09 March 2013


'Pseudonyms and the Rise of the Real-Name Web' by Bernie Hogan in Hartley, Burgess & Bruns (eds) A Companion to New Media Dynamics (Blackwell, forthcoming) 290–308 comments that
Despite their ubiquity, pseudonyms are an under-theorized element of online participation, as is the use of real names (or names commonly used to personally identify someone). This absence has become especially acute in recent years as sites listing an individual’s real name have become common. This shift towards real names is not merely a technical convenience, but a specific political turn. As pseudonyms are often associated with Internet trolling and cyberbullying, it is useful to track the use of pseudonyms in history and to consider many of their positive functions. Ironically, pseudonyms help to solve a problem that Facebook creates – the single heterogeneous audience, i.e., the collapsed context.
I describe three classes of pseudonyms: functional, where pseudonyms denote a specific social or technical function, such as eight character names or official titles; situational, where an external motivating force compels people to hide their real name identities (and of attributes) and personal, where an internal drive to adopt a different persona makes pseudonyms useful. I then describe how these uses operated in a pre-web 2.0 era, and how their use persists.
In discussing the 'nymwars' he argues that
These issues came to a head in the summer of 2011 with the rise of the "nymwars". This term emerged to capture the dissatisfaction with Google+’s assertion that people who joined the service had to use their real name. This decision was widely derided as problematic by a host of scholars and policymakers. As mentioned above, in one such example boyd (2011) called this policy an abuse of power. The counter arguments, however, were just as strong, and based on two general claims (see comments on boyd’s post for examples of this discussion). The first theme is ‘‘don’t like it, don’t use it; its Google’s house, not yours.’’ The second is ‘‘nothing to hide, nothing to fear.’’ The third is ‘‘it doesn’t matter since it is all going public anyway.’’
The first claim carries the most weight insofar as, indeed, Google is the architect of this system, and can make good claims to determining how it is run. However, Google’s policy is nevertheless a presumptuous one. That is, it presumes its particular model for the distribution of content is sufficient for selective sharing, when there are good reasons to think otherwise. Google+ offers individuals the ability to place friends in lists (or ‘‘circles’’). One can share content with these friends or any combination of lists. However, once the friends view this content, there is nothing except a polite pop-up preventing them from redistributing that content to whomever they choose.
The most concerning aspect about this claim is that Google’s policy has the potential to become national or state policy as well. Eric Schmidt, former Google CEO, reinforced this with comments at the same Marie Claire panel where Randi Zuckerberg was quoted above. He believes that at some point all governments will demand real names.
The second claim is more easily discredited. In particular, Solove has made a strong case that ‘‘nothing to hide, nothing to fear’’ is a red herring. Even without the assertion of privacy as a fundamental right, Solove (2007) was able to demonstrate a convincing case for why individuals should have an interest in the sort of informational self-determination that is central to an interest in privacy. In particular, people self-incriminate in many unanticipated ways and lose control when they lose privacy. This claim dovetails Nissenbaum’s (2004) notion of ‘‘privacy as contextual integrity.’’
This article on privacy reframed the debate and crystallized the sentiments of many in both policy and academic circles. For example, if we are so close to our parents or spouses, why do we tell things to our doctor that we do not tell them? Nissenbaum argues that privacy is intimately bound up with the notion of contextual integrity. She explores not what privacy is from a positive point of view but what constitutes a breach of privacy. To breach privacy is to move information from one context where such information is understood or expected to reside and into another context where that information was neither intended nor appropriate given the existing social norms. For the hedonistic tourist, Las Vegas is a vacation, not just from another place but another context of norms. Consequently, the Las Vegas tourist board did well with the slogan ‘‘What happens in Vegas stays in Vegas.’’
This is privacy understood as informational self-determination. One has privacy when one can assume that information created by a person will be managed in the way that the person deems appropriate. A doctor who calls a patient’s boss to tell them of a recent diagnosis is breaching privacy. It is unprofessional, but might happen if the doctor and the boss are friends. A website that reveals the IP address and email of someone who posts anonymously is breaching privacy. By linking all information to one’s real name, one effectively transfers informational self-determination into information curation, and allows Google or Facebook to be the curator.
The third claim, typified by Marc Smith’s notion of ‘‘the myth of selective sharing’’ (Smith 2011), draws upon Brand’s earlier claim that ‘‘information wants to be free’’ (1987: 202). That is, it does not matter whether one uses a filter or not; information will end up unified and searchable in the end. This claim is a moderated version of the second claim as Smith is not saying people have nothing to fear but only that, if information is encoded in some form, it is both possible and plausible that it will first escape from the confines of the desired context and second make its way back to the producer. This makes the case a fortiori that labeling all information with one’s real name will undermine informational self-determination. It remains to be seen whether a user interface will emerge that can allow selective sharing with audiences in a useable form, and in its absence we are again left with curation.
He concludes
I conclude by returning to the claim made at the beginning of the chapter: the real-name web is not a technology; it is a social practice. But, in light of this discussion, it is clear that there are both technical trajectories and historical antecedents that foster a trend toward real-name spaces as well as a persistent need for pseudonyms. In particular, the early days of the web were characterized by the paucity of social cues, the sparsity of one’s social network, and the strangeness of people who might be quite different from what they say they are. Pseudonyms made sense both technically and contextually. The modern web, by contrast, is a rich multimedia experience where large corporations curate content on our behalf via cloud services. These corporations continually seek ways to assert their legitimacy, through technical interfaces (e.g., Google’s social circles model) and politics (e.g., real-name policies). In essence, they are suggesting that they have figured out a solution to context collapse (their particular interface). To push people toward these solutions, it is conventional to publicly discourage the use pseudonyms, despite their efficacy.
The increasing use of real names does not, however, attenuate the motivations for pseudonyms. It only mitigates against the personal motivations of cranky and vulgar users and serves to make people and their content more findable. There still exist functional reasons for pseudonyms (such as a unique name or email address), situational motivations in response to context collapse, and personal motivations of identity play beyond trolling and flaming. Through pseudonyms people can express their competitive urges in gaming environments, their health concerns on specialist sites, their sexual urges on pornographic sites, and their political appetites on blogs without these getting in the way of each other or personal and professional obligations.
In light of this, there is much work to be done both academically and politically. Academic work ought to provide greater nuance to identity practices online – when do people adopt a different mask and ‘‘troll’’ or play with identity? Under what conditions, such as those of Wikipedia, do pseudonyms enable effective local collaboration? Are pseudonyms dying out or surging, especially in crosscultural contexts? Policy scholars ought to consider work such as the current Canadian legal trend of balancing privacy online and public interests for freedom of speech. Reidentification practices ought to be lifted out of discussions about vandals and terrorists and reframed in terms of free-speech practices in a new era of persistent content and collapsed contexts.
Finally, we ought to dispel myths that pseudonymous online interaction is a Hobbesian state. In its place we ought to consider such interaction as a localized social contract and response to the increasing array of technologies focused on identity consolidation for profit rather than for the social good. Sites such as the fleeting protest site http://my.nameis.me helped to focus the discussion to good effect. After a protracted public relations war, Google+ has dropped its realname requirement and joined a growing number of sites that acknowledge the legitimacy, functions, and utility of pseudonyms as well as real names. This was announced at the 2011 Web 2.0 forum. At the same summit the day before, Poole (moot) made his most eloquent plea yet for rethinking identity: ‘‘Google and Facebook would have you believe that you’re a mirror, but we’re actually more like diamonds ... Look from a different angle, and you see something completely different . . . . Facebook is consolidating identity by making us more simple than we truly are’’ (Poole 2011a).
The web is not merely a highly connected place out there but a codification of the social relations that bind much of the developed and developing world. The real-name web helps to reinforce this sense of global connectivity. But it also runs against limits inherent in a system curated by third parties with persistent content. Pseudonyms are both an antecedent to this situation and also a partial solution. We may live in a global village but our huts still need curtains.


