13 September 2013

Smartphones

'Clinicians and their cameras: policy, ethics and practice in an Australian tertiary hospital' by Kara Burns and Suzanne Belton in (2013) 37(4) Australian Health Review 437 comments
Medical photography illustrates what people would prefer to keep private, is practiced when people are vulnerable, and has the power to freeze a moment in time. Given it is a sensitive area of health, lawful and ethical practice is paramount. This paper recognises and seeks to clarify the possibility of widespread clinician-taken medical photography in a tertiary hospital in Australia, examining the legal and ethical implications of this practice. A framework of law, state Department of Health policy and human rights theory were used to argue the thesis.
Clinicians from 13 purposively chosen wards were asked to participate in an anonymous survey and confidential in-depth interviews. Questions were generated from the literature and local knowledge on the topics of ‘occurrence’, ‘image use’, ‘quality of consent’, ‘cameras and technology’, ‘confidentiality’, ‘data storage and security’, ‘hospital policy and law’ and ‘cultural issues’. One hundred and seventy surveys and eight interviews were analysed using descriptive statistics and theme and content analysis, then triangulated for similarity, difference and unique responses.
Forty-eight percent of clinicians surveyed take medical photographs, with the majority using hospital-owned cameras. However, one-fifth of clinicians reported photographing with personal mobile phones. Non-compliance with written consent requirements articulated in policy was endemic, with most clinicians surveyed obtaining only verbal consent. Labelling, storage, copyright and cultural issues were generally misunderstood, with a significant number of clinicians risking the security of patient information by storing images on personal devices.
If this tertiary hospital does not develop a clinical photography action plan to address staff lack of knowledge, and non-compliance with policy and mobile phone use, patients’ data is at risk of being distributed into the public domain where unauthorised publication may cause psychological harm and have legal ramifications for the hospital, its patients, and staff.
The authors conclude -
We believe the surveyed site is facing endemic policy non-compliance in the area of consent for clinical photography. If this hospital ignores staffs’ lack of policy compliance and mobile phone use, patients’ personal information is at risk of being irreversibly distributed into the public domain. Such unauthorised publication may cause psychological harm to the patient and have legal ramifications for the hospital and its staff. The current lack of compliance for consent, capture, storage and disposal of images, in conjunction with misconceptions regarding copyright, puts patients’ personal information at risk with a high potential for harm given that the security and distribution of electronic information is only as good as the least dependable individual. Today’s media no longer considers medical information private, and anyone with access to an internet-capable device can become a publisher. The great risk of leaving images on a mobile phone is that if the information is lost or transmitted to an unauthorised source, the images could be published across the world in seconds.
While this research revealed that 47.8% of staff has taken photographs of patients in the last year, this figure is probably an underestimate as the research relied on clinicians self-reporting behaviour that may be non-compliant with current policy. We speculate that this tertiary hospital is probably not different to others around Australia where the dissonance between practice and policy in the collection and management of medical photography is common.
Accordingly they recommend that -
Institutions grappling with balancing the benefits and risks of clinician-taken medical photographs should research the prevalence of the practice within their workplace. Policy makers need to understand the value of medical photography to clinicians, the risks posed by picture taking and internet-capable mobile devices, and acknowledge that digital medical photography is already occurring and its use will only increase as technology develops. A typical policy should address the consent, capture, production, reproduction, management, retention and copyright of the medical images. It should specifically address the capture of images on personal equipment, especially on smart phones and tablet devices, and outline penalties for non-compliant practice. In order effectively to manage images, institutions must have a production pathway recognising that images captured in the clinical setting must be reunited with the patients file. A production pathway may include purchasing digital asset management software to manage a medical image database, adapting current clinical systems to accept digital picture files or simply requiring that all clinical images are printed. Regardless of the chosen strategy, the production pathway should be carefully managed by a single department and monitored though quality-control auditing.
While technology has created the challenge of managing clinician-taken medical images it may also provide the solution. Emerging smart phone apps like PicSafe now incorporate the consent, capture, storage and retention of medical images within a single digital system. We suggest that in the area of digital medical photography, technology will always be a forerunner to legislation and policy development, thus the key to best practice medical photography management is creating a policy that recognises the national goal of a shared electronic health record and is flexible enough to incorporate future technologies.

Joinder

In O'Donoghue v State of Western Australia [2013] FCA 903 the Federal Court of Australia has rejected an application by a former Western Australian prisoner to join the Commonwealth of Australia in an unlawful discrimination case.

Vincent O'Donoghue claimed he was given inadequate dental care while in custody. The Court ruled that under the Australian Human Rights Commission Act 1986 (Cth) s 46PO(1) the Commonwealth must have been a party to a previous terminated complaint in order to be joined as a respondent.

The judgment states that -
This is one of several applications Mr O’Donoghue has commenced against various government authorities since the Republic of Ireland has sought to extradite him in connection with fraud charges. He is now in custody in Dublin following his extradition on 10 April 2013 pursuant to a surrender warrant issued under s 23 of the Extradition Act 1988 (Cth) (EA).
Prior to his extradition, Mr O’Donoghue was incarcerated in Hakea Prison in Western Australia. This was pursuant to a warrant issued by a magistrate under s 19(9) EA.
Mr O’Donoghue has been qualified as a solicitor in Ireland and has found little difficulty in preparing court documents and presenting arguments. He has not, however, enjoyed success in those arguments.
O’Donoghue's originating application under s 46PO(1) of the AHRC Act alleged unlawful discrimination under the Disability Discrimination Act 1992 (Cth) by the "State of Western Australia – Department of Corrective Services" and "Dr Philip Hames", claiming that 
The respondents and the third respondent as disclosed agent, have individually and collectively, jointly and severally, and knowingly with malice [sic] aforethought colluded to discriminate against the applicant contrary to law.
The respondents and the third respondent as disclosed agent have individually and collectively, jointly and severally and knowingly with malice [sic] aforethought colluded to victimise the applicant contrary to law and the second respondent has defamed the applicant.
The respondents and the third respondent as disclosed agent have individually and collectively, jointly and severally and knowingly with malice [sic] aforethought colluded to operate, conduct, permit and promote an unlawful policy based on discrimination and victimisation contrary to law.
The respondents and the third respondent as disclosed agent have individually and collectively, jointly and severally and knowingly with malice [sic] aforethought colluded to breach their respective duties of care including statutory duties according to law. 
O’Donoghue modestly sought
  • An order of mandamus 
  • An injunction 
  • An apology from the second respondent 
  • An apology from the first respondent on behalf of its disclosed agent the second respondent 
  • Exemplary and punitive damages in the amount of $1,000,000.00 
 O'Donoghue's interlocutory application to join the Commonwealth as a respondent claimed, unpersuasively, that
The Commonwealth of Australia is vicariously liable for the acts or omissions of the State of Western Australia its servants or agents. The applicant has sought and the respondents, its servants and agents and the Commonwealth of Australia as disclosed principal, have failed, refused and neglected to provide or afford proper, reasonable or adequate dental care to the applicant since 2009 because of a policy which is unlawful, discriminatory and in breach of the International Covenant on Civil and Political Rights, the AHRC Act and federal and state law.

Regulatory Incapacity

Regulatory incapacity time again, with the SMH reporting that "Australia's federal Privacy Commissioner has blamed the federal government for long delays in assessing breach-of-privacy and freedom-of-information complaints".

Staffing at the Office of the Australian Information Commissioner (OAIC), the agency that encompasses the Privacy Commissioner, has "decreased in line with the [office's] need to meet efficiency dividends imposed by government".

The SMH indicates that "Complaints about privacy are not being allocated to case officers until just over five months after submission, taking about 19 weeks longer than the usual four-week period", with FOI complaints and requests for reviews not being allocated to officers for up to seven months.

The Privacy Commissioner is reported as stating that "The OAIC is experiencing delays across both its functions of privacy and FOI. However, the OAIC undertakes a triage process and if an urgent matter is identified then it will be expedited to a case officer".

As of 3 July the OAIC had the equivalent of 74.23 full-time staff, "25.78 of whom worked in the dispute resolution branch".

In conference presentations and publications over the past four years I have highlighted questions of regulatory incapacity, noting that an underfed - and timorous or distinctly unimaginative - watchdog does not result in best practice in the Commonwealth public sector and does not appropriately foster respect for privacy in the private sector.

