17 August 2013

Bayh-Dole and IP Pluralism

A concise overview of Bayh-Dole and other aspects of US university research commercialisation is provided in 'University Research and Licensing' by Jennifer Carter-Johnson, Jeffrey S. Carter-Johnson and Jorge L. Contreras in Bioinformatics Law: Legal Issues for Computational Biology in the Post-Genome Era ed by Jorge L. Contreras & A. James Cuticchia.

The authors indicate that
 This chapter in an overview of the law of bioinformatics covers the legal issues uniquely facing universities and other research institutions. Among the topics covered are modes of university technology development, the Bayh-Dole Act, the questionable status of the patent research exemption in the U.S., publication and data release, and socially-responsible licensing.
There's a more searching - and for UC intellectual property Honours students more useful - discussion of intellectual property in the 178 page 'Intellectual Property Rights and Institutions: A Pluralist Account' by Michael E. Kenneally

Kenneally comments that
Debates over intellectual property’s justifications tend to treat natural rights and utilitarian accounts as competitors, but they should be seen as complements instead. Lockean and Kantian theories of intellectual property highlight the strong interests that intellectual property creators have in profiting from and exercising some degree of control over their work, but neither theory gives sufficient justification for the full assortment of rights that intellectual property owners have under current law. Utilitarianism’s focus on society’s interests in the production of useful information and creative expression provides an essential supplement to these natural rights theories, but without establishing that intellectual property law should single-mindedly strive only to maximize social welfare. Developing both natural rights-based and utilitarian justifications, this dissertation advances a pluralist account of intellectual property that understands different features of copyright, patent, and trademark law to be serving different normative interests. 
His conclusion states that
It is tempting to look for a possible justification for intellectual property through either the lens of natural rights or the lens of utilitarianism. Either way of focusing on the subject proposes to make it intelligible to us in terms of a single purpose, although of course they each offer competing portraits of that purpose. In the former case, intellectual property is preoccupied with securing what properly belongs to individuals and, in the latter case, with promoting the good of society as a whole. Because of their disagreement of intellectual property’s fundamental purpose, these two accounts are regarded as diametrically opposed. But having scrutinized natural rights and utilitarian accounts of intellectual property in the preceding chapters, I have come to reject the either/or mindset that they pressure us to adopt. Instead of assuming that intellectual property is justified either as a matter of natural rights or on utilitarian grounds, we should consider a pluralist account of intellectual property’s justifications that incorporates what is most appealing in both the natural rights and utilitarian accounts. Intellectual property pluralism avoids the limitations of the natural right and utilitarian perspectives and allows for a richer understanding of the relationship between intellectual property rights and our intellectual property institutions. Natural rights–type justifications of intellectual property ownership do well in highlighting the interests of those individuals who create intellectual goods, but they run the risk of overemphasizing those interests or of underestimating the interests of those whom intellectual property laws place under duties. In particular, natural rights accounts of intellectual property can proceed too quickly from a justification of physical property ownership to a justification of intellectual property ownership, disregarding the differences in the ways that intellectual property and physical property laws affect the relevant normative interests given the differences in the nature of intellectual and physical goods. In Chapter 2, I stressed how Lockean approaches to intellectual property rights are especially susceptible to this danger. A physical property owner’s interests in material gain are greatly imperiled by others’ unauthorized use of her physical property, since such unauthorized use routinely interferes with the owner’s own use of her property. But in focal cases of intellectual property, especially works of creative expression and inventions, others’ unauthorized use of the property generally does not interfere with the owner’s own use of her property. On the other hand, unauthorized use of trademarked symbols that confuses consumers does interfere with the trademark owner’s ability to use the symbol to communicate with the consuming public. And so our discussion of Lockean arguments for intellectual property rights indicated that different intellectual property law doctrines may have different justifications. Locke’s arguments against interference work pretty well in justifying central trademark doctrines but not those of copyright or patent law. The pluralist account of intellectual property that I am defending forsakes a unified theory of intellectual property not only by relying on a plurality of normative considerations, but also by advancing different justifications for different areas of intellectual property law. 
Chapter 3 considered possible Kantian natural rights–type justifications for intellectual property ownership. This discussion went beyond the preceding chapter on Locke’s labor theory by identifying another type of interest of intellectual property owners that is not reducible to Lockean interests in material gain. These other interests are interests in controlling one’s own actions and, relatedly, in having a public reputation that accurately reflects the actions one has chosen to do. I argued against a recent interpretation of Kant’s account of physical property ownership, according to which any unauthorized use of another’s property wrongfully limits that person’s freedom by conscripting her into the pursuit of ends that she has not chosen for herself. But, drawing on Kant’s own writing about copyright, I argued that there are particular ways of using intellectual property that unjustifiably violate the intellectual property creator’s interest in having control over her actions and/or reputation. In particular, falsely claiming credit for someone else’s work or describing someone else as responsible for choices that she did not in fact make would disregard this sort of interest without promoting the legitimate interests of others. Here, too, however, the arguments really only support core doctrines within trademark law—especially rules against passing off counterfeit goods as the real thing, or some instances of so-called “reverse passing off,” in which a person attempts to sell another’s goods as though they were her own. Although copyright law prohibits some examples of plagiarism, in most situations it does so under very general directives not to reproduce or distribute others’ work that do not explicitly refer to copyright owners’ interests in receiving attribution. Originally, however, copyright ownership included a right to decide when to release a new work for the first time, and this right to release can be understood as furthering Kantian interests in having control over one’s actions. 
But the core of patent and copyright law—the parts that prohibit unauthorized copying and distribution of patented inventions and copyrighted works—are justified not by the natural rights arguments that Locke and Kant supply, but by more functionalist lines of thought. Innovators, artists and others who invest in creative endeavors would be reluctant to devote their resources to developing inventions and expressive works in the absence of special encouragement, because it is too easy for others to copy such goods without compensating the people who invested in their development. On this proposal, the crux of copyright and patent law is ultimately justified by the widely shared interests of the members of a society in the availability of new inventions and creative works, not by the interests of inventors or artists themselves. The fact that copyright and patent rights supply socially beneficial incentives has often been considered the heart of the utilitarian argument for intellectual property. I argued in Chapter 4, however, that we should resist the utilitarian label because utilitarianism characteristically directs us to formulate all normative questions in terms of the expected effects on overall amounts of well-being. If social welfare provides the only proper measure of intellectual property’s justifications, policymakers’ appeal to overtly nonutilitarian considerations will always seem like an aberration or even an inappropriate distraction. This is an unwelcome consequence, in my view, because the effects of intellectual property laws on social welfare are somewhat indeterminate and because other sorts of normative considerations are important enough in their own right even if, on balance, furthering them does not prove to maximize social welfare. Consider, for example, the Kantian argument for attribution rights. In light of an author’s interest in controlling her actions and in having a reputation that accurately reflects what she has chosen to do, intellectual property law is justified, according to the Kantian argument, in prohibiting others from falsely claiming credit for her work. It is conceivable, however, that this attribution right would present significant administrative and enforcement costs, and it is also conceivable that very few people would be seriously unhappy to see it go. Likewise, it is conceivable—though I admit, not terribly likely—that social welfare would be increased if the law expressly empowered authors to sell their exclusive right to claim credit to the highest bidder. Even if it turned out that money would be saved or more books would be produced if the right to attribution were not legally recognized or were made transferable, I am not sure it follows that we ought to give up on recognizing a nontransferable version of it in our law. At the very least, it seems to me that we ought not to commit ourselves to designing our right to attribution in whatever way maximizes overall amounts of well-being solely because we think copyright law is primarily justified because of the socially beneficial incentives it provides. 
My endorsement of the functionalist argument and rejection of Lockean and Kantian arguments for copyright and patent rights suggests a noteworthy difference between justifying intellectual property ownership as a matter of natural rights and justifying it as a matter of social convention: the two types of justification do not seem to face the same argumentative burden. Establishing that there are natural rights of intellectual property requires showing that a person or group’s failure to respect the alleged right would warrant disapprobation, unless some sort of special excuse applied. Because failing to respect the particular right in question is presumptively a moral mistake, there must therefore be a decisive reason for respecting it. But for a social institution to have an adequate social convention–type justification, it suffices to establish that the institution serves the common good in an unobjectionable way. The reasons for establishing the particular institution need not be decisive. And yet, as I argued in Chapter 4, once a social institution is justified, even as a matter of social convention, it can have the power to generate new moral rights, respect for which is not completely optional. Our pre-legal or natural rights give shape to our legal institutions, but our legal institutions also give shape to our moral rights. The interplay between intellectual property rights and intellectual property institutions is thus highly complex and, without careful attention to the relevant normative considerations, even a bit mysterious. A pluralist account of intellectual property’s justifications does not eliminate the complexity, but hopefully it unravels some of the mystery.

