts, religious and philosophical principles and reciprocal arrangements that shape our judgments of military conduct’. 
Though focused on the ‘conventions’ of Australian thought, this article identifies and critiques a thematic approach to military service, typical of many western powers, and deserving academic scrutiny.
He concludes -
This article argued against the provisions of Australian legislation and doctrine that soldiers subjugate their will to Government. Denying soldiers access to their conscience, the Australian convention was seen to be unworkable and wrong. The example of Commodore Richard Menhinick RAN, cited in The Age newspaper of 12 July 2012, illustrates the unsafe nature of the Australian position. 
The newspaper describes how, when commanding officer of HMAS Warramunga in 2001, the then Commander Menhinick defied direction to abandon asylum seekers at sea. Finding his orders neither ‘sensible nor ethically prudent’, Commodore Menhinick declined to follow legal command. Refusing to be subjugated, the Commodore is quoted as understanding ‘the importance of acting with integrity and in good conscience’. This principled officer reveals the absurdity of legislative and doctrinal provisions that assume military service entails soldiers’ moral quiescence, and demonstrates what Walzer calls the ‘long tradition’ of officers who ‘protest commands of their civilian superiors that would require them to violate the rules of war and turn them into mere instruments’. Acting deliberately as an agent of justice, the Commodore demonstrated the critical importance of conscience to the profession of arms, and the impossibility of the inelastic provisions within Australian legislation and doctrine. 
Australian legislation and doctrine presumes that no-one can cavil, no matter how iniquitous the pretext for action. Reinforcing the coercive power of military institutions, the legislative-doctrinal convention is oblivious to the fact that atrocities soldiers commit are their own.
Crafted to uphold jus in exercitu obligations, the convention should abandon the fable of unquestioning obedience. Debunked by the Nuremburg tribunal, this myth was made infamous by Himmler at Posen on 4 October 1943. On this occasion, in a speech to Nazi police fuehrers, Himmler argued that obedience to orders - no matter how ghastly - was a mark of honour. The Nuremburg testimony of SS Gruppenfuehrer Otto Ohlendorf illustrates how this impossible dogma was accepted. Formerly leader of the Einsatzkommandos, Ohlendorf admitted calmly to the murder of 90,000 Jews. Despite confessing to pangs of scruple, he said, ‘it was inconceivable that a subordinate leader should not carry out orders given by the leaders of the State’.
We need to think differently so as we might apply military power more wisely. Legislation and military doctrine need to acknowledge that soldiers who believe orders to be immoral, not merely illegal, have a duty to refuse. Alastair McIntosh writes:
For the first time in history we have at our fingertips utter destructive power, but matched to it, all the possibilities for greater understanding opened up by globalised communications. Now is the time to press the reset button at many levels of depth.
This is not the time to be comfortably complacent, to assume familiar ideas will serve into the future. A new position must be endorsed, and with it, a new way of understanding military service, military ideals and military functions. No longer must the legislation or the doctrine perpetuate notions of subjugation, which dehumanise soldiers and degrade the democratic foundations of the military instrument. These ideas place the world in peril of crimes of obedience, committed by morally repressed soldiers unable to discern an alternative. 
The war convention must recognise the moral justification for disobedience afforded by the conscience. Legislative and doctrinal instruments must acknowledge that the duty to obey is not absolute, and that the moral obligation to disobey may be prompted by more than manifest illegality.

26 December 2013

Naming and the Noosphere

A year ago I noted that World Futures - the journal that's haunted (sorry, lame joke) by exponents of astral travel, reincarnation, remote healing, dowsing and other claims that raise both my wizened eyebrows and blood-pressure - had changed its name.

It is a strange publication, one that through the vagaries of ranking systems has a higher status (e.g. on the former ERA ranking used by Australian universities) than the law journals of most of those universities.

Over the years it has wandered from the Journal of World Futures to World Futures: A Journal of General Evolution to - briefly - World Futures: The Journal of Global Education.

With the latest migration it is now World Futures: The Journal of New Paradigm Research.

It remains associated with Ervin Laszlo, proponent of the Akashic Field and of claims that the dead aren't really dead, just not here in a familiar form (gone but oh so very conveniently contactable via a valve radio). It is unclear whether those undeparted - presumably we cannot call them undead - approve of the change. His belief that our brains are evolving to become 'quantum wave transceivers' (i.e. a 'shift' from being an "EM-wave and photon-wave receiver") is problematical or deliciously amusing.

The paradigm du jour appears to be the same old mix of quantum mysticism, vague moral uplift with just a dash of ecological catastrophism and references to imminent epochal change as we all self-actualise or become one with the universe, a universe in which everything has meaning and in which (if we are to believe some of the authors) both the rocks and vegetables have cosmic consciousness that spans past, present and future. (My coffee cup and vegetables refuse to communicate with me but perhaps that's because I'm stubbornly attuned to the wrong frequency.)

Laszlo - "The time has come for you and for me to evolve and find each other - in our life, in the cosmos, through the Akasha" - has founded a number of educational institutions that appear to be pitched at what one of my students rather tartly dubs the New Age market. They seem to change both their names and locations (e.g. WorldShift University becomes GlobalShift University becomes Giordano Bruno GlobalShift University becomes Giordano Bruno University, based on a "bio-epistemological non-subordinate horizontal model of education" that involves a "a cross-cultural social, interdisciplinary, and stereo-cognitive interaction-based academic platform").

All very confusing but I suppose less so if you are in touch with the infinite or the undeparted.

Laszlo is currently associated with what is variously identified as Wisdom University (formerly known as the University of Creation Spirituality) and the Wisdom School of Graduate Studies at Ubiquity University, which has chairs in Labyrinthian Studies, Transpersonal Psychology, Sacred Activism, Social Artistry, Conscious Evolution, Afterlife Studies and Energy Medicine.

Hoary old skeptic that I am, I am unlikely to rush to enrol in a university whose academics are enthusiasts for geomancy, astrology, alchemy, 'ancestral memory', dowsing, 'Egyptian bio-geometry', Rosicrucianism and the "spiritual practice of rain-water collection".

Yes, the "spiritual practice of rain-water collection", presumably more 'cosmic' and thus 'spiritual' than emptying the kitty litter or buying the groceries or smiling at a stressed undergrad at exam time or taking the kids to school or respecting the dignity of an incontinent senior while changing the sheets.

In a liberal democratic state where we are encouraged to heed the words of Freedoms Commissioner Tim Wilson there is space for people who a century ago would have kissed the hem of Edgar Cayce, Madame Blavatsky and Rudolf Steiner or earlier plucked miraculous hair from the donkey ridden by Peter the Hermit and believed that St Joseph of Cupertino (aka the patron saint of the intellectually handicapped) could actually fly.

Let us however resist the temptation to start offering PhDs in "the spiritual practice" of nail clipping collection or tea-leaf interpretation or divination by snail shell and roadkill entrails.

Laszlo is also on "the Faculty" of something called the Great Mystery. The Faculty includes an Astrologer and an Alchemist and other luminaries, including one savant who supposedly knows where the Holy Grail is secreted. Oh for Ambrose Bierce or H L Mencken.

Fellow Faculty member William Tiller (co-founder of The Academy of Parapsychology and Medicine) states on the Great Mystery's site that
My working hypothesis since the early 1970's is that we are all spirits having a physical experience as we “ride the river of life” together. Our spiritual parents dressed us in these biobody suits and put us in this playpen that we call a universe; in order to grow in coherence; in order to develop our gifts of intentionality, and in order to become what we were intended to become – cocreators with our spiritual parents!
To effectively have this learning experience, we need a suitable structural interface with the spacetime world. That became a biobodysuit constructed from the substance complex of Dspace//deltron//R-space materials. That type of biobodysuit is what we put on when we are “born” into spacetime and it is what we take off when we appear to die in spacetime. In between, when we are manifesting what we call “life”, this biobodysuit contains what I label our personality self. However, I feel that the whole person is much, much more than this!
Much, much more? Too much, much too much, alas, for me.