'Silent Listeners: The Evolution of Privacy and Disclosure on Facebook' by Fred Stutzman, Ralph Grossy & Alessandro Acquistiz in (2012) 4(2) Journal of Privacy and Con fidentiality argues that
Over the past decade, social network sites have experienced dramatic growth in popularity, reaching most demographics and providing new opportunities for interaction and socialization. Through this growth, users have been challenged to manage novel privacy concerns and balance nuanced trade-off s between disclosing and withholding personal information. To date, however, no study has documented how privacy and disclosure evolved on social network sites over an extended period of time. In this manuscript we use profile data from a longitudinal panel of 5,076 Facebook users to understand how their privacy and disclosure behavior changed between 2005 - the early days of the network - and 2011. Our analysis highlights three contrasting trends. First, over time Facebook users in our dataset exhibited increasingly privacy-seeking behavior, progressively decreasing the amount of personal data shared publicly with unconnected profiles in the same network. However, and second, changes implemented by Facebook near the end of the period of time under our observation arrested or in some cases inverted that trend. Third, the amount and scope of personal information that Facebook users revealed privately to other connected profiles actually increased over time|and because of that, so did disclosures to "silent listeners" on the network: Facebook itself, third-party apps, and (indirectly) advertisers. These findings highlight the tension between privacy choices as expressions of individual subjective preferences, and the role of the environment in shaping those choices.
In discussing research limitations and conclusions the authors comment that
We have presented the results of a longitudinal analysis of 5,076 Facebook users who were members of the Carnegie Mellon Facebook network in 2005. Over the course of seven years, we captured pro file content with a goal of understanding how disclosure practices change over time. Before summarizing our results, we point out a number of limitations of the current analysis.
First, as we have observed in the introduction, one limitation of this data is that it does not originate from a random sample of Facebook users - nor could it, as the bulk of Facebook users in 2013 did not have Facebook accounts in 2005. Our trends are based on a panel of Facebook users dominated by undergraduate students, and our analysis focuses on one specifi c Facebook network - the Carnegie Mellon network - and only on those who were members of that network in 2005. Hence, our results may not extrapolate to more diverse samples of users. However, both survey data and analyses of other Facebook networks are consistent with one of the results presented here: that over time Facebook users have become less likely to share their personal information publicly. Our analysis extends that research by offering evidence that the privacy-seeking behavior started early in the life of the network, and then progressed over several years of Facebook usage - until it was partly obstructed by Facebook's policies and interface changes.
Second, in this manuscript we did not distinguish between non-disclosures due to the member actually not filling out a field, and those due to the member altering the privacy settings of that field (or of their entire profile) in order to limit public disclosures. While such distinction is of interest (and is the object of our ongoing research), it does not invalidate the main conclusions of the current analysis, which focused on the trends in public disclosures of personal information over time. It does affect, however, the discussion of how much information remains available to third-parties (such as apps providers) and to Facebook itself.
Third, our quantitative analysis was restricted to the fields which existed on Facebook in 2005, and the analysis presented in Section 5 was mainly qualitative, and included only a preliminary investigation of additional fields. However, using a consistent set of fields, and a consistent set of users, allowed us to more precisely define and explain trends in disclosure and privacy behavior over the past seven years. As our analysis revealed, a robust trend of declining public disclosure emerged over the years across a broad range of Facebook pro file elements - including personal, contact, and interest information. We also observed a signi cant shift for many of these profile elements between the years 2009 and 2010, when public disclosure increased. We concluded that changes to privacy policy and interface settings by Facebook produced greater public disclosures. In other words, exogenous changes effected by Facebook near the end of the period of time under our observation arrested or inverted an endogenous, user-driven trend of members trying to protect their privacy by managing the public disclosure of their personal information.
On the other hand, we also observed that, over time, the amount and scope of personal information that Facebook users have revealed to friends' profiles seems to have markedly increased - and thus, so have disclosures to Facebook itself, third-party apps, and (indirectly) advertisers. Such findings highlight the challenges users of social network sites face when trying to manage online privacy, and the power of providers of social media services to affect individuals' disclosure and privacy behavior through interfaces and default settings.

