28 September 2013

CNIL and Google

Posts in this blog have noted criticism (eg here and here) by European data protection authorities of Google.

Last year those authorities, through France's Commission nationale de l’informatique et des libertés (CNIL), stated that
Google provides insufficient information to its users on its personal data processing operations:
Under the current Policy, a Google service's user is unable to determine which categories of personal data are processed for this service, and the exact purposes for which these data are processed.
E.g.: the Privacy Policy makes no difference in terms of processing between the innocuous content of search query and the credit card number or the telephone communications of the user ; all these data can be used equally for all the purposes in the Policy.
Moreover, passive users (i.e. those that interact with some of Google's services like advertising or ‘+1' buttons on third-party websites) have no information at all.
EU Data protection authorities remind Google and internet companies in general that shorter privacy notices do not justify a reduction of information delivered to the data subjects.
EU Data protection authorities ask Google to provide clearer and more comprehensive information about the collected data and purposes of each of its personal data processing operations.
For instance, EU Data protection authorities recommend the implementation of a presentation with three levels of detail to ensure that information complies with the requirements laid down in the Directive and does not degrade the users' experience. The ergonomics of the Policy could also be improved with interactive presentations.
Google does not provide user control over the combination of data across its numerous services:
Combination of data across services has been generalized with the new Privacy Policy: in practice, any online activity related to Google (use of its services, of its system Android or consultation of third-party websites using Google's services) can be gathered and combined.
The European DPAs note that this combination pursues different purposes such as the provision of a service requested by the user, product development, security, advertising, the creation of the Google account or academic research. The investigation also showed that the combination of data is extremely broad in terms of scope and age of the data.
E.g.: the mere consultation of a website including a ‘+1' button is recorded and kept during at least 18 months and can be associated with the uses of Google's services; data collected with the DoubleClick cookie are associated to a identifying number valid during 2 years and renewable.
European Data Protection legislation provides a precise framework for personal data processing operations. Google must have a legal basis to perform the combination of data of each of these purposes and data collection must also remain proportionate to the purposes pursued. However, for some of these purposes including advertising, the processing does not rely on consent, on Google's legitimate interests, nor on the performance of a contract.
Google should therefore modify its practices when combining data across services for these purposes, including:
  • reinforce users' consent to the combination of data for the purposes of service improvements, development of new services, advertising and analytics. This could be realized by giving users the opportunity to choose when their data are combined, for instance with dedicated buttons in the services' (cf. button “Search Plus Your World”), 
  • offer an improved control over the combination of data by simplifying and centralizing the right to object (opt-out) and by allowing users to choose for which service their data are combined 
  • adapt the tools used by Google for the combination of data so that it remains limited to the authorized purposes, e.g. by differentiating the tools used for security and those used for advertising.
Google does not provide retention periods
Google refused to provide retention periods for the personal data it processes.
The recommendations of the EU Data protection authorities have been sent to Google to allow the company to upgrade its Privacy Policy practices. This letter is individually signed by 27 European Data protection authorities for the first time and it is a significant step forward in the mobilization of European authorities.
Several recommendations are also supported by members of APPA (Asia Pacific Privacy Authorities) and Canada's federal Privacy Commissioner has had similar concerns about various Google activities.
The CNIL, all the authorities among the Working Party and data protection authorities from other regions of the world expect Google to take effective and public measures to comply quickly and commit itself to the implementation of these recommendations.
CNIL has now noted Google's failure to comply with the deadline an enforcement notice.

CNIL appears to be moving towards a formal sanction. The penalty - 300,000 euros ($432,000) - has a symbolic value.

In June CNIL ordered Google to comply with the French data protection law - the 1978 Loi Informatique et Libertes [PDF] - within three months.

In particular Google was to:
  • Define specified and explicit purposes regarding data collection and processing; 
  • Inform users with regard to the purposes of the processing; 
  • Define retention periods for the processed personal data ; 
  • Not proceed, without legal basis, with the potentially unlimited combination of users’ data; 
  • Fairly collect and process passive users’ data; 
  • Inform users and then obtain their consent in particular before storing cookies in their devices. 
Google has been unresponsive.

CNIL states that
On the last day of the three-month time period given to Google Inc., the company contested the reasoning followed by the CNIL, and notably the applicability of the French data protection law to the services used by residents in France. Therefore, it has not implemented the requested changes. In this context, the Chair of the CNIL will now designate a rapporteur for the purpose of initiating a formal procedure for imposing sanctions, according to the provisions laid down in the French data protection law.

Portability and De-dutification

'Social Security for Migrant Workers and Their Families in Australia' by Anna Katherine Boucher and Terry Carney in Social Security and Migrant Workers: Selected Studies of Cross-Border Social Security Mechanisms (Kluwer, 2013) edited by Blanpain, Olivier and  Arellano Oritz comments
Australia is often identified as an immigration success story. The economic performance of immigrants to Australia in recent decades has been lauded by government and from within academia. The depiction of Australian immigration as highly skilled and economically self-reliant underplays the role of welfare state retrenchment in redirecting the economic support provided to new immigrants by the state towards immigrant families. In this paper, we sketch the provision of social security payments to newly arrived immigrants across the economic and family reunification visa classes and since restrictions upon benefits first began in 1992/3. We also outline what trends towards temporary economic immigration represent for long-term welfare eligibility of new immigrants, and how changing source countries shift expectations around welfare portability and reciprocity for immigrants over the longer term. In doing so, we argue that these recent trends in immigration policy represent a movement away from residual state support for Australian citizens, permanent residents and newly arrived immigrants alike, towards a differentiated system, where familial support is expected for new immigrants but not for others in the Australian labour market. We also sketch the dissonance between this provision and international legal norms. This paper relies upon legal analysis and unpublished statistical data from the Continuous Survey of Immigrants to Australia.
'EU Citizenship without Duties' by Dimitry Kochenov in (2014) European Law Journal comments
 Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims.
1. There are no empirically-observable duties of EU citizenship;
2. Such duties would lack any legal-theoretical foundation, if the contrary were true;
3. Legal-theoretical foundations of the duties of citizenship are lacking also at the Member State level;
4. EU law plays an important role in undermining the ability of the Member States where residual duties remain, to enforce them;
5. This development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de-dutification of citizenship around the democratic world.
If these conclusions are correct, it is time to stop categorizing EU citizenship duties among the desiderata of EU law. ... The situation with citizenship duties is such, that there is a clearly decipherable trend of moving away from duties-inspired rhetoric and law, since the functions of uniformisation and discrimination that duties have been traditionally playing are of no use anymore for the modern democracies. The lack of a legal-philosophical ground for being serious about duties makes the arguments of those favouring a duty-based approach to citizenship even less appealing, particularly when not only the general duties-rights correlation, but also the moral duty to obey the law as such are not there. This is the context against which the empty word ‘duties’ in Article 20 TFEU is to be read. Moreover the Union actually reinforces the trends described above by indirectly obstructing the ability of the Member States where residual duties remain to enforce those, thus shielding some of their nationals from abuse. The Union clearly limits the possibility of the Member States to empower government authority vis-à-vis the individual. In this respect, what Weiler called the ‘fundamental boundaries’ is obviously affected by Union law. Weiler is absolutely right in stating that the balance between the ‘fundamental rights’ and ‘fundamental boundaries’ is at the core of any democracy and that joining the EU clearly narrows the ‘margin within which states may opt for different fundamental balances between government and individuals’ to a great extent. In fact, it means questioning the state on virtually any occasion – an additional guarantee against harmful or inexplicably regulation.
In this context, Joppke is absolutely justifiably ironical while critiquing Weiler’s view of citizenship eroded by rights and failing to act as a ‘shield against existential aloneness’. Reality has to be acknowledged and it is quite unequivocal: thick attachments, and with them the duties are largely gone in practice and would not be justifiable in theory either. Given that the same processes are going on at the supranational and the national level, there is no reason to believe that the Union where there are no citizenship duties and where rights and freedoms play the essential role as a starting point of legal thinking, should tolerate radically different ideologies in the Member States. To claim that the Member States should be free to do whatever they want with EU citizens who happen to be their nationals is legally unsound. The whole point of the Union is that our core values are shared after all.
Being straight about the word ‘duties’ mentioned in the Treaty helps better understand the functioning of EU law vis-à-vis the citizens: Kymlicka is absolutely right, claiming that in essence EU law is busy diffusing liberal nationhood. In the context of EU citizenship duties this means that by naturally opposing the totalitarian elements of the national conceptions of citizenship in the Member States, the EU also profoundly undermines their ability to have enforceable citizenship duties in place. Where such atavistic duties remain, EU law offers an easy escape, since its own fundamental freedoms always prevail. Classical case-law on requiring Member States to issue long-term residence permits to the Greek residents within their borders no matter what Greece thinks about these persons’ duty to serve in the Greek military is informative in this regard. If Greek law humiliates its citizens by refusing them passports unless they submit to the draft, the reaction of the ECJ requiring the issuance of residence permits without any Greek passports presented is only rational: liberty meets nationalism and prevails. By analogy, any time an EU fundamental freedom is in conflict with a local citizenship duty, the former is bound to prevail in the majority of cases. The decline in the Member States’ ability to impose the duties of citizenship is thus directly connected to the very essence of the EU’s constitutional arrangement, correlated with a necessary loss in the individual sovereign normative capacity. The EU allows for voting with one’s feet: those who dislike local citizenship duties are always free to go elsewhere. The EU thus functions as a promoter of the liberal de-dutification trend which is observable in the majority of contemporary democracies anyway.
It is not surprising that the Member States might view such developments as problematic: opening up citizenship to competition is akin to allowing the sale of land – thus removing another important feudal vestige – that happened in England, to give one example, less than a hundred years ago, which clearly threatened – and in the end was an important factor in changing – the social order of the day. Similarly, liberating citizens from non-refutable state claims to duties seriously changes the rules of the game. Instead of being coerced into performing actions deprived of any sense only because the State so wants, citizens are recognized as autonomous actors having the will of their own, of whom not only submission is required. When citizenship competition opens up, with national systems of citizenship losing, once and for all, their monopolistic status, this results in the creation of radically different bonds attachment between states and their populations, which is now based on choice, not only on the chance of birth. In the words of Davies, ‘Belgians are those who choose Belgium’. Competition between the Member States for the citizens who freely choose to call certain countries their home is thus the key element of the operation of the Internal Market that is valuable as a promoter of freedom. This kind of development is not contrary, but is in fact fully in line with a general trend in citizenship evolution described by Joppke, which co-accommodates increasing objective with decreasing subjective value of citizenship.
Kochenov concludes - Basing a legal system on rights, rather than duties, is not an arbitrary choice: it reflects the essential assumption that people should be free, which also includes freedom to determine the meaning of right and wrong, failure and success etc. in the context of the personal projects they pursue – a gift of freedom unthinkable in a system of pre-existing prescriptions which necessarily underlie the concept of duties. Should citizenship be pared with freedom, there is no place for duties within the auspices of this concept. This is exactly what we observed in the context of citizenship’s evolution. There has never been any ‘shortage of sheep-like subjects’ that the duty-oriented vision of citizenship promotes. Yet, active engagement and the reshaping of the right and wrong in any given context, including a supranational Union, necessarily requires a rights-based approach to membership. This article confined itself to making five interrelated points. ... In the light of these findings it is unquestionable that there is no room for EU citizenship duties in the edifice of EU law.