We do need to provide the OAIC with resources but should be wary of an under-resourcing excuse. Work smarter rather than merely harder? In contrast to some of its state peers the Commission hasn't - until very recently - offset resource inadequacies by engaging with the media (in some years it was distinctly hermetic) and hasn't offset inadequacies in its legislation through a vigorous and coherent condemnation of bad practice in the public and private sectors. It is instead perceived to be permissive or merely absent.

The softly softly approach is arguably not respected by key Commonwealth policymakers when decisions are made about resourcing: tigers get fed, tabbycats get short rations. Under-resourcing is a substantive concern, given the major changes to the national privacy regime in effect from March next year.

12 September 2013

FOI Disclosure Log Exemption

The Office of the Australian Information Commissioner has launched a public consultation - be quick or you'll miss it - on the renewal of the Disclosure Log Determination No. 2011-1 (Exempt Documents) under s 11C(2) of the Freedom of Information Act 1982 (Cth). The determination expires on 16 October 2013; responses are to be with the OAIC by 3 October.

Under the Determination Commonwealth agencies and Ministers do not have to publish on their disclosure logs information in a document that
  • was an exempt document at the time that access was given to the applicant by the agency or Minister
  • the agency or Minister would have decided was an exempt document at the time that access was given to the applicant, if the request for that document had been received from a person other than the applicant. 
In essence an agency or Minister may decide that it is appropriate to provide access to a particular applicant (eg information about the applicant) but that it would be unreasonable to publish the same document more widely.

An example an agency may have released an exempt document to a particular applicant in connection with a research project, in connection with legal proceedings in which the applicant is involved, or because the confidential nature of information in a document would not be jeopardised by selective release.

The Determination also recognises that the exempt status of a document can depend on the identity of the applicant. For example, a secrecy provision allows release of a document to a particular recipient under the FOI Act but would prohibit its release to a different recipient, with the agency or Minister accordingly choosing not to publish the document on the disclosure log.

The OAIC seeks responses to the following questions -
  • Do you think the determination has been effective?
  • If not, how could it be made more effective?
  • Do you think the determination had any unintended consequences?
  • Is there a way to mitigate those consequences?
  • Should the determination be expanded or narrowed in any way?
  • Please explain how and why you think it should be expanded or narrowed.
As an indication of regulatory incapacity the OAIC asks agencies and ministers -
  • Have you had regard to the Determination when publishing or deciding not to publish documents to your disclosure log?
  • How often has the determination been relevant to your publication decisions?
  • to comment on their disclosure log record keeping, eg
  • is an internal register maintained of all disclosure log decisions, 
  • does the agency record decisions not to publish a document on the disclosure log and the reasons for that decision, 
  • should additional information about disclosure log activity be collected by the OAIC?
The OAIC 2012-13 annual report will include statistics from agencies and ministers on disclosure log activity, for example, the number of documents accessible from disclosure logs, and the number of website visits to disclosure logs.

Carded and concocted

The Australian Federal Police (AFP) has announced that a "joint Identity Security Strike Team operation" (comprising members of the Australian Federal Police, NSW Police, Department of Immigration & Citizenship (DIAC) and NSW Roads and Maritime Services) has led to seizure of "a substantial amount of cash" and two arrests "for producing fake identity material and committing credit card fraud".

The AFP media release states that following the execution of search warrants a 52-year-old Riverwood man is alleged to have "manufactured false documents, including driver licences, Medicare cards and credit cards", with a 47-year-old Burwood man allegedly "sourcing the identification information and supplying the completed false identification documents to others".

The alleged offenders used "high-end printing and manufacturing equipment to produce cards that were strong versions of officially-issued items".

The Team's action "follows on from intelligence gathered during Operation Pulse in November 2011 where the ISST seized 12,000 fake credit cards and manufacturing equipment and prevented a potential $30 million in fraudulent credit card transactions".