Rawls, Rights Hierarchies and the CJEU

'Fundamental Rights and the EU Internal Market: Just How Fundamental are the EU Treaty Freedoms? A Normative Enquiry Based on John Rawls’ Political Philosophy' by Nik J. de Boer in (2013) 9(1) Utrecht Law Review 148-168 assesses
whether the EU Treaty freedoms - the free movement of goods, persons, services and capital - should be considered as fundamental rights which are hierarchically equal to other fundamental rights. It uses the political philosophy of John Rawls to assess why we should attach priority to certain rights and which rights should therefore be considered fundamental rights. On this basis it is argued that we should recognise two main types of fundamental rights, namely basic rights and liberties associated with Rawls' first principle of justice and the rights associated with the principle of fair equality of opportunity. This is followed by an analysis of the interpretation that the European Court of Justice (CJEU) gives to the Treaty freedoms. On the basis of the normative framework, it is argued that the Treaty freedoms can be seen as fundamental rights insofar as they embody the value of equality of opportunity. Nonetheless, the CJEU increasingly seems to rely on a broader market access approach rather than an equal treatment approach in interpreting the Treaty freedoms. It is argued that where equal treatment is not at stake, the Treaty freedoms should not be seen as fundamental rights. Therefore, in cases where there is a conflict between a fundamental right and a Treaty freedom the CJEU should carefully distinguish between these two different interpretations of the Treaty freedoms. In cases where it is merely market access that is at stake, the CJEU should regard the protection of fundamental rights as more important, and be very careful in allowing a restriction of fundamental rights in order to protect the exercise of the Treaty freedom. On the other hand, in cases where the Treaty freedoms can be seen as protecting equality of opportunity and where they conflict with other fundamental rights, the Court is justified in construing the conflict as a right-right conflict in which a fair balance has to be sought.

