19 July 2013


The ACLU has released You Are Being Tracked: How License Plate Readers Are Being Used To Record Americans’ Movements  [PDF], a 37 page report on what in Australia is characterised as automated number plate recognition (ANPR).

It comments that
implementation of automatic license plate readers poses serious privacy and other civil liberties threats. More and more cameras, longer retention periods, and widespread sharing allow law enforcement agents to assemble the individual puzzle pieces of where we have been over time into a single, high-resolution image of our lives. The knowledge that one is subject to constant monitoring can chill the exercise of our cherished rights to free speech and association. Databases of license plate reader information create opportunities for institutional abuse, such as using them to identify protest attendees merely because these individuals have exercised their First Amendment-protected right to free speech. If not properly secured, license plate reader databases open the door to abusive tracking, enabling anyone with access to pry into the lives of his boss, his exwife, or his romantic, political, or workplace rivals.
In July 2012, American Civil Liberties Union affiliates in 38 states and Washington, D.C., sent 587 public records act requests to local police departments and state agencies to obtain information on how these agencies use license plate readers. We also filed requests with the U.S. Departments of Justice, Homeland Security, and Transportation to learn how the federal government has used grants to encourage the widespread adoption of license plate readers, as well as how it is using the technology itself.
We received over 26,000 pages of documents from the law enforcement agencies that responded to our requests, about their policies, procedures, and practices for using license plate readers.
This report provides an overview of what we have learned about license plate readers: what their capabilities are, how they are being used, and why they raise privacy issues of critical importance. We close by offering specific recommendations designed to allow law enforcement agencies to use license plate readers for legitimate purposes without subjecting Americans to the permanent recording of their every movement.
The potential privacy harms discussed in this report are not merely theoretical. In August 2012, the Minneapolis Star Tribune published a map displaying the location, obtained via a public records request, of the 41 times that Mayor R.T. Rybak’s car had been recorded by a license plate reader in the preceding year. The Star Tribune also reported that of the 805,000 plate scans made in June, less than one percent were hits. Yet for as long as the information was retained, the other 99 percent of scans were also vulnerable to the risk that they might be released, used by the police to track innocent people, or otherwise abused. The alarming fact that a law-abiding citizen’s sensitive location history could be revealed so easily was not lost on this exposed mayor.
The report notes that
License plate readers are used not only by law enforcement agencies but also by private companies. This has led to the emergence of numerous privately owned databases containing the location information of vast numbers of Americans.
License plate readers are used in a variety of non-law enforcement roles. Private companies use license plate readers to monitor airports, control access to gated communities, enforce payment in parking garages, and even help customers find their cars in shopping mall parking lots. While these uses in and of themselves are not objectionable, private companies can scan thousands of plates each day and store information indefinitely, creating huge databases of Americans’ movements.
Perhaps the largest private users of license plate readers are repossession agents who have recognized the value of license plate location information and built enormous private databases with data from all over the country. MVTrac, one of the biggest companies in this industry, claims to have photographs and location data on “a large majority” of registered vehicles in the United States, while the Digital Recognition Network (DRN) boasts of “a national network of more than 550 affiliates.” These affiliates, most of whom are repossession agents, are located in every major metropolitan area of the United States. DRN fuels rapid growth of its database by offering to fully finance up to five automatic license plate readers for affiliates located in major metropolitan areas, such as New York, Los Angeles, Orlando, Boston, and Washington, D.C., which guarantee they will provide DRN with a minimum of 50,000 aggregate plate scans per month. DRN affiliates feed location data on up to 50 million vehicles each month (nearly all of which are not wanted for repossession) into DRN’s national database. This database now contains over 700 million data points on where American drivers have been.