And the charges? The Beverley Hills man was charged with
  • one count of Conspiracy to Cheat and Defraud
  • ten counts of Deal with identity information, contrary to Section 192J of the Crimes Act 1900 (NSW) 
  • seven counts of Make/possess equipment to make false documents, contrary to Section 256(1) Crimes Act 1900 (NSW) 
  • one count of Deal with property suspected of being proceeds of crime, contrary to Section 193C Crimes Act 1900 (NSW). 
The Burwood man was charged with
  • one count of Conspiracy to Cheat & Defraud
  • nine counts of Deal with identity information, contrary to the Crimes Act 1900 (NSW)
  • two counts of Make/possess equipment to make false documents, contrary to the Crimes Act 1900 (NSW)
  • one count of Possess false document to obtain financial advantage, contrary to the Crimes Act 1900 (NSW).
I've meanwhile been reading 'Stop The Planes!? Document Fraud and Migrant Smuggling By Air In Australia' by Andreas Schloenhardt, Freya Douglas and Joseph Lelliot [PDF]. In relation to document fraud the authors comment
Document fraud is a central feature of migrant smuggling by air, as the vast majority of countries and airlines require passports, visas, or other identity papers to be presented at check-in and again at emigration and immigration control points. Even in those jurisdictions that permit visa-free entry for certain nationalities or allow entry without a passport, other identify cards or official documents need to be produced to clear relevant border controls. Document fraud thus becomes a necessity if and when a would-be migrant does not possess authentic papers or if such papers would not permit the person to check-in, depart, or to enter another country.
Forged documents may be provided by migrant smugglers – or may be obtained by smuggled migrants – in one of two ways. The first avenue is to obtain otherwise genuine documents from official sources by supplying false information and/or by way of corruption. In some instances, immigration officers and consular staff may be bribed to provide genuine passports and visas, or to provide the documentation necessary for the migrant to attain genuine documents, such as birth certificates. Equally, police and airline staff may accept payments for turning a blind eye to fraudulent documents. In a similar fashion, misrepresentations may be made or false documents presented to relevant officers and agents in order to gain genuine documents.
The second form of document fraud involves the fraudulent production of documents or forgery of genuine documents, usually in return for the payment of substantial fees. For example, genuine passports may be obtained from persons of similar appearance, sold to the smugglers or directly to the smuggled migrants, and then reported lost or stolen by the seller. Alternatively, passports may be forged by way of photo-substitution or by altering other information or biometric data contained in a passport that was once genuine. Forged passports are usually supplied and sold by specialists. The quality of these forged documents varies, with some being of a very high quality, and others being of a lower quality and easily detectable. If a smuggled migrant merely wants to reach the country and then claim asylum, the forgery does not need to be particularly convincing as there is no attempt to deceive immigration officials at the point of entry. On the other hand, if the person seeks to enter destination country undetected then the document must be of a high quality. Smuggled migrants may also change their documents en-route, for example by travelling to one airport hub on genuine documents, then being given further fraudulent documents in order to travel further on to the destination country.
Visas may be forged or fraudulently obtained. They can be arranged in advance, sometimes with the help of corrupt or shambolic educational or business institutions. Visa applications may be supported by additional fraudulent documents intended to prove the false identity of the smuggled migrant or to misrepresent the true purpose of their intended travel.
There are, at present, no statistics about the number of persons smuggled into Australia by air each year. This is due, in part, to the clandestine nature of this crime and the use of sophisticated document fraud that may not be apprehended at immigration control points at Australia’s airports and seaports. But even if such documents are detected, it is not always clear whether the use of forged documents is indeed facilitated by migrant smugglers, or whether these documents have been supplied or acquired for other reasons. In the 2010-11 financial year, for example, 84 people were refused entry at Australian airports for presenting false or altered documents, though it is not clear how many of these were linked to migrant smuggling by air.
The Department of Immigration and Citizenship (DIAC) provides annual statistics on the number of so-called ‘unauthorised air arrivals’ in Australia and on detection of forged and fraudulent documents at embarkation points which – while not conclusive – may shed some light into the levels of migrant smuggling by air to Australia. ... On average, approximately 1200–1500 unauthorised arrivals are apprehended at Australian airports each year. This includes a variety of circumstances, including persons arriving with no travel documents, such as visas and passports, as well as persons arriving with documents that may have expired or are otherwise no longer valid (for example, persons arriving with a tourist visa intending to gain employment in Australia for which a business visa would be needed). Also included in the number of unauthorised air arrivals are those persons who arrive with forged or fraudulent travel or identity papers.
Figures relating to persons using forged or fraudulent documents are collected separately and appear to primarily comprise persons detected by Australian airline liaison officers (ALOs) working at overseas embarkation points. It is thus difficult to see these figures in context. What can be said is that, on average, approximately 150-200 persons are detected per year with only minor variations between individual reporting periods. What is not known is the number of those persons using very sophisticated forgeries that have not been apprehended by immigration and customs officials. DIAC hypothesises that the relative decrease in detections in more recent years can be attributed to the deterrent effect of the ALO presence at points of embarkation, though it is not possible to validate this statement. As mentioned earlier, these figures must not be mistaken for the levels of migrant smuggling by air in Australia.
Apart from these (fragmentary) DIAC statistics, there is no other collection of data that could shed further light into the levels and patterns of migrant smuggling by air into Australia. In particular, there are no records by the Australian Federal Police (AFP) or the Commonwealth Director of Public Prosecutions (CDPP) about the number of investigations and prosecutions pertaining to migrant smuggling by air.
Case Reports
The most substantive information about the characteristics and scale of migrant smuggling by air and related document fraud in Australia stems from reported and unreported case law, together with several media reports that have been published in recent years.
Investigations
The most prominent of these cases was brought to light in a series of media features by the ABC in March 2012. In this case, the AFP, in cooperation with the Royal Thai Police, made several arrests relating to migrant smuggling network which allegedly supplied forged documents to persons intending to migrate to Australia. Thai authorities arrested two people in possession of twenty altered passports, along with equipment for creating false documents. It was alleged the men were producing and supplying Iranian and United Arab Emirates passports in order to smuggle people to Australia by plane or boat. Four people were arrested in Australia as part of the same operation, thought it was later revealed that they did not possess false documents, nor the ability to produce them. It was alleged that these four people were the Australia-based organisers and they were subsequently charged for offences including aggravated people smuggling under s 233C of the Migration Act 1958 (Cth).
Following these arrests, further reports surfaced which suggest notable occurrences of document fraud in the process of migrant smuggling to Australia by plane. The ABC specifically singled out the alleged smuggling of Chinese migrants into Australia, ‘supported by a network of corrupt officials from China to migration agents in Australia’. The report suggested that migrant smugglers use fraudulently obtained visas and a variety of other forged documents to smuggle their clients into Australia by air and then help them apply for protection visas (which are designed for refugees fleeing from persecution).
While it is not possible to state how many persons have been charged in Australia with offences relating to migrant smuggling by air, there are occasional reports about individuals who have been investigated and charged under relevant provisions. One such case is that of Ms Kanani who was charged in 2009 under s 233(1)(a) of the Migration Act 1958 (Cth) in relation to an alleged fake passport ring. Together with co-worker Ms Lara Triglia, Ms Kanani was accused of approving fraudulent passports applications lodged at Australia Post outlets, and then going overseas to sell them. Ms Kanani pleaded guilty to all charges. Also in 2009, the Australian Crime Commission (ACC), a national agency to collect intelligence on and combat organised and serious crime, reported about a man by the name of Mr Arun Kumar who was found guilty of producing false documents, though it is not clear whether his activities were linked to the smuggling of migrants in any way.
Judicial decisions
An analysis of judicial decisions relating to immigration matters provides further insight into the patterns of migrant smuggling by air and document fraud in Australia. Specifically, there are several cases that went before the Federal Magistrates Court on appeal from the Refugee Review Tribunal (RRT) as well as several decisions from the RRT itself that point to further evidence about this phenomenon. The following cases were chosen insofar as they are representative of the wider problem.
Several of these cases support claims made in recent media reports about smuggling of Chinese migrants. For example, the case of SZNTK v Minister for Immigration and Citizenship [2010] FMCA 970 involved a Chinese national who was given a false identity and a false passport issued in another person’s name and put on a plane to Sydney, where, approximately one month after arrival, he applied for a protection visa. In SZOPW v Minister for Immigration and Citizenship [2011] FMCA 48 a Chinese woman used a Snakehead, a term used for Chinese migrant smuggling syndicates, to procure a fake passport to enter Australia. Upon arrival she was given a British Passport with which to claim asylum.
Several similar cases involving Chinese nationals make reference to the use of fraudulently obtained visas and supporting identification documents. The case of SZONB v Minister for Immigration and Citizenship [2011] FMCA 13, for instance, involves the purchase of a fraudulent visa along with other documents with which the smuggled migrant was to obtain a business visa once he was in Australia. He later attempted to do so, but after several failed attempts applied for a protection visa instead.
Numerous cases that came before the RRT point to similar patterns of Chinese nationals who, facilitated by migrant smugglers, acquire false documents for the purpose of entering Australia by air. For example, the RRT Case 1102969 concerned a Chinese woman who had paid a large amount of money for a false passport with which to enter Australia. This case noted the availability of fraudulent documents in China, citing a 2009 Canadian study which stated ‘just about any document can be forged in China and many are’. The RRT Case 1102969 further stated the cost of a false Chinese passport varied between US$10,000 and 80,000, with the cost increasing for assisted passage with multiple passports. RRT Case 1001501 also details the use of fake passports used to enter Australia. RRT Case 1001501 concerned a Chinese-Tibetan woman who acquired a variety of false Nepalese documents in order to travel to Australia. She stated her father paid a police officer about AU$2,500 for a Nepalese passport and citizenship card.
The phenomenon of migrant smuggling by air involving Chinese nationals using false travel and identity documents is long-standing, and has been explored in more detail in relation to smuggling to the United States and Japan. Some of this information may no longer be current and may often differ from the Australian experience. In a 2011 case, Federal Magistrate Driver, however, made the following observations:
Various push factors drive asylum seekers from Fujian province in China in substantial numbers while pull factors draw them to Australia […]. The [Refugee Review] Tribunal would have been aware (as this court is aware) of many similar cases in which applicants are shepherded from Fujian province to Australia, are met at the airport in Sydney and taken to Chinatown where the process of them seeking protection is put in train using the services of either unregistered migration agents operating illegally or registered migration agents with very few scruples. It is disturbing that this large scale and sophisticated people smuggling operation does not receive the same attention that is directed to people smuggling from south and central Asia. The only difference between these operations is that people smuggled from China arrive by air apparently legally (although frequently using false documents). It is relatively easy for Australia to detect people smuggling operations at sea at the border because the people being brought to this country wish to be detected and processed. It is harder to deal with the people smuggling operation from China because the people being smuggled are not detected at the border. Despite a heavy policy emphasis in this country on “border protection” the fruits of that policy seem to be largely limited to protection of sea borders against people to actively seek detection and thereby protection. The capacity of the Australian authorities to protect air borders against sophisticated people smuggling operations, where the object is to evade detection at the border, appears poor.
In addition to the smuggling by air of migrants from mainland China, there are also a considerable number of reports involving smuggled migrants from other countries. RRT Case 1106553, for instance, outlines how a man from Uzbekistan paid his smuggler, referred to as Mr F, substantial amounts money to be escorted on the trip, and for the manufacture of false documents. Additionally, RRT Case 1113831 involves a Nepalese woman who had used a false Nepalese passport to enter Australia.
The case of SZPJ v Minister for Immigration and Citizenship [2012] FCA 18 provides a detailed account of an Afghan man who travelled to Pakistan where his uncle arranged for a migrant smuggler to take him to Australia. He was initially given an Iranian passport to travel to Dubai, and a Japanese passport with which to travel to Australia, where he sought asylum. His application for a protection visa was unsuccessful and an appeal against this decision failed because the Court held that his claims about persecution were fabricated. The use of false documents for smuggled migrants departing from Pakistan has also been reported in relation to Afghan, Iraqi and other Middle Eastern nationals who are equipped with false documents for the flights between Pakistan and Malaysia or Indonesia and then continue the journey to Australia by boat.
Similar cases involve nationals from South Asia, including Bangladesh, India, and Sri Lanka, who are furnished with false documents by migrant smugglers to obtain Australian visas overseas. Many of these cases also point to the prevalence and availability of false documents in the applicants’ countries of origin, which is, perhaps, indicative of the scale of migrant smuggling involving document fraud. It may come as a surprise to some readers that these cases before the RRT and federal courts do not automatically lead to criminal investigations and prosecutions of the migrant smugglers furnishing their clients with false documents or otherwise facilitating their journey between sending and destination country. It is not known whether Australian law enforcement authorities follow up on the evidence presented in these cases, but it should be noted that most of the alleged smugglers and those involved in the production and supply of false documents are located abroad, outside the reach of Australian authorities. Moreover, many of the statements made in these immigration-related cases may be insufficient for law enforcement agencies to act upon, or may not be credible.
Government Reports
Annual reports by government agencies such as DIAC and the AFP feature further references to the general problem, but provide little insight into specific manifestations. DIAC’s 2010-11 Annual Report stresses the significance of border management, including ‘combating people smuggling’ as a principal objective, and emphasises as important a ‘whole of government, layered approach to border management’ as well as work done in conjunction with international organisations such as UNODC, the Bali Process, and the Association of Southeast Asian Nations (ASEAN). The report does not, however, reveal any further information about either detections of migrant smuggling by air or the attendant use of document fraud, or how the Department confronts the challenges associated with this phenomenon. The Annual Reports of previous years are similarly deficient.
Similar observations can be made about reports by the AFP, which contain little information on the topics of migrant smuggling by air and document fraud. The Annual Report for 2010–11, for instance, details the AFP’s overall response to migrant smuggling and highlights the fact that substantial amounts of government funding were given to the AFP to comprehensively combat migrant smuggling. Combatting migrant smuggling by air and document fraud, however, does not appear to feature prominently – and perhaps not at all – in this strategy, which instead focuses almost exclusively on the investigation and prosecution of crew members of illegal entry vessels bringing smuggled migrants, most of them asylum seekers, to Australia.
In light of the available evidence contained in case reports and media features it is surprising – and perhaps alarming – that government agencies in Australia appear to have little knowledge of the actual patterns and scale of migrant smuggling by air and document fraud. There is no suggestion here that this type of crime is particularly widespread in Australia, but it appears that the Government’s (and, for that matter, also the Opposition’s) preoccupation with migrant smuggling by sea means that other, more clandestine and sophisticated forms of migrant smuggling have not been equally explored and may indeed have been overlooked in policy making and, perhaps, in law enforcement.