Tiller has elsewhere announced that
I and my colleagues have discovered that it is possible to make a significant change in the properties of a material substance by consciously holding a clear intention to do so. For example, we have repeatedly been able to change the acid/alkaline balance (pH) in a vessel of water either up or down, without adding chemicals to the water, by creating an intention to do so.
Presumably if my intention is that my glass of Canberra tap water will become champagne it will indeed morph - oh bliss - into one of the finer beverages from France. On the other hand, it might be easier just to wave the credit card in the bottle shop. Alas, lots of disabled people don't seem to be having much luck with the intention that their severed limbs reappear, intact and in perfect working order. Not enough intention?

Rebirthing

An item in today's Brisbane Times provides a perspective on the Australian vehicle and boat rebirthing regime, e.g. section 154G of the Crimes Act 1900 (NSW), Regina v Hamieh [2010] NSWCCA 189 and R v Trinh; R v Chieu [1999] NSWCCA 295.

The BT reports that
What started as a technological aid to police has turned into an international diplomatic incident, as German authorities are now convinced that scores of high-end autos stolen here have ended up in the possession of those with family or business ties to the president of Tajikistan.
Whodathunkit?  The Tajik government of President Emomali Rahmon has indicated that it would look into the matter - presumably by looking under the hood to disable the tattletale transponder - and described the allegations as a "provocation" and "astounding", claiming that
German cars cross several state borders before reaching Tajikistan. Any falsified documents would have been discovered by customs services on those borders.
The German government has supposedly been seeking a diplomatic resolution since 2011.
It began with reports of 200 stolen cars, including 93 high-end BMWs. German press reports note that while car theft is common in the capital, helping police in these cases was the fact that the high-end cars had secretly embedded GPS systems, installed as anti-theft devices and programmed to self-activate if the car shows an unusual driving pattern. 
Berlin detectives weren't surprised when the secret GPS reports indicated the cars had been stolen and taken outside of Germany. 
Lots of cars get stolen in Germany and then hauled off to points around Eastern Europe. Poland is such a common destination for stolen cars that there are even rhyming poems about it: "Heute gestohlen, morgen in Polen" (Stolen today, tomorrow in Poland), or the Berliners' mocking and oft-repeated notion for a Polish tourism slogan, "Come to Poland, your car is already here." 
Poland, after all, is only 50 miles from Berlin. 
But when police looked at the stolen cars on computer maps, they were pinging from Tajikistan. Even for German stolen cars that was a bit unusual. And unusual for stolen cars here takes some doing. For instance, the Ukrainian justice minister drives a Mercedes-Benz stolen from Germany. ...
Berlin detectives went to Tajikistan and reported that the cars were being used by Mr Rahmon's inner circle. The German newspaper Bild reported that Tajik officials denied the German allegations, though they also refused to produce the purchase records for the vehicles. Earlier this year, the Tajik foreign minister canceled an official visit to Berlin as a protest against the allegations.
The Transparency International Corruption Perceptions Report released earlier this month places Tajikistan at rank 154 (of 177) countries in its global corruption ranking  - the same level as the two Congos and slightly ahead of Myanmar and Zimbabwe.

'Tajikistan: The Rise of a Narco-State' by Letizia Paoli, Irina Rabkov, Victoria Greenfield and Peter Reuter in (2007) Journal of Drug Issues 951 more pointedly described it as a narco-state, commenting that 
Since the collapse of the Soviet Union in 1991, Tajikistan has experienced an extraordinary and devastating expansion of opiate trafficking and consumption. While heroin was virtually unknown in the country up to the mid-1990s and opium was produced and consumed locally only to a modest degree, in less than a decade Tajikistan has become a key transit country for Afghan opiates bound north- and westwards, at the same time as it has witnessed a rapid growth of domestic heroin use. Tajikistan now rivals Afghanistan for the unenviable title of the country most dependent on the illicit drug industry, with the opiate industry adding at least 30% to the recorded gross domestic product. The opiate trade is so important economically that it corrupts the whole political system. This article therefore argues that since the mid-1990s Tajikistan has become a narco-state, in which leaders of the most powerful trafficking groups occupy high-ranking government positions and misuse state structures for their own illicit businesses.