'Sex-Positive Law' by Margo Kaplan in (2014) 87 New York University Law Review argues that
Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite — that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.
This Article exposes and challenges the law’s unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for "sex-positive" law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.
Kaplan concludes -
Valuing sexual pleasure yields a more complete assessment of the true harms and benefits of the activities we regulate. This Article focuses on three areas of law that are most directly related to sexual conduct and state regulation of sexual practices. But implications for sex-positive law extend beyond these areas.
1. Family Law
Family law involves many implicit assumptions about sex and sexual pleasure. To a certain extent, family law privileges sex. The family unit is defined through the (usually heterosexual) sexual relationship of the primary partners; this privileges sexual relationships over non-sexual relationships. But this privileging is limited in ways that reflect an underlying fear of and disgust with sexual pleasure. Sex is valued only insofar as it furthers marital or marital-like relationships. Such relationships transform the otherwise harmful or low-value sexual pleasure it into something worthwhile—marriage and family relationships. A sexpositive approach may shake some of the core foundations of family law. If sexual pleasure need not be channeled into something positive—if it is positive in itself—then marriage may lose some of the justification for its privilege.
2. Sex Work and Prostitution
A sex-positive framework may also challenge some of the justifications for criminalizing sex work. Sex exchanged for cash is stripped to a transaction of pleasure for pay. It does not contribute to the more traditional and acceptable goals of marital relationship or emotional intimacy, thus it is devoid of constitutional protection. Legal scholarship has generated several arguments in favor of sex work prohibition and countervailing arguments about the potentially more harmful effects of prohibition. Some of the rationales for prohibition rely on a moral distaste for sexual pleasure stripped of intimacy and engaged in for its own sake. Attributing more value to sexual pleasure in itself undermines these arguments.
3. Rape Law
Valuing sexual pleasure provides no license to experience that pleasure at the expense of another’s sexual autonomy, just as valuing the pleasure one derives from art does not require us to allow an individual to steal another’s painting or assault an unwilling individual as part of a performance art piece. In fact, valuing of sexual pleasure can strengthen rape law justifications. While traditional rape law may value the defendant’s sexual pleasure in some ways, it often ignores the victim’s sexual pleasure. Sexual violence and sex that takes place in the absence of consent undermine an individual’s choices about how to experience pleasure and, in consequence, her ability to experience it at all. Several feminist scholars have argued that the way in which laws allow defendants to presume consent from lack of resistance or passive silence reinforces traditional gender roles, victimizes women, and ignores the victim’s sexual trauma and the subsequent harm it may do to her ability to have positive sexual experiences. It is grounded in and reinforces men as passionate and pleasure-seeking and women as the gatekeepers to sexual pleasure who must affirmatively and clearly ward off unwanted sexual advances if their sexual preferences are to be respected. This ignores the importance of the sexual pleasure of the woman and her ability to determine when and how to experience that pleasure.
Yet even the reforms pressed by feminist scholars risk continuing to marginalize female sexual pleasure. As Katherine Franke has argued, feminist legal scholarship tends to focus on male sexual pleasure while ignoring female sexual pleasure. Such scholarship consistently posits sex as a negative experience for women in which they submit to men’s desires. This echoes traditional rape law’s view that women are passive recipients of male sexual desire and without desire of their own. Feminist legal theory’s failure to focus on women’s sexual pleasure—or to minimize it to simply an absence of male aggression—reinforces these limiting stereotypes and marginalizes the actual experiences of women. A truly sex-positive view of rape must acknowledge the importance of sexual pleasure for many women and the way that rape law marginalizes women’s sexual desires by limiting their ability to live as sexual beings who can freely decide how and when to experience sexual pleasure. It should acknowledge that defining rape is about defining what is good about sex and not merely what is bad.
Sex-positivity enriches our understanding of consent because it posits that sex is to be enjoyed and not merely endured, and that sexual interactions should be characterized by enthusiastic consent rather than mere silence or acquiescence. Accepting sexual pleasure as a good thing enables us to distinguish the non-consensual sex and violence that are not acceptable. It may also highlight some of the limits of criminal law in preventing rape. Sex-positivity requires a more honest conversation about how individuals think about and engage in sex and how assumptions about sex and sexuality contribute to the problem of rape. Such a conversation must include an analysis of the deeper social, cultural, and economic drivers of rape. The criminal justice system, defined primarily by prohibition and punishment, is ill suited to take on this broad challenge. Such policy changes must also contend with the fact that rape exists on a wide spectrum of behavior that reflects and reinforces rape culture. While the definition of rape ought to be broadened to include many of these behaviors, criminalization may be inappropriate for others. A sex-positive view of rape could inspire legal and policy changes in other areas to rise to these challenges. In particular, policies that use a public health model might be better suited to change entrenched views about sexuality and how we use our bodies to interact with the bodies of others.
Final Thoughts
Recognizing and appreciating the value of sexual pleasure undermines some of the fundamental assumptions that run through several areas of law. It alters the organizing principles that legislatures, courts, and scholars use to frame the debate on these topics. It does not prohibit the regulation of activities that provide sexual pleasure. Instead, it enriches our conversation about such regulations by requiring legislatures, courts, and legal scholars to be honest about these the costs and benefits of these laws. Such honesty can yield better laws and policies by requiring us to re-examine our justifications for what we regulate and how we regulate.