Autres temps, autres moeurs

Marilyn Strathern in 'The Whole Person and its Artefacts' (2004) 33 Annual Review of Anthropology 1 comments that
One effect of the self-avowed knowledge economy has been to turn information into currency. Use value appears to depend on exchange value. Many certainly hold this view of scholarly knowledge. People openly state that there is no point in having such knowledge if one cannot communicate it, and they mean communicate it in the same form, that is, as knowledge. (Arguably, “knowledge” is communicated as “information,” but insofar as it is meant to be adding to someone else’s knowledge,the terms can be hyphenated.) The fact that knowledge may have contributed to a solution or reflection is beside the point: It is invisible, even useless, unless it can circulate as knowledge-information. The social source of (circulateable, consumable) knowledge-information becomes the expert. Of course there is a huge history behind the formation of the expert in modern times, and again behind the professional; I offer a tiny ethnographic glimpse in the first section. The same person may be both, but the roles are increasingly detached, as (at least in the United Kingdom) professions lose status and knowledge-information experts feed an appetite in public policy for evidence.
From ''Step inside: knowledge freely available': The politics of (making) knowledge-objects' by James Leach in The Politics of Knowledge (Routledge, 2011) -
A large advertising sign hangs outside the new British Library building on Euston Road in London. It reads ‘Step Inside. Knowledge Freely Available’. A good slogan, but what does it imply about the way knowledge is thought of in contemporary society? Obviously the Library is a repository for a huge number of books, recordings, manuscripts and so forth. One would have to say that it is these that are freely available (and it is wonderful that they are of course). But in what sense are they knowledge? Or rather why it is that the advertisers decide to promise, by the emphasis of that term, something already a value, already more than the papers and inks themselves: something people can take away as ‘knowledge’?
The theme of this chapter is a contemporary global politics that makes it important to call bound papers, objects, and other media that a library holds knowledge. The reference points are not libraries and their holdings specifically, but rather artistic practices from the UK, Indonesia and Melanesia, interdisciplinary research projects in the UK, and current intellectual property law. Clearly these are meant as examples of a wider phenomenon. My contention is that a trend that renders diverse objects, practices, effects, relationships, and forms of information into a single category – that of ‘knowledge’ – establishes the conditions for two further moves. Each has political implications. These moves are, first, a normative impetus for knowledge to take forms that make its ease of transmission paramount and often in the process prioritise narrow utility over wider effect. This in turn validates an impatience on the part of policy makers with complexity and dispute (Strathern 2007). Second, that the current image of knowledge as a detachable, circulating object sets up the possibility for a false scale of accounting in which comparative judgements about value are made to the detriment of recognising wider diverse, social benefits. This is most obvious in the current drive towards measuring ‘impact’, a particularly inappropriate register for arts and humanities research.
The impetus to view practices, relationships, performances, inscriptions, the emergence of particular and skilled persons and so forth as knowledge-producing activities with transactable object production as the aim of the endeavour suits the formulation of a certain political economy. I suggest that in this contemporary use, ‘knowledge’ has come to be a normative term denoting something that can be abstracted from the context of its production, and to carry value with it. We should ask ourselves what the effects of imagining there is something called knowledge that, if not always freely available (as in the Library’s promise), is always available to move in transactions of the kind appropriate to commodities.
And from 'The Clarity of Theory: An Interview with Jonathan Culler' by Jeffrey J. Williams in (2008) The Minnesota Review -
Jonathan Culler—Of course the British system has changed quite radically since the time when I entered it. When I was there it was in some ways resolutely anti-professional. University teachers didn't necessarily have to have a PhD, and there were many whose reputation was based on the fact that they'd gotten a brilliant First as undergraduates and then gone on doing some research and teaching. Even publication for many was thought of as vulgar. I had a very good friend in the neighboring college when I was teaching in Oxford—we shared students and dined together frequently during vacations when they would close one kitchen and we would dine in one or the other college. He was a French medievalist, a man with great intellectual interests. He was always doing something like learning Turkish or studying Byzantine architecture, but he had absolutely no interest in ever publishing about medieval French literature. To him that seemed vulgar, the sort of thing Americans do. I remember his saying to me, "Jonathan, I understand that Americans have something called a curriculum vita, in which you keep records of everything you do in lists. Is that true?"
Now it's much worse for them than for us. They have to document everything. They're always being rated and have to prove that they're doing research; they have five-year plans and universities hire people to get their publications on their five-year assessments. But there was the notion, in the days when I was there, of literary studies as a kind of gentlemanly pursuit, and you chatted. The undergraduate system was one of tutorials and exams at the end of three years, so they would go weekly and chat with their tutor about whatever topic he or she had set. Usually they wrote an essay, but they read it out loud, they didn't hand it in. I think this actually improved students' writing—they had to read what they had written, so it had to be articulate and make sense—and it certainly saved time for the tutors. You listened to something and you made some comments, then sent them along. It did give the whole thing a sort of gentlemanly social dimension that is often lacking in the American university. And in those days the graduate degrees were, for the most part, simply research degrees, where you had a topic and you had a supervisor.
The BPhil, which I did, was a degree where there were some seminars and classes on various topics, but not very many, and it was mostly exams and a short thesis. You worked with tutors on the topics that you were studying, but now they've brought in graduate degrees that they call "taught degrees," and you do have to do more courses. The quantification of everything in the British educational system is doubtless producing more professionalization among the students too.