25 December 2013

Sumptuary Regulation

"Beyond Sumptuary: Constitutionalism, Clothes and Bodies in Anglo-American Law, 1215-1789' by Ruthann Robson in (2013) 2(2) British Journal American Legal Studies 478 notes that
Current scholarship is peppered with casual references to “sumptuary laws” whenever regulations of clothing or bodies are at issue. Too often, these references are incorrect, or at best incomplete. This Article is a careful consideration of the various regulations of attire and bodily markings from the Magna Carta in 1215 to the adoption of the United States Constitution in 1789. This Article situates bodily regulation within Anglo-American constitutionalism, including nascent constitutional Tudor-era struggles between the monarch and Parliament, the status of colonial laws, the American Revolution, pre-constitutional slavery, and the formation of the Constitution, including a proposed “Sumptuary Clause.” 
Robson comments that
 It has become common to link current regulation of attire or grooming with former practices known as sumptuary laws. The classic definition of a sumptuary law is one directed at excess consumption. Such a law was arguably in the service of religious or ethical conceptions of the “good life,” and often, but not necessarily, the conceptions of excess varied by status. 
Yet we recognize that even medieval regulations of dress were rarely solely sumptuary. Mixed motive regulations contained proscriptions of excess, even as they addressed trade imbalances or other economic concerns. Moreover, many laws governing apparel, as well as regulations of hairstyles and bodily markings, were not directed at consumption. Instead, such laws policed other hierarchies, such as those involving sexuality, gender, poverty, criminality, and slavery. Additionally, they served the interests of nationalism and empire in both economic and political ways. 
Thus, all laws governing dress or grooming, whether solely sumptuary or not, implicate constitutionalism with regard to individual rights as well as the structures of governments. This Article centers the constitutional and nascent constitutionalism surrounding regulations of attire, grooming, and bodily markings, beginning with the Magna Carta in 1215 and ending with the creation of the United States Constitution in 1789. Section One begins with the regulation of textiles in the Magna Carta and continues through the Tudor era, describing the various provisions and their purposes. Section Two continues a focus on the Tudor era, arguing that disputes regarding the regulation of attire implicate nascent constitutionalism and democracy. The third section explores how the English used the regulation of dress, hair, and textiles as a method of national definition. Section Four moves to the American colonies, looking at laws and literature that structured society through the regulation of attire and the practice of branding, including in the important pre-Constitutional 1736 case of Rex v. Mellichamp and its relationship to slavery. Finally, Section Five examines the role of textiles in Revolutionary War rhetoric and politics and the rejected Sumptuary Clause of the United States Constitution. At the heart of these examinations and explorations is the intertwinement of the regulation of appearance with matters of democracy, sexuality, and hierarchy.
In discussing economic incentives and social regulation Robson notes that
a 1666 Act entitled “An Act for Burying in Wool Only” prohibited the burial shirt, shift, or sheet to be made of anything other than wool, and similarly prohibited the coffin from being lined with anything other than wool. While this may be called a sumptuary law, the stated rationale was not excess in apparel or over-consumption, but the encouragement of woolen manufacturers of the kingdom and the prevention of spending money on the importation of linen. Importantly, it applied uniformly across classes; the only exception was if the person had died of the plague.
An earlier and more well-known law was the Elizabethan Cap Act. A serious decline in employment for “cappers” and other wool workers was the stated motivation for the “Act for the making of Cappes,” passed by Parliament in 1571 during the reign of Elizabeth I. The Act’s remedy for the decline in the wool trades was to require “every person” above the age of six years to wear a cap upon Sabbath and Holy Days. However, although the Act recited that the wearing of the caps was decent and comely for all estates and degrees, the Act specifically exempted “Maydens Ladyes and Gentlewomen,” as well as those who were noble personages, Lords, Knights, and Gentlemen of possession of twenty marks land by the year, as well as their heirs.” Thus, the Act essentially mandated the cap as a marker for lower class status.
A similar marking of the lower classes occurred by the practice of “badging” the poor, prompted by economic interests of a different sort. Beggars were required to wear badges indicating their eligibility for alms in some English parishes and towns since the reign of Henry VIII, and the famous Elizabethan poor law of 1563 required licenses for those receiving poor relief in some cases. However, the “badging” requirement imposed by a Parliamentary statute of the realm in 1697 provided that every person receiving relief, including the wife and children of such person, shall
upon the Shoulder of the right Sleeve of the uppermost Garment of every such Person in an open and visible manner weare such Badge or Mark as is herein after mentioned and expressed that is to say a large Roman P, together with the first Letter of the Name of the Parish or Place whereof such poor Person is an Inhabitant cutt either in red or blew Cloth as by the Churchwardens and Overseers of the Poor it shall be directed.
The impoverished were subject not only to badging, but also to branding, which might be considered a permanent type of attire. During the brief reign of Edward VI, Parliament in 1547 passed An Act for the Punishment of Vagabonds and for the Relief of the Poor, providing that the punishment for both male and female loiterers who did not apply themselves to honest labor was to be marked with a hot iron in the breast with the letter V and to serve as a “slave” for two years to the person who captured him or her. If the vagabond attempted to run away, he or she would be branded again, this time with the letter S on the forehead or ball of the cheek and would then be a slave forever. A second attempted escape would result in the death penalty. Indeed, branding was not an especially harsh punishment, especially in comparison with an earlier statute under Henry VIII that provided the punishment of being tied to the end of a cart naked and beaten with whips throughout the town until the “Body be blody” or standing on the pillory and having an ear cut off. Slavery, however, was extreme, and soon repealed, although vagabond children over the age of 5 were allowed to be “taken into service.”A series of vagabond statutes throughout the Tudor era criminalized the impoverished, migratory laborers, and those who “refused” to work in an era that witnessed the end of feudalism, the plague, and the beginnings of manufacturing. 
In addition to economic hierarchies, statutes of attire addressed gendered ones, although often less explicitly. Most notably, the English acts of apparel were directed primarily at males, with the 1510 statute specifically exempting women (as well as, among others, minstrel players). Perhaps this was because males were more preoccupied by clothes than women, or perhaps it was because males in the targeted classes were more visible than women, or perhaps men were deemed to be citizens worthy of regulation while women were subsumed into their male-headed households. However, the statutes of apparel implicitly and at times explicitly presume a gendered division of attire, even if their regulatory focus was otherwise. 
The acts of apparel occasionally address sexuality. For example, in 1463 the Parliament of Edward IV criminalized men’s sexually revealing attire. It prohibited the wearing of any gown, jacket, or coat, “unless it be of such Length that the same may cover his privy Members and Buttocks.” The act applied to Knights who were less than Lords, Esquires, and Gentlemen, as well as other persons, and extended the prohibition to tailors who made garments of this short length. Women’s sexuality was also subject to attire regulations, although not in the major acts of apparel. The Parliament of Scotland passed a law in 1458 that regulated silk and furs in a familiar hierarchical manner, and provided that “no labourers or husbands wear any colour except grey or white on work days; and on holy days only light blue, green or red,” but also contained a specific prohibition for women: “no woman come to church nor market with her face hidden or muffled so that she may not be known, under pain of escheat of the cap.” More than a century later, the sumptuary laws were augmented with a moralistic imperative for women expressed in an exceedingly terse statute: “it be lawful for no women to wear above their estate except whores.”

Neoliberal vegetable patches

'Neoliberal Britain’s Austerity Foodscape: Home economics, Veg patch capitalism and culinary temporality' [PDF] by Lucy Potter and Claire Westall in (2013) New Formations examines