US IP Commission

Catching up with the report [PDF] of The Commission on the Theft of American Intellectual Property, a nongovernment entity associated with The National Bureau of Asian Research and concerned to
  • Document and assess the causes, scale, and other major dimensions of international intellectual property theft as they affect the United States 
  • Document and assess the role of China in international intellectual property theft 
  • Propose appropriate U.S. policy responses that would mitigate ongoing and future damage and obtain greater enforcement of intellectual property rights by China and other infringers.
Some sense of the document is provided by the over-enthusiastic Acknowledgements -
We present this report to the American people for their consideration. The Commission on the Theft of American Intellectual Property reached consensus on its insights and recommendations after a thorough and independent investigation of one of the most pressing issues of economic and national security facing our country. We investigated the scale and complexities of international intellectual property (IP) theft, the driving forces behind it, and its consequences for Americans. We collected the evidence, formed assessments, and developed a set of policy recommendations for Congress and the Administration.
This Commission is composed of extraordinary members. We are indebted to our fellow Commissioners for their contributions. They have brought to the Commission diligence, selfless bipartisanship, and tremendous expertise and wisdom. Coming from industry, defense, advanced education, and politics, and with senior-level diplomatic, national security, legal, and other public policy experience, they span the spectrum of American professional life that has huge stakes in IP rights. They have our deepest appreciation.
The Commission reached out to many remarkable specialists and leaders who shared their experiences and perspectives as we developed an understanding of the problem and a very rich set of policy recommendations. Business leaders with whom we spoke provided inputs anonymously; they represent a cross-section of companies that deal with the problem of IP theft, as well as trade associations with major interests in the problem and its solutions. Other interlocutors were officials from Republican and Democratic administrations, policy analysts, lawyers, economists, international trade experts, and international relations and area specialists. We benefited from the efforts of those in the U.S. government who have been working hard on these issues for years. We thank them for their work and hope that our shining the spotlight on the facts and recommending strong policy make their goals more achievable.
The Commission’s staff was exemplary ...
Enough with with the extraordinary exemplary selfless tremendous wonderful amazing diligent etc.