Private companies have partnerships with law enforcement. Police departments can purchase license plate reader data from private corporations. For example, law enforcement agencies can access MVTrac’s database and search through data collected by private repossession agencies. DRN contributes its affiliate-generated data to the National Vehicle Location Service (NVLS), which is run by Vigilant Solutions, a partner of DRN. NVLS aggregates DRN’s data with data received from other private sources, such as access control and parking systems, and from law enforcement agencies.  According to Vigilant, NVLS “is the largest [license plate] data sharing initiative in the United States.” The database holds over 800 million license plate reader records, and is used by over 2,200 law enforcement agencies and 25,000 United States law enforcement investigators. Each month, the system adds roughly 1,000 new users   and grows by 35 to 50 million license plate reader records. Law enforcement agencies that use or have used NVLS include the Milpitas Police Department in California, police in Port Arthur, Texas, and Immigration and Customs Enforcement.
These private databases raise serious privacy concerns. Their massive size suggests that they contain a great deal of information about our movements. These huge databases of plate information are not subject to any data security or privacy regulations governing license plate reader data. These companies decide who can access license plate data and for what purposes.
Last year, California considered a bill that would have required private companies to delete license plate records after 60 days and regulated the sale and sharing of privately held plate data. Due in part to the companies’ vigorous opposition, as well as that of law enforcement agencies, the bill died on the Senate floor. Today, these companies continue to operate with no regulation of how they use the data they are rapidly collecting. 
The report concludes with several recommendations
To ensure that license plate readers can be used by law enforcement agents for legitimate purposes without infringing on Americans’ privacy and other civil liberties, the ACLU calls for the adoption of legislation and law enforcement agency policies adhering to the following principles:
  • License plate readers may be used by law enforcement agencies only to investigate hits and in other circumstances in which law enforcement agents reasonably believe that the plate data are relevant to an ongoing criminal investigation. The police must have reasonable suspicion that a crime has occurred before examining collected license plate reader data; they must not examine license plate reader data in order to generate reasonable suspicion. 
  • Law enforcement agencies must not store data about innocent people for any lengthy period. Unless plate data has been flagged, retention periods should be measured in days or weeks, not months, and certainly not years. 
  • It is legitimate to flag plate data (1) whenever a plate generates a hit that is confirmed by an agent and is being investigated, (2) in other circumstances in which law enforcement agents reasonably believe that the plate data are relevant to a specific criminal investigation or adjudication, (3) when preservation is requested by the registered vehicle owner, or (4) when preservation is requested for criminal defense purposes. 
  • Once plate data has been flagged, a longer retention period commensurate with the reason for flagging is appropriate. 
  • Law enforcement agencies must place access controls on license plate reader databases. Only agents who have been trained in the departments’ policies governing such databases should be permitted access, and departments should log access records pertaining to the databases. 
  • People should be able to find out if plate data of vehicles registered to them are contained in a law enforcement agency’s database. They should also be able to access the data. This policy should also apply to disclosure to a third party if the registered vehicle owner consents, or for criminal defendants seeking relevant evidence. 
  • Law enforcement agencies should not share license plate reader data with third parties that do not conform to the above retention and access principles, and should be transparent regarding with whom license plate reader data are shared. 
  • Hot lists should be updated as often as practicable and, at a minimum, at the beginning of each shift. Whenever a license plate reader alerts on a plate, law enforcement, before taking any action, should be required to confirm visually that a plate matches the number and state identified in the alert, confirm that the alert is still active by calling dispatch and, if the alert pertains to the registrant of the car and not the car itself, for example in a warrant situation, develop a reasonable belief that the vehicle’s occupant(s) match any individual(s) identified in the alert. 
  • Any entity that uses license plate readers should be required to report its usage publicly on at least an annual basis.