contemporary Britain’s foodscape in order to identify how mediatised life-quests uphold ‘boom-based’ culinary/consumptive motifs while mobilising a distinctive ‘austerity aesthetic’ that coincides and colludes with the British state’s neoliberal austerity narrative. In part one, ‘The British State of Home-Economics’, we examine this austerity aesthetic as it came to the fore during the ‘Great British Summer’ of 2012. In part two, ‘Localism, Veg Patch Capitalism and Austerity’, we unpack the fundamental contradictions found in the modesty claims of recent gentrified culinary activities and pastoralised localist discourses. And, finally, in part three, ‘Temporal Deficit and Culinary Work-for-Labour’, we analyse the foodscape’s investment in temporal presumptions, metaphors, promises and paradoxes in order to expose how the structure of deficit that shapes the way capitalism’s ‘economy of time’ is maintained through culinary ‘work-for-labour’. Throughout, we use the term ‘foodscape’ to ‘map food geographies’ onto cultural activities and socio-economic patterns, and to argue that Britain’s contemporary foodscape consistently fuels and reveals the self-contradictory yet self-perpetuating logic of capital as manifest in the neoliberal enterprise of state-led austerity.
The authors comment that
The ‘new age of austerity’, as invoked by David Cameron in 2009, has seen Britain’s Conservative-Liberal Democrat coalition government pursue new and existing neoliberal policies in the name of crisis management and deficit repayment. A legitimising narrative of austerity as financial and even moral compensation for the preceding debt-based bubble has intensified political demands for austere lifestyles marked by spending cuts, hard graft, individual ‘responsibility’, and a new ‘culture of thrift’. Despite reprimanding New Labour profligacy, this austerity narrative cogently reinvigorates neoliberalism’s aspirational promises and remains beholden to capitalism’s unstable and unsustainable growth paradigm. The British state’s self-protective allegiance to capital’s perpetuation means that it insists that its consumer-citizens continue to perform their consumptive duties in order to aid economic recovery, at home and internationally, but that they do so with austere self-restraint. This paper explores this austerity narrative, its home-economic messages, and the aesthetic dimensions of its deployment within contemporary Britain’s foodscape. We argue that the media-led food culture that took hold during the Cool Britannic ‘boom’ has continued to expand during our ‘bust’ times, in large part by maintaining its pleasure-based consumptive appeal and mutating into forms entirely consistent with consumptive-austerity. Specifically, we read the culinary encoding of austerity through the aesthetic motifs, participatory claims and nostalgic imaginary of the British foodscape of 2012. With media coverage of state-endorsed, corporate-sponsored celebrations invoking thrifty wartime resilience and postwar austerity-as-recovery, Britain’s 2012 ‘moment’ helped underscore the longstanding, but increasingly critical, disparity between the experience of food as economic burden and the culinary pursuit of frugal pleasure as consumptive self-fulfilment. The 2012 foodscape thereby enabled, and now requires, a provocative re-reading of the lifestyle programming, public-private interactions and labour-time relations that have structured British food culture and consumption patterns since the late 1990s. 
The socio-cultural importance of food has become an area of burgeoning academic concern, especially within cultural studies, the sociology of food and the interdisciplinary field of food studies. A number of works have been influenced by Pierre Bourdieu’s Distinction (1984), with its emphasis on cultural capital and class-based consumption; yet, following Zygmunt Bauman’s Freedom (1988), consumption studies commonly connects food habits with post-Fordist mechanisms of ‘individuation’, enhanced consumer ‘agency’ and self-narrating ‘lifestyle choices’ within what Anthony Giddens has called a ‘post-traditional order’. As Alan Warde notes, a key tension has arisen between such claims for self-actualising practices and the (often class-bound) ways in which ‘tastes are still collectively shared to a very significant extent’. Recent discussions have examined this tension in relation to both ‘alternative’ consumption habits, and the increasing prevalence of largely privileged forms of food-based activism. Discussions of international food activism and culinary diaspora also sit alongside interrogations of today’s globalised food system - often highlighting structural unevenness, agro-ecological (un)sustainability and resource (mis)management - as well as examinations of the multi-layered tensions surrounding local-global foodways. The 2011 ‘Food on the Move’ special issue of this journal marked the ‘troubled cosmopolitanism’ of food-based relations by navigating food’s ‘mobility in a lived multi-culture’ and as a ‘dynamic agent in the world’. Taking heed of Ben Highmore’s editorial, our discussion works from a similar understanding of food’s ‘at once revealing and concealing’ potential, but occupies a space left open by the issue as a whole; namely, the investigation of contemporary Britain’s foodscape and the multifaceted ways in which food, food culture and foodism are aestheticised and sold through British media, particularly the televisual, in accordance with the priorities of the state and its commitment to capital. This approach notably resonates with Tracey Jensen’s understanding of the government’s affective austerity rhetoric, especially its retrogressive and hypocritical ‘tough love’ claims and its role within the media-led inculcation of ‘austerity chic’. Our discussion also stands in close proximity to recent debates about food-based television, including Heather Nunn’s conception of ‘retreat TV’ and Lyn Thomas’ analysis of the ‘downshifting’ and ‘good life’ narratives circulating in contemporary British ‘lifestyle television’. Like Thomas, we recognise that food has played a significant role in UK televisual culture and its advocacy of the consumptive ‘good life’ since the 1970s, and similarly foreground the visible growth of prime-time food programming from the late 1990s - most notably via the ‘public-service’ state broadcaster, the BBC, and the ‘publicly-owned, commercially-funded’ terrestrial broadcaster, Channel 4. This growth has expanded the range, quality and personalities involved with food presentation, established a cacophony of celebrity chefs, personalities, critics and food enthusiasts, and created a plethora of notably formulaic and often highly didactic food-formats. Where Thomas suggests that the self-fulfilment quests of DIY, fashion, health and ‘heritage cooking’ shows reveal recession-based ambivalence towards consumptive lifestyles, we offer a panoramic picture of contemporary Britain’s foodscape in order to identify how such mediatised life-quests uphold earlier culinary/consumptive motifs while mobilising a distinctive ‘austerity aesthetic’ that coincides and colludes with the state’s neoliberal austerity narrative. 
In part one, ‘The British State of Home-Economics’, we examine this austerity aesthetic as it came to the fore during the ‘Great British Summer’ of 2012, tracking the tensions evident in spectacles of citizenly consumption and competition-orientated inclusion that characterised the Queen’s Diamond Jubilee, the London’s Olympic Games and surrounding televisual events. We consider how these events functioned - individually and collectively - as home-economic festivities that served to reinforce state self-assertion at a time of obvious uncertainty, typically through faux-ironic nostalgia and feigned inclusivity. In part two, ‘Localism, Veg Patch Capitalism and Austerity’, we unpack the fundamental contradictions found in the modesty claims of gentrified culinary activities and pastoralised localist discourses - stretching from the late 1990s - positioning these as building towards, becoming part of and bolstering the state’s austerity narrative. Lastly, in part three, ‘Temporal Deficit and Culinary Work-for-Labour’, we analyse the foodscape’s investment in temporal presumptions, metaphors, promises and paradoxes in order to expose how the structure of deficit that shapes the way capitalism’s ‘economy of time’ is maintained through culinary ‘work-for-labour’, which has become more obvious since the 2007-8 financial crisis, especially when considered in relation to domestic spaces. Throughout, we use the term ‘foodscape’ to ‘map food geographies’ onto cultural activities and socio-economic patterns. Like Josée Johnston and Kate Cairns, we follow Arjun Appadurai by using the suffix ‘scape’ to mark ‘cultural flows’ of influence and ‘the fluid, irregular shapes of [...] landscapes that characterise international capital’. However, where Appadurai contends that the ‘global cultural economy’ has upheld ‘fundamental disjunctures between economy, culture, politics’, we investigate the continuities between the culinary economy of British food culture and the political economy of neoliberal austerity, reading this apparent lack of ‘disjuncture’ as part of the ideological foreclosure upon which the state, and capitalism more broadly, depend.