The Other Offshoring

'Implications for Offshore Processing in Australia: The Case of Plaintiff M70/2011' by Stephanie Constand in (2013) 3 Migration Australia Journal 43-51 comments that
In August 2012, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (‘Migration Amendment Act 2012’) was passed by Parliament to enable the regional processing of the protection claims of offshore entry persons. A significant catalyst for these amendments was the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship, which removed the legal basis for the Malaysian Solution, the government’s former offshore processing arrangement that would have facilitated the transfer of irregular maritime arrivals to Malaysia for the determination of their claims. 
This article analyses the implications of the Migration Amendment Act 2012 for offshore processing and considers possible challenges to this legislation. It also examines the decision of the High Court in Plaintiff M70 to explore why the amendments were considered necessary in order to enable the government to pursue its revised offshore processing regime.
Constand notes that
Although the Migration Act 1958 (Cth) may now provide a legal framework for the implementation of the government’s revised offshore processing scheme, the feasibility of this regime from a practical as well as human rights perspective is questionable. It is estimated that, when fully operational, Nauru will have a capacity of 1500 people, with the combined capacity of the processing centres in both Nauru and Manus Island (PNG) most likely totalling 2100. However, at the time of writing, the number of irregular maritime arrivals that have sought asylum since mid-August 2012 and are currently awaiting transfer to a regional processing centre has already exceeded 4000, a figure that eclipses the combined capacity of Nauru and Manus Island’s asylum seeker processing facilities. This will inevitably lead to overcrowding and significant deterioration in living conditions, a decline in the quality of legal processes and a lack of adequate education and welfare support services. Currently, for example, only two counsellors are provided for in Nauru under the government’s contract with International Health and Medical Services, which is severely inadequate in light of the processing centre’s peak capacity of 1500 people. The United Nations High Commissioner for Refugees has criticised these temporary arrangements as failing to meet international standards for refugee protection. 
The Australian Government, at the time of writing, is also in negotiations with Nauru to amend its legislation to enable a Nauruan Refugee Status Review Tribunal and the Nauruan Supreme Court to hear challenges to refugee status determinations. This would mean that both refugee processing as well as appeals procedures would occur within Nauru. Under the current arrangements, although unsuccessful challenges within the Nauruan legal system may be taken to the High Court of Australia, any claims would still be assessed according to Nauruan, rather than Australian law. These arrangements raise significant concerns due to the continued lack of adequate legal resources and expertise in Nauru to process appeal claims on the scale and complexity that is demanded by the Nauruan offshore processing agreement. It appears that these measures may have been implemented in further pursuit of the Australian government’s policy of actively deterring irregular maritime arrivals through the comprehensive extraterritorialisation of processing arrangements. Although an analysis of the implications of this newly introduced review process is beyond the scope of this article, it can almost certainly be expected that once further details regarding this new system of review are established, it will be subject to significant critical debate and further scrutiny.


'Digital Market Manipulation' (University of Washington School of Law Research Paper No. 2013-27) by M. Ryan Calo comments that
 Jon Hanson and Douglas Kysar coined the term “market manipulation” in 1999 to describe how companies exploit the cognitive limitations of consumers. Everything costs $9.99 because consumers see the price as closer to $9 than $10. Although widely cited by academics, the concept of market manipulation has had only a modest impact on consumer protection law. 
This Article demonstrates that the concept of market manipulation is descriptively and theoretically incomplete, and updates the framework for the realities of a marketplace that is mediated by technology. Today’s firms fastidiously study consumers and, increasingly, personalize every aspect of their experience. They can also reach consumers anytime and anywhere, rather than waiting for the consumer to approach the marketplace. These and related trends mean that firms can not only take advantage of a general understanding of cognitive limitations, but can uncover and even trigger consumer frailty at an individual level. 
A new theory of digital market manipulation reveals the limits of consumer protection law and exposes concrete economic and privacy harms that regulators will be hard-pressed to ignore. This Article thus both meaningfully advances the behavioral law and economics literature and harnesses that literature to explore and address an impending sea change in the way firms use data to persuade.

Propertisation and Privacy

‘Who Owns Our Data?’, a seven page paper by Christopher Rees, argues that "the layman’s answer" lies in the question itself.
The common understanding of people when they talk about information about themselves is that it is indeed “theirs”. Until relatively recently, the law has been content to remain agnostic on the subject. The Common Law in general and English Courts in particular have traditionally avoided philosophical debates about the nature of things, preferring to develop concepts and principles from the results of cases decided on specific facts and circumstances. This approach has been acceptable while we have been winding our way gently up the foothills of the Information Age, but now that we see the towering peak of Big Data standing before us, covered by the ubiquitous Cloud, it is necessary to make a critical examination of some of the basic assumptions which we have hitherto carried with us about the way in which the law should treat rights over personal information. This paper will argue that the correct approach which the law should adopt is a proprietary one. That is to say that the protection of the economic value inherent in personal information should be grounded in property rights acknowledged by the law. 
Rees argues that
The contention of this paper is that, sooner or later, and possibly much sooner than might be thought likely, a judge ... will take the opportunity to lay down some ground rules for what might be loosely termed this new Law of Information. In the same way that Lord Atkin did, with such clarity and resonance in the landmark case for the law of negligence in Donoghue v Stevenson [1932] AC 563 it will then be seen that what has been creeping up, almost unnoticed, through the undergrowth has emerged into the bright and ever accommodating light of the Common Law is a fully articulated brand new branch of Property, called Personal Information. 
If the property model for Personal Information were to be adopted then far from becoming redundant, data protection laws will assume even greater relevance than hitherto. The reason for this is that search engines, data aggregators and social media sites who up to now have assumed that they own the data which they are harvesting will recognise that they have a vested interest in making sure that they following best practice in the way in which they acquire and use the information about individuals. What it will mean is that those data protection laws will not need to be so detailed and bureaucratic in their approach. Nor will one have vainly to try to rationalise the competing regimes for data protection which have grown up in the U.S, Europe and Asia. Property is a concept that all legal regimes recognise, so relying on the property right inherent in personal information will solve many of the current drafting problems for the legislators in this field. 
The property right approach will also save both industry and individuals money and energy. There will be no need for long winded privacy policies; there will just be a shared understanding of the trust based nature of the relationship between the in rem rightholder and the in personam collector of information. In this way, there will be created a healthier balance of risk and obligation as between owners of personal information and those whom they allow to process it on their behalf. The ownership paradigm will encourage the use of privacy enhancing technologies and state of the art security measures to protect data. Those who hold vast quantities of personal information will realise the risks inherent in losing the property of vast numbers of third parties and the risk of consequent class actions for damages for having done so. This will not eradicate the occurrence of security breaches, but it will encourage the use of better processes and systems for the protection of personal information, which was one of the fundamental aims of data protection law in the first place. And, the law of Information will have taken a significant step forward towards the sunlit uplands that await us in this ever fascinating Information Age.