Positive Privacy

'Toward a Positive Theory of Privacy Law' by Lior Strahilevitz in (2013)113(1) Harvard Law Review argues that
Privacy law creates winners and losers. The distributive implications of privacy rules are often very significant, but they are also subtle. Policy and academic debates over privacy rules tend to de-emphasize their distributive dimensions, and one result is an impoverished descriptive account of why privacy laws look the way they do. The article posits that understanding the identities of the real winners and losers in privacy battles can improve predictions about which interests will prevail in the agencies and legislatures that formulate privacy rules. Along the way, the article shows how citizens whose psychological profiles indicate a strong concern for their own privacy are less likely to be politically efficacious than citizens who do not value privacy, producing a substantive skew against privacy protections. The article employs public choice theory to explain why California’s protections for public figure privacy are noticeably stronger than the protections that exist in other American jurisdictions, and what factors might explain the trans-Atlantic divide over privacy regulation with regard to Big Data, the popularity of Megan’s Laws in the United States, and the enactment of Do Not Call protections. The article concludes by noting that structural features of privacy regulation can affect the public choice dynamics that emerge in political controversies. Individuals seeking to expand privacy protections in the United States might therefore focus initially on altering the structure of American privacy laws instead of trying to change the law’s content.
Strahilevitz comments that
Privacy protections create winners and losers. So do the absence of privacy protections. The distributive implications of governmental decisions regarding privacy are often very significant, but they can be subtle too. Policy and academic debates over privacy rules tend not to emphasize the distributive dimensions of those rules,1 and many privacy advocates mistakenly believe that “all consumers and voters win” when privacy is enhanced. At the same time, privacy skeptics who do discuss privacy in distributive terms sometimes score cheap rhetorical points by suggesting that only those with shameful secrets to hide benefit from privacy protections. Neither approach is appealing, and privacy scholars ought to be able to do better.
This Article reveals some of the subtleties of privacy regulation, with a particular focus on the distributive consequences of privacy rules. The Article suggests that understanding the identities of privacy law’s real winners and losers is indispensable both to clarifying existing debates in the scholarship and to helping us predict which interests will prevail in the institutions that formulate privacy rules. Drawing on public choice theory and median voter models, I will begin to construct a positive account of why U.S. privacy law looks the way it does. I will also suggest that a key structural aspect of U.S. privacy law - its absence of a catch-all privacy provision nimble enough to confront new threats - affects the attitudes of American voters and the balance of power among interest groups. Along the way, I will also make several other subsidiary contributions: I will show why criminal history registries are quite likely to become increasingly granular over time, examine the relationship between data mining and personality-based discrimination, and explain how the U.S. political system might be biased in favor of citizens who do not value privacy to the same degree that it is biased in favor of highly educated and high-income citizens. Part I assesses the distributive implications of two privacy controversies: the extent to which public figures should be protected from the nonconsensual disclosure of information concerning their everyday activities, and the extent to which the law should suppress criminal history information. In both instances the United States is far less protective of privacy interests than Europe, and, as a result, the U.S. government has been subjected to criticism both here and abroad.
The Article shows that defensible distributive judgments undergird the American position. The European approach to celebrity privacy is highly regressive, and causes elites and nonelites to have differential access to information that is valuable to both groups. The U.S. attitude toward criminal history information may be defended on pragmatic grounds: in the absence of transparent criminal history information, individuals may try to use pernicious proxies for criminal history, like race and gender. The Article then shows how these distributive implications affect the politics of privacy; California’s interest groups are pushing that state toward European-style regulation, and there is an apparent emerging trend toward ever-increasing granularity in criminal history disclosures.
Part II analyzes the emerging issue of Big Data and consumer privacy. The Article posits that firms rely on Big Data (data mining and analytics) to tease out the individual personality characteristics that will affect the firms’ strategies about how to price products and deliver services to particular consumers. We cannot anticipate how the law will respond to the challenges posed by Big Data without assessing who gains and who loses by the shift toward new forms of personality discrimination, so the Article analyzes the likely winners and losers among voters and industry groups. The analysis focuses on population segments characterized by high levels of extraversion and sophistication, whose preferences and propensities to influence political decisions may deviate from those of introverts and unsophisticated individuals in important ways.
Part III glances across the Atlantic, using Europe’s quite different legal regime governing Big Data as a way to test some of the hypotheses articulated in Part II. Although U.S. and European laws differ significantly, the attitudes of Americans and Europeans toward privacy seem rather similar. The Article therefore posits that different public choice dynamics, especially the strength of business interests committed to data mining in the United States, are a more likely cause of the observed legal differences. But this conclusion raises the question of why European business interests committed to data mining do not have similar sway. The Article hypothesizes that structural aspects of U.S. and European privacy laws substantially affect the contents of those laws. In Europe, open ended, omnibus privacy laws permit regulators to intervene immediately to address new privacy challenges. The sectoral U.S. approach, which lacks an effective “catch-all” provision, renders American law both reactive and slow to react. As a result, by the time U.S. regulators seek to challenge an envelope-pushing practice, interest groups supporting the practice have developed, social norms have adjusted to the practice, and a great deal of the sensitive information at issue will have already been disclosed by consumers.
Part IV examines a rare case in which U.S. regulators were able to combat a substantial privacy harm despite these structural and interest group dynamics. The fact that the National Do Not Call Registry took more than a decade to be implemented, despite its enormous popularity with voters, shows just how difficult regulating privacy can be, especially since many other privacy regulations will create a substantial number of losing consumers who are likely to buttress the interests of prospective loser firms in opposing the new regulation.

08 March 2013

Quantitative Privacy

'The Right to Quantitative Privacy' by David C. Gray and Danielle Keats Citron in (2013) 98 Minnesota Law Review argues that
We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of information about their public or shared activities, even if they lack a reasonable expectation of privacy in the constitutive particulars. This quantitative approach to the Fourth Amendment has since been the subject of hot debate on and off the courts. Among the most compelling challenges are questions about quantitative privacy’s constitutional pedigree, how it can be implemented in practice, and its doctrinal consequences. This Article takes up these challenges. 
The conversation after Jones has been dominated by proposals that seek to assess and protect quantitative privacy by focusing on the informational “mosaics” assembled by law enforcement officers in the course of their investigations. We think that this case-by-case approach both misunderstands the Fourth Amendment issues at stake and begets serious practical challenges. Drawing on lessons from information privacy law, we propose as an alternative that legislatures and courts acting in the shadow of Jones focus on the technologies. Under this technology-centered approach, any technology that is capable of facilitating broad programs of continuous and indiscriminate surveillance would be subject to Fourth Amendment regulation. This does not mean that government would be barred from using these technologies. Rather, it would require that the terms of their deployment and use reflect a reasonable balance between privacy concerns and law enforcement’s interests in preventing, detecting, and prosecuting crime. This Article offers concrete proposals for how legislatures and courts might strike this balance while providing the clear guidance and predictability that critics of the mosaic theory rightly demand.

Organ Trafficking

The Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth), in effect as of today, amends the Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), the Migration Act 1958 (Cth), Proceeds of Crime Act 2002 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth).

The primary amendment is to the Criminal Code Act to:
  • insert offences of forced labour, forced marriage, organ trafficking and harbouring a victim;
  • ensure the slavery offence applies to conduct which renders a person a slave, as well as conduct involving a person who is already a slave; 
  • extend the application of existing offences of deceptive recruiting and sexual servitude to non-sexual servitude and all forms of deceptive recruiting; 
  • increase penalties for debt bondage offences; 
  • broaden the definition of exploitation to include all slavery-like practices; and
  • amend existing definitions to provide that the broadest range of exploitative conduct is criminalised, including psychological oppression and the abuse of power or taking advantage of a person's vulnerability
Changes to the Crimes Act 1914 increase the availability of reparation orders to individual victims of Commonwealth offence.

There are consequential amendments to  the Crimes Act 1914, the Migration Act 1958, the Proceeds of Crime Act 2002 and the Telecommunications (Interception and Access) Act 1979.