24 December 2013

Cigarette Packaging

'No (More) Logo: Plain Packaging and Communicative Agency' by Alain Pottage in (2013) 47(5) UC Davis Law Review 515 comments [PDF] that
The tobacco industry’s archives suggest that the global campaign for the plain packaging of tobacco products originated in 1986, when the Canadian Medical Association passed a resolution calling for cigarettes to be sold in packages bearing only a brand name and the health message “this product is injurious to your health.” In most jurisdictions, regulations requiring the apposition of health warnings to cigarette packs have been in force for decades. Proposals for plain packaging aim to go further, and eliminate the visual and tactile features that turn cigarette packs into “badge” wrappers, and which express the subliminal messages that diminish or subvert the effect of even the most uncompromising health messages. Given that effective plain packaging regulations would severely restrict the tobacco companies’ ability to exploit their trademarks or rights in trade dress, the question of the domestic or international constitutionality of such restrictions has become an essential ground for the industry’s contestation of plain packaging measures. This Article argues that the contest over plain packaging is the latest, and perhaps the last, phase in a history of brand “positioning,” in which cigarette companies used their brands to exploit the dynamics of the health debate to “refresh” the image of their brands and products.
Australia passed the Tobacco Plain Packaging Act of 2011, which came into force on December 1, 2012, and became the first nation in the world to impose a mandatory scheme of plain packaging. In the process, Australia became the first jurisdiction to adjudicate on the constitutionality of plain packaging.
The Australian statute addresses the well-documented power of brands to induce young people to take up smoking. The tobacco companies have never been especially discriminating in their pursuit of prospective clients — as Philip Morris’s in-house advertisers once put it, “they got lips, we want ‘em” — but younger smokers have always been the prime target. To capitalize on the strength of brand loyalty in the cigarette market, rival tobacco companies seek to capture young “starters” just as they are embarking on their careers. The aesthetic of the cigarette package plays an essential role in these recruitment strategies. A report commissioned by Liggett & Myers in 1963 observed that “the primary job of the package is to create a desire to purchase and try. To do this, it must look new and different enough to attract the attention of the consumer.” Over the course of the twentieth century, the effect of youth advertising campaigns was progressively to reduce the average age at which young people began smoking. Cynically, as evidence of increased mortality rates among smokers became irrefutable, the industry characterized these initiates as “replacement smokers.” With this history in mind, the Tobacco Plain Packaging Act sought “to reduce the attractiveness and appeal of tobacco products to consumers, particularly young people” and to “reduce the ability of the tobacco product and its packaging to mislead consumers about the harms of smoking.”
The Act, which runs to 111 pages, augmented by regulations, seeks to disqualify all the media that resourceful advertising agencies might use to “dress” a cigarette pack — shape, size, texture, color, scent, and so on. The Act stipulates that tobacco packaging may have no “decorative ridges, embossing, bulges or other irregularities of shape or texture.” Cigarette packs or cartons must be rectangular and of prescribed sizes, with surfaces that meet “at firm 90 degree angles,” and the adhesives used on those surfaces must be transparent. The lid of a pack can be sealed by means of a perforated strip, but there may be no other re-sealable opening, and the inner lip must have straight edges, with no embellishment. The lining of the pack should be made exclusively of foil, which may be embossed only with the dots or squares that are necessarily produced by the manufacturing process. The color of the outer surfaces of all primary and secondary packaging must be Pantone 448C: “a drab dark brown [color] found in market research to be optimal in terms of decreasing the appeal and attractiveness of tobacco packaging, decreasing the potential of the pack to mislead consumers about the harms of tobacco use, and increasing the impact of graphic health warning.” The inner white surfaces, lined with silver foil backed with white, and the packaging may not “make a noise, or contain or produce a scent, that could be taken to constitute tobacco advertising or promotion,” nor may it contain any features that are designed to change after sale. The only proprietary mark allowed on the surfaces of these standardized packs is the name of the brand or company, and a variant, printed in Lucida Sans eight point font. The cigarettes themselves must be white, with an imitation cork wrapping for the filter and a white filter tip, and may be marked only with an alphanumeric code encrypting manufacturing data. These measures might seem unnecessarily exhaustive, until one recalls the canniness with which the industry has responded to attempts to regulate the packaging of cigarettes.
Plain packaging legislation raises a number of engaging theoretical and practical questions: about the legal qualities of the intellectual property rights that articulate branding strategies, about the relationship between the regimes of international trade law and world health policy, and about the history of regulatory initiatives to address the public health implications of smoking. Here, I am interested in questions about the communicative agency of the mass media: what does the example of Australia’s plain packaging law tell us about the role played by the surfaces of material wrappers and packages in branding practices?; how do brands articulate with the other strands of the mass media?
He concludes that
Although nothing in the Tobacco Plain Packaging Act obstructs the bare identification of the source of a product, the only real scope left for developing brand identities is that which is afforded by the use of variant names. In September 2012, before the statute came into force, British American Tobacco launched its proposed plain cigarette packs, which bore thirty-eight different variants, including “rich,” “smooth,” “fine,” “ultimate,” “original rum and wine,” and, for menthol cigarettes, “release chilled,” “sea green,” and “cool frost.” These descriptors evoke the symbolism that the industry developed through the now-proscribed media of color, shape, texture, and brand, and there is evidence that these condensed formulae shape the smoker’s perception of the product. The tobacco corporations may now be unable to position these vestigial brand signifiers through advertising, but there are suggestions that brand identities are being kept alive in social media. Assuming, however, that these opportunities are of only marginal significance, and assuming that the Australian statute survives referral to a WTO panel, it seems likely that the statute will achieve its objective of extinguishing the power of brands to capture new smokers and bind established smokers to their preferred brand. This prompts a somewhat speculative concluding observation: what if the smoker’s addiction to nicotine were an apt metaphor for the nature of our attachment to brands? 
Robert Proctor observes that the smoker’s craving for cigarettes is motivated both by the charisma of brands and by the psycho-chemical agency of nicotine; in the tobacco business, “[m]arketing joins with psychopharmacology to transform a rare or ritual indulgence into brain-rewiring mega-morbidity.” Nicotine is obviously the more persistent agent of addiction; according to industry insiders, the charisma of the brand holds the smoker until the effects of nicotine kick in. And, once hooked to the brand, smokers will “taste” in the tobacco the lifestyle qualities that are projected by the aesthetic of the pack. Even connoisseur smokers cannot savor a cigarette without ascribing to the tobacco the psychic effects of cues such as the color of a pack. Louis Cheskin, one of the great marketing gurus of the twentieth century, called this the effect of “sensation transference,” in which the auratic effects of the branded package are translated into innate qualities of the product. 
It might be a stretch to characterize our attachment to brands as an effect of cultural “addiction,” but the hypothesis is that the notion of addiction gets at an essential feature of the agency of brands. Addiction is not a straightforward concept. The contemporary notion can be traced back to the moral and religious censure of alcohol consumption in the nineteenth century, and the old moralistic characterization of drunkenness as a “disease of the will” still echoes through to the expert categorization of addictions. Cigarettes illustrate the point rather well. The characterization of brands as culturally addictive is based not on the premises of neuromarketing, but on the implications of Luhmann’s theory of mass media information. What we are addicted to is knowledge: “[t]he desire for information becomes as socially essential as the intake of new food is biologically essential.” More precisely, we are addicted to the speed of knowledge in the age of the mass media. We are compelled to be up to date and in the know, in current affairs, sports, literature, entertainment, and fashion, and the aesthetic of brands presupposes, captures, and reinforces this compulsion.