Website Privacy Statements

The Office of the Australian Information Commissioner (OAIC) has announced "the results of a ‘privacy sweep’ of the websites most used by Australians".

As you might expect, both the results and the OAIC response are rather lame.

The OAIC states that
Almost 50 website privacy policies were assessed for accessibility, readability and content. The websites were also assessed against new transparency requirements in the Privacy Act that will come into effect on 12 March 2014. 
Australian Privacy Commissioner, Timothy Pilgrim, said the results of the sweep were mixed with 83% of the sites having one or more issues in the following areas: 'easy to find', 'easy to read', 'contacts for further information', relevance and length. 
'It is a concern that nearly 50% of website privacy policies were difficult to read. On average, policies were over 2,600 words long. In my view, this is just too long for people to read through. Many policies were also complex, making it difficult for most people to understand what they are signing up to,' Mr Pilgrim said. 
'We did see some instances where organisations provided both a simplified and full policy to assist their customers to understand what will happen to their personal information. This attempt to use 'layered' privacy policies is encouraging.' 
The statement notes that
Over 65% of the [47] privacy polices provided information that was not relevant to the handling of personal information, and was potentially confusing. One website did not have a privacy policy.
There's no indication of whether the Commissioner has responded with carrot, stick or a simple urgent 'please explain' to the operators of that site.

The Commissioner's own site - recently but very belatedly updated - has attracted strong criticism for low usability, with documents being hard to find (in some instances disappearing altogether), confusingly-described and not provided on a timely basis. It is thus encouraging to see that the Commissioner
also reminded organisations that, in addition to readability and length, it was important to consider accessibility issues. 
'Privacy policies need to be accessible by all users. This means that policies should be in formats that can be read by people using assistive technologies like a screen reader,' Mr Pilgrim said. 
The OAIC backgrounder indicates that
  • 15% had a privacy policy that was hard to find on the website 
  • 9% of sites reviewed either listed no privacy contact or it was difficult to find contact information for a privacy officer 
  • Almost 50% of policies raised 'readability' issues, ie they were considered to be too long and difficult to read 
  • The average reading age of the policies was 16. None of the full privacy policies met the OAIC's preferred reading age level of 14. The OAIC used the Flesch-Kinkaid Reading Ease test 
  • More than 65% of privacy policies raised concerns with respect to the relevance of the information provided. For example, some sites with .au domain names were unclear about whether the site complied with the Privacy Act 1988.
The statement comments that
'With only 8 months to go until new privacy laws commence, organisations should be looking at their privacy policies now to ensure they comply with the new requirements. Organisations need to focus on these requirements and be open and transparent about their privacy practices. This will give people a better understanding of how their personal information will be handled so that they can make an informed decision about doing business with the organisation.' 
To comply with new Australian Privacy Principle 1, organisations must have a clearly expressed and up to date privacy policy.
That compliance is, of course, in the eye of the Commissioner - with the PC/OAIC historically tending to be quite permissive. The statement indicates that the OAIC will use the findings "to inform the development of guidance about privacy policies for organisations in the lead up to March 2014".

In a forthcoming article I suggest that we need to be more positive and do more. We could for example mandate accessibility, along the lines of the Australian Spam legislation and the US Financial Services Modernization Act (Gramm-Leach-Bliley Act).

16 August 2013

Copyright CEOs

CEO Compensation in the Copyright-Intensive Industries [PDF], a 53 page report by Jonathan Band and Jonathan Gerafi at InfoJustice notes that -
In June 2013, we produced a study on the profitability of copyright-intensive industries. We compared the performance over the past ten years of five leading firms in three copyright-intensive industries -- motion pictures, publishing, and software -- with the performance of five leading firms in three other industries: construction, transportation, and mining. We found that the firms in the copyright-intensive industries were more profitable than the firms in the other industries in every period examined.
In this study, we compare the compensation of the chief executive officers of these same 30 firms over the past six years. We found that in each year, the CEOs of the firms in the copyright-intensive industries received significantly higher compensation than the CEOs of the firms in the other industries. For example, in 2012, copyright-intensive industry CEOs received $22.9 million in compensation on average, while the CEOs in the other industries received $7.4 million on average. In other words, the 2012 compensation of copyright-intensive industry CEOs was more than triple the compensation of CEOs in the other industries. During the entire six-year period, copyright-intensive industry CEO compensation on average was 2.8 times higher than CEO compensation in the other industries. Moreover, between 2007 and 2012, CEO compensation in the copyright-intensive firms grew by 45%, while it increased by only 8% in the other industries.
Additionally, CEO compensation as a percentage of revenue was more than twice as high in the copyright-intensive industries as in the other industries. CEO compensation as a percentage of revenue in the publishing industry was four times higher than in the transportation industry, almost three times higher than the non-copyright average, and twice as high as in the motion picture industry.
In the copyright policy debates, the labor unions representing workers in copyright-intensive firms have joined with management in demanding greater intellectual property protection. Indeed, copyright policy is one of the few areas where the AFL-CIO and the U.S. Chamber of Commerce routinely agree with one another. They contend that copyright infringement is causing job loss in the United States. Nonetheless, during this period when the copyright-intensive industries purportedly are losing jobs because of attacks by pirates, CEO compensation has increased dramatically, both in absolute terms and relative to CEO compensation in other industries. These generous compensation packages belie the suggestion that the copyright industries confront an existential threat from infringement. Moreover, these upwardly trending compensation levels demonstrate that the copyright-intensive industry CEOs are not sharing the pain infringement allegedly causes their employees.