Forums

'Corporate Mobility in the European Union – A Flash in the Pan? An Empirical Study on the Success of Lawmaking and Regulatory Competition' by Wolf-Georg Ringe in (2013) European Company and Financial Law Review discusses
new data on regulatory competition in European company law and the impact of national law reforms, using the example of English company law forms being used by German start-ups. Since 1999, entrepreneurs in the EU have been allowed to select foreign legal forms to govern their affairs. The data show that English limited companies were very popular with German entrepreneurs in the first few years of the last decade but have experienced a sharp decline since early 2006. This decline casts doubt over the claim that the German company law reform from November 2008 ‘successfully fought off’ the use of foreign company forms. Moreover, by contrasting the German data with the corresponding developments in Austria, the paper further demonstrates that the latter jurisdiction is also seeing a similar decline, and without having reformed its company law. Instead of exclusively seeing law reform responsible for the declining number of foreign incorporations, this paper offers a number of alternative or complementary explanations for the striking developments. These findings are important for our understanding of (defensive) regulatory competition and successful lawmaking. 
Ringe comments that
Corporate mobility has reached a certain level of maturity in Europe. The EU legal framework is established and well understood, and it rests largely on case-law from the European Court of Justice. Beginning with the seminal Centros decision, the Court has effectively opened the borders between EU Member States little by little, and entrepreneurs now de facto have the right to select the foreign corporate law that governs the legal form of their company, at least at the company formation stage. Moreover, researchers have begun to empirically study how the case-law has impacted the market and how the market has reacted. While much effort has been spent evaluating the early market reactions, following the partial market opening made possible by Centros, relatively little attention has been devoted to subsequent developments. This is surprising because the various lawmakers’ responses to the wave of entrepreneurial migration offer a rare glimpse at the effects of regulatory competition and subsequent business’ reaction, as well as providing insights into the relevance and effects of lawmaking and regulatory responses to market pressure. 
This paper explores the responses by European businesses to the (limited) occurrences of regulatory competition flowing out of Centros and subsequent case- law. It uses new empirical data on Germany, the most prominent example of a country that was under pressure from regulatory competition. The paper confirms earlier findings that entrepreneurs in continental Europe, at first, increasingly used English letterbox companies to govern their affairs, without doing any business in the UK. The present analysis goes further, however, and shows that incorporation numbers have dropped considerably since 2006, falling to remarkably low numbers today. I then go on to evaluate the role that regulatory reform may have played in this development. Many lawmakers in continental European jurisdictions claim ‘success’ in the sense that the legal reforms of domestic company laws have caused foreign (English) corporations to fall out of vogue with their respective entrepreneurs as these entrepreneurs have begun to increasingly use domestic company types. The data evaluated in this study seem to weaken this claim: first, I show that the number of foreign incorporations in Germany has dropped even before the law reform came into force. Secondly, I go on to compare the German data with the situation in Austria, a natural comparison to make as these two systems share many similarities – with the exception that Austria did not reform its legal system as a consequence of EU regulatory competition. Surprisingly, however, the drop in the number of foreign incorporations in Austria coincided with the development of the reform in Germany; in other words, the rate began to drop at about the same time as in Germany. This may lead to the conclusion that reasons other than legal reform must have played a role in shaping businesses’ preferences. This paper is the first part of a larger research initiative to explore the merits of corporate mobility and regulatory competition in Europe. 
The paper is organised as follows. Part II provides the legal and empirical background on developments that have led to the current (limited) scope of regulatory competition for incorporations within the EU. Part III evaluates these developments and offers an assessment of the academic work done so far. Parts IV and V introduce new empirical data for Germany and Austria, shedding light on the implications of the German 2008 law reform and questioning traditional assumptions of its effects on foreign incorporations. Part VI seeks to find explanations for the results and advances a number of possible conjectures. Part VII concludes.

Inheritance, Income Inequality and 1%

'The Top 1 Percent in International and Historical Perspective' [PDF] by Facundo Alvaredo, Anthony B. Atkinson, Thomas Piketty, and Emmanuel Saez in J(2013) 27(3) Journal of Economic Perspectives 3 comments
For three decades, the debate about rising income inequality in the United States has centered on the dispersion of wages and the increased premium for skilled/educated workers, attributed in varying proportions to skillbiased technological change and to globalization (for example, see Katz and Autor 1999 for a survey). In recent years, however, there has been a growing realization that most of the action has been at the very top. This has attracted a great deal of public attention (as witnessed by the number of visits to and press citations of our World Top Incomes Database at http://topincomes.parisschoolofeconomics.eu/) and has represented a challenge to the economics profession. Stories based on the supply and demand for skills are not enough to explain the extreme top tail of the earnings distribution; nor is it enough to look only at earned incomes. Different approaches are necessary to explain what has happened in the United States over the past century and also to explain the differing experience in other high-income countries over recent decades. We begin with the international comparison in the first section and then turn to the causes and implications of the evolution of top income shares. ...
We should start by emphasizing the factual importance of the top 1 percent. It is tempting to dismiss the study of this group as a passing political fad due to the slogans of the Occupy movement or as the academic equivalent of reality TV. But the magnitudes are truly substantial. Based on pre-tax and pre-transfer market income (excluding nontaxable fringe benefits such as health insurance but including realized capital gains) per family reported on tax returns, the share of total annual income received by the top 1 percent has more than doubled from 9 percent in 1976 to 20 percent in 2011 (Piketty and Saez, 2003, and the World Top Incomes Database). There have been rises for other top shares, but these have been much smaller: during the same period, the share of the group from 95th to 99th percentile rose only by 3 percentage points. The rise in the share of the top 1 percent has had a noticeable effect on overall income inequality in the United States (Atkinson, Piketty, and Saez 2011, Section 2.2).
The authors conclude -
The rise in top income shares in the United States has been dramatic. In seeking explanations, however, it would be misleading to focus just on the doubling of the share of income going to the top 1 percent of the US distribution over the past 40 years. We also have to account for the fact that a number of high-income countries have seen more modest or little increase in top shares. Hence, the explanation cannot rely solely on forces common to advanced countries, like the impact of new technologies and globalization on the supply and demand for skills. Moreover, the explanations have to accommodate the falls in top income shares earlier in the twentieth century that characterize the countries discussed here.
In this paper, we have highlighted four main factors that have contributed to the growing income shares at the very top of the income distribution, noting that they may operate to differing extents in the United States and other countries, particularly in continental Europe. The first is tax policy: top tax rates have moved in the opposite direction from top pre-tax income shares. The second factor is a richer view of the labor market, where we have contrasted the standard supply-side model with the alternative possibility that there may have been changes to bargaining power and greater individualization of pay. Tax cuts may have led managerial energies to be diverted to increasing their remuneration at the expense of enterprise growth and employment. The third factor is capital income. In Europe—but less so in the United States—private wealth (relative to national income) has followed a spectacular U-shaped path over time, and inherited wealth may be making a return, implying that inheritance and capital income taxation will become again central policy tools for curbing inequality. The final, little-investigated, element is the correlation between earned income and capital income, which have become more closely associated in the United States.

Global Administrative Law

'Whose Administrative Law is it Anyway? How Global Norms Reshape the Administrative State' by Daphne Barak-Erez and Oren Perez in (2013) 46(3) Cornell International Law Journal comments that
The emergence of global norms of administrative law reshapes the administrative state. In many areas, covering diverse topics such as trade, financial regulation, public health and the environment, various international agencies have acquired increasing influence over domestic regulatory processes. The integration with the global arena requires the state to forgo some of its regulatory powers. This Article focuses on the normative challenges posed by this new reality. Part I explicates the way in which the argument presented differs from the global administrative law literature. Whereas global administrative law studies the meta-norms that regulate the activities of global administrative bodies, we focus on the way in which international norms reshape decision-making processes within domestic bureaucracies. This Article develops an analytical schema that captures the distinct impacts of global administrative law on the domestic level. This schema distinguishes between three forms of influence: the substitution of domestic administrative discretion by global standards, the emergence of universal standards of administrative due process, and the globally inspired transference of enforcement responsibilities. Part II maps the various mechanisms through which transnational regulatory processes intervene in the local realm, reshaping the contours of domestic administrative law. The Article takes a pluralistic approach by highlighting the diverse sources and paths through which global law influences the domestic realm. Thus we focus both on the influence of the WTO system, as reflected in the three recent rulings against the U.S. (the Tuna-Labeling, Clove Cigarettes and Country of Origin Labeling (COOL) Requirements cases) and on the influence of private transnational institutions such as the International Organization for Standardization, certification bodies such as Social Accountability International (SAI), and regulatory scientific institutions such as the International Commission on Non-Ionizing Radiation Protection (ICNIRP). Part III proceeds to examine the normative challenges posed by these transnational regulatory processes. We start by exploring the hidden ideological agendas of this new global normative body, highlighting especially its neo-liberal, capitalist origins. We then move to discuss the problematic of fragmented accountability regimes. These reflections question the legitimacy of the new body of globalized administrative law and point to the need to adapt our democratic conceptions and practices to this new reality. In this context, our approach steers a middle course between the extremes of sovereign exceptionalism and global constitutionalism, focusing on the potential of administrative law for democratic innovativeness.
A regulatory taxonomy? 'The World of Regulatory Agencies: Institutional Varieties and Administrative Traditions' (EPSA 2013 Annual General Conference Paper 786) by Andrea C. Bianculli, Xavier Fernández-i-Marín and Jacint Jordana "introduces a dataset of de jure institutional characteristics of regulatory agencies in more than 100 countries and 16 sectors".
This paper introduces a new dataset on the institutional characteristics of regulatory agencies, which aims to scrutinize the variety of specialized regulatory institutions existing in the world in the year 2010. The dataset covers 115 countries and 16 different sectors. The dataset measures a number of institutional features and organizational aspects of regulatory agencies. How formal relations with other political institutions are designed, or the scope of responsibilities and powers assigned, are some of the dimensions considered among the variables identified. This paper details how the dataset was constructed, discusses the selected variables and the criteria established for designing the sample, as well as some of the methodological problems that arose when identifying and selecting the data.
In so doing, and based on the literature on administrative traditions, the paper offers a preliminary analysis of the extent to which the diffusion of regulatory agencies in the last 20 years has led to similar organizational and institutional patterns across countries, or whether existing administrative traditions exerted a major influence on the final regulatory agency model adopted. To disentangle the relation, the analysis focuses on seven particular administrative traditions - Napoleonic, Anglo-Saxon, Latin American, Postcolonial, Germanic, Scandinavian and East Asian, on the one hand, and discusses the role of civil society in regulatory agencies, political autonomy over agencies and the degree of bureaucratic autonomy of agencies, on the other.
Results show that countries from different administrative traditions have adapted the institutional model of regulatory agencies and have developed new institutions more according to their traditions, specially with regards to the involvement of society and the bureaucratic autonomy of the organizations. The paper is aimed at understanding both the mechanisms of differentiation in institutional settings that countries with differentiated administrative traditions have used as well as to understand the process of diffusion of regulatory agencies in several countries.
The paper is organized as follows: Section 2 presents the theoretical framework on administrative traditions and models of institutional design of political institutions. Section 3 describes the process of data acquisition and the challenges of the database. The analysis of the institutional adoption of regulatory agencies by administrative is performed in Section 4, while Section 5 discusses the findings and concludes.