Identity Arbitrage

'Dissenting In and Dissenting Out' by Nancy Leong in (2014) 89 Chicago-Kent Law Review comments that
 The intense legal and social preoccupation with the appearance of diversity and nondiscrimination both reflects and reinforces a process I call “identity capitalism.” Through that process, ingroup individuals and ingroup-dominated institutions derive value from outgroup identity. This process results in the commodification of outgroup identity, with negative consequences for both outgroup members and society. 
Outgroup members actively participate in the process of identity capitalism in various ways. In particular, they leverage their outgroup membership to derive social and economic value for themselves. I call such outgroup participants “identity entrepreneurs.” Identity entrepreneurship is neither inherently good nor inherently bad. Rather, I view identity entrepreneurship as a complicated phenomenon with both positive and negative consequences. 
In this essay, I apply the framework of identity entrepreneurship to the notion of dissent within outgroups. Such dissent can take many forms. Here I examine two. First, I consider how outgroup members can leverage outgroup identity by minimizing outgroup associations — what I call “dissenting in” — by engaging in identity performances and adopting attitudes that distance themselves from the outgroup and associate them more closely with the ingroup. Second, I consider how outgroup members can leverage outgroup identity — what I call “dissenting out” — by engaging in identity performances and adopting attitudes that distance themselves from both the ingroup and the outgroup simultaneously. This theoretical grounding lays the foundation for a future examination of the ways that legal doctrines should treat dissenting in and dissenting out.
In the US another instance of data breach - this one reportedly involving up to 40 million cards via malware on devices at the Target's 1,797 stores - has resulted in litigation in Massachusetts, Florida, Oregon, Washington, California, Illinois and Minnesota. The litigants argue that the retailer failed to notify them of the breach (involving credit card numbers, names, expiration dates and security codes) before it was first reported in the mass media and did not "maintain reasonable security procedures" to prevent the loss.

Pardons and posterity

Auden astutely commented that
History to the defeated, May say Alas but cannot help nor pardon
On reading the news that Alan Turing has at last been posthumously pardoned - effective today - for gross indecency (Section 11 of the Criminal Law Amendment Act 1885) I endorse Andrew Hodges' comment that
Turing suffered appalling treatment 60 years ago and there has been a very well intended and deeply felt campaign to remedy it in some way. Unfortunately, I cannot feel that such a 'pardon' embodies any good legal principle. If anything, it suggests that a sufficiently valuable individual should be above the law which applies to everyone else.
It's far more important that in the 30 years since I brought the story to public attention, LGBT rights movements have succeeded with a complete change in the law – for all. So, for me, this symbolic action adds nothing.
Section 11 of the 1885 Act provided that
Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.
Gross indecency was not statutorily defined. The section was applicable irrespective of the ages of the male persons and irrespective of whether the act was committed in public or private, with or without consent.

The section was replaced by section 13 of the Sexual Offences Act 1956, which referred to
an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man.
The offences under s 11/13 were formally abolished altogether by the Sexual Offences Act 2003, with the Sexual Offences Act 1967 having decriminalised homosexual behaviour in private between men over 21.

The British Government has not apologised to or pardoned consenting adults who are still alive and were prosecuted under s 11/13, albeit under the Protection of Freedoms Act 2012 people convicted under ss 12 (buggery) and 13 (gross indecency) of the Sexual Offences Act 1956, s 61 of the Offences against the Person Act 1861 and s 11 of the Criminal Law Amendment Act 1885 can apply to the Home Office to have those convictions formally disregarded. That Act was noted here.

Turing, being dead, couldn't avail himself of that option and neither could other people - such as the late playwright and provocateur Oscar Wilde - who are deceased.  If we're engaging in selective pardons for celebrities we might move on to Mr Wilde … and there are a substantial number of non-celebrities (duly convicted under the law of their time for consensual same sex activity, witchcraft, heresy and so forth) who lack advocates.

The Turing pardon, by royal prerogative, removes from the subject of the pardon, "all pains, penalties and punishments whatsoever that from the same conviction may ensue, but not to eliminate the conviction itself". Turing thus remains convicted under the law that was in effect in 1952 but - nearly 60 years after absconding from the Darwin Hotel - is no longer contained by lawful "pains, penalties and punishments" associated with the conviction.