15 August 2013


'Patents as Genre: A Prospectus' by Dan L. Burk and Jessica Reyman in 25 Law & Literature (Forthcoming) argues that
 Like other forms of intellectual property, patents have increasingly been the subject of controversy regarding their successes and failures in promoting and channeling innovation. But unlike other forms of intellectual property, patents are constituted and defined in terms of officially sanctioned texts. As a consequence, patents are deeply embedded in communities of composition, interpretation, and practice. In this paper we outline how genre analysis can be applied to interrogate the "typified rhetorical action" of the patent system and its constituent communities. We argue and demonstrate that understanding the rhetorical work of patents is key to addressing current criticisms of the patent system.
They comment that
What might the rhetorical features of patent documents reveal about the workings of the patent system and the underlying ideologies of the patent community?7 One method for further exploring the role of rhetoric in the patent system is genre theory methodology. In this paper, we argue that the modern patent is a compelling subject for such genre analysis and that genre analysis points the way to a better understanding of the social role played by patents. We begin by sketching the general outline of the patent as a document, its distinctive characteristics, the unique community that drafts and processes the document, the agencies and institutions that have developed around the document, and the other features relevant to genre analysis. We discuss both linguistic characteristics of the patent document as well as its social character as the product of a community of patent practitioners. In doing so, we trace the connections between the production of patents and the development of the patent community, concluding that this interaction is key to understanding the unique role of patents. 
In doing so we are mindful of both the influence of the document on its associated communities, and the concomitant influence of the communities on the document. These communities of course overlap and intercalate to varying degrees. But here we focus on the community most responsible for the determining the structure and composition of the patent document, the community of patent practitioners registered to practice before the Patent Office. We expect that examining both the text and context of the patent genre will help shed light on the norms, ideologies, and values circulating among patent practitioners, as well as upon those embedded in the patent document itself. ... 
... the social action of patents is not so much about innovation as it is about communal understanding and rhetorical performance. This conclusion differs radically from the assumptions underlying current patent debates, which focus on the economics and technological acumen of firms that produce inventions. But the system we describe here is a system for producing certified texts, rather than a system for producing innovation, which may be a different undertaking altogether. 
Genres are the textual sites at which a discourse community’s work is accomplished. We have in this preliminary study begun to sketch the contours of the patent genre and its associated community, showing the interplay between document and discursive community, and the social action that flows from that interplay. In doing so, we hope to have laid the foundation for future exploration of a rich field of rhetorical activity that has compelling currency for social policy. Such further studies might include analysis of additional features of the document, examination of the written interaction between Patent Office and reviewing courts, consideration of the structure of other types of patents besides the basic utility patent we have described here, or detailed investigation the intricate genre ecologies of the file wrapper. 
Such topics are worthy of detailed study in their own right, but may also have broader implications. For example, we have mentioned the historical influence that the patent community has had on the development of the patent document and its standards for certification; this interaction is not merely a historical curiosity, but a contemporary reality. In addition to specialty groups within state bar associations, patent practitioners also have their own very active national professional organization, the American Intellectual Property Law Association, which has historically been dominated by patent lawyers. Through such organizations the community has been active in advocacy and lobbying activity, including vocal involvement in the recent package of statutory reforms constituting the America Invents Act. Thus the community of patent drafters has shaped the form of the patent document, not only directly through evolving compositional practice, but by formal lobbying and informal influence over the regulations and statutes governing the patent. Consequently, the evolution of a different text – the patent statute – becomes an important mediating node between the patent community and the shape of the patent document. Similarly, the shape and formation of institutions such as the Patent Office and the Federal Circuit, which certify and interpret patents, have been influenced by the practice community. 
In each of these contexts, the community reflected in and shaped by the patent genre displays distinguishing characteristics which may be better understood by considering patents as genre. As the importance of patents, and need for closer examination of patents rises, it is worth investigating the interplay of documents used to establish patents and the methods used for writing and reading them. While we have not attempted to outline any sort of reform or recommendations for the patent system, we do conclude that genre study heightens our understanding of the patent community’s norms, epistemology, and ideology; and such information tells us a good deal about the meaning of patents and the social role that we have assigned to them. Understanding these dimensions of patenting lays a critical foundation for discussions of patent practice and patent reform.

14 August 2013

Migration and Loyalty Oaths

'Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy' by Liav Orgad in (2014) Canadian Journal of Law and Jurisprudence (Forthcoming) -
examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental concerns related to their content and form: the rule of law, freedom of conscience, and equality. 
The Article reveals liberal concerns associated with the added value of the duty of "loyalty to the law" (allegiance), as distinct from the duty to "obey the law" (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.
Orgad comments
The Article explores one manifestation of loyalty in liberal philosophy and political practice—loyalty oaths for immigrants. In many democratic states, immigrants seeking to become citizens must take a loyalty oath. Although the content and form of the oath varies, its common feature is that it is mandatory—a prerequisite for citizenship. Loyalty oaths are particularly interesting because they are a unique platform to examine the interrelationship between constitutional law and immigration law. Oaths serve as a means for an immigrant to subscribe to the tenets of the community. However, before imposing an oath on newcomers, the community must define its tenets. The substance of the oath we demand of them is about us. Immigration policy, thus, echoes constitutional identity by mirroring not only the qualities that we value in others but also by reflecting what defines us. 
At first glance, citizenship oaths do not raise serious problems of political philosophy. After all, an oath only entails reciting a few words in a public ceremony. However, a closer review reveals forceful reasons against the use of loyalty oaths in liberal societies. First, the duty of loyalty, imposed on naturalized persons, seeks to influence one's character traits, emotional attitudes, and internal beliefs; it requires more than just the liberal duty of conformity to the law. Second, the obligation to take a loyalty oath in order to secure citizenship may be seen to limit individual liberties of the oath-takers, infringe upon their freedom of conscience, and in fact discriminate against naturalized citizens compared to natural-born citizens, who never must take the oath. In spite of these strong claims against loyalty oats, the institution of the oath remains an understudied topic. 
The Article argues that the use of loyalty oaths is a symptom of a genuine problem in the liberal theory. In some forms, liberalism means to obey the law and otherwise be left alone. But stronger forms of liberalism further require belief in liberal values and institutions. The justification for requiring it is grounded on liberal itself—its being essential for upholding individual liberties.  The challenge has always been how to preserve liberal values and institutions without crossing the liberal line into ‘indoctrination.’ However, when the benchmark of loyalty becomes belief rather than behavior, when it is faith rather than action, it gets close to the point of not being liberal, even if its goal is to keep liberalism alive. The more loyalty liberal democracies demand, the less liberal they become. When liberal democracies appeal to "loyalty to the law" (allegiance)—and not just "conformity with the law" (obedience)—they challenge liberalism itself. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests abandoning them as a legal institution. 
The Article proceeds as follows: Part I reveals a global trend in comparative immigration law—the growing appeal to loyalty oaths. Part II shows that modern law still embraces a duty of allegiance in addition to the general duty of obedience and explores the differences between them. Part III traces the functions of loyalty oaths and demonstrates that, regardless of the oath's historical purposes—being a form of social contract, political test, and nation-building symbol— its modern purpose is vague. Part IV presents three liberal problems raised by loyalty oaths: 1) they infringe upon the rule of law; 2) they violate freedom of conscience; and 3) they discriminate against naturalized citizens compared to natural-born citizens. Part V concludes.

Broken Hearts, BS and Benchmarks

After looking at online dating services the UK Information Commissioner has commented that “There are questions around how people’s information is being used that need to be answered”.