The Explanatory Memo indicates that
The Bill limits the right to privacy. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks. The right to privacy may be subject to permissible limitations. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that limitations: 
  • serve a legitimate objective 
  • adopt a means that is rationally connected to that objective, and 
  • the means adopted are not more restrictive than they need to be to achieve that objective.
 The consequential amendments to the TIA Act will classify the new offences of forced labour, forced marriage, harbouring a victim, and organ trafficking as well as the amended offences of debt bondage as `serious offences' for the purposes of the TIA Act, which will enable law enforcement agencies to obtain warrants to intercept communications of persons of interest, including third persons they are likely to be in contact with, for the purpose of investigating these crimes. 
The powers to intercept communications will be prescribed under the TIA Act and will therefore be authorised by law. 
The limitation on privacy serves the legitimate objective of investigating and prosecuting slavery and people trafficking-related offences. This legitimate objective reflects the absolute right to freedom from slavery and forced labour contained in Article 8 of the ICCPR. Australian authorities are increasingly identifying situations of exploitation that are beyond the scope of the current slavery and people-trafficking related offences. It is necessary to ensure that law enforcement agencies have the means to investigate the new offences of forced labour, forced marriage, harbouring a victim, and organ trafficking, as well as the amended offences of debt bondage in the same manner as the current slavery and people trafficking-related offences. 
Prosecutions reveal that offenders of slavery and people-trafficking offences are often reliant on mobile phone services to organise such crimes. It is therefore very likely that interception would reveal valuable evidence which will improve the ability of law enforcement agencies to investigate and prosecute these crimes. This is particularly pertinent in an area of crime where a victim's testimony is often the primary source of evidence. Implementing the consequential amendments to the TIA Act will ensure that enforcement agencies have the power to investigate the new slavery and people-trafficking related offences in the same way they currently investigate similar serious crimes and to prosecute offenders. 
Less restrictive alternatives to telecommunications interceptions, such as witness testimony, have proven to provide insufficient evidence for the prosecution of offences similar to those proposed by the Bill. This is particularly the case when witnesses are reluctant to testify. In light of the fact that the offences under the Bill, by their nature, are extremely difficult to investigate, a reliance on voluntary testimonies is an insufficient mechanism. 
The ability of law enforcement agencies to intercept communications is limited to the investigation of serious offences for the purposes of the TIA Act, where agencies have applied for, and been issued, an interception warrant by an issuing authority. Issuing authorities may be eligible Judges or nominated Administrative Appeals Tribunal members. The TIA Act requires that in deciding whether to issue an interception, an issuing authority must have regard to how much the privacy of any person or persons would be likely to be interfered with by interception under a warrant. This provides a strict judicial oversight mechanism to prevent arbitrary interference to privacy. 
The TIA Act strictly regulates the use and communication of information obtained by law enforcement agencies under interception warrants. Any information collected may only be used for defined purposes and purposes connected with the investigation of serious offences. The TIA Act also imposes a number of recordkeeping and accountability requirements, including a requirement for law enforcement agencies to record particulars of, and report information about, the `use' and `communication' of intercepted information. Communications are destroyed where the Chief Officer of the agency is satisfied that the record is no longer required for a purpose permitted by the legislation. 
Persons affected by an interception warrant have relevant judicial avenues through which to challenge the validity of the interception and the use of any intercepted communications. They also have the right to access communications being used as evidence against them during prosecution.

07 March 2013


'Who Owns the Firms That Own IP?' [PDF] by Jonathan Band and Jonathan Gerafi comments that
There is absolutely nothing sinister about foreign ownership of firms in IP intensive industries, including foreign ownership of companies originally established in the U.S. This is to be expected in a globalized economy with multinational corporations and complex cross-border supply chains. Moreover, many countries in Western Europe and East Asia are at the same level of technological and economic development as the United States. The critical point is that in such a globalized economy, U.S policymakers should no longer assume without reflection that the beneficiaries of protectionist IP policies are U.S. firms and, by extension, U.S. workers and shareholders.
The paper examines whether "firms in IP-Intensive industries" are owned by US companies or are foreign owned, concluding that contrary to popular belief (and the belief of policymakers) there is substantial foreign involvement in those industries and that "IP policies adopted by Congress and the Executive Branch may benefit foreign corporations at the expense of U.S. consumers".

The paper's  “key findings” include -
  •  Four of the “Big Six” publishers, the largest English language trade publishers, are foreign-owned. Over 80% of the global revenue of the Big Six is generated by those foreign-owned companies. Those foreign-owned companies publish more than two thirds of the trade books in the U.S. 
  • Four of the five largest STM (science, technical and medical)/Professional publishers are foreign-owned. Over 90% of the revenue of the five largest STM/Professional publishers was generated by foreign-owned firms. 
  • Only seven of the world’s 50 largest publishers of all categories are U.S.-owned. The book publishing industry in Europe has approximately twice as many employees as in the United States. 
US nationalists may be distressed by the finding that
  • Thirteen of the twenty best-selling recording artists are foreign
  • Of the top ten best-selling fiction authors in any language whose work is still in copyright, five are foreign. A British author wrote three of the top five best-selling books in the U.S. in 2012
  • In 2013, the Oscar winners in thirteen of 24 categories were foreign. In 2012, the Oscar winners in eleven of 24 categories were foreign. 
For people who are unfussed about JD Rowling, Enid Blyton, Barbara Cartland and JR Tolkien it's perhaps more serious that
  • Two of the three major record labels are foreign-owned. These two labels have a market share of 59%. 
  • Of the 50 most popular motion pictures in the United States in 2012, 50% were filmed partly or entirely outside of the United States.  
  • 70% of the most recent generation of game consoles were manufactured by Japanese companies. Japanese companies have manufactured 92% of all game consoles ever sold. 
  • In 2011, foreign companies obtained 7,000 more U.S. patents than U.S. companies. In 2011 and 2012, seven of the top ten companies receiving U.S. patents were foreign. 
  • 57% of the global revenue of the fifteen largest pharmaceutical companies was generated by foreign-owned companies. The majority of the employees of both the U.S. and the foreign-owned pharmaceutical companies work outside of the United States.