There's been no concerted move to pardon Australian men who were fined, imprisoned and stigmatised for consensual same-sex activity under the local counterparts of the UK statute.

23 December 2013

Citizenship Stripping

In the UK the Bureau of Investigative Journalism has reported that at least 20 people have had their British citizenship removed by he Home Secretary since May 2010, received such letters, on the basis that she feels they pose a risk to the UK.
Her orders take effect immediately, so the letters’ recipients have lost their citizenship even before they’ve opened the envelope. 
To issue a deprivation of citizenship order, May must believe someone’s presence in the UK is ‘not conducive to the public good’ – usually on suspicion of links to terrorism or extremism. The decision is entirely hers: she requires no judicial approval or any other kind of administrative process in advance.
In nearly every known case, the individual was abroad when the letter was sent. With their citizenship removed they were effectively stranded overseas, unable to return to be present at legal appeals – the only means of fighting their case. ... Where the cases are on national security grounds, appeals are heard in the Special Immigration Appeals Commission (Siac), a tribunal that can hear secret evidence. The appellant often knows only the vaguest outlines of the allegations against them.
The Bureau's item goes on to state that
Now May is believed to be planning a dramatic expansion of her powers to revoke citizenship by rewriting the law so that she can issue orders even where it will make people stateless, which is currently illegal under the British Nationality Act, and even though Britain is a signatory to international treaties aimed at reducing statelessness. 
This would put Britain in uncomfortable company, alongside nations such as Bahrain, which has been criticised by the UN’s High Commissioner for Human Rights for making dissidents stateless. In the US, the government is banned from removing the nationality of its citizens since a Supreme Court ruling in 1967, when judges ruled the US constitution did not allow for ‘fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time.’ 
By contrast, ‘[T]he current [British] government seems to see being a citizen as just another provisional status that can be taken away if you’re not well-behaved,’ says Dr Helena Wray, an immigration law specialist at Middlesex University. 
Revoking nationality is one of the most significant actions the Home Secretary can take against an individual. A deprivation of citizenship order removes all the protections and rights that go with being a British national, cancelling any passports or travel documents and removing the right to live in the UK, or to get consular help when overseas.  …. 
Under the current law, the only block on the Home Secretary using these powers is that she cannot use the orders if they will make an individual stateless. In practice, this means the orders can only be used against citizens with dual nationality, as they will still hold the nationality of another country. But now, in leaks to the media and parliamentary briefings, the Home Office has signalled its intention to remove this barrier. One suggestion is that May plans to amend the Immigration Bill so she can make people stateless if they have done something ‘seriously prejudicial to the vital interests’ of the country. The law would apply only to those who are naturalised as UK citizens, rather than those who are born British, the reports and other sources suggest. Bella Sankey, policy director of Liberty, said: ‘Stripping your own people of their citizenship is a hallmark of oppressive and desperate regimes. Rendering them stateless is lawless and shortsighted. Where suspicions exist public safety is best served by criminal investigations, not trampling on due process and trashing our reputation on the global stage.’ 
The right to a nationality is enshrined in Article 15 of the UN’s Universal Declaration of Human Rights.
Many of those whose citizenship has been removed by the British Home Secretary have claimed the actions have left them stateless. The Bureau has identified nine cases where people have argued this in court, and Mohamed Sakr’s parents say that although they come from Egypt, their son did not have an Egyptian passport. 
In October, an Iraqi-born man named Hilal al-Jedda won a six-year battle [see 2012 here and 2013 here] to regain his British citizenship when the Supreme Court ruled that he had illegally been made stateless. 
Al-Jedda had been detained by British forces in Iraq for three years on suspicion of planning bomb attacks, but was held in military custody and so was never charged. He has claimed he was physically abused while in custody. 
His Supreme Court victory is one of two times anyone is known to have successfully challenged removal of citizenship on national security grounds. But rather than return al-Jedda’s passport, May signed a new order revoking his nationality, again preventing him from returning to the UK. ... 
Britain is one of 54 signatories to the 1961 UN Convention on the Reduction of Statelessness, which prohibits making people stateless. The British government reserved the right to make an exception if someone has done something ‘seriously prejudicial to the vital interests of the state’ – a tougher test than the one the Home Secretary currently uses to remove citizenship. 
Mark Manly, legal coordinator for statelessness at the UNHCR, says: ‘The key words here are ‘seriously’ and ‘vital’. So it’s not just any kind of crime that we’re talking about, but really serious crimes against the core interests of the State. Offences like treason and espionage were what the drafters of the Convention had in mind. If you look at the language of the convention, it’s about conduct – action already taken by the individual.’ …
The law was rewritten in 2005-06 so the Home Secretary could act if it was believed that an individual’s presence in the UK is ‘not conducive to the public good’ – meaning she can act based on what someone might do, rather than something they have done. …
When questioned about its citizenship-stripping programme, the Home Office often responds with a boilerplate phrase: ‘Citizenship is a privilege, not a right.’
There is a useful discussion of citizenship stripping or denationalisation in 'Should citizenship be conditional? The Ethics of Denationalisation' by Matthew Gibney in (2013) 75(3) The Journal of Politics 646–658

Google's online pain in Spain

Posts in this blog and other writing (e.g. here) have noted increasingly expressions of discontent by European privacy regulators about Google and Facebook.

This week the Agencia Española de Protección de Datos (AEPD) - the Spanish Data Protection Agency - has imposed an aggregate €900,000 penalty on Google after concluding that
  • users were insufficiently informed that Google filtered the content of their emails and files to display advertising and, when it did it, used a terminology that was imprecise, unclear and with generic expressions
  • Google was breaking the law by using data it gathered for purposes that are unspecified and keeping this information for an indefinite time, while sometimes hindering users in their right to erase, access or modify this data.
The AEPD statement [PDF] indicates that
 Google unlawfully collects and processes personal information of both authenticated (those who log in their Google accounts) and non-authenticated users, as well as of those who act as "passive users" because they have not requested Google’s services but access to web pages that include elements managed by the Company. 
As a result, the Agency considers that Google seriously violates the right to the protection of personal data laid down in article 18 of the Spanish Constitution and regulated in the LOPD. 
AEPD’s inspection has demonstrated that Google collects personal information through nearly a hundred of services and products offered in Spain, in many cases not providing adequate information about what data is collected, what data is used for what purposes and without obtaining a valid consent of the data subjects. For example, Google does not inform clearly to users of Gmail that the content of mails and attached files is filtered with the aim to insert tailored advertising. Where Google does inform it uses vague terminology, with generic and unclear expressions that prevent users from knowing what they really mean. It is highly illustrative that in eight pages of its Privacy Policy, Google employs on up to 30 occasions terms such as 'we could', 'may', 'might' or "it is possible". In addition, Google uses highly ambiguous expressions to define the purposes of data processing, such as "improving user’s experience". The result of that approach is an indeterminate and unclear Privacy Policy. The lack of adequate information, particularly about the specific purposes justifying the processing of data, renders meaningless a consent that in order to be valid should be specific and informed. 
On the other hand, Google combines the personal information obtained through the different services or products in order to use it for multiple purposes that are not clearly determined, thus violating the prohibition to use data for purposes other than those for which it was collected. This combination of data across services that allows Google to enrich the personal information it stores, exceeds the reasonable expectations of the average user, who is not aware of the mass and transversal nature of the processing of their data. Acting in this way Google uses a sophisticated technology that exceeds the capacity of the majority of users to make conscious decisions about the use of their personal information so that, in practice, they lose control over it. 
Contrary to the provisions of Spanish law, Google stores and maintains data for periods of time indeterminate or unjustified, thereby contravening the legal mandate to cancel data when it ceases to be necessary for the purpose which determined its collection. The conservation of the data indefinitely, beyond the requirements arising from the purposes alleged at the time of collection, constitutes unlawful data processing. 
Finally, the AEPD concludes that Google hinders - and in some cases prevents - the exercise of the rights of access, rectification, cancellation and opposition. The procedure that citizens have to follow to exercise their rights or to manage their own personal information requires them to access to an undetermined number of web pages, scattered in several links, that are not available for all types of users and, occasionally, with denominations that do not always refer to its real object. The Company itself recognizes that users must run at least seven different processes, and reserves the right to not respond to requests involving "a disproportionate effort".
The Dutch data protection agency reached a similar conclusion last month but as yet has not imposed a penalty; Spain is the first nation to act, with the various regulators taking turns.