The Commissioner's media release states that
 The ICO has written to four of the biggest UK online dating companies, after questions were raised about how some dating websites are handling personal data. The letters follow a recent survey by the ICO of major UK dating websites, which identified areas where the Data Protection Act was not being followed. 
The ICO has now written to the four biggest UK-based providers of online dating services, highlighting the main areas of concern that the survey found. The companies are asked to respond with how they are meeting those concerns. 
The areas of concern highlighted include: 
  • Poor visibility of the terms and conditions that give the website consent to use personal information in certain ways 
  • Those terms and conditions making reference to the dating company having ‘perpetual’ or ‘irrevocable’ licence to use members’ data 
  • Websites claiming to take no responsibility for the loss of or damage to personal information 
  • Users being expected to provide personal details before the terms and conditions are provided
The letters have been sent to eHarmony, match.com, Cupid, and Global Personals, as well as the industry trade body, the Association of British Introduction Agencies. 
The work by the ICO’s enforcement team comes as BBC’s Panorama programme reports on the scale of apparent unscrupulous practices being employed by some dating websites. 
Simon Entwisle, ICO’s Director of Operations, said:
The evidence we’re being presented with by the media suggests quite concerning business practices by some dating websites, and there are particular questions around how people’s information is being used that need to be answered. 
It’s concerning to see that there appear to be sites which, as a matter of course, are falling far short of the legal standards for ensuring information is accurate and up to date. 
While media reports are painting a disturbing picture, the number of complaints we’re getting from the public is not very high. That could be because this is only an issue with a small minority of websites, or it could be because people are reluctant to come forward. The work we’re doing now will help us to better understand the scale of the issue.
There's no reason to believe that poor practice is restricted to the UK.

Pray the gay away

Now that we are moving away from 'pray the gay away' pseudotherapies it is worth considering law regarding other problematical 'treatment' of sexual affinity.

'Regulating Sexual Orientation Change Efforts: The California Approach, Its Limitations, and Potential Alternatives' by Jacob M. Victor in (2013) Yale Law Journal explores "a recent and unprecedented piece of legislation enacted in California, which forbids licensed psychotherapists from engaging in "sexual orientation change efforts" (SOCE) with a minor".

The author argues that California's regulatory strategy is problematic on normative grounds and from the strategic perspective of those who seek to effectively curtail SOCE therapists’ influence; a better approach would undermine SOCE practitioners by regulating deceptive promises about the efficacy of therapeutic techniques more generally.

Victor comments that
In September 2012, the California legislature passed Senate Bill 1172 (SB 1172), an unprecedented piece of legislation that prohibits licensed psychotherapists from engaging in “sexual orientation change efforts” (SOCE) with minor patients. The legislation establishes that the state may revoke the license of any therapist who attempts to change a minor patient’s sexual orientation.
As many scholars have pointed out, the vast majority of psychiatrists and psychologists once believed that same-sex attraction could be “cured” through psychotherapy. However, since homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders in 1973, the mainstream mental health establishment has gradually begun to understand homosexuality and bisexuality as benign, encouraging therapists to engage in practices that “affirm” a patient’s sexual orientation. At the same time, several groups – including NARTH, Exodus International, and JONAH – have continued to insist that sexual orientation can be changed through psychotherapeutic intervention. These organizations, and therapists affiliated with them, continue to provide SOCE therapy – also know as “conversion therapy” or “reparative therapy” – and often market these services to minors from religious communities In the last several years the mental health establishment has become increasingly concerned with these practices and issued reports concluding that SOCE is ineffective and potentially harmful. Lesbian, gay, and bisexual (LGB) rights organizations have also begun publicly documenting the stories of individual patients subjected to SOCE practices, many of whom describe their treatments as emotionally or sexually abusive.
The California legislature adopted SB 1172 in response to these new reports of SOCE’s potential harmfulness, pointing to the state’s “compelling interest in protecting the physical and psychological well-being of minors…and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” Mainstream LGB rights groups, especially Equality California, were instrumental in galvanizing the state to act, and also framed the legislation as being part of broader efforts to “protect and empower” LGB youth. Though the new statute has faced significant legal challenges – it has already been enjoined on First Amendment grounds and may be struck down by the Ninth Circuit13 – this strategy of seeking legislation that bans the use of SOCE therapy on minors has become appealing to LGB rights groups nationwide. In response to lobbying efforts, legislators in New Jersey, New York, Pennsylvania, and Massachusetts recently proposed legislation modeled after SB 1172.
This strategy, however, is not without its costs. This paper argues that even those opposed to SOCE – a position this paper takes for granted – should still question the SB 1172 approach of using targeted legislation to ban the use of any SOCE practice on minors. While California’s willingness to intervene on behalf of LGB youth is commendable, the regulatory strategy employed in SB 1172 is problematic from both a normative perspective and from the more strategic perspective of those who seek to curtail SOCE therapists’ influence in the most politically expedient manner possible. This paper also proposes an alternative strategy that might bring about the same goals of SB 1172 – namely, preventing SOCE practitioners’ access to LGB youth – but with fewer normative or strategic problems.
The paper proceeds in three Parts. Part I provides background on SB 1172 and explores the understandings of SOCE’s harmfulness that seems to underlie the legislation. This Part also argues that this conception of SOCE’s harmfulness is partially grounded in the mental health establishment’s conclusions, derived from clinical studies, but also stems from a more ideological understanding of LGB identity. Part II raises three separate but interrelated problems with the legislation’s broad view of the state’s interest in regulating SOCE. First, SB 1172 uses the power of the state to impose an essentializing conception of LGB identity that risks marginalizing and stifling the experiences of those who fall outside mainstream conceptions of sexual orientation. Second, the legislation falls within an ill-defined and controversial area of First Amendment doctrine – the line between “professional” and “ideological” speech – and thus carries a pronounced risk of being struck down on First Amendment grounds. And third, SB 1172 risks fostering political backlash by playing into a politically appealing anti-LGB narrative that frames LGB rights in opposition to “parental rights.” Part III examines a potential alternative strategy for limiting SOCE practitioners’ access to patients that focuses on the “deceptive” promises made by most SOCE practitioners regarding the effectiveness of psychotherapeutic intervention in changing sexual orientation. Most SOCE practices could fall into a broader – and possibly already existent – regime that defines deceptive promises made by therapists as unprofessional conduct. Regulating SOCE through such a regime carries fewer normative or political-strategic concerns and could potentially bring about results similar to those of a targeted ban like SB 1172.


'Predatory Patent Litigation' by Erik N. Hovenkamp comments that
Despite their extensive experience in patent litigation, the most litigious patent assertion entities (PAEs) fair relatively poorly in court. These firms commonly file dubious infringement claims on which they are ostensibly very likely to lose money if litigated to judgment. It is therefore tempting to conjecture that these PAEs are mistaken to pursue such litigation. However, we argue that this is in fact part of a calculated strategy of predatory patent litigation used to monetize low quality, excessively broad patents. In effect, the PAE aggressively litigates when its licensing demands are rejected -- despite expecting to lose money on the suit -- in order to injure the defendant and develop a litigious reputation that intimidates future defendants into more lucrative settlements. Like predatory pricing, this involves a short run loss that is recouped in the long run through supra-competitive pricing. T
he welfare impact of predatory patent litigation is unambiguously negative: it creates a market for low quality patents, exacerbates the patent thicket problem and inflates social costs -- and it does so without improving on the ability of non-predatory PAEs to encourage innovation. The welfare impact of non-predatory PAE activity, by contrast, is prima facie ambiguous. Rather than fee shifting remedies like the SHIELD Act, we propose that potential defendants form a litigation cost-sharing agreement: a contractual agreement that divides a member's defense costs among the group when the plaintiff is a PAE, and which requires members to litigate predatory claims to judgment. This deters predatory litigation without deterring meritorious infringement claims.