17 July 2013

Corneloup 2.0

In Bickle & Ors v Corporation of the City of Adelaide [2013] SASC 115 the South Australian Supreme Court has summarily dismissed an appeal by the Rundle Mall 'street preachers' against the decision regarding an Adelaide council prohibition on their activity.

The council's bylaws included a requirement for people to gain permission to "Preach, canvass, harangue, tout for business or conduct any survey or opinion poll" in the Rundle Mall precinct, subject to “Speakers Corner” and "any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal State or Local Government Election or during the course and for the purpose of a Referendum".

The dismissal of the appeal - with the Court commenting that the appellant's argument was "foredoomed to fail" - reflects the earlier Corneloup litigation, in particular the High Court's judgment in Attorney-General (SA) v Corporation of the City of Adelaide & Ors (2013) 87 ALJR 289, [2013] HCA 3 and The Corporation of the City of Adelaide v Corneloup & Ors [2011] SASCFC 84.

Survey Plans

The Copyright Tribunal - a body established under s 138 of the Copyright Act 1968 (Cth) - has made a decision on the statutory rate payable by the New South Wales Government for its use of survey plans under that Act.

The rate setting follows litigation between the state government and Copyright Agency Ltd (CAL), the collective rights body.

CAL argued that the use of survey plans by NSW departments and other state bodies was subject to a remunerated statutory licence. NSW has been using survey plans lodged with its Land and Property Information (LPI) agency for purposes that include sale to members of the public and sale via information brokers. The Government argued that it had a free implied licence to use - including sell -the plans.

The litigation culminated in Copyright Agency Limited v State of New South Wales [2008] HCA 35. In that judgment the High Court of Australia found in favour of CAL, with NSW being required to remunerate the rights holders. Payment has been contentious. The Australian Law Reform Commission Discussion Paper proposed abolition of the government statutory licence and introduction of a broad fair use exception.

The decision sets a statutory rate for the amount payable by government: it is reported as 7.94% of the price on all sales with a deemed price for sales by brokers at $14.50 + CPI.


'Bonds, suspended sentences and reoffending: Does the length of the order matter?' (Australian Institute of Criminology Trends and Issues paper, 2013) by Suzanne Poynton and Don Weatherburn uses the NSW Bureau of Crime Statistics and Research (BOCSAR) Reoffending Database.

The authors assess [PDF] whether the length of a bond or suspended sentence makes any difference to the time to first new offence, and whether long bonds and suspended sentences are more effective than short bonds in reducing reoffending. They also examine whether court supervision has any effect on length of sentence, and reoffending.
In 2011, the Australian courts placed a total of 77,940 offenders on a good behaviour bond or a fully suspended sentence, accounting for 15 percent of all penalties imposed. 
The conditions under which suspended sentences and good behaviour bonds can be imposed vary from state to state. In New South Wales (where the current study was undertaken), the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to impose a sentence of imprisonment if it is satisfied ‘having considered all possible alternatives, that no penalty other than imprisonment is appropriate’ (s 5 Crimes (Sentencing Procedure) Act ). The court must then determine the length of the custodial sentence and decide how the custodial sentence should be served. If the term of imprisonment does not exceed two years, s 12 of the Act allows the court to suspend the prison sentence and place the offender on a good behaviour bond when released from custody. In circumstances where imprisonment may not be appropriate, s 9 of the Crimes (Sentencing Procedures) Act 1999 (NSW) permits the court to make an order directing an offender to enter into a good behaviour bond for a specified term (not exceeding 5 years). The consequences arising from a breach of a suspended prison sentence or a good behaviour bond can be severe. If the conditions attached to a suspended prison sentence are breached, the court can revoke the bond and order the original sentence of imprisonment to be served. If an offender fails to comply with the conditions of a good behaviour bond, the court may sentence the offender for the original offences as if the bond had never been made; this can include imposing a term of imprisonment. As such, these alternatives to full-time custody have considerable potential to deter further offending.