The Commission reports that
The scale of international theft of American intellectual property (IP) is unprecedented—hundreds of billions of dollars per year, on the order of the size of U.S. exports to Asia. The effects of this theft are twofold. The first is the tremendous loss of revenue and reward for those who made the inventions or who have purchased licenses to provide goods and services based on them, as well as of the jobs associated with those losses. American companies of all sizes are victimized. The second and even more pernicious effect is that illegal theft of intellectual property is undermining both the means and the incentive for entrepreneurs to innovate, which will slow the development of new inventions and industries that can further expand the world economy and continue to raise the prosperity and quality of life for everyone. Unless current trends are reversed, there is a risk of stifling innovation, with adverse consequences for both developed and still developing countries. The American response to date of hectoring governments and prosecuting individuals has been utterly inadequate to deal with the problem.
China has been the principal focus of U.S. intellectual property rights (IPR) policy for many years. As its economy developed, China built a sophisticated body of law that includes IPR protection. It has a vibrant, although flawed, patent system. For a variety of historical reasons, however, as well as because of economic and commercial practices and official policies aimed to favor Chinese entities and spur economic growth and technological advancement, China is the world’s largest source of IP theft. The evidence presented here is a compilation of the best governmental and private studies undertaken to date, interviews, individual cases, assessments of the impact of IP theft on the American economy, and examinations of PRC policies. There is now enough information, in our view, to warrant urgent consideration of the findings and recommendations that follow. The IP Commission has met numerous times over the course of an eleven-month period; heard from experts and specialists on international law, the American legal system, cybersecurity, and the economy, as well as from industry representatives and many others; and conducted research on a range of topics. The Commission has also reviewed the current actions being taken by the U.S. government and international organizations like the World Trade Organization (WTO) and the recommendations of official and private studies of the problem. Both current and proposed actions generally emphasize more intensive government-to-government communication requesting foreign governments to rein in their companies and other actors. The Commission judges that the scope of the problem requires stronger action, involving swifter and more stringent penalties for IP theft. The Commission believes that over the long term, as their companies mature and have trade secrets to protect, China and other leading infringers will develop adequate legal regimes to protect the intellectual property of international companies as well as domestic companies. The United States cannot afford to wait for that process, however, and needs to take action in the near term to protect its own economic interests.
The Commissioners unanimously advocate the recommendations contained within this report.
The Key Findings are
The Impact of International IP Theft on the American Economy
Hundreds of billions of dollars per year. The annual losses are likely to be comparable to the current annual level of U.S. exports to Asia—over $300 billion. The exact figure is unknowable, but private and governmental studies tend to understate the impacts due to inadequacies in data or scope. The members of the Commission agree with the assessment by the Commander of the United States Cyber Command and Director of the National Security Agency, General Keith Alexander, that the ongoing theft of IP is “the greatest transfer of wealth in history.” Millions of jobs. If IP were to receive the same protection overseas that it does here, the American economy would add millions of jobs. A drag on U.S. GDP growth. Better protection of IP would encourage significantly more R&D investment and economic growth. Innovation. The incentive to innovate drives productivity growth and the advancements that improve the quality of life. The threat of IP theft diminishes that incentive.
Long Supply Chains Pose a Major Challenge
Stolen IP represents a subsidy to foreign suppliers that do not have to bear the costs of developing or licensing it. In China, where many overseas supply chains extend, even ethical multinational companies frequently procure counterfeit items or items whose manufacture benefits from stolen IP, including proprietary business processes, counterfeited machine tools, pirated software, etc.
International IP Theft Is Not Just a Problem in China
Russia, India, and other countries constitute important actors in a worldwide challenge. Many issues are the same: poor legal environments for IPR, protectionist industrial policies, and a sense that IP theft is justified by a playing field that benefits developed countries.
The Role of China
  • Between 50% and 80% of the problem. The major studies range in their estimates of China’s share of international IP theft; many are roughly 70%, but in specific industries we see a broader range.
  • The evidence. Evidence comes from disparate sources: the portion of court cases in which China is the destination for stolen IP, reports by the U.S. Trade Representative, studies from specialized firms and industry groups, and studies sponsored by the U.S. government.
  • Why does China stand out? A core component of China’s successful growth strategy is acquiring science and technology. It does this in part by legal means—imports, foreign domestic investment, licensing, and joint ventures—but also by means that are illegal. National industrial policy goals in China encourage IP theft, and an extraordinary number of Chinese in business and government entities are engaged in this practice. There are also weaknesses and biases in the legal and patent systems that lessen the protection of foreign IP. In addition, other policies weaken IPR, from mandating technology standards that favor domestic suppliers to leveraging access to the Chinese market for foreign companies’ technologies.
Existing Remedies Are Not Keeping Up
  • Short product life cycles. Even in the best judicial systems, the slow pace of legal remedies for IP infringement does not meet the needs of companies whose products have rapid product life and profit cycles. 
  • Inadequate institutional capacity. Particularly in developing countries there is inadequate institutional capacity to handle IP-infringement cases—for example, a shortage of trained judges. China’s approach to IPR is evolving too slowly. The improvements over the years have not produced meaningful protection for American IP, nor is there evidence that substantial improvement is imminent. Indeed, cyberattacks are increasing. 
  • Limitations in trade agreements. Although there appears to be a great deal of activity on the part of the United States through the WTO, there are also significant problems in the process that have made it impossible to obtain effective resolutions. Bilateral and regional free trade agreements are not a panacea either. Steps undertaken by Congress and the administration are inadequate. Actions have been taken recently both to elevate the problem as a policy priority and to tighten U.S. economic espionage law. These are positive steps. A bill in Congress that would allow greater information-sharing between government and private business needs to be enacted and amended if needed. All of these efforts, however, will not change the underlying incentive structure for IP thieves and will therefore have limited effect.
The Commission responds that
 Strategy With U.S. companies suffering losses and American workers losing jobs, and our innovative economy and security thus at stake, more effective measures are required. The problem is compounded by newer methods of stealing IP, including cyber methods. Of the cyber threat, President Obama has said that it is “one of the most serious economic and national security challenges we face.” Network attacks, together with other forms of IP attacks, are doing great damage to the United States, and constitute an issue of the first order in U.S.-China relations. The Commission regards changing the incentive structure for IP thieves to be a paramount goal in reducing the scale and scope of IP theft. Simply put, the conditions that encourage foreign companies to steal American intellectual property must be changed in large part by making theft unprofitable. The starting point is the recognition that access to the American market is the single most important goal of foreign firms seeking to be international corporate leaders. Companies that seek access by using stolen intellectual property have an unearned competitive advantage, and because the costs of stealing are negligible or nonexistent, they continue to operate with impunity. Cheating has become commonplace. The Commission regards changing the cost-benefit calculus for foreign entities that steal American intellectual property to be its principal policy focus. IP theft needs to have consequences, with costs sufficiently high that state and corporate behavior and attitudes that support such theft are fundamentally changed. Beyond changing behavior in the short term, the Commission regards strengthening the legal frameworks that govern the protection of IP to be a set of important medium-term recommendations. From that point, and over the longer term, the Commission judges that capacity-building in countries, especially China, that have poor IP-protection standards is of critical importance.
 The  recommends "short-term, medium-term, and long-term remedies".
Short-term measures incorporate the immediate steps that policymakers should take to stem the tide of IP theft and include the following:
  • Designate the national security advisor as the principal policy coordinator for all actions on the protection of American IP. The theft of American IP poses enormous challenges to national security and the welfare of the nation. These challenges require the direct involvement of the president’s principal advisor on national security issues to ensure that they receive the proper priority and the full engagement of the U.S. government. 
  • Provide statutory responsibility and authority to the secretary of commerce to serve as the principal official to manage all aspects of IP protection. The secretary of commerce has sufficient human, budgetary, and investigative resources to address the full range of IP protection issues. If given the statutory authority to protect American IP, we anticipate a robust set of responses. 
  • Strengthen the International Trade Commission’s 337 process to sequester goods containing stolen IP. The current 337 process is not fast enough to prevent goods containing or benefitting from stolen IP from entering the United States. A speedier process, managed by a strong interagency group led by the secretary of commerce, can both prevent counterfeit goods from entering the United States and serve as a deterrent to future offenders. The speedier process would impound imports suspected of containing or benefitting from IP theft based on probable cause. A subsequent investigation would allow the importing company to prove that the goods did not contain or benefit from stolen IP. 
  • Empower the secretary of the treasury, on the recommendation of the secretary of commerce, to deny the use of the American banking system to foreign companies that repeatedly use or benefit from the theft of American IP. Access to the American market is a principal interest of firms desiring to become global industrial leaders. Protecting American IP should be a precondition for operating in the American market. Failure to do so ought to result in sanctions on bank activities, essentially curtailing U.S. operations. 
  • Increase Department of Justice and Federal Bureau of Investigation resources to investigate and prosecute cases of trade-secret theft, especially those enabled by cyber means. The increase in trade-secret theft, in many ways enabled by emerging cyber capabilities, requires a significant increase in investigative and prosecutorial resources. 
  • Consider the degree of protection afforded to American companies’ IP a criterion for approving major foreign investments in the United States under the Committee on Foreign Investment in the U.S. (CFIUS) process. CFIUS assesses national security risk and national security implications of proposed transactions involving U.S. companies. Adding an additional evaluative criterion to the review process that assesses the manner in which a foreign company obtains IP would help improve IP-protection environments. 
  • Enforce strict supply-chain accountability for the U.S. government. Establishing control and auditing measures that enable suppliers to the U.S. government to guarantee the strongest IP-protection standards should be the “new normal” that the U.S. government demands. 
  • Require the Securities and Exchange Commission to judge whether companies’ use of stolen IP is a material condition that ought to be publicly reported. Corporate leaders will take seriously the protection of IP, including in their supply chains, if reporting IP theft in disclosure statements and reports to boards of directors and shareholders is mandatory. 
  • Greatly expand the number of green cards available to foreign students who earn science, technology, engineering, and mathematics degrees in American universities and who have a job offer in their field upon graduation. In too many cases, American universities train the best minds of foreign countries, who then return home with a great deal of IP knowledge and use it to compete with American companies. Many of these graduates have job offers and would gladly stay in the United States if afforded the opportunity. Legislative and legal reforms represent actions that aim to have positive effects over the medium term.
To build a more sustainable legal framework to protect American IP, Congress and the administration should take the following actions:
  • Amend the Economic Espionage Act (EEA) to provide a federal private right of action for tradesecret theft. If companies or individuals can sue for damages due to the theft of IP, especially trade secrets, this will both punish bad behavior and deter future theft. 
  • Make the Court of Appeals for the Federal Circuit (CAFC) the appellate court for all actions under the EEA. The CAFC is the appellate court for all International Trade Commission cases and has accumulated the most expertise of any appellate court on IP issues. It is thus in the best position to serve as the appellate court for all matters under the EEA. 
  • Instruct the Federal Trade Commission (FTC) to obtain meaningful sanctions against foreign companies using stolen IP. Having demonstrated that foreign companies have stolen IP, the FTC can take sanctions against those companies. 
  • Strengthen American diplomatic priorities in the protection of American IP. American ambassadors ought to be assessed on protecting intellectual property, as they are now assessed on promoting trade and exports. Raising the rank of IP attachés in countries in which theft is the most serious enhances their ability to protect American IP.
Over the longer term, the Commission recommends the following capacity-building measures:
  • Build institutions in priority countries that contribute toward a “rule of law” environment in ways that protect IP. Legal and judicial exchanges, as well as training programs sponsored by elements of the U.S. government—including the U.S. Patent and Trademark Office—will pay long-term dividends in the protection of IP. 
  • Develop a program that encourages technological innovation to improve the ability to detect counterfeit goods. Prize competitions have proved to be both meaningful and cost-effective ways to rapidly develop and assess new technologies. New technologies, either to validate the integrity of goods or to detect fraud, would both deter bad behavior and serve as models for the creation of new IP. 
  • Ensure that top U.S. officials from all agencies push to move China, in particular, beyond a policy of indigenous innovation toward becoming a self-innovating economy. China’s various industrial policies, including indigenous innovation, serve to dampen the country’s own technological advancements. Utility, or “petty,” patents are a particularly pernicious form of Chinese IP behavior and need to cease being abused. 
  • Develop IP “centers of excellence” on a regional basis within China and other priority countries. This policy aims to show local and provincial leaders that protecting IP can enhance inward foreign investment; this policy both strengthens the protection of IP and benefits the promotion possibilities of officials whose economic goals are achieved by producing foreign investment. 
  • Establish in the private, nonprofit sector an assessment or rating system of levels of IP legal protection, beginning in China but extending to other countries as well. One of the tools necessary to develop “centers of excellence” is a rating system that shows the best—and worst—geographical areas for the protection of IP.
The Commission recommends the following measures to address cybersecurity:
  • Implement prudent vulnerability-mitigation measures. This recommendation provides a summary of the security activities that ought to be undertaken by companies. Activities such as network surveillance, sequestering of critical information, and the use of redundant firewalls are proven and effective vulnerability-mitigation measures. 
  • Support American companies and technology that can both identify and recover IP stolen through cyber means. Without damaging the intruder’s own network, companies that experience cyber theft ought to be able to retrieve their electronic files or prevent the exploitation of their stolen information. 
  • Reconcile necessary changes in the law with a changing technical environment. Both technology and law must be developed to implement a range of more aggressive measures that identify and penalize illegal intruders into proprietary networks, but do not cause damage to third parties. Only when the danger of hacking into a company’s network and exfiltrating trade secrets exceeds the rewards will such theft be reduced from a threat to a nuisance.

26 September 2013

Sandwiches and Suppression Orders

From the Adelaide Advertiser's coverage earlier this month of the South Australian Attorney-General's report on suppression orders in that state -
the Supreme, District, Magistrates and Youth Courts imposed 155 suppression orders in 2012-13.
That represents a reduction from 161 in 2011-12, 173 in 2009-10 and 207 in 2008-09. ...
The Magistrates Court imposed the most suppressions (84) while the Youth Court handed down just one.
Suppression of court hearings is governed by Section 69A of the Evidence Act (1929).
Prior to 2007, courts could suppress evidence under broad grounds including the protection of victims from hardship and to prevent "prejudice to the proper administration of justice".
Opponents of the legislation claimed it was being misused by lawyers to stop media outlets from fairly and accurately reporting court events to the broader public.
In some years, in excess of 220 suppression orders were imposed on everything from the colour of the barrels used in the "bodies in the barrels" serial killings to the name of a defendant's dog.
In one case, defence counsel sought to suppress the flavour of a sandwich a woman had used to drug her partner before bashing him to death.
South Australia came under criticism, both internally and from interstate, for being "the secrecy state".
Although the number of orders has declined South Australia still isn't enthusiastic about administrative openness ... the miasmas of secrecy linger.