13 August 2013

Cuts and Cultures

'Limits of Enlightenment and the Law - On the Legality of Ritual Male Circumcision in Europe Today' by Mark Swatek-Evenstein in (2013) 29(77) Merkourios 42 comments that
The legality of ritual circumcision of male infants is a subject not regularly discussed under European or international Human Rights Law, let alone national law. In Germany, this changed dramatically in 2012, when a regional court declared ritual circumcision of a male infant illegal, even if performed at the parents' request and according to current medical standards. After a fierce public discussion, the German parliament voted towards the end of the year in favour of a bill that explicitly permits male infant circumcision. The discussion on whether this new law is in line with European human rights law and international law is expected to continue. 
This paper takes no position on whether infant male circumcision should be legal and takes no position on the medical questions attached to the subject. It argues for the legality of infant male circumcision in Western democracies like Germany for historic reasons: Jewish emancipation in the 18th and 19th century throughout Europe meant an incorporation of Jewish laws and customs into the legal fabric of European countries. Taking into account the relatively wide acceptance of the practice of infant male circumcision in communities worldwide, the paper suggests that arguments from international human rights law make simple equations difficult to sustain. Gender and children's rights-based approaches may be utilized to develop a deeper sensibility for the issues related to circumcision, but must not obscure the fact that minority rights sometimes rightfully allow a minority to do things the majority does not understand.
Swatek-Evenstein argues that
The legal framework for any opinion on the legality of ritual male circumcision is provided not by a subjective reading of applicable legal provisions, no matter how “objective” such an interpretation may claim to be, but it is the result of a specific legal tradition. In the case of Europe, the recent discussion on whether or not to include a reference to God in the preamble of the Charter of Fundamental Rights of the European Union, shows that the relationship between religious foundations and legal institutions is far from over. While the Charter only makes reference to the “spiritual and moral heritage” of the European Union, it is clear that Europe (and with it, European law) today is based on a predominantly Christian European (religious) experience and development. Guarantees of religious freedom for other denominations therefore always contain aspects of minority protection. As shown for the case of Germany, ritual male circumcision, while never widespread in predominantly Christian Germany, evolved within the state’s legal tradition. The guarantee of religious freedom here returns to its origin in human rights as minority rights: For in the Jewish and Muslim traditions, membership to the respective groups (or religions) is not the result of a faith-based choice, as the Cologne court implied in its reasoning based on a Christian understanding of religion, but of heritage. Born to a Jewish mother, any male infant is considered Jewish and as circumcision is considered a requirement by most readings of Judaism, it may make sense to speak of a “right to be circumcised”, that is, to be welcomed into the Jewish tradition as this tradition requires. The situation in Islam is similar. Claims of an implicit incompatibility of this right with European (human rights) rules construct a dichotomy between the substance of the European legal system and, in particular, Judaism, which given the recent re-affirmation of Europe’s “spiritual and moral heritage” and “the diversity of the cultures and traditions of the peoples of Europe” in the preamble of the Charter of Fundamental Rights of the European Union, hardly represents a step forward. Instead, such claims re-affirm the construction of the Jews (and the Muslims) as Europe’s “Other”.
Statements on the freedom of religion in its legal dimension often come with certain limitations. For example, according to Art. 18 of the International Covenant on Civil and Political Rights (ICCP), the freedom to “manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. In similar fashion, as described above, Article 9 of the Convention contains an almost identical limitation. In this context, the re-evaluation of the (legal) relationship between children and their parents of the recent decades becomes relevant. Children are no longer the “property” of their parents, but individual bearers of rights. The “best interests” of the child, rather than the wishes of the parents, have become the legal focus (see Art. 3 UNCRC and Art. 24 (2) and (3) of the Charter of Fundamental Rights of the European Union). From this perspective, it might make sense to question whether “the excision of healthy tissue from a child unable to express his consent for no demonstrable medical benefit” should be a private matter of parental choice. But the increased emphasis on children’s rights alone does not allow for excluding such a decision from the realm of valid (legal) parental choices. Pretending to interpret children’s rights according to one “objective” definition of the “best interests” of the child and deciding against circumcision for its lack of medical benefit is akin to devaluing traditions which decide in favour of circumcision for other reasons. It also separates children and their rights from their “natural” environment, that is to say, it strengthens children’s rights at the expense of the protection of the family as an organic unit. Thus this arguably runs counter to the aim of the United Nations Convention on the Rights of the Child, which is to provide the best protection for the child that, as the preamble clearly states, “should grow up in a family environment”. In other words, the UNCRC seeks to balance the rights of children and parents to preserve a strong pro-family ethic. While it cannot be denied that there can be situations within the family that require state intervention, it must be asked whether the practice of ritual male circumcision, which has been known in Europe for centuries, can by default be considered such a situation, as critics of the ritual seem to suggest. As long as it can be demonstrated that legal regimes of Europe and international human rights law have developed with the inclusion of such traditions, using these regimes to pass judgement on those traditions decontextualizes the law from its social origins. As Didi Herman has shown, reducing these traditions to “purely religious” traditions – implicitly defining “the hegemonic Christianness” of most of Europe as secular – negates their origin in cultural traditions and their importance for questions of identity, and is informed by an implicit Christian normativity: “In the case of circumcision, a secularised, modern ‘healthcare’ argument can thus be read as racialising, orientalist and Christian, as can the related argument that circumcision is, at root, a barbaric ritual having no place in a civilised society, made by European enlightenment rationalists over 200 years ago.” If chronology is everything and cannot be reversed, then ritual male circumcision is, in principle, legal under current European Human Rights law. That does not mean that the practice needs to remain legal, but it does mean that it is not for the courts to decide whether or not the legal situation should or will change. The Cologne court’s decision may not have violated the European nullum crimen-principle as defined by Art. 7 of the Convention, since no “penalty” was imposed on the defendant, who was acquitted. But the retroactive destruction of a defence violates any principle of legality less narrowly defined, even if no penalty is imposed. Under international criminal law, it is not only the rule of non-retroactivity of crime creation that has reached customary international law status. There is an equally well-established rule of non-retroactivity in eliminating defences to crimes. The latter rule prohibits elimination of defences concerning what acts the law deems as noncriminal (unless the defence – though formally in place – can be considered unjust and where, stripped of the defence, the act in question was squarely criminal at the time.). It cannot be said that parental consent to ritual male circumcision as a defence to the act in question can be considered unjust, or that male circumcision as such is squarely criminal under current criminal law in Europe. As stated before, it is clear that circumcision can be medically beneficial, even if such benefits are not motivating factors in the practice of ritual male circumcision.
If children’s rights are indeed seriously impaired by allowing ritual male circumcision, as some judges and academics believe, the way forward is not to claim that the practice is illegal, only that it should be illegal. Such claims will then have to deal with the medical ambiguity related to the subject, just as much as they will have to respond to the claims of religious freedom properly understood. If Europe is to remain a place of diversity, then a dialogue about the desirability/necessity of ritual male circumcision outside the constraints of the discourse about its legality is likely to find more open ears than the accusation that some of the contributors to Europe’s legal status quo are habitually violating this very same status quo.
'An Examination of Legal and Ethical Issues Surrounding Male Circumcision: The Canadian Context' by Suzanne Bouclin in (2005) 4(2) International Journal of Men's Health 205 comments that
Despite shifts in the discourses adopted and reinforced within the Canadian medical community and the international community, routine neo-natal male circumcision remains fairly normalized. Focusing on the Canadian context, this paper outlines the health-based and legal arguments against elective infant male circumcision. Part one provides an overview of routine neo-natal male circumcision and deals with the crucial distinction between therapeutic and non-therapeutic intervention. It locates elective neo-natal male circumcision within the non-therapeutic category. Part two outlines the theoretical underpinnings for medical consent in the Canadian context, and discusses the legal requirements for 'informed consent'. The work of part three is to tease out issues of parental consent and whether parents should be entitled to substitute consent for non-medically necessary, routine, neo-natal circumcision.