'Dematerialization, Pragmatism and the European Copyright Revolution' [forthcoming in (2014) Oxford Journal of Legal Studies] by  Jonathan Griffiths  argues
Over the last three centuries, a particular model of copyright law has evolved in the United Kingdom. Under this "dematerialised" model, the law’s attention is directed towards an immaterial, malleable essence (identified as, amongst other things, “originality”, “labour and skill” or creativity”). This immaterial essence has come to serve as a touchstone for the resolution of all fundamental questions concerning the scope and attribution of rights under copyright law - as the threshold for legal protection, as a marker of authorship and as the key concept in the assessment of infringement. Nevertheless, some aspects of copyright doctrine have, until very recently, appeared to remain incompatible with this dominant model. In some situations, rather than focusing purely on an abstract form of property that is capable of shifting from form to form, the law has continued to limit the scope of a copyright owner’s powers by reference to the boundaries of the material form with which the work is first recorded. It is argued here that the maintenance of these apparently incompatible aspects of copyright doctrine is not necessarily the product of theoretical incoherence. Rather, the law’s continued ability to regulate some forms of copyright dispute by reference to material form has served an important function in justifying judicial resistance to expansionist pressures. 
Since 2009, however, this pragmatic, focus-shifting system has been destabilised by the copyright jurisprudence of the Court of Justice. The Court’s judgments in Infopaq International A/S v Danske Dagblades Forening and a series of subsequent cases have dramatically accelerated the pace of copyright harmonisation in the European Union. As a result, the United Kingdom may now be obliged to adopt a more consistently dematerialised system of copyright law than that which has previously applied and our courts may have been deprived of some of the tools they have employed to resist unduly broad claims to copyright protection. The article begins with an overview of the development of the dematerialised model in the United Kingdom and indicates, in particular, the strenuous efforts made to ensure consistency with the model in the ten years or so preceding Infopaq. It then goes on, first, to explain how, despite these efforts, the material, recorded boundaries of creative forms continued to hold legal significance in certain situations and, secondly, to highlight the important function served by these apparently inconsistent aspects of doctrine. The article concludes by exploring the ways in which the Court of Justice’s recent copyright jurisprudence threatens this pragmatic system.


'Privacy and Antitrust: Underpants Gnomes, the First Amendment, and Subjectivity' (George Mason Law & Economics Research Paper No. 13-39, 2013) by James Cooper argues that
Privacy has begun to creep into antitrust discussions. In some ways, this should not be surprising. Some of the largest and most ubiquitous companies, like Google and Facebook, give away their services in return for consumer data. If information about ourselves really is the price we pay for content, why shouldn’t antitrust limit companies’ ability to collect and analyze consumer data? Although this logic has some facial appeal, this paper identifies three major concerns with the inclusion of privacy in antitrust analysis. The first concern is conceptual. The analogy between privacy and quality begins to break down once we recognize that unlike selecting lower quality levels to enjoy lower costs, firms invest in collecting and analyzing data to improve content and to enhance matching between sellers and consumers, who have heterogeneous tastes for privacy. Second, an antitrust rule that limits firms’ ability to collect and analyze consumer data is likely to raise some First Amendment concerns. Third, allowing antitrust enforcers to consider privacy would inject an undesirable level of subjectivity into antitrust enforcement decisions, which is likely to attract socially wasteful rent seeking expenditures and to deter beneficial data collection efforts.

16 July 2013

The Higher Obscurity

Another outbreak of the French Disease ....

Schizorevolutions vs. Microfascisms: A Deleuzo-Nietzschean Perspective on State, Security, and Active/Reactive Networks' by Athina Karatzogianni and Andy Robinson is
based on a distinction between states and networked movements on the one hand, and between two types of network on the other. As we have argued in Power, Resistance and Conflict (Karatzogianni and Robinson 2010), networks can be divided into the affinity-active network form and the reactive network form. These derive from the distinctions between active (or schizoid) and reactive (or paranoiac) forces or desires in Deleuzian/Nietzschean theory. Reactive forces are associated with closure of meaning and identity. Active forces are associated with difference and transformation: ‘only active force asserts itself, it affirms its difference and makes its difference an object of affirmation’ (Deleuze, 2006: 55-6). Active forces are connected to affirmative desire, and reactive forces to nihilistic desire; affirmation and negation are ‘becoming-active’ and ‘becoming-reactive’ respectively (Deleuze, 2006: 54). For Deleuze, active forces are primary, as without them, reactive forces could not be forces (Deleuze, 2006: 41). Reactive force can dominate active force, but not by becoming active – rather, by alienating and disempowering it (2006: 57). Active desire subordinates social production to desiring-production, while reactive desire does the opposite. While open space is a necessary enabling good from the standpoint of active desire, it is perceived as a threat by the threatened state, because it is space in which demonised Others can gather and recompose networks outside state control. Hence, for the threatened state, open space is space for the enemy, space of risk. Given that open space is in contrast necessary for difference to function (since otherwise it is excluded as unrepresentable or excessive), the attempts to render all space closed and governable involve a constant war on difference which expands ever more deeply into everyday life. Inevitably, horizontal networks flow around the state’s restrictions, moving into residual unregulated spaces, gaps in the state’s capacity to repress, across national borders, or into the virtual. Networks tend to take a reactive form when exposed to a hostile context. Bourdieu similarly argues that neoliberalism strengthens reactive networks by demoralising and producing emotional turmoil (1998: 100), while Bauman links paranoiac social forces to insecurity (Bauman 2000). This discussion focuses on unraveling the interplay between security/insecurity, active/reactive, schizorevolutionary/microfascist, and autonomous desire/fear management in contemporary agency, state (in)security, and resistance movements.
It perhaps sounds better in Klingon.