The A-G's report consists of four pages, including the cover and transmittal letter. It includes basic statistics (ie number by month per court) and the statement (reflecting the statute) that orders were made for the following reasons -
  • to prevent prejudice to the proper administration of justice
  • to prevent undue hardship to an alleged victim of crime; to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings;  or a child
  • to prevent identification of an accused, victim or witness
  • to prevent publication of various details concerning the accused, victim or witness.
No indication of how long the orders were in place (an area of contention in the past). No indication of demographics. All in all not very helpful for law reform.


The New Zealand Government has announced its response to the NZ Law Commission’s The News Media Meets “New Media”: Rights, Responsibilities and Regulation in the Digital Age, ie the official law reform report regarding regulation of news media.

The announcement states that
 The report considered how unregulated news media could be regulated and/or if our current regulatory bodies should be extended to cover media such as blogs. 
“I thank the Law Commission for its thorough report proposing innovative solutions to the regulatory challenges presented by new media providers and new media platforms,” [Justice Minister] Collins says. 
“We expect that print and on-line media outlets will continue to strengthen their self-regulation while the Broadcasting Standards Authority will retain its responsibility for TV and radio under the Broadcasting Act.” 
Ms Collins says the Government has decided not to establish a single independent regulatory body to hear complaints across all news media formats at this time. 
Currently, there is one regulator for each media format, for example the Press Council for print media and the Broadcasting Standards Authority for television and radio. 
“Unlike recent reviews in the UK and Australia, the Law Commission’s report was not driven by a crisis of confidence in the mainstream media,” Ms Collins says. 
New Zealand exceptionalism is so very reassuring.

The Justice Minister comments
 “The media in New Zealand have already made good progress in dealing with these challenges, for instance through the setting up of the Online Media Standards Authority. There is no pressing need for statutory or institutional change.”
Never fear, apparently, with Broadcasting Minister Craig Foss stating that
the Law Commission proposal will be kept in mind as an option should reform be necessary in the future. 
“The Government is well aware of the importance of fostering a well-functioning and independent fourth estate,” says Mr Foss. 
“While we’re not taking action now, I’d like to send a clear message that the Government expects the news media industry to continue to develop solutions to the regulatory difficulties presented by media using multiple technology platforms.”


There is more fallout in New Zealand over the Kim Dot Com Affair, with the Parliament's Privileges Committee investigating the handling of personal information by Parliamentary Services as part of that entity's response to the Henry Inquiry into the unauthorised disclosure to Fairfax journalist Andrea Vance of the Kitteridge report regarding the Government Communications Security Bureau.

In April and May the Inquiry manager had sought -
  • All printing, copy and scan records for all Ministers that had access to the Kitteridge report (10 National Ministers, John Banks and Peter Dunne).
  • All printing, copy and scan records for senior staff in each of the 12 Minister’s offices, including SPS’s and Press Secretaries
  • email logs for external emails for the 12 Ministers and their staff for the date range 22 March to 9 April.
  • mobile phone billing records for 12 Ministers and their staff as well as staff from the Prime Minister’s office for 25 March to 9 April
  • all emails between Vance and Peter Dunne between 22 March and 9 April (dates provided in metadata rundown in email on 16 May at 3:24pm).
  • emails between Vance and one staff member from each of Adams, Finlayson, Tolley, PM’s offices.
  • phone records for Ministers and staff extensions for contact to and from two “numbers of interest” (Vance’s landline and mobile). Inquiry staff stated “Please note, we do not want the call logs of the two numbers of interest. That is outside the parameters of our Inquiry".
Parliamentary Services is essentially not covered by the Privacy Act.

In late July the Committee stated that
The Privileges Committee met this afternoon to consider how to proceed with its examination of the question of privilege that stands referred to it. 
The committee has been tasked with examining the particular incident involving the release of information from parliamentary information and security systems which led to the question of privilege being referred, and a more general issue about developing principles for the access to and release of information from parliamentary information and security systems. 
The committee has decided to commence its consideration by establishing the facts leading up to the referral of this question of privilege. The committee will be inviting evidence from those directly involved in this matter, and intends to hear that evidence publicly on 21 August 2013. Further evidence may be invited at a later date.
The initial referral to the Committee stated that
The exercise of intrusive powers against members threatens members’ freedom to carry out their functions as elected representatives and the House’s power to control its own proceedings and precincts, without outside interference. 
The release of information from parliamentary information and security systems relating to the movements of journalists within the parliamentary precincts has also been questioned. Although the media do not necessarily participate directly in parliamentary proceedings, they are critical to informing the public about what Parliament is doing and public confidence in Parliament. Actions that may put at risk journalists’ ability to report freely are a significant concern. 
The parliamentary precincts are also a workplace for both parliamentary employees and the employees of government departments. Access to parliamentary information and security systems data of any sort must, therefore, also have regard to the respective rights of employers and employees, and the role of the Speaker as a responsible Minister, and the Prime Minister and his ministers. 
I believe some sort of common understanding is required to ensure on the one hand that the functioning of the House and the discharge of members’ duties is not obstructed or impeded, but on the other that the maintenance of law and order and the ability to investigate and prosecute offences committed within the parliamentary precincts is preserved. 
The concerns raised are ones that should be looked at by the Privileges Committee. It is the body the House has established to investigate such matters. It has the power to hear evidence and formulate recommendations for the House that will provide guidance for the future.
The Committee is now considering -
  • Who gave the authority for personal information to be handed to the inquiry and what was the basis for their decision making? 
  • What principles should Parliament follow in releasing personal information? 
  • Should metadata, such as swipe card access records, be considered personal information in the same way the contents of emails and phone calls are? 
  • What Parliamentary protocols should be developed to manage the release of personal information in the future? 
  • Does the concept of ‘ownership’ of information have any relevance and should weight be given to individual consent?

Self-regulating Laundries

One of my friends - dream on - hopes to become fabulously wealthy so that he can park his humungously big yacht off the Caymans (or a similar jurisdiction) as the basis for writing a participant observation report on tax havens. (I would more modestly skip the autoethnography - no need for references to Latour and Bourdieu - and simply enjoy the money.) If you can't report on your own experiences with financial engineering in the British Virgin Islands, Channel Islands, Zug and so forth you can rely on official reports and statements by officials or practitioners. '