Inventive Steps

Two patent decisions in the Federal Court …

In Dynamite Games Pty Ltd v Aruze Gaming Australia Pty Ltd [2013] FCA 163 the Court has revoked two patents registered to Dynamite Games, a developer of gaming products. The Court found that the patents, for specifications that provided a guaranteed event of benefit to players within set amount of game play, lacked the requisite inventive step.

In Delnorth Pty Ltd v Commissioner of Patents [2013] FCA 165 Nicholas J has upheld an appeal by the patentee against the Commissioner's decision of 21 July 2011 - reported as Re Delnorth Pty Ltd (2011) 93 IPR 326 - to revoke several claims of Australian standard patent No 2004249786.  That patent involves an invention relating to "roadside posts for supporting signage or delineating paths, roadways or boundaries", with claim one describing the post as "comprising an elongate body formed of sheet spring steel and having a longitudinal axis, a front face and a rear face, wherein: said body is elastically bendable through 90 degrees from an unbent state about a transverse axis transverse to said longitudinal axis, said front and rear faces transversely extending generally parallel to said transverse axis".

Under s 101(4) of the Act the Court is required to exercise de novo the power conferred on the Commissioner to revoke a standard patent on the grounds that, when compared with the prior art base as it existed before the priority date, it was not novel or it did not involve an inventive step. The Commissioner's decision to revoke the relevant claims of the Patent was preceded by two re-examination reports (in July and November 2010). The patentee responded only to the first report but applied to make amendments to the claims which were allowed. The Commissioner decided to revoke various claims, notwithstanding the amendments, with claims 1 to 10, 13 to 21, 24 to 28, 32 and 36 on the ground that none of them involve an inventive step.

Nicholas J indicates that "The question for decision is whether, on the evidence now before me, any of the relevant claims should be revoked on the ground that it did not involve an inventive step as at the priority date of 23 June 2003", going on to consider evidence prior to a conclusion that "In my view the evidence does not justify a finding that any of the claims which were revoked by the delegate is invalid. Accordingly, the decision of the delegate under s 101(1) of the Act to revoke claims 1 to 10, 13 to 21, 24 to 28, 32 and 36 of Australian Patent No 2004249786 should be set aside".

06 March 2013


The Civil and Administrative Tribunal Act 2013 (NSW) establishes the Civil and Administrative Tribunal of New South Wales - aka NCAT - a supertribunal along the lines of ACAT (in the ACT) and VCAT (in Victoria), with effect from January 2014.

The object of the Act is "to establish an independent Civil and Administrative Tribunal of New South Wales to replace various existing tribunals". Those tribunals are  the

  • Aboriginal and Torres Strait Islander Health Practice Tribunal of NSW
  • Chinese Medicine Tribunal of NSW
  • Chiropractic Tribunal of NSW
  • Dental Tribunal of NSW
  • Medical Radiation Practice Tribunal of NSW
  • Medical Tribunal of NSW
  • Nursing and Midwifery Tribunal of NSW
  • Occupational Therapy Tribunal of NSW
  • Optometry Tribunal of NSW
  • Osteopathy Tribunal of NSW 
  •  Pharmacy Tribunal of NSW
  •  Physiotherapy Tribunal of NSW 
  •  Podiatry Tribunal of NSW
  • Psychology Tribunal of NSW
  • Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal 
  • Administrative Decisions Tribunal of NSW 
  •  Charity Referees (under s 5 of the Dormant Funds Act 1942 (NSW))
  • Consumer, Trader and Tenancy Tribunal of NSW 
  • Guardianship Tribunal 
  • Local Government Pecuniary Interest and Disciplinary Tribunal 
  • each local land board constituted under the Crown Lands Act 1989 (NSW)
  • Victims Compensation Tribunal.

03 March 2013


Given my interest in workplace privacy I was delighted to see Void Where Prohibited: Rest Breaks and the Right to Urinate on Company Time (Cornell University Press, 1998) by Marc Linder & Ingrid Nygaard, a 265 page work now available through the HathiTrust.

Linder & Nygard comment that
 Fashionable theories of post-industrialism and post-Fordism have blinded many to the uncomfortable reality of working conditions in the United States that are more evocative of the accounts drawn by Engels and Dickens than of the imagined anodyne workplace of the 21st century This book focuses on the persistence of one such aspect of industrial life - the lack of a universal entitlement to withdraw from the inexorable flow of production in order to rest and void during the workday. Although federal and state law requires employers to provide toilets, incredibly, government agencies do not require employers to permit workers to use them. In placing this regulatory breakdown in the broader context of the history of capital-labor struggles over rest periods, the book focuses on the physiological consequences for workers who are prohibited from interrupting work to rest or urinate.