22 December 2013

Identity Scanners

'ID scanners in the night-time economy: Social sorting or social order?' (Australian Institute of Criminology Trends & issues in crime and criminal justice no. 466) by Darren Palmer, Ian Warren and Peter Miller [PDF] examines
the rationales for adopting compulsory patron ID scanning as a key method of reducing violence in and around licensed venues in the Victorian regional city of Geelong. Using a mixed methods approach, this paper challenges the popular perception that ID scanning has helped to reduce violence Geelong’s night-time economy. Further, the research identifies several limits in the administration of this technology that potentially undermine patron safety in the night-time economy. 
The authors comment that
Extensive media coverage and public outrage towards extreme cases of violence that lead to serious injury or death, frequently provide the impetus for introducing new and untested methods of enhancing venue security. One example involves the mandatory installation of high-resolution CCTV systems in all licensed venues throughout Victoria to increase patron surveillance and allow for the rapid identification of both perpetrators and victims of violence (Department of Justice 2009; VLRC 2010). However, evidence of the impact of CCTV in preventing, reducing or deterring crime remains equivocal (Wilson & Sutton 2003).
Digital identity authentication systems have similar appeal (Lyon 2009). ID scanning invokes ‘commonplace’ technology (Goold, Loader & Thumala 2010), such as a desktop or laptop computer, a digital camera, a portable scanning device and a hard drive, to automate conventional manual identity screening processes before a patron is granted entry into a venue. With appropriate software, these systems enable door staff to accurately identify and prevent entry to those with a previous record of violence at the venue.
At the point of entry into a licensed venue, a person must produce a driver’s licence or passport, or their fingerprint. An image of the document or biometric identifier is then scanned into a portable computer located at the venue or conveyed to a server operated by the system manufacturer. Most systems also require a digital photograph to be taken when a patron’s identity is first recorded and at each subsequent attempt to enter the venue. The technology then automatically matches the photograph with the person’s identification document or biometric fingerprint. System administrators can then manually adjust an individual’s digital record if they have engaged in any violent behaviour or are evicted from the premises. If a banned person attempts to re-enter the venue, automated matching of the compulsory photograph with the ‘flagged’ identity record enables door staff to readily identify those who should be denied entry.
Variants of this technology have been adopted to manage street offending in crime ‘hot spots’ (Beckett & Herbert 2008; Gibson 2003) and to facilitate penalties for the sale of alcohol to minors in the United States (Cross 2005). As with CCTV, the presence of an ID scanner might deter some patrons from attempting to enter a venue or engaging in violent and disorderly behaviour. Increasingly, data networking can also enable rapid digital information sharing between venue operators, security providers or police, which can assist in the enforcement of patron bans or prohibitions on underage entry into late-night venues.
There are currently few ID scanning systems available on the Australian market. This means it is easier for system developers to ‘share a banned list of troublemakers—whether that listing is local, statewide or national’ (O’Brien & Duff 2011: 4) among all venues employing the same system. Therefore, ID scanners have enormous potential to address ongoing concerns about security and law enforcement arrangements in the night-time economy, given the seemingly pervasive risks of violence in Australian drinking culture (Tomsen 2005).
The research has a strong criminological emphasis, with an emphasis on the need for more research and a disappointingly weak engagement with privacy issues such as those highlighted here and here. The authors comment that -
All but one venue licensee favoured the mandatory use of ID scanners and further data sharing across all ‘high-risk’ venues in the Geelong CBD. Suppliers of this technology, police, security personnel and local council officers endorsed these favourable views subject to minor qualifications.
Benefits of ID scanners
Respondents considered ID scanners to be the centrepiece of several measures under the revised 2007 Accord that sought to proactively ‘do something’ to improve the management of the Geelong night-time economy and reduce both the frequency and brutality of violent confrontations. One licensee indicated most Accord participants initially viewed ID scanners as a contentious policy option. However, their effectiveness at ‘high-risk’ venues could be seen through discernible shifts in patron behaviour after their implementation.
I was apprehensive at first but since I implemented them over two years ago it’s probably been one of the biggest tools that I believe has changed the behaviour of the patrons in our venues (Licensee).
ID scanners were also considered to reduce antisocial behaviour in licensed venues by accurately identifying people with a recorded history of disorderly conduct and ensuring patron bans could be readily enforced. This served two important deterrence functions. First, licensees believed potential troublemakers avoided attempting to enter venues where scanners were deployed. Second, the increased probability of accurate and rapid identification was considered to attract more orderly patrons. Both venue licensees and suppliers considered ID scanners removed ‘anonymity’ and reduced the likelihood that people with a propensity to engage in violence would attend the CBD nightclub precinct.
By removing anonymity, those who are prone to bad behaviour, and not necessarily just because of alcohol...but the fact that they know that they’re not anonymous, it’s pretty much a surety that they are going to be caught, be able to be identified and then caught, so they don’t do it. They’ll go elsewhere (Licensee).
Cost efficiency was significant, as ‘safety is business’ in the night-time economy. Both licensees and system suppliers indicated ID scanners are a low, one-off expense that is easy to install, maintain and upgrade. Most third-party system administrators provide low-cost technical support, software upgrades and data storage facilities. Thus, the technology is considered relatively easy to administer on-site and involves limited financial outlay.
Appearing to do something proactive about violence in the night-time economy, deterrence and cost efficiency were consistently viewed by venue licensees and other Accord participants as countering any perceived limitations of this technology. Commercial imperatives reinforced these themes among suppliers of ID scanning systems. Although one licensee expressed concern that police had placed undue pressure on ‘high-risk’ venue proprietors to implement the technology as a concession to the local liquor industry’s resistance to a proposed 2.00 am lockout at all venues, ID scanners were valued as a visible, deterrent-based and cost-effective measure designed to reduce violence. Only one licensee acknowledged that scanners might not deter drunken patrons engaged in ‘spur of the moment’ confrontations, who are unlikely to consider or care about any potential ramifications from identity-based or CCTV surveillance.
Problems
When questioned further, it became clear that venue licensees, door staff and security personnel were also aware of several anomalies in the use of ID scanners that could impact on, but not override, their potential to reduce violence. During peak times when long queues can lead to patron antagonism, a policy of selective (non)scanning was implemented at most larger venues. Patrons considered to be non-threatening, such as young women, were generally ushered past the scanning unit without undergoing an identity check. Young men who conformed to an accepted risk profile were commonly entered into the system as a matter of course.
Door staff questioned the uneven application of selective non-scanning. In line with recent observations in Edmonton, Canada (Haggerty & Tokar 2012), one door worker indicated this ‘no hands on’ policy undermined the potential for ID scanners to reduce violence. Friends of door and security staff, preferred customers and venue members routinely bypassed the system with no electronic record of their presence (Haggerty & Ericson 2000). One respondent indicated it was difficult to challenge this practice.
[T]he bouncers do let in people that they know, like bikies, really rough people, and those kinds of people can make everyone else feel intimidated…But there [were] always fights. It seemed to always kind of be the same kind of people...Like they kind of just went there for fighting…I don’t think it [a scanner] really makes a difference…I think they are going to do it [fight] anyway because most of the time they are wasted so they are not going to think about ‘the scanners are there, I’m not going to do this’ (Door staff).
While a perceived major benefit of ID scanning is its potential to remove patron anonymity, selective non-scanning undermines this in two ways. As the above quote indicates, it can enable security staff to allow patrons willing to engage in violence to enter licensed venues (Haggerty & Tokar 2012). However, by informally profiling young men deemed to be potential ‘troublemakers’, a considerable proportion of potential victims of violence might remain difficult to identify if their personal details are not entered into these systems (Harcourt 2007). This second issue was not recognised by any key stakeholders interviewed for this study.
All venues are required to display ‘clear signage at the front of the premise explaining that the patrons details were kept for 28 days and then destroyed’ (Licensee). However, door staff indicated there were few protocols for describing the ID scanning policy to concerned patrons. While this was rarely necessary, door staff commonly advised ‘the law’ mandated ID scanners. Concerned patrons could try entering another venue or were advised to contact system administrators during business hours. Concerns were seldom raised about whether this advice undermined a patron’s voluntary consent to having their personal information shared and stored at the venue.
Data retention policies are also adapted from principles developed for CCTV, requiring personal information to be deleted after 30 days. Suppliers indicated various operating procedures and technical protocols were developed in line with both state and federal privacy laws. One biometric system incorporated a complex data encryption system that could only be accessed by third-party administrators and was developed through the use of privacy consultants to ensure compliance with the national privacy principles. However, this system has yet to be incorporated in Geelong.
One ID system supplier questioned the lack of clear regulatory standards regarding the collection and dissemination of personal data. As demand increases for interoperable technology and greater information sharing about banned patrons among venue managers, police and security agencies, there is a need for the development of clear regulatory and data management protocols. Nevertheless, the following quote also highlights that increased regulation may prioritise information privacy over patron safety.
The fact that there are no protocols…leaves the use of these things vulnerable. They have been highly effective and the misuse of one could bring down a lot of good work and that worries me quite a bit. So in terms of is regulation needed for it? Yes. But the problem is when you get regulators involved…they are largely coming from an angle that is myopic and not a balance of what the real objective is; and that is making it safe. And making it safe means there has to be some surrendering of privacy (System Manufacturer).
Licensees favoured the open circulation of information between all Geelong venues and with police to prevent ‘bar hopping’ by flagged or banned individuals. As one venue licensee described:
If you can get it [ID scanning] implemented on a grand scale in the CBD at least it has some sort of impact because if they were to be banned from [one venue]…[unruly patrons] used to be able to walk into any other venue they can. But now it impacts on all the CBD venues so if they’re banned they’re banned everywhere…(Licensee).
However, this study revealed an important paradox associated with information privacy and crime prevention. Victoria Police consistently used information privacy as the standard justification for only providing generalised LGA data rather than the specific locations of reported assaults or basic demographic characteristics of victims and suspects. Local government representatives participating in the development of the November 2007 Accord considered this was the major impediment to the development of meaningful evidence-based policies to combat alcohol-related violence. Prior to calling for more research the authors comment that Despite claims by venue licensees and system suppliers, this study provides limited empirical support for claims alcohol-related assaults in and around Geelong’s late-night venues have declined since the initial pilot of May 2007 and the subsequent mandated use of ID scanners under the revised Liquor Accord. Between May 2007 and May 2008, there was no discernible reduction in either reported assaults (see Figure 2) or emergency department admissions that identify alcohol-consumption as a key variable. Increases in street assaults from July 2008 suggest ID scanners may have produced a displacement effect, but firm conclusions on this point are not possible. This is an example of one of Brown’s (2013) key principles of regulation of crime prevention interventions—they must be effective at preventing crime.
A different picture emerges when these figures are considered in light of key stakeholder interview data. Venue licensees and system managers equate improved business with the erosion of anonymity and deterrence. However, selective non-scanning has significant potential to undermine these key benefits. Door staff indicated this form of profiling had not reduced violence at some Geelong venues. More problematically, the inability to rapidly identify a significant proportion of potential crime victims is a recognised by-product of selective profiling (Harcourt 2007). Selectively targeting potentially ‘troublesome’ young men allows certain individuals or groups to remain anonymous and potentially less readily identified if a victim or offender. This generates a rather skewed ‘surveillant assemblage’ (Haggerty & Ericson 2000: 619) that is difficult for those who are proactively targeted to contest.
However, ID scanners have considerable value in enforcing bans from licensed venues. By nature, banning policies can only be enforced through identity authentication (Beckett & Herbert 2010; Lyon 2009). System suppliers, venue licensees and security staff unanimously agreed that the use of ID scanners is an efficient method for excluding banned patrons. Most Australian states have legislatively mandated short-term public order bans and long-term prohibitions on entering licensed venues or nightclub precincts for serious alcohol-related offences that operate alongside a licensee’s proprietary right to deny entry or evict any patron (see Palmer & Warren 2013). The information about patrons that have been banned by venues or have been subject to legislated banning orders is shared between police and venues via the local Liquor Accords, thus avoiding breaches of privacy regulations.
However, the lack of clear policy guidance on implementing ID scanning technology enables door staff and security personnel to subvert the intent of removing patron anonymity, which can occur at the expense of ‘the actual task of providing [human] protection’ (Zedner 2006: 277). In Harcourt’s (2007: 23–25) terms, this is a form of ‘elasticity’. Selective profiling that aims to enforce venue exclusions legitimises gaps in the administration of ID scanning that either allow other forms of crime to remain immune from the surveillant assemblage, or that potentially compromises the identification of victims of violence with no recorded electronic profile. This helps to explain why there has been no significant decline in reported assaults or emergency department admissions between November 2007 and mid-2009.
Crime prevention technologies present numerous challenges for privacy regulators in Australia (ALRC 2008) and internationally (Brogan 2002/2003; Goold & Neyland 2009). Considerable patron satisfaction with ID scanners in Geelong reflects public ‘apathy about having one’s driver’s license scanned’ (Holloman & Ponder 2007: 45) as identified in US literature. This also reveals immense trust that any personal data that is collected is unlikely to be ‘used outside of the scope of ensuring a safe and legal atmosphere within the establishments’ (Holloman & Ponder 2007: 45).
By contrast, privacy is a significant barrier to the dissemination of valuable information about trends in alcohol-related assault that reinforces the legitimacy of ID scanners as a crime prevention measure. The availability of data indicating where victims and perpetrators of assault had last consumed alcohol in the New South Wales city of Newcastle was considered vital to the development of targeted evidence-based interventions leading to a 30 percent reduction in alcohol-related assaults (Wiggers 2007; Wiggers et al. 2004). Such data could have additional value in measuring the displacement effects of any ID scanning or other forms of surveillance introduced into the night-time economy. 
They conclude that
Concepts of effectiveness based on deterrence, reduced anonymity and profiling have normalised digital ID verification as a legitimate form of social sorting. This study demonstrates that ID scanners are a tangible policy supported by what are currently poorly validated claims of ‘success’. The rapid introduction of these new technologies aimed at producing fast and discernible results has occurred with little consideration for the development of appropriate protocols regarding the collection, use, sharing, storage, maintenance, access to and destruction of digital information. Further, there has been limited oversight of how private venue operators or third-party security providers manage these databases independently of, and in conjunction with, the police.
They recommend establishment of a national working group to examine regulatory options for 'forms of population surveillance designed to prevent crime', with consideration of
  • A temporary moratorium on the use of ID scanners pending the development of an appropriate regulatory framework for data collection, storage, dissemination and privacy protection. 
  • The expansion of private security licensing to cover all personnel involved in using ID scanners, including the development of appropriate training and accountability measures. 
  • Specific policies and accountability processes for information sharing between private venue operators, security providers, police and criminal intelligence agencies. 
  • The provision of alternatives to ID scanning where patrons are unwilling to consent to the collection and storage of their personal information. 
  • The development of an independent and transparent complaints mechanism. 
  • The revision of current public order, summary offences, criminal, liquor licensing, administrative appeals and privacy regimes to develop an appropriate audit and compliance procedure. 
  • The promotion of ongoing local, state, national and international research into ID scanners, related electronic surveillance measures and their impact in preventing crime and alcohol-related harm.