11 September 2013

Positivism

'Why Legal Positivism (Again)?' by Brian Leiter - a keynote address at the annual meeting of the Australasian Society of Legal Philosophy (2013) - asks
 Why is legal positivism the dominant view among legal philosophers? The address begins with a somewhat lengthy methodological preamble, offering reasons to resist the extravagant metaphysical inflation of the purported theoretical virtues of positivism in some recent jurisprudential writing by Dickson and Shapiro, among others. Artifacts do not have essential attributes, not even functional ones. (Leslie Green's partial resistance to my metaphysical deflation in his recent "The Morality in Law" is shown to depend on some confusions about the status of the claim that law is an artifact.) I then suggest that legal positivism has three theoretical virtues counting in its favor. First, if we take seriously the benchmark for theoretical adequacy that Hart gave for his theory--namely, that it capture what the ordinary educated person familiar with a modern municipal legal system understands by the concept of law--that positivism does the best job of accounting for this ordinary understanding. (Particular attention is drawn to Raz's original arguments for legal positivism of this form, as opposed to his perhaps better-known, if more controversial, argument from the nature of authority.) Second, the positivist account of law is the one deployed fruitfully in all the empirical social sciences. Third, the positivist theory does not involve incredible or controversial metaphysical assumptions. The last two theoretical considerations are acknowledged to presuppose naturalism, but I suggest that doing so is unavoidable. 
Are there any competitors to the positivist theory so understood? The most sophisticiated version of natural law theory, that of John Finnis, has conceded the main points in dispute to the legal positivists, and fails to articulate a successful argument against descriptive jurisprudence. A plausible theoretical reconstruction of the jurisprudence of American Legal Realism shows it to presuppose the positivist view. Scandinavian Legal Realism is shown to reject Hart's benchmark of theoretical adequacy (the first point, above), and so to be undertaking a wholly different project, one in no competition with Hart's. Dworkin's theory, by contrast, fails along the the three dimensions of theoretical adequacy along which legal positivism succeeds. 
The paper concludes that the appeal of Dworkin's theory to constitutional lawyers in the Anglophone world and elsewhere is due entirely to the (correct) perception that his theory makes moral considerations relevant to the resolution of momentous constitutional questions; unfortunately, nothing in the positivist theories of Hart and Raz denies the relevance of moral considerations to such questions. I end with some sociological reflections on jurisprudence that may partly explain the continued resistance to legal positivism, contrasting my own sociological speculations with Dworkin's final and embarrassing ad hominem arguments against legal positivism.

Restraints

In DC Payments Pty Ltd v Lester [2013] VSC 469 the Supreme Court of Victoria has rejected an application for an interlocutory injunction and ruled that on balance of convenience a previous employee of a major ATM operator (DC Payments) may not be restrained from working for competitor Next Payments Pty Ltd, taking into account the detriment that Lester would suffer.

DC alleged that Lester breached, and unless restrained would further breach:
 (a) the post-employment restraint set out at clause 11 of his  July 2009 written Contract of Employment 
(b) the confidentiality clause (clause 10) of the written contract[ 
(c) the “employee duties” which are alleged at paragraph 7 of the Statement of Claim; and 
(d) the “statutory duties” owed by him to the Plaintiff pursuant to sections 182 and 183 of the Corporations Act 2001 (Cth). 
DC referred to the risk that Lester
may act to the advantage of his now employer Next Payments and to the disadvantage and harm of his past employer the Plaintiff by conduct including the utilisation of highly confidential information in relation to DC Payment’s planned changes to its transaction surcharge, and associated planned client agreement renewal campaign. In addition, the Plaintiff may be harmed by the Defendant divulging the confidential information referred to by Mr Wingrove. The Defendant obtained this highly confidential information while in the employ of the Plaintiff. Mr Wingrove’s evidence also explains the unique advantages to Next Payments which would result from the Defendant and Next Payments deploying the confidential information gleaned by the Defendant whilst he was employed by the Plaintiff.[3] Mr Wingrove also deposes to the difficulty which would be experienced by the Plaintiff in winning back its corporate clients were they to terminate their agreements with the Plaintiff as a result of Next Payments’ actions, assisted by the Defendant.
The Court noted DC's reference to the articulation in Wallis Nominees (Computing) Pty Ltd v Matthew William Pickett [2013] VSC 24 of principles governing restraint of trade clauses
a) A contractual provision in restraint of trade is prima facie void. 
b) The presumption can, however, be rebutted and the restraint justified by the special circumstances of a particular case, if the restriction is reasonable by reference to the interests of the parties. 
c) The validity of the covenant in a contract is to be judged as at the date of the Employment Agreement. 
(d) A stricter view is taken of covenants in restraint of trade in employment contracts than those contained in contracts for the sale of a business. 
e) The onus of proving the special circumstances justifying the restraint is on the person seeking to enforce the covenant. 
f) So far as the parties’ interests are concerned, the restraint must impose no more than adequate protection to a party in whose favour it is imposed. If the court is satisfied that the restraint confers greater protection than can be justified, there is no further issue of reasonableness. 
g) The meaning of the restraint clause may be construed by reference to the factual matrix, documentary context and surrounding circumstances.
Digby J stated that
This injunction would force the Defendant to leave his employment with Next Payments. In this regard the Plaintiff submits that the damage that the Plaintiff is trying to prevent through enforcement of the covenants is necessarily difficult to quantify, since the Plaintiff will know little if anything of what the Defendant does or will do in the course of his employment by Next Payments. In substance, the Plaintiff submits that unless the first injunction sought is granted, the risks of the Defendant utilising the Plaintiff’s confidential information to its detriment will remain. However, this likelihood is not, in my view, established by the Plaintiff’s evidence which is confined to acts of arguable breaches in the past by the Defendant. In my view, the nature of the Defendant’s past role with the Plaintiff and his present role with Next Payments and the Plaintiff’s past conduct in connection with the confidential information detailed above, do not combine to justify the granting of the employment related injunction sought by the Plaintiff. Such an injunction does not serve the balance of convenience when account is taken of the detriment that the Defendant will suffer. This is particularly so when the terms of the injunctions (defined below) which I intend to grant are also taken into account. 
Furthermore, there is no sufficient basis in the material filed in this application to justify the conclusion that the Defendant, in the face of restraining orders made by this Court, will not strictly comply with such orders. The Defendant should be taken to understand that severe penalties may well follow if he breaches such restraining orders as I propose to make. Therefore, it is appropriate for the Court to proceed on the basis that the proposed injunctions will be strictly complied with and in the result there will be a low likelihood that the Plaintiff will hereafter be exposed to the risks and detriment it feared at the time it launched the subject application. 
However, if this Court were to impose the first of the Plaintiff’s requested injunctions, effectively terminating the Defendant’s employment with Next Payments, I consider that the detriment to the Defendant would be out of proportion to the relevant additional protection which may be afforded to the Plaintiff. The balance of convenience does not lie in favour of granting the first requested injunction.
However, the Court found that it was appropriate to restrain Lester from directly or indirectly canvassing or soliciting business of any person who at any time during 12 months was a client, customer or identified prospective customer of DC.