Creating Cayman as an Offshore Financial Center: Structure & Strategy since 1960' by Tony Freyer & Andrew Morriss in (2013) Arizona State Law Journal notes that
The Cayman Islands are one of the world’s leading offshore financial centers (OFCs). Their development from a barter economy in 1960 to a leading OFC for the location of hedge funds, captive insurance companies, yacht registrations, special purpose vehicles, and international banking today was the result of a collaborative policy making process that involved local leaders, expatriate professionals, and British officials. Over several decades, Cayman created a political system that enabled it to successfully compete in world financial markets for transactions, participate in major international efforts to control financial crimes, and avoid the political, economic, racial, and social problems that plague many of its Caribbean neighbors. Using archival sources, participant interviews, and a wide range of other materials, this Article describes how the collaborative policy making process developed over time and discusses the implications of Cayman’s success for financial reform efforts today. 
The authors comment that Offshore financial centers (“OFCs”) generally and the Cayman Islands in particular have inconsistent reputations. While critics of offshore jurisdictions frequently assert that OFCs are under-regulated — as with Ronen Palen’s complaint that OFC transactions “are not only free from the regulation of the country in which the bank resides, but are subject to no mandatory regulations whatsoever” — others have seen them as an important part of the world financial system. For example, Prof. William Vlcek termed them “nodal points in the web of banks and financial institutions that interlace the world via electronic connections.” And the Economist Intelligence Unit (“EIU”) published a series of reports on offshore jurisdictions between 1972 and 2002 that showed how Cayman exemplified efforts by OFCs to compete regionally and globally for economic growth through promotion of high value financial products. Although the EIU reports conceded that these growth strategies — as with some strategies used by onshore jurisdictions — sometimes involved illegal practices or political corruption, they noted that Cayman and other OFCs pursued development and competitive advantage through effective regulation that was often consistent with global best practices. If there are OFCs playing constructive roles within the international financial framework, different legal and policy responses to the regulatory competition they provide will be appropriate than if they are merely shady locales ‘subject to no mandatory regulation whatsoever. ’Putting the development of OFCs like Cayman into the proper context is thus essential at a time when there are efforts underway to alter the international financial system and when OFCs are regularly at the center of U.S. and EU political controversies.
This Article employs sources including participant interviews and archival evidence to argue that the Caymanian financial center emerged from, and evolved with, a constitutional structure that legitimated collaborative policymaking among the key stakeholders. Resting on Cayman’s social stability, this constitutional legitimacy promoted a regulatory and tax competitive advantage that avoided capture and resisted both corruption and abuse better than many other jurisdictions.It shows how Cayman developed an effective and cost-effective regulatory framework that enabled it to grow from essentially a barter economy in 1960 with no banks to a sophisticated, developed economy with hundreds of banks playing a major role in the world economy by the 1980s.
Cayman’s development must be examined within the context of broader constitutional trends within Britain’s dissolving post-war Empire. In the Caribbean, Cayman, and other jurisdictions that maintained ties to the colonial powers — as well as those colonies that opted for independence, like Jamaica and the Bahamas — diversified from commodity economies into financial and tourist centers. Cayman was unusual, however, because its government constructed a financial regulatory system that enabled the territory to achieve more economic development and diversification than its peers, bringing it the highest per capita wealth in the Caribbean and put Cayman on par with the prosperity of Britain. This success is all the more remarkable because the Islands began from a base of a barter economy built on subsistence agriculture and the export of labor. Thus, between 1960 and 1980, the Cayman Islands went from being one of the least developed — both legally and economically — jurisdictions in a poorly developed region to surpassing its former colonial power in GDP per capita terms, and developing a sophisticated body of financial law.
The evolution of the British constitutional structure for the dependent territories — including checks and balances and the rule of law—steadily expanded Cayman’s autonomy after 1959. Indeed, although prior to World War II, “at the root of the relationship between the colonial powers and their possessions . . . was the apparent power of the former to control directly the economic development of the latter,”the new constitutional orders that arose after the war created policy space within which even those jurisdictions that did not choose to become independent gained greater control over their development. This constitutional autonomy enabled collaboration among Caymanian and UK officials; and Caymanian and resident expatriate lawyers and financial professionals to implement a series of financial-diversification strategies that incorporated, and eventually helped develop, global best practices in the finance sector. This became a quasi-institutionalized effort in which the government and business sectors worked together to develop an effective regulatory structure that both safeguarded the jurisdiction’s reputation and facilitated profitable financial activity that provided law firms, accountants, insurance companies, company agents, and others with profits and the government with resources from fees. We argue that this produced regulatory efforts focused on developing and preserving the jurisdiction’s reputational capital, enabling it to compete for international business by offering a low cost regulatory environment that credibly committed to controlling criminal activity and fraud. 
In Alfred Chandler’s classic thesis, strategy leads business structure. In Cayman, the constitutional structure enabled the competitive strategy that yielded the OFC, and enabled further evolution of the constitutional structure in pursuit of the strategy. Cayman’s success is due both to the entrepreneurial activity of its business sector and the cost-effective regulatory structures which enabled Cayman to avoid killing the goose that laid the golden eggs: either by stifling it through over-regulation or letting it be destroyed by corruption, crime, or fraud through under-regulation. In addition, Cayman successfully fostered an entrepreneurial climate that brought it new businesses and was so effective as to provoke onshore jurisdictions into closing off access to their economies to Caymanian entities. Cayman’s success in navigating twice between Scylla and Charybdis provides valuable lessons for financial regulators elsewhere.
British overseas jurisdictions were generally well positioned to meet the growing post- war demand for jurisdictions providing opportunities to structure businesses and personal affairs to reduce tax.Not only was there a long history of such activity in the Bahamas, Bermuda, the Channel Islands and Isle of Man, but the City of London had the cluster of accounting, legal, and banking services necessary to design and implement strategies that went beyond simple relocation of assets. Further, British economic and tax policy developments during the 1950s and 1960s gave overseas territories an incentive to meet that demand, both through the capital controls that restricted asset flows out of the post-war “Sterling Area” and through a combination of increasing tax and surtax rates, discussion of wealth taxes, and other measures that motivated wealthy individuals to seek alternatives. At the same time, the post-war push for decolonization created the political space needed by the overseas territories to exploit this demand by reducing British control and empowering interests within the British government which focused on the territories’ economic sustainability rather than on the impact “tax havenry” might have on the British Treasury. Thus, just as Britain was increasing overseas territories’ autonomy with the goal of reducing their demands on British taxpayers, it was also creating conditions that provided a market for OFC services which City firms were happy to help drive.Combined with the development of the telex and long distance telephone systems — which by the 1950s made it “almost as easy to transact business with a bank in a foreign centre as with one just across the road” — there was now an opening for new jurisdictions to enter the market. By contrast, France’s constitutional relationship to the overseas territories it retained after decolonization made those areas integral parts of the French state, leaving no policy space for those jurisdictions to follow such a strategy.
Part I explains how an economy based on seamen remittances and subsistence agriculture produced the 1960 Companies Law, the start of all subsequent tax, banking, and commercial- instruments legislation constituting the Cayman financial center using participants’ accounts. We also explain the law’s origin within the growth of a more open Cayman government and the creation of the 1959 Constitution that formally ended Jamaica’s administrative control. Part II examines the constitutional structure and strategies promoting the first phase of financial diversification up to 1968. At that point, the racial unrest and turmoil surrounding the Bahamas’ independence brought new financial business to Cayman; it also consolidated collaboration among Caymanian elected officials, UK and Cayman civil servants; and expatriate lawyers and financial professionals in shaping financial policymaking. 
The Bahamas’ problems also demonstrated how the more stable Caymanian interracial politics combined with British constitutionalism and colonial status to provide a competitive advantage within the Caribbean and relative to other British OFCs. Part III turns to the role of the 1972 Cayman Constitution that increased self-government, linking elected officials in the Legislative Assembly and the Executive Council. The link strengthened the collaborative policymaking model. This allowed collaboration among resident expatriate and Caymanian legal professionals as well as Caymanian (both elected and unelected) and UK officials.
By 1980 the constitutional structure enabled not only proliferating new, globally-competitive, diversified financial products, it also successfully contributed to social stability— including the encouragement of Caymanian employment—through interracial “Team” coalitions rather than ideologically-polarized or rent-seeking party politics. Part IV examines how during the mid-1980s the constitutional structure enabled Cayman to join the United States and UK in signing international agreements that policed money laundering and drug trafficking. In 1993 constitutional amendments conferred further internal self-government and in 1996 the new Caymanian government created an innovative financial regulatory body, the Cayman Island Monetary Authority (CIMA), which further enhanced Cayman’s competitive position. Part V evaluates claims made from 1997 to the 2009 UK grant of full constitutional self-government that Cayman poorly policed abuse of its financial products. The discourse also suggested that the appearance of party politics, charges of corruption, and budget deficits prompting UK intervention challenged the social order underpinning the Cayman financial center.

Differentials and Property

'Fool's Gold: an Illustrated Critique of Differential Privacy' by Jane R. Bambauer, Krish Muralidhar & Rathindra Sarathy in (2014) 16 Vanderbilt Journal of Entertainment & Technology Law argues that
Differential privacy has taken the privacy community by storm. Computer scientists developed this technique to allow researchers to submit queries to databases without being able to glean sensitive information about the individuals described in the data. Legal scholars champion differential privacy as a practical solution to the competing interests in research and confidentiality, and policymakers are poised to adopt it as the gold standard for data privacy. It would be a disastrous mistake. 
This Article provides an illustrated guide to the virtues and pitfalls of differential privacy. While the technique is suitable for a narrow set of research uses, the great majority of analyses would produce results that are beyond absurd: average income in the negative millions, or correlations well above 1, for example. 
The legal community has been misled into thinking that differential privacy can offer the benefits of data research without sacrificing privacy. In fact, differential privacy will usually produce either very wrong research results or very useless privacy protections. Policymakers and data stewards will have to rely on a mix of approaches: perhaps differential privacy where it is well-suited to the task, and other disclosure prevention techniques in the great majority of situations where it isn’t.
'Confidential Information as Property?' by Tanya Aplin in (2013) 24(2) King's Law Journal 172-201 comments
There has been a long-standing debate about whether the protection of confidential information is a property right. The eminent Professor Finn once described this as ‘[p]erhaps the most sterile of debates’. So why risk venturing into this arena again? My motivation for doing so is the Court of Appeal decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council (‘Veolia’) where it was held, with fairly sparse reasoning, that Article 1 of the First Protocol of the ECHR (‘A1P1’) embraced confidential information. This seemed a surprising conclusion in light of substantial authority to the contrary in English law and the scholarly views on this issue, but also in terms of the potential impact of such a view, i.e. creating a human or fundamental right to the protection of confidential information. Therefore, I want to revisit the question of whether the protection of confidential information that is provided by the (English common law) action for breach of confidence is or should be recognised as property, in particular from the human rights perspective. I intend to tackle this question by first outlining the Veolia decision and subsequently critiquing it in light of relevant authorities. I will then explore the conceptual difficulties of characterising confidential information as ‘property’ and finally, some of the potential risks of doing so.