The Cost of Watch Lists

'The Hidden Costs of Terrorist Watch Lists' by Anya Bernstein in (2013) 61 Buffalo Law Review 461 comments that
 Courts have started to recognize standing to sue for those on the government’s No Fly List, which bars listed individuals from flying. This salutary step, however, leaves untouched the complex watch list infrastructure on which the No Fly List is built and whose flaws it inherits. Lower-profile watch lists have fewer determinate consequences on listed individuals than the No Fly List does. But, this article argues, they exact substantial costs. 
This article first explains why the incentive structure of terrorist watch lists encourages government agencies to list more people than necessary and not to check their work. It then demonstrates how a misguided understanding of the relationship between false positives and false negatives obscures the effects of these perverse incentives. Those effects, the article shows, extend beyond individuals listed on a watch to include government agents and agencies, public policy, and society at large. Yet, as I explain, neither the current statutory regime nor judicial doctrine can address these broad negative effects; even scholarship largely misses the point. To remedy this situation, this article proposes ways to build self-assessment and improvement — in the form of Bayesian updating — into the watch list process. More broadly, the article contributes to attempts to analyze and constrain the government’s use of big data.
Bernstein notes that
The No Fly List, which is used to block suspected terrorists from flying, has been in use for years. But the government still appears “stymied” by the “relatively straightforward question” of what people who “believe they have been wrongly included on” that list should do. In recent months, courts have haltingly started to provide their own answer, giving some individuals standing to sue to remove their names or receive additional process. This step is particularly important as the No Fly List continues its breathtaking growth. It is unclear, however, how a court will evaluate that additional process when the listing criteria are both secret and untested. This doctrinal development poses a challenge not only to the No Fly List, but also to the complex watch list infrastructure on which it is built. 
The No Fly List draws on a consolidated terrorist watch list that compiles numerous other lists maintained by a number of federal agencies. Agencies compiling their lists receive information not only from their own agents but from state governments, foreign nations, and private individuals. The No Fly List is well known because it has visible effects like impinging on rights to travel. Indeed, it is precisely such effects that have led courts to recognize standing to challenge them. But the No Fly List’s flaws are inherited from the lists it uses. They, in turn, remain largely unregulated, unappealable, and obscured from public attention. 
Commentators have argued that such watch lists raise problems for privacy and due process rights. This Article broadens the frame, moving beyond individual rights to the broader effects that watch lists have on the agents and agencies who run them, the government that commissions them, and the society that houses them. It also explains why agencies currently lack the incentives to address these problems themselves. Because current law fails to rein watch lists in, they require external constraint. Focusing on watch lists’ peculiar epistemological and social structure, this Article identifies the key aspects of watch list creation that require regulation. And it draws on developments in regulatory theory to ground its proposals for reform. 
This Article starts with the question of why watch lists require more constraint to begin with. Legal constraints, after all, usually exist to make people do things they would not otherwise do. And at first glance, there seems to be every reason to think that government agencies want to make their watch lists work. If that is the case, we can assume that agencies will try their hardest to create the best and most useful watch lists possible. We would not need to tell them how, or to force them to take some particular route to getting there. 
As I contend in Part I, however, the incentive structures surrounding terrorist watch lists push agents and agencies to exaggerate dangers, putting names on watch lists that do not belong there. These false positives might be more acceptable if they made watch lists more comprehensive, reducing the likelihood that the watch list would miss someone who ought to be on there—a false negative. But, as Part I also shows, watch lists’ perverse incentives lead agents and agencies to misconstrue the relationship between false positives and false negatives. These perverse effects endanger the very national security that watch lists are meant to safeguard by discouraging the kind of self- correction that would make watch lists more effective. 
Part II explains the structure of contemporary terrorist watch lists, showing how information and knowledge are produced in the watch list context. Contemporary watch lists use the techniques of “big data” to collect information and distribute the work of evaluation and prediction over many participants. However, they largely eschew the self-assessment techniques that make the use of big data reliably useful. Their distributed knowledge production can help watch lists smooth over the peculiarities of individual agents. But it can also exacerbate judgment problems by stacking peculiarity upon peculiarity and giving the result a veneer of objective truth. Explaining how judgment is incorporated in watch lists elucidates the errors they are prone to and helps clarify why a conflicted incentive structure leads to a high false positive rate. 
A high rate of false positives might still be acceptable if there were no cost associated with them. And because of their objective veneer, watch lists can seem like a costless, neutral backdrop of impartial information about the world. It seems as though they have no effects on the world themselves. Part III argues that this neutral view is wrong. As scholars concerned with individual rights have recognized, unregulated, error-prone watch lists affect the people listed on them in powerful ways. But watch lists also affect the agents and agencies that maintain them, lowering their efficacy and acumen by failing to provide reality checks for their judgments. Further, watch lists skew public policy by making terrorism appear to be a more imminent and severe threat than it is, which leads resources to be diverted from other programs into terrorism-related ones. And to the broader public, watch lists present a world populated by terrorist threats that can often be recognized with blunt categories like ethnicity and religion. That ffects how people act in their society and what they see as its most urgent problems. Watch lists, in other words, are far from costless. They go beyond affecting individual rights to affect government functioning and social structure. Yet, as Part IV claims, the legal strictures that currently regulate database use miss the point. They focus on informational accuracy, not predictive efficacy. I suggest that this lacuna rests on an outdated understanding of contemporary databases as mere repositories for independently existing information, not the sites of judgment production and prediction they actually are. 
Traditionally, government judgment has been subject to legal constraint that can be reviewed in court. The watch list context, as I show, complicates this approach by introducing secret algorithms of prediction that result in little that is cognizable in court. This limitation, I contend, should not dissuade us from analyzing and constraining watch lists. The absence of judicial review cannot obviate scrutiny and constraint of government action in a democratic society. Rather, as recent scholarship has suggested, we must look to institutional design and internal self-regulation to solve those problems that cannot reach the courts. 
Part V proposes regulating watch lists by focusing on the increased efficacy that comes with increased constraint. My suggestions build on a growing call for government to assess, and not only project, the effects of its actions. And they stake a claim for Bayesian updating at the center of administrative self-regulation — the kind of regulation that increasingly looks to be the main way of controlling the administrative state. 
Finally, the Conclusion examines the limitations of my proposals and explains why any solution to the watch list problem will always be partial. It further discusses how similar concerns, and a similar approach, will be appropriate to other government databases used to make predictions about future human conduct, when their incentive structures are similarly conflicted.


In Corruption and Crime Commission v Stokes [2013] WASC 282 the Supreme Court of Western Australia has considered the spent conviction order imposed on a senior public servant for disclosing official secrets.

The WA Corruption and Crime Commission failed in its appeal to set aside the spent conviction order imposed on a former deputy director of the Department of Industry and Resources (DOIR) for disclosing official secrets, in particular correspondence from the DOIR Director-General to the Director-General of the Department of Planning and Infrastructure regarding the rezoning of land suitable for commercial mining.  The Commission's report on its investigation [PDF] was published in 2008.