Judicial Archives

'Judges and Their Papers' by Kathryn A. Watts in (2013) New York University Law Review comments
Who should own a federal judge’s papers? This question has rarely been asked. Instead, it has generally been accepted that the justices of the U.S. Supreme Court and other federal judges own their own working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues like abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the 50th anniversary of his retirement, and substantial portions of Justice Byron White’s papers, including files relating to the landmark case of Miranda v. Arizona, were shredded. In addition, many collections of lower federal court judges’ papers have been scattered in the hands of judges’ families. Notably, this private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand to the judiciary’s independence, confidentiality and collegiality on the other.
This Article is the first to give significant attention to the question of who should own federal judges’ working papers and what should happen to the papers once a judge leaves the bench. Upon the 35th anniversary of the enactment of the Presidential Records Act, this Article argues that judges’ working papers should be treated as governmental property — just as presidential papers are. Although there are important differences between the roles of President and judge, none of the differences suggest that judicial papers should be treated as a species of private property. Rather, the unique position of federal judges, including the judiciary’s independence, should be taken into account when crafting rules that speak to reasonable access to and disposition of judicial papers — not when answering the threshold question of ownership. Ultimately, this Article — giving renewed attention to a long forgotten 1977 governmental study commissioned by Congress — argues that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers. By involving the judiciary in implementing the shift to public ownership, Congress would enhance the likelihood of judicial cooperation, mitigate separation of powers concerns, and enable the judiciary to safeguard judicial independence, collegiality and confidentiality.  


'A Rational System of Design Patent Remedies' by Mark A. Lemley at Stanford Law School argues that
A design patent owner who wins her suit is entitled to the defendant's entire profit from the sale of the product, whether or not the design was the basis for buying the product. No other IP regime has this rule, and it makes no sense in the modern world, where a design may cover only a small component of a valuable product. The culprit is section 289 of the Patent Act, a provision added in the nineteenth century, when design patents were very different than they are today. We should abolish section 289 and bring rationality to design patent remedies.
Lemley comments that
In the summer of 2012, a jury in San Jose, California awarded Apple the largest extant patent damages verdict in history, over $1 billion, in its case against Samsung The case attracted enormous press attention. The verdict was rightly portrayed as a big win for Apple, but also generally understood to be just one small piece in a much larger smartphone patent fight that has entangled all the companies and led to more than fifty lawsuits. While everyone agrees $1.05 billion is a lot of money, it also seems to be just a cost of doing business for Samsung, one of many costs in a global fight that has cost nearly $20 billion so far and shows no signs of abating. In one important respect, however, $1.05 billion is not simply a cost of doing business. For the phones at issue in the case, it was the entirety of the business. $1.05 billion wasn’t a reasonable royalty on the sale of technology covered by a patent; it represented Samsung’s entire profit from the products at issue in the case. Never mind Samsung’s own patents, its engineering and design work, or the technologies of Google and countless other inventors incorporated in the Samsung phones. The jury awarded all the profit from the sale of those phones, regardless of source, to Apple as damages. And curiously, it was parts of Apple’s product design, not any technical features, that was responsible for the overwhelming majority of the damages award.
The jury did this because current law required it to. Unlike patents on technical inventions, or for that matter copyrights or trademarks, design patent law requires that infringers – even innocent infringers – pay the plaintiff their entire profit from the sale of the infringing product, even if the design was only a small feature of that product.
That rule, developed more than a century ago, makes no sense. As applied to a modern, multi-component product it drastically overcompensates the owners of design patents, and correspondingly undervalues technical innovation and manufacturing know-how. It punishes even innocent infringers, particularly now that one can infringe a design patent merely on a finding that two independently developed designs are too similar to the ordinary observer. And it leaves troubling questions about what to do with all the other claimants to a share of the defendant’s profits. There can be no question that the entire profits rule has to go; the only question is how to get rid of it. I begin in Part I by discussing how we got to this unfortunate pass. In Part II, I describe the problems the entire profits rule creates for innovation and competition. I conclude in Part III by offering some suggestions for what to do about the rule.


'A Political History of DRM and Related Copyright Debates, 1987-2012' by Bill D. Herman in (2012) 14 Yale Journal of Law & Technology 162-225 comments that
 Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While those facts are historically true, since the turn of the century, the politics around the issue have shifted substantially and become much messier and less predictable. This study illustrates this changing policy dynamic via a detailed political and legislative history of the major proposals regarding digital rights management and related areas of copyright, from 1987 to the present day.
In 1987, there was no organized opposition to copyright’s expansion. Within fifteen years, however, there was a substantial coalition of opposition, including public intellectuals, allied journalists, and newly-founded nonprofits. By the mid- 2000s, this coalition had substantially slowed the expansion of copyright and even won substantial legislative support for proposals to limit copyright’s reach. Despite being badly outspent and having far fewer allies in Congress, the “strong fair use” coalition had fought the “strong copyright” coalition to a draw in two key debates in the mid-2000s. In early 2012, the strong copyright coalition tried to push through a pair of bills with far- reaching implications for the Internet ecosystem — and it looked like they would ultimately prevail, until Internet activism led millions of voters to contact Congress in opposition. By looking at the political histories of all of these proposals in one place, this article shows an unmistakable trajectory in the politics of copyright, from an era of relatively easy inter-industry negotiation toward an era in which copyright industries face a permanent, principled opposition, emboldened by having executed the largest online protest in history.


'What is in a Name?' A Comparative Look at the ICANN Uniform Domain Name Dispute Resolution Policy and the United States Anti-Cybersquatting Consumer Protection Act' by Terrence Fernbach is a 54 page Munich Intellectual Property Law Center (MIPLC) Master's Thesis.