South Africa has moved towards a comprehensive national data protection regime, with passage by the South African Parliament of the Protection of Personal Information Bill [PDF], aka POPI.

The Billis expected to come into force by the end of the year, after signature by the President. It was introduced in August 2009 and reflects the EU Data Protection Directive 95/46/EC, along with recognition in the South African Constitution of human rights.

Accordingly it features eight data protection principles. The Act will establish a national Information Protection Regulator (IPR),  with investigatory and enforcement authority that includes the power to impose fines of up to ZAR 10 million.  There will be criminal sanctions of up to 10 years' imprisonment for obstruction of IPR activities .

The Act will enshrine a mandatory data breach notification requirement, with reporting to the IPR  and data subject, unless the identity of such data subject cannot be established.

The Bill provides for a  one-year transitional period for corporate compliance, weakened by scope for the IPR to extend that grace period to three years.

The Parliament stated that
The Bill gives expression to the right to privacy provided for in the Constitution. The right to privacy includes the right to protection against unlawful collection, retention, dissemination and use of anyone’s personal information. The Bill is comprehensive and regulates the manner in which personal information may be processed, by establishing conditions in harmony with international standards that prescribe the minimum threshold requirements for the lawful processing of personal information.
The Bill is to
To promote the protection of personal information processed by public and private
bodies; to introduce information protection principles so as to establish minimum
requirements for the processing of personal information; to provide for the
establishment of an Information Protection Regulator; to provide for the issuing of
codes of conduct; to provide for the rights of persons regarding unsolicited
electronic communications and automated decision making; to regulate the flow of
personal information across the borders of the Republic; and to provide for
matters connected therewith.
The Preamble to the Bill indicates that
Recognising that—
● section 14 of the Constitution of the Republic of South Africa, 1996, provides that everyone has the right to privacy;
● the right to privacy includes a right to protection against the unlawful collection, retention, dissemination and use of personal information;
● the State must respect, protect, promote and fulfil the rights in the Bill of Rights;
And bearing in mind that—
● consonant with the constitutional values of democracy and openness, the need for economic and social progress, within the framework of the information society, requires the removal of unnecessary impediments to the free flow of information, including personal information;
And in order to—
● regulate, in harmony with international standards, the processing of personal information by public and private bodies in a manner that gives effect to the right to privacy subject to justifiable limitations that are aimed at protecting other rights and important interests.
The Purpose of the Act (Chapter 1) is to
(a) give effect to the constitutional right to privacy, by safeguarding personal information when processed by a responsible party, subject to justifiable limitations that are aimed at—
(i) balancing the right to privacy against other rights, particularly the right of access to information; 
(ii) protecting important interests, including the free flow of information within the Republic and across international borders;
(b) regulate the manner in which personal information may be processed, by establishing principles, in harmony with international standards, that prescribe the minimum threshold requirements for lawful processing of personal information;
(c) provide persons with rights and remedies to protect their personal information from processing that is not in accordance with this Act; and
(d) establish voluntary and compulsory measures, including an Information Protection Regulator, to ensure respect for and to promote, enforce and fulfil the rights protected by this Act.
The Act must be interpreted in a manner that—
(a) gives effect to the purposes of the Act set out in subsection (1); and 
(b) does not prevent any public or private body from exercising or performing its powers, duties and functions in terms of the law as far as such functions, powers and duties relate to the processing of personal information and such processing is in accordance with this Act or any other legislation that regulates the processing of personal information.


Another round in the Hancock wars, with the Supreme Court of New South Wales in Hancock v Rinehart [2013] NSWSC 1402 granting an interlocutory application by the children of minerals and media mogul Gina Hope Rinehart - Australia's richest woman - for access to documents produced under subpoena by a non-party.

Plaintiffs John Langley Hancock and Bianca Hope Rinehart served a subpoena on PricewaterhouseCoopers (PWC) dated 6 August 2013. PWC is not a party to the dispute. The subpoena appears to relate to advice by PWC to Rinehart and one of the companies she controls regarding the supposed tax liabilities facing her children if a family trust vested at a particular time. That advice was reportedly referred to by one of Rinehart's executives in contact with John Hancock. (Hancock appears to have received strikingly different advice from the Australian Taxation Office.)

PWC produced documents to the Court on 16 August 2013. First access was granted to Rinehart as defendant. Rinehart objected to the plaintiffs being granted access to redacted portions of the documents produced by PWC. Her children sought access to the documents.

They made several contentions, arguing that Rinehart -
  • failed to discharge the onus of proving that the redacted portions of the documents are in fact privileged.
  • waived privilege in the documents by her "positive assertion about a state of mind to which legal advice was likely to have contributed"
  • is not entitled to claim privilege over the documents vis-a-vis the beneficiaries on the basis that she, as trustee, and the plaintiffs, as beneficiaries, have a joint interest in any advice obtained by the trustee
  • waived privilege by her conduct in disclosing the legal advice to PWC and by relying upon it in the letter of 3 September 2011
The NSWSC held that Rinehart waived privilege in the redacted portions of the documents produced and that it was appropriate access to the documents should be given to the applicants.

Onwards to the next stage of the dispute, with a hearing scheduled for next month. Journalists, legal practitioners and academics remain agog.


My interest in Tintin centres on slash but I was interested to read 'A Human Rights Reading of Tintin' by Monash University academic Sarah Joseph.

She indicates that -
This paper analyses Herge's Tintin books in terms of the politics of the series, as a precursor to its human rights messages, in particular regarding racism, sexism and due process. Politically, Tintin swings from right to left. Despite heavy (and often justified) criticism of the series as racist, Herge's books are more nuanced, as they include conscious if clumsy anti-racist messages.
Ultimately, Tintin is a quintessentially European product of his time, and the books are in fact a unique chronicle of one half of the twentieth century, warts and all. Nevertheless, the warts (and even Herge's failure to recognise them) have not stopped the ongoing globalisation of the Tintin books' appeal many decades after their creator's death. ...
The books are essentially “adventures” in which our hero grapples with and finally defeats various “bad guys”. Yet the Tintin series is much more than that: it is a quintessential European cultural artifact of the twentieth century which has had a global impact. It is therefore instructive to examine the connections between Tintin and human rights issues.
Of course, a “human rights” assessment is not a litmus test on its own for an evaluation of the worth of the Tintin series, something which is very personal in any case. Hergé’s prime aim was after all to entertain children rather than promote (or denigrate) human rights. Nevertheless, as a prominent and popular cultural product, Tintin implicitly conveys human rights messages (for example, regarding the freedom, equality and dignity of human beings) to its (largely) young readers. In this article, I examine what those messages are and why they are as they are, as another piece in the enormous jigsaw of understanding how attitudes towards (or against) human rights have developed.