14 July 2013


From the 86 page COAG [PDF] by Lynsey Blayden (NSW Parliamentary Research Service) -
In 2006, the Council of Australian Governments (COAG) adopted a new national reform agenda and established the COAG Reform Council, developments which were later used as a foundation for the first Rudd Government’s reforms to intergovernmental relations in Australia. These reforms used COAG as their focus and established a revised federal financial relations scheme and a broader reform agenda. They also gave the COAG Reform Council an expanded role in measuring the progress of reform across all jurisdictions and reporting its findings to COAG.
The apparatus of COAG and intergovernmental relations now encompasses an extensive system of COAG Councils and other fora, as well as less visible forms of collaboration, which take place between the agencies and officers of all levels of government. This structure is largely focussed on developing and implementing the COAG reform agenda, which covers a wide range of policy fields, including education, skills and training, health, housing and homelessness, the environment and regulatory reform. This policy agenda is underpinned by the revised financial framework that is embodied in the Intergovernmental Agreement on Federal Financial Relations. The reforms to COAG and its processes instituted by the first Rudd Government have changed the character of COAG, arguably transforming it from a leaders’ summit to a central institution of government. This new significance of COAG has given rise to renewed concerns relating to the lack of permanency, transparency and accountability in intergovernmental relations.
This paper provides an overview of the operation of COAG, and other aspects of intergovernmental relations in Australia. A two-part approach has been taken.
Part One provides a ‘bare bones’ overview of the framework of COAG and its reform agenda. Its aim is to provide a kind of ‘mud map’ to enable relatively easy navigation of the labyrinthine structure of COAG, its associated Councils and its current reform agenda. Much of the information contained in the first part is taken from COAG-related websites. In an attempt to make this map clear, commentary and critique has been left to Part Two of the paper, to the extent that this is possible.
COAG is something of an atypical body or institution, neither constitutional nor statutory in origin or nature. It is more amorphous, an administrative creation of executive will, resistant to neat description or characterisation. It is something of a moveable feast, constantly changing and adapting to political and other circumstances. Any description of it can therefore only hope to capture its working at a particular point in time. It is this task that Part One of this paper has set itself, relying solely on publicly available material.
Part Two provides an overview of some of the current evaluations of COAG, in light of its apparent transformation, and also some of the suggestions for reform that have been put forward. Part Two does not attempt to cover all of the relevant issues that are identified in the literature about federalism and intergovernmental relations. Its aim is rather to canvass some of these issues in a broad way while focussing primarily on COAG.
Discussed in Part Two are the following issues with COAG and the practice of intergovernmental relations in Australia:
  • Lack of transparency in intergovernmental relations; 
  • Accountability – COAG, intergovernmental relations and Parliaments; 
  • Commonwealth’s dominance of COAG; 
  • Lack of institutional structures and systems; and 
  • COAG and the consequences of intergovernmental relations.
Many of the problems associated with intergovernmental relations in Australia can be traced back to the features of Australia’s federal structure, which continues to influence and shape the ways in which governments transact their affairs. The continuing relevance of the issues discussed in Part Two of this paper suggest the need for considered evaluation of Australian federalism in the twenty-first century, what it is, what it does, what it should do and where it is going.