Fernbach argues that
Since the establishment and rise of the Internet, there have been situations where others have tried to capitalize on the unique nature of domain names by registering domain names of popular trademarks and/or individuals’ names, and then turning around and selling these domain names to the owners of the trademark or to the individual. This action, known as “cybersquatting”, has been the reason for the enactment of multiple dispute resolution systems by both governments and private institutions. Further, the amount of cybersquatting cases has increased over the years, with the World Intellectual Property Organization reporting increases in cybersquatting cases over the past few years.
This thesis is designed to be more of a practical guide for an American attorney who is faced with domain name dispute case. As a result, this thesis will focus on the International Corporation for Assigned Names and Numbers’ (ICANN) Dispute Resolution Policy, and the Anti-Cybersquatting Consumer Protection Act (ACPA). This thesis will provide three different hypothetical scenarios that may arise in domain name disputes: where two parties have the same name, or where an individual in engaging in a form of cybersquatting, or where a group has created a website for the purposes of criticizing a corporation. This thesis will also highlight the advantages and disadvantages of the ICANN procedures as laid out in the Uniform Domain Name Dispute Resolution Policy (UDRP) and the procedures available under United States federal law as laid out in the ACPA, and discuss legal strategies and probable outcomes for the three different hypothetical scenarios. Finally, this thesis will conclude that while ICANN’s Dispute Resolution Policy has some disadvantages when compared to the ACPA, it is the better dispute resolution option to use for most cybersquatting activities due to its relative speed, efficiency and lower cost, but the Lanham Act provisions as outlined by the ACPA are better suited for those cases where the client wishes for more remedies than just the transfer or the cancellation of the disputed domain name.
 In discussing ACPA he comments that
There are a few advantages in using the ACPA. First, the ACPA is a good method to use in trying to acquire an infringing domain name from a foreign cybersquatter. This is because of the ACPA’s in rem provisions, and the ACPA does not have the same burdens of proof that are found in the UDRP. However, it is important to note that the in rem provisions only apply if the disputed domain name was registered with a registrar or other domain name authority that is located within the United States.
Second, the ACPA also allows for monetary damages, statutory damages and injunctive relief, in addition to the same remedies available under the UDRP. This gives a wide array of remedies available to a plaintiff, most of which are unavailable by the UDRP. Also, the ACPA has the same remedies at its disposal as the UDRP, so the plaintiff can still seek the same relief that would be afforded by the UDRP while also seeking other remedies.
Third, unlike the UDRP, the parties can freely engage in discovery. This allows the plaintiff to access information regarding prior registrations done by the defendant, if any, and to access other information that could help establish the bad faith aspects of the plaintiff’s claim. Also, since this is a federal court action and not an arbitration panel, the parties can attack the credibility of each other’s testimony. This can not happen in the UDRP proceedings, which has the potential of becoming a sort of “I said – he said” situation, with both parties stating their respective submissions are accurate to the best of their knowledge.
Fourth, under the ACPA, the plaintiff can also seek damages from the domain name registrar, provided the plaintiff can prove the registrar acted with bad faith to profit from the registration and maintenance of the infringing domain name. While the UDRP does not have any liability provisions for domain name registrars, the ACPA, through its safe harbor provisions, only waives a registrar’s liability if they act in due diligence and in good faith. This provision allows a plaintiff a cause of action against domain name registrars who basically aid in cybersquatting. Combined with the in rem provisions of the ACPA, the plaintiff can get a cause of action against the domain name itself and, if applicable, get monetary damages from the domain name registrar.
Finally, unlike the ICANN arbitration panels, the federal courts are better suited to handle more complex litigation issues, such as affirmative defenses of acquiescence and fair use. Also, false advertising and unfair competition claims are outside the realm of the UDRP arbitrators. Meanwhile, these issues can be dealt with fairly in the federal courts. As a result, if a plaintiff would have a more complex domain name dispute issue, they would probably be better off using the ACPA instead of the UDRP.
Disadvantages of the ACPA
While there are benefits in using the ACPA for a domain name dispute, there are some disadvantages as well. First, federal litigation is not very fast. In fact, it may take months or even years to finally get a case resolved in federal court. This is not a great option for the plaintiff who wants to quickly get a domain name from the registrant/defendant.
Second, federal litigation is expensive. While arbitration under the UDRP may cost around the mid four-figure range, including agency and arbitration panel fees and attorney’s fees, federal litigation will cost a lot more, and could range in the tens of thousands of dollars at least. Considering the usual remedies involved in a domain name dispute, the plaintiff in an ACPA action might end up winning a Pyrrhic victory, spending a huge sum of money for what could have been achieved, at a much lower cost, using an arbitration proceeding under the UDRP.
Third, while the in rem provisions seem like an advantage, it may not prove to be much of an advantage when compared to the UDRP. In the ACPA, the plaintiff can get in rem jurisdiction only if the applicable domain name registrar is within a federal judicial district. On the other hand, the UDRP Policy applies to any domain name registrar that has agreed to be bound by the UDRP Policy. This gives the complainant an opportunity to get relief under the UDRP with a foreign domain name registrant as opposed to the in rem provisions of the ACPA, since the UDRP Policy can apply to domain name registries and registrars outside of the United States, which the ACPA only applies to American registries and registrars. Considering the remedies are the same for these two different provisions, it might be a better option for a plaintiff to use the UDRP Policy instead of the ACPA. Fourth, as eluded to earlier, federal judges may not necessarily be experts in trademark law. It is quite possible that a federal litigation using the ACPA may be presided over by a judge with no real experience in trademark law or with domain name issues. While having a case presided over by a judge who is unfamiliar with the nuances of the legal issues behind the case is a potential problem with any federal litigation, it could be a problem in a domain name dispute case, especially when dealing with concepts such as parody and fair use.
Just like the UDRP, the ACPA has a series of advantages and disadvantages that will require the plaintiff to consider whether they want to use the ACPA or use the cheaper and faster UDRP arbitration proceedings.