25 September 2013

The Administrative State

'The Administrative State: Law, Democracy, and Knowledge' by Adrian Vermeule - a chapter in the Oxford Handbook of the United States Constitution (2013) argues that
The administrative state is the central and unavoidable topic of modern constitutional theorizing. The single most striking difference between the constitutional arrangements of the late 18th century and today – “constitutional” in the sense of the actually obtaining structures and practices of government -- is that the modern state is, by any conceivable measure, largely an administrative state. In the institutional landscape of the late 18th century and well into the 19th, one may see precursors of the administrative state, but one simply does not observe the massive and elaborately reticulated bureaucracy that structures and constitutes the experience of government for almost all citizens.
The phenomenon is so vast and variegated that it is hard even to know how to approach it. Before we can explain or evaluate the administrative state, we need an organizing framework to bring some sort of intellectual order to the problems. In what follows I offer three such frameworks, respectively grounded in constitutional law, in democratic theory, and in institutional epistemology. The three are not mutually exclusive, nor do I argue that one is superior to another. Each of the three interacts with the others and, indeed, is partly constitutive of the others, as I will try to show. The final test of each framework is its utility, its fertility for producing substantive insights. What I do claim is that each framework makes sense of debates that actually occur among students of the administrative state, and supplies those debates with a regulated field on which the intellectual melee can occur.
The first framework involves the constitutionality of the administrative state (Part I), the second its democratic credentials (Part II), the third its epistemic capacity (Part III). Each implicates a set of debates with somewhat different, although overlapping, sociological substrates. The debate over constitutionality takes place principally among academic lawyers; the debate over democratic credentials takes place in a mixed community of academic lawyers, political theorists and political scientists; the debate over the epistemic capacity of the administrative state takes place among lawyers, economists, political economists, and policy analysts.
After describing each framework, I will ask how each affects the others (Part IV). Here I suggest that constitutionalists, democratic theorists, and epistemic technocrats – acting in the best of faith -- each see the concerns of the others as a source of unavoidable side constraints to be respected, while seeing their own concerns as a source of positive goals to be pursued. As a logical matter, not all of these perspectives can be institutionalized at any given time, although any one or two can be. The result is an endlessly shifting series of alliances, akin to a game of “divide-the-dollar” among three players – a game which has no stable core, no equilibrium solution. Law, democracy and knowledge will always contend for mastery of the administrative state.
He concludes that
The administrative state is a site or terrain of endless tension, interaction and conflict among the three frameworks and their proponents. Any item in the triad may and routinely does come into tension or conflict with both of the other. Constitutionalists argue that even the claims of democratic accountability and expertise cannot trump the rule of law. Democrats argue that both experts and lawyers should be “on tap, not on top”; ultimately, citizens must decide through ordinary democratic processes what the scope and structure of the administrative state should be. Civil servants, technocrats, experts on advisory committees, and other knowledge workers tend to see both political accountability and legal constraints as distractions from, or interference with, their welfare-maximizing projects.
Tension and conflict are only part of the picture. As illustrated throughout, each framework tries to subsume the others, at least in part. Constitutionalists suggest that democratic accountability is itself a constitutional value; proponents of the “unitary executive,” who are hostile to independent agencies, are especially likely to argue that accountability running from the agencies, through the President, to the electorate is a sort of master-value of the Constitution. Democrats argue that democracy itself requires that law be available to constrain agencies and their experts to follow the commands of legislative representatives. Technocrats want optimal democracy and optimal legality, insofar as democracy and law themselves help to promote the welfare of the relevant population. And so on around the circle. The point is not that the proponents of one framework ignore the claims of the others; rather it is that those claims are taken into account, even in the best of faith, in a way that makes conflict inevitable at the level of the overall system. Each framework treats its own master principle as the criterion by which the claims of the others are assessed. To the constitutionalists, for example, democratic accountability is a value just insofar as the Constitution makes it so, and not an inch farther.
In practice, furthermore, each of these camps tends to see the claims of the other camps as side constraints to be complied with at the lowest possible cost, while seeing their own concerns as goals to be pursued to the maximum possible extent. It is not that policy experts, for example, think that law and democracy are worthless; what they tend to think is that social welfare (somehow defined) should be pursued unless there is some indisputable legal or democratic override. Likewise, democrats abstractly respect the role of constitutionalism and the claims of expertise, both of which are indispensable components of a well-functioning democratic order, but they see those values as collateral obligations to be satisfied while in pursuit of the main goal, that of democratic participation and accountability (somehow defined). And likewise for lawyers, who tend to see full compliance with constitutional norms as the central aim of their work, although they are willing to allow a sort of override to legality if compliance with law would produce disastrous policy outcomes or threaten serious harm to democracy. The override is triggered only once a high threshold of harm is reached. However sharp the disagreements about what law requires, it is the rare lawyer who cheerfully acknowledges that legal violations by the institutions of the administrative state, in pursuit of other goals, should be seen as acceptable whenever the overall balance of reasons so warrants.
Given scarcity of time and other resources, it seems unlikely in the extreme that the administrative state could be simultaneously perfectly democratic, perfectly informed, and perfectly lawful. And it is not merely unlikely, but indeed logically impossible, that more than one of the triad of law, democracy and knowledge could simultaneously be the sole maximand or goal of the system. If the proponents of each framework hold the structure of beliefs and motivations that I have claimed, then it is inevitable that all but one of the camps is condemned to disappointment at any given time. The observable result is an endless series of shifting alliances, in which legalists sometimes side with experts against “political interference”; experts and democrats sometimes join forces to curtail the claims of lawyers and judges; and democrats and lawyers sometimes ally to curb the pretensions of independent technocrats and experts. The administrative state resembles a divide-the-dollar game with three players, in which any two players may agree to divide the dollar between themselves, freezing out the third. The problem is that the players can reach no resolution that is stable in the long run, because a coalition of any two players can be broken by an improved offer from the losing party. Like the divide-the-dollar game with three players, the administrative state has no core, no equilibrium. It is a terrain on which law, democracy and knowledge endlessly assert their respective claims.


'Translations in Early Copyright Law' by Patrick Russell Goold - whose article on copyright academics in norm construction was highlighted here - notes that
 Copyright law provides authors with a right to adapt their literary and artistic works. For example, a novelist has the exclusive ability to translate his work, to make theatrical versions, or to transform it into a motion picture.
Scholars believe this right is a modern addition to the law. The dominant historical account states that early copyright gave authors no exclusivity over adaptations. Under this regime, only the production of a near verbatim copy could infringe the author’s right. Over time, however, the scope of copyright has expanded and now permits authors to control the market for various types of adaptation. The expansion of scope has caused concern for some scholars who believe copyright is rapidly becoming too broad.
This article provides a response to that dominant historical account. It focuses on one important type of adaptation: the translation of books. It asks the question: what was the legal status of unlicensed translations in early copyright law? Using archival sources it demonstrates that copyright holders maintained more control over the market for translations than we previously appreciated. Demonstrating that early copyright holders exercised some control over translations makes copyright scholars rethink the commonly held view that copyright is consistently expanding.
Goold comments that
Copyright today is often viewed as a sprawling behemoth, dictatorially governing all aspects of artistic creation. In particular, the scope of the author’s right appears to be constantly expanding, conferring on him an ever-increasing ability to control how others use and interact with his literary and artistic work. The law provides the author not only with an exclusive ability to reproduce his work verbatim,  but also allows him to stop those who wish to adapt his work into new forms. Under this right, the author of a novel, for example, would have the exclusive ability to translate his work, to shorten it, or to transform it into a film. More controversially, there are those who believe this allows the author to control all the channels through which his work reaches the public. Under this broad view, the following activities have been viewed as copyright infringements: writing a Russian language novel about a magical girl called Tanja Grotter (bearing some resemblance to J.K. Rowling’s Harry Potter); taking a seven and a half second sample of a sound recording to incorporate into the hit single, the Macarena; and creating study aids for students that reproduced small parts of copyrighted plays. The extension of copyright in this way has alarmed some7 and one US commentator has accordingly called this the “most troublesome” aspect of modern copyright.
Scholars, and society more generally, view this as a uniquely modern phenomenon. The dominant historical account states that early copyright law provided authors with no right to control adaptations of their work. Rather copyright began as a narrow privilege only to print books and its scope grew over time.  In truth, however, this issue has not received detailed historical examination. We are still unsure of how early copyright law approached the issue of adaptations. To rectify this, Professor Ronan Deazley recently examined the legal status of unlicensed abridgments under the first copyright law, the Statute of Anne.
However, the first case of adaptation that courts dealt with concerned unlicensed translations, not abridgments. This article, therefore, takes another look at the history of adaptations in copyright. It asks the question: what was the legal significance of unlicensed translations in early copyright law? Whereas prior research has suggested that early copyright provided authors with no right to control translations, this article finds the issue to be more complicated than previously appreciated. Although one famous case held that translations did not infringe the law, archival sources suggest that copyright holders maintained some control over them. Views on this issue were ultimately divided due to the special importance of translations to the Enlightenment Era’s ideal of knowledge diffusion. Translating a book opened the work up to a new market. More people could read and learn from it. Thus, allowing people to freely translate could potentially help the diffusion of new ideas throughout society. On the other hand, however, others worried about the quality of these uncoordinated translations. If the original bookseller did not control the translation process, the work may easily be mistranslated. Poor translations would, counter to the Enlightenment ideals, allow misinformation and falsehoods to spread.
Part I of this article recounts the dominant belief that translations were not viewed as copyright infringements in early copyright law. Part II questions that account. Evidence from the booksellers’ internal court, letters patent granted by the monarch, and early Chancery Court documents suggests that booksellers maintained more control over translations than previously understood. Part III then turns to the social significance of translations. This part argues the complex legal status of translations was a result of their equally complex role in knowledge diffusion. Doing so provides a partial response to a common view that copyright is constantly expanding. That translations received some protection from the law’s birth makes today’s modern adaptation right look less out of step with its historical foundations.