10 September 2013

Pop goes the MOOC

From Aaron Hirsh's 'The Pop! of the Wild' op ed in the NY Times
What worries me most about online courses is something else. Every pedagogical situation can be thought of as a kind of triangle among three parties: the student, the teacher, and the world that student and teacher investigate together. In online courses, the patch of world under examination is highly curated: educators select exactly what material will inhabit the course’s online environment. In short, the pedagogical triangle gets collapsed into a binary relationship between student and teacher. 
The problem with this arrangement is that it emphasizes one particular and narrow view of what purpose college serves. Courses are seen mainly as steps in accreditation, as obstacle courses that students must run to demonstrate suitability for certain jobs. Online courses serve this function well, because they assess continuously: the student’s keystrokes, his underlining, even his time viewing each screen are all logged and analyzed. 
There is no doubt that continual assessment can improve pedagogy: a teacher can catch and quickly remedy misunderstandings. However, one reason conversations like the one prompted by pistol shrimp are so deeply gratifying is that they have nothing at all to do with assessment or accreditation. They are not on the syllabus or the final exam. Rather, they are reminders that college serves purposes entirely unrelated to accreditation: courses prompt and equip students to investigate the world, leading not merely to a diploma and a salary, but to a more engaged life — not just to a richer bank balance, but to a richer existence.' 
But when the educational triangle is collapsed — when the outside world loses its stature as a full-blown third party — then you don’t take a course to understand the world, you take a course to succeed in the course. Education gets reduced to a testing and triage service.

09 September 2013

Privacy Enhancing Technologies?

'Hero or Villain: The Data Controller in Privacy Law and Technologies' by Claudia Diaz, Omer Tene and Seda F. Guerses in Ohio State Law Journal (Forthcoming) argues that
 Constitutional privacy law in Europe and the United States establishes the right to privacy as freedom from government surveillance. It is based on suspicion of power and distrust in the state, which can unleash ominous intrusions into the private sphere to crush dissent and stifle democratic discourse and free speech. Over the past forty years, an additional legal framework has emerged to protect information privacy. Yet unlike the constitutional framework, information privacy law provides little protection against the risk of surveillance by either governments or private sector entities. Indeed, such organizations are assumed by law to be trusted entities acting as stewards of individuals’ rights, essentially “information fiduciaries.”
This Article demonstrates that an analysis of the assumptions and principles underlining privacy enhancing technologies (PETs) highlights the gap between the constitutional and information privacy frameworks. It argues that by embracing PETs, information privacy law can recalibrate to better protect individuals from surveillance and unwanted intrusions into their private lives. Conversely, if the law continues on its current trajectory, emphasizing organizational accountability and marginalizing data minimization and transparency, PETs would become unviable and individuals subject to increasingly stifling digital oversight.
The term “PETs” has been used loosely to describe a broad range of privacy technologies. In this Article, it is restricted to technologies specifically aimed at enabling individuals to engage in activities free from surveillance and interference. PETs allow individuals to determine what information they disclose and to whom, so that only information they explicitly share is available to intended recipients. They are based on three common objectives: eliminating the single point of failure inherent in any trusted data controller, minimizing data collection, and subjecting system protocols to community based public scrutiny.
This Article shows that while PETs are aligned with the objectives of the constitutional framework, they are not in tune with all of the assumptions, principles and goals of the information privacy framework. Over the past two decades, the information privacy framework has shifted to imposing information stewardship (“accountability”) obligations on data controllers, who act as custodians of personal data. The notion of the data controller as a trusted party is ill at ease with the anti-surveillance gist of constitutional privacy and PETs. In fact, the technological community researching PETs departs from a diametrically opposed perception of a data controller, that of an adversary. Under this approach, information disclosed to a data controller is compromised and can no longer be viewed as private. Proponents of this view point-out that after disclosure, it is almost impossible to control how personal information is used, concluding that PETs should limit information disclosure.
This Article asserts that policymakers should recognize and expand by appropriate regulatory measures the role of technologies that enable individuals to enforce their right to privacy as freedom from surveillance. Given that the legal framework is focused on the roles and obligations of data controllers, this Article categorizes PETs depending on the degree of data controller involvement.
The first category consists of PETs that require active implementation by a data controller. This includes PETs, such as private information retrieval or zero-knowledge protocols, which enable a data controller to provide a service that takes as input private user information without the controller becoming privy to such information. Yet if the controller does not invest in a privacy enhancing architecture, individuals would not benefit from privacy protections. The second category comprises client-side software deployed by a user within a service offered by a data controller. These include encryption tools that maintain the confidentiality of the contents of emails or social networking posts, including vis-à-vis the data controller. Here, controller implementation is not required; yet data controllers can (and actually do) try to limit deployment of PETs. The third category consists of PETs, which are collaborative applications without a data controller. For example, the Tor network relies on a decentralized architecture to enable users to communicate anonymously. Service providers can try to restrict users’ access to their service through Tor, thereby impeding the growth of its network.
After classifying the PETs and providing examples of their trust assumptions, design principles, objectives and strategies, this Article assesses the policy considerations involved in reforming the legal framework to tolerate, facilitate, or indeed mandate their use. This Article concludes by arguing that the current information privacy framework fails to adequately address surveillance concerns. By embracing PETs, it can recalibrate to focus on core concerns that have underlied the genesis of information privacy law on the ruins of totalitarian regimes in 20th century Europe.