Stokes was charged with disclosing official secrets contrary to s 81 of the Criminal Code 1913 (WA). The Magistrate imposed a fine of $1500 and granted a spent conviction order. The Commission sought leave to appeal on the basis that the magistrate erred by

  • finding that the offence which the respondent was convicted was a minor example of an offence of its type. 
  • finding that general deterrence was not a significant factor in the sentencing exercise or in the consideration of whether to make a spent conviction order. 
  • imposing a spent conviction order in circumstances where it was not appropriate to do so. 

In rejecting the appeal Heenan J found that in sentencing the respondent the Magistrates Court of Western Australia properly estimated the seriousness of the respondent's offence and comprehensively addressed the statutory criteria in imposing a spent conviction order.

11 August 2013

Safe Harbour Restrictions in Germany

Germany's Data Protection Commissioners are counterparts of Australia's national and state privacy commissioners. They have drawn a line in the sand (let's hope that the tide doesn't come in) by announcing that they will not issue new permissions for data transfer to non-EU countries (inc for the use of certain cloud services). That refusal is not retrospective, so data will continue to flow across the German borders.

It is pending "a plausible explanation" by the national government of "how the unlimited access of foreign intelligence services to personal data of persons in Germany is effectively limited" in line with the principles in the German and EU privacy regimes.

Those principles have been reflected in EU criticism of the Australian privacy regime.

The statement also indicates that the commissioners will also "examine whether such data transfers should be suspended on the basis of the Safe Harbour framework and the standard contractual clauses".
In response to reports of extensive surveillance by foreign intelligence services, in particular the U.S. National Security Agency (NSA), in the absence of specific suspicion of wrongdoing, the Conference of Federal and State Data Protection Commissioners calls to mind the powers given by the Federal Data Protection Act and the EU’s Data Protection Directive to the data protection supervisory authorities with regard to international data traffic between companies in Germany and countries that are not members of the European Union.
In a number of decisions, the European Commission has defined “Safe Harbour” principles for data transfer to the U.S. (2000) and standard contractual clauses for data transfer to countries outside the European Union (2004 and 2010). These principles are intended to ensure that appropriate standards of data protection apply to personal data sent to the U.S. or other non-EU countries. However, the Commission has always stressed that the national supervisory authorities may suspend the transfer of data to such countries when there is a “substantial likelihood” that the Safe Harbour principles or standard contractual clauses are being violated.
The Commissioners state that
This is now the case. There is a substantial likelihood that the principles in the Commission’s decisions are being violated: According to current information, the NSA and other foreign intelligence services are accessing personal data sent from companies in Germany to offices in the U.S. and doing so on a large scale, without suspicion of wrongdoing and in disregard of the principles of need, proportionality and purpose limitation. The Safe Harbour agreement does contain a provision limiting adherence to the Safe Harbour principles when required by national security or if laws create such authorizations. In view of the aim of providing effective privacy protection, however, these powers of access are to be used only to the extent actually needed and not excessively. In a democracy, therefore, national security considerations cannot justify comprehensive access to personal data without reasonable suspicion. When transferring data to the U.S. on the basis of the standard contractual clauses, importers of data must state that, to the best of their knowledge, their countries have no laws that would seriously interfere with the guarantees in these clauses. Such a general authorization seems to exist in the U.S., as this is the only way to explain the substantial likelihood that the U.S. intelligence service routinely accesses personal data transferred on the basis of the standard agreements.
The Commissioners call on the national government
to provide a plausible explanation of how the unlimited access of foreign intelligence services to personal data of persons in Germany is effectively limited in line with the principles referred to. Until this is guaranteed, the data protection supervisory authorities will not issue any new permission for data transfer to non-EU countries (for example also for the use of certain cloud services) and will examine whether such data transfers should be suspended on the basis of the Safe Harbour framework and the standard contractual clauses.
Lastly, the [commissioners] calls on the European Commission to suspend its decisions on Safe Harbour and on the standard agreements until further notice in view of the excessive surveillance by foreign intelligence services.
The statement quotes the chair of the Conference of Federal and State Data Protection Commissioners as commenting
Companies that send personal data to the U.S. bear the responsibility for these data. Like everyone in Germany, they must therefore have an interest in ensuring that personal data flows are not subject to large-scale surveillance by intelligence services.

Robot Ethics

Academics say the strangest things. I'm struck by the 'Enhanced punishment: can technology make life sentences longer?' post in the Oxford Practical Ethics blog by a UK academic who - as a parody or otherwise - highlights the scope for technology to increase the severity of punishment "without making drastic changes to the current UK legal system".

Incarceration, it seems, is about retribution (rather than for example containment) and apparently a fit subject for Oxbridge philosophy postdocs to demonstrate their cleverness in giving the Hammurabi 'eye for an eye' ethic a posthuman flavour.

'Lifespan enhancement' for example could
be harnessed to increase the severity of punishments. In cases where a thirty-year life sentence is judged too lenient, convicted criminals could be sentenced to receive a life sentence in conjunction with lifespan enhancement. As a result, life imprisonment could mean several hundred years rather than a few decades. It would, of course, be more expensive for society to support such sentences. However, if lifespan enhancement were widely available, this cost could be offset by the increased contributions of a longer-lived workforce.
But wait, as they say, it just gets better.

'Mind uploading' (the sort of thing that will - ahem - allow you to "read a book in a few seconds and write a PhD thesis in an afternoon") could be used to punish bad people -
uploading the mind of a convicted criminal and running it a million times faster than normal would enable the uploaded criminal to serve a 1,000 year sentence in eight-and-a-half hours. This would, obviously, be much cheaper for the taxpayer than extending criminals’ lifespans to enable them to serve 1,000 years in real time. Further, the eight-and-a-half hour 1,000-year sentence could be followed by a few hours (or, from the point of view of the criminal, several hundred years) of treatment and rehabilitation. Between sunrise and sunset, then, the vilest criminals could serve a millennium of hard labour and return fully rehabilitated either to the real world (if technology facilitates transferring them back to a biological substrate) or, perhaps, to exile in a computer simulated world. For this to be a realistic punishment option, however, some important issues in the philosophy of mind and personal identity would need to be addressed.
[R]esearch on subjective experience of duration could inform the design and management of prisons, with the worst criminals being sent to special institutions designed to ensure their sentences pass as slowly and monotonously as possible.
Alternately we could lock the prisoners up with a couple of ethicists and the collected works of Slavoj Zizek in a perpetual postdoc seminar.

I was particularly struck by the para on "Robot prison officers" -
The extent to which prison can be made unpleasant for prisoners is limited by considerations of the welfare of the prison staff who must deal with prisoners on a day-to-day basis. It is in the interests of these staff to keep prisoners relatively content to ensure that they can be managed safely and calmly. If human staff could one day be replaced by robots, this limiting factor would be removed. Robotics technology has already produced self-driving cars and various other impressive machines, which places robot prison officers within the bounds of possibility. Technology, then, offers (or will one day offer) untapped possibilities to make punishment for the worst criminals more severe without resorting to inhumane methods or substantially overhauling the current UK legal system.
Let's forget about the Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, apparently, and make the baddies thoroughly miserable. Why not sandpaper the crims' eyeballs, force them to listen to Cliff Richard 24/7, set fire to their hair or introduce scarification a la Dr Kafka [PDF]?

The ethicist's concern for the well-being of the prison staff is commendable - oh so commendable - but I wonder whether we can skip the robots and simply employ a couple of enthusiastic academics with cattle prods.