TRIPS and Tobacco

'Rights, Privileges, Legitimate Interests, and Justifiabilty: Article 20 of TRIPS and Plain Packaging of Tobacco' by Mark Davison and Patrick Emerton in American University International Law Review (Forthcoming) comments that
 Australian legislation for the plain packaging of tobacco products raises a number of issues concerning the interpretation of TRIPS. Some have argued that TRIPS either confers a right to use or something approaching a right to use that is far more than a privilege to use a trademark. Consequently, the room for government regulatory action against the use of trademarks is severely restricted by Article 20 of TRIPS. This article rejects those arguments as being too focussed on what are the claimed entitlements of trademark owners without adequately addressing the capacity of governments to restrict the privilege of use of trademarks and the nature of the relationship between trademark owners and governments acting in their capacity as regulators. TRIPS does not confer upon trademark owners a claim to be at a particular point on any spectrum of entitlement to use their trademarks in the course of their trade. It establishes a complex system of rights and obligations, and it is against that system, not individual trademark owners’ hopes for the outcome of that system, that the international legality of plain packaging is to be assessed.
The authors ask "Do the interests of the State justify a claim right to support the duties imposed on tobacco companies by plain packaging legislation?". They respond
In order to answer this question, one needs to weigh the interests of the State that are described above against the limited legitimate interest of trademark owners that is identified by Article 20, keeping in mind the foregoing remarks about onus of proof. What one does not do is consider the question from a fixed position of the importance of trademarks to trademark owners or by reference to the full entitlements of trademark owners against other traders. Doing so fails to take into account the relational nature of property, rights, privileges and legitimate interests. 
On the other hand, the legitimate interests of the State need to be considered in the context of the intellectual property in question. One cannot simply say ‘public health’ or ‘social and economic welfare’ or ‘balance of rights and obligations’ and automatically win the day. However, the connection between those legitimate interests and the many different working parts of the international trademark system has been spelled out above in some detail. 
Finally, in balancing the respective interests of the State and tobacco trademark owners, some important aspects of the specific balance created by the plain packaging legislation need to be borne in mind. First, the legislation does not take away the rights of exclusion or even the opportunity to obtain the right of exclusion via registration. If the tobacco companies can win the hearts and minds of the Australian people in a democratic election, the government can alter the legislation and fully restore the privilege of use that existed prior to the plain packaging legislation. Tobacco companies can and do make donations to electoral parties that are prepared to accept those donations. They can and have run their own advertising campaigns against plain packaging legislation albeit with a spectacular lack of success. In that sense, the plain packaging legislation is temporary because it is no more permanent than any other legislation. Second, the legislation applies to all tobacco packaging equally. It does not discriminate in favour of one trademark owner or against another. 
Third, and importantly, a very significant aspect of the privilege of use is maintained. As noted at the start of this article, the privilege of using word trademarks is maintained by the legislation.Due to the regulation of sale of tobacco prior to the plain packaging legislation, word trademarks were the primary, if not the sole means by which tobacco products were differentiated in the course of trade. Display of packaging at or prior to the point of sale was already prohibited. The maintenance of the privilege of using word trademarks means that tobacco companies continue to have the opportunity to distinguish their products from other products and to do so by the prime means of distinguishing that existed prior to the plain packaging legislation. This maintenance of that critical part of the privilege of distinguishing one tobacco product from another tobacco product is part of the balancing of the interests of tobacco trademark owners with the legitimate interests of government. 
Fourth, it seems that all commentators agree that a government can simply prohibit the sale of tobacco altogether without that prohibition being subject to any scrutiny or any scrutiny of any significance under TRIPS. The theoretical basis upon which the government can do an end run around trademarks in this way is not clear. It might well be argued that if the sale of the product is prohibited, there ceases to be any legitimate interest in using trademarks to differentiate between different brands of the product. However, that would seem to avoid the logically prior question as to whether the government has a legitimate interest in banning the product, which interest underpins a claim right grounding a correlative duty not to sell the product; especially since the ban has the effect of both detrimentally affecting the right of exclusion and the privilege of use. Presumably, the Paris Convention requirement not to deny registration on the basis of the nature of the goods in question would not apply where the sale of the product is unlawful and both registration and the right of exclusion would be lost in due course. (If the position were otherwise, trademarks for heroin would not only be registrable but there would be an obligation to register them.) While there may be disagreement about the theoretical basis or justification for prohibiting the sale of (hitherto) trademarked products, it would probably be agreed that a prohibition on any sales of tobacco would not benefit the interests of tobacco trademark owners. If the government has the power to impose a duty not to sell at all and its power to impose such a duty is unquestioned, that fact must have some implications for the balancing act under Article 20. If regulation short of prohibition does no greater damage to the relevant legitimate interests of tobacco trademark owners than prohibition, why does government not have the power to impose that regulation, particularly when (as noted above) tobacco trademark owners continue to enjoy the privilege of using their word trademarks to distinguish their products in the marketplace? 
Fifth, we draw some comfort from the fact that the legal advice to major tobacco companies clearly indicated to them that they have no prospect of successfully resisting plain packaging legislation via TRIPS or GATT. In 1994, a number of tobacco companies held a conference addressing issues such as the possibility of plain packaging. A presentation to that conference stated that a working group had considered the issue with a strong legal accent. The conclusion of the working group expressed in the overhead slide to the conference was literally: “GATT/TRIPS little joy”. We agree with the legal conclusion implicit in that statement but do not necessarily agree with the sentiment accompanying it. The occasional suggestion that Article 20 was specifically drafted with plain packaging in mind is news to tobacco companies. 
Ultimately, there is good reason for believing that the real complaint of tobacco companies is the loss of a chance to further promote their product. Their interest in doing so was never legitimate.
They conclude -
All of the above could be put into the following, relatively brief statements. 
1. Trademark owners do not have a right to use their trademarks. Nor do they have something more than a privilege that approaches a right. They have a privilege of using their trademarks. 
2. In considering the extent to which the privilege is defeasible, attention needs to be paid to the relationship between trademark owners and those claiming a right to prevent the exercise of the privilege. Other traders have little or no legitimate interest in preventing the exercise of the privilege of use. In that sense and in the context of that relationship, the privilege of use is not subject to significant limitations. 
3. Governments, as regulators of trademarks in a manner that does not favour other traders, do have significant interests in preventing the exercise of the privilege. In that sense and in the context of that relationship, the privilege of use is subject to very significant limitations.  
4. The privilege is particularly defeasible in the context of public health and the promotion of tobacco via the use of signs to promote consumption. 
5. Article 20 acknowledges points 1 to 3, by permitting States to defeat the privilege via the assertion of claim rights against trademark owners when such claim rights are justifiable, that is, are grounded in internationally recognizable legitimate interests that defeat those of trademark owners. In light of point 4, plain packaging is likely to be justifiable in this sense and hence permissible under Article 20.

US Patents

Fixing the USPTO? The US Government Accountability Office (GAO) has released a report titled Intellectual Property: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality.

The report recommends that the USPTO "consider examining trends in patent infringement litigation and consider linking this information to internal patent examination data to improve patent quality and examination". It notes that the USPTO commented on a draft and "agreed with key findings".

The report states that
From 2000 to 2010, the number of patent infringement lawsuits in the federal courts fluctuated slightly, and from 2010 to 2011, the number of such lawsuits increased by about a third. Some stakeholders GAO interviewed said that the increase in 2011 was most likely influenced by the anticipation of changes in the 2011 Leahy-Smith America Invents Act (AIA), which made several significant changes to the U.S. patent system, including limiting the number of defendants in a lawsuit, causing some plaintiffs that would have previously filed a single lawsuit with multiple defendants to break the lawsuit into multiple lawsuits. In addition, GAO's detailed analysis of a representative sample of 500 lawsuits from 2007 to 2011 shows that the number of overall defendants in patent infringement lawsuits increased by about 129% over this period. These data also show that companies that make products brought most of the lawsuits and that nonpracticing entities (NPE) brought about a fifth of all lawsuits. GAO's analysis of these data also found that lawsuits involving software-related patents accounted for about 89% of the increase in defendants over this period. 
Stakeholders knowledgeable in patent litigation identified three key factors that likely contributed to many recent patent infringement lawsuits. First, several stakeholders GAO interviewed said that many such lawsuits are related to the prevalence of patents with unclear property rights; for example, several of these stakeholders noted that software-related patents often had overly broad or unclear claims or both. Second, some stakeholders said that the potential for large monetary awards from the courts, even for ideas that make only small contributions to a product, can be an incentive for patent owners to file infringement lawsuits. Third, several stakeholders said that the recognition by companies that patents are a more valuable asset than once assumed may have contributed to recent patent infringement lawsuits. 
The judicial system is implementing new initiatives to improve the handling of patent cases in the federal courts, including (1) a patent pilot program, to encourage the enhancement of expertise in patent cases among district court judges, and (2) new rules in some federal court districts that are designed to reduce the time and expense of patent infringement litigation. Recent court decisions may also affect how monetary awards are calculated, among other things. Several stakeholders said that it is too early to tell what effect these initiatives will have on patent litigation. 
The U.S. Patent and Trademark Office (PTO) has taken several recent actions that are likely to affect patent quality and litigation in the future, including agency initiatives and changes required by AIA. For example, in November 2011, PTO began working with the software industry to develop more uniform terminology for software-related patents. PTO officials said that they generally try to adapt to developments in patent law and industry to improve patent quality. However, the agency does not currently use information on patent litigation in initiating such actions; some PTO staff said that the types of patents involved in infringement litigation could be linked to PTO's internal data on the patent examination process, and a 2003 National Academies study showed that such analysis could be used to improve patent quality and examination by exposing patterns in the examination of patents that end up in court. 
Legal commentators, technology companies, Congress, and others have raised questions about patent infringement lawsuits by entities that own patents but do not make products. Such entities may include universities licensing patents developed by university research, companies focused on licensing patents they developed, or companies that buy patents from others for the purposes of asserting the patents for profit. Section 34 of AIA mandated that GAO conduct a study on the consequences of patent litigation by NPEs. This report examines (1) the volume and characteristics of recent patent litigation activity; (2) views of stakeholders knowledgeable in patent litigation on key factors that have contributed to recent patent litigation; (3) what developments in the judicial system may affect patent litigation; and (4) what actions, if any, PTO has recently taken that may affect patent litigation in the future. GAO reviewed relevant laws, analyzed patent infringement litigation data from 2000 to 2011, and interviewed officials from PTO and knowledgeable stakeholders, including representatives of companies involved in patent litigation.