23 November 2013

Upwards, Ever Upwards

The cheerleaders at the International Intellectual Property Alliance (IIPA) have released another report on copyright statistics, commenting that
For the first time, the core copyright industries added over US$1 trillion in value to the U.S. economy in a single year, accounting for almost 6.5% of the total U.S. GDP.
The IIPA - representing enterprises "creating, producing, distributing, broadcasting or exhibiting copyright materials, including computer software, videogames, books, newspapers, periodicals and journals, motion pictures, music, and radio and television programming" claims in Copyright Industries in the US Economy: The 2013 Report that "the core copyright industries" -
  • employed nearly 5.4 million U.S. workers in 2012, accounting for 4% of the entire U.S. workforce, and 4.8% of total private employment in the U.S, with jobs paying an average of US$85,644 (33%) more than the rest of the workforce. 
  • grew at an aggregate annual rate of 4.7%, more than twice the rate of growth for the U.S. economy (ie 2.1%). 
  • accounted for US$142bn in foreign sales and exports, "far more than sectors such as aerospace, agriculture, food, and pharmaceuticals and medicines". 
  • in 2012, the value added by the core copyright industries to US GDP exceeded US$1 trillion dollars for the first time, accounting for nearly 6.5% of the US economy. The value added by the total copyright industries to GDP exceeded US$1.7 trillion dollars, accounting for 11.25% of the US economy. (Total copyright industries include those which are “partial copyright,” “non-dedicated support,” and “interdependent industries.”) 
  • the total copyright industries employed more than 11.1 million workers in 2012, accounting for 8.35% of all U.S. employment, or 10% (9.99%) of all private employment in the United States. 
  • average annual compensation paid to employees of the total copyright industries in 2012 - US$75,926 - exceeds the US average annual wage by 18%. 
  • sales by select U.S. copyright sectors in overseas markets amounted to US$142bn in 2012, a significant increase over previous years. 
  • as a comparison, the foreign sales of select copyright industry sectors exceed foreign sales of other major U.S. industries, including aerospace exports (US$106bn), U.S. agricultural exports (US$70bn), food (US$64.7bn) and pharmaceuticals and medicines (US$51bn).
The IIPA media release unsurprisingly quotes the co-chair of the Congressional Creative Rights Caucus as stating "in reaction to the study" that it
demonstrates that not only do U.S. copyright industries develop the creative works that inspire and entertain so many, they also provide high paying jobs and spur economic activity, consistently contributing to a trade surplus and adding substantial value to our GDP. This is why we must preserve and protect the works of our creative industry, so they can continue to drive economic growth and innovation with a uniquely American product.
And the payoff? Anyone who's read the leaked IP chapter from the TransPacific Partnership Agreement will be unsurprised to discover that the IIPA claims
To foster continued growth of this dynamic sector, we need strong and modern copyright laws that take into account changes in technology and the continuing harm caused by copyright piracy, especially as legitimate digital distributors continue to emerge. Vigorous enforcement of those laws is also critical to ongoing efforts to create and preserve good U.S. jobs, reduce persistent trade deficits, and foster durable economic growth.

Data Breaches and Dating

In a piece for TheConversation I've highlighted the willingness of The Australian, ie the News group flagship, to disregard the privacy of ABC journalists by publishing the salary details of those individuals.

If there is a compelling public interest in the disclosure of salaries (and News has as yet not made a case) we could presumably expect to see how much journalists at The Australian are getting paid and indeed whether or not they are receiving any benefit from outside News.

The disclosure in that newspaper is consistent with Rupert Murdoch's reported disavowal of his apology to the House of Commons inquiry into egregious disregard by his London executives and journalists of the privacy of celebrities and non-celebrities alike.

As yet the Australian Privacy Commissioner has been silent about News' disrespect for privacy. That silence is deeply regrettable and is not excused by a legalistic reliance on the media carve-out provided by s 7B of the Privacy Act 1988 (Cth). Irrespective of whether or not the OAIC has statutory power, the agency does have scope to exercise soft power, ie to use its moral authority to quickly and strongly condemn an abuse of privacy.

Failure of the OAIC to do so, yet again, raises questions about its regulatory capacity that go beyond disquiet about the adequacy of its formal powers, its resistance to provision of information under the Freedom of Information Act, its lack of resources (and more specifically its lack of technical expertise) and its hostility to legitimate criticism.

The OAIC's silence coincides with release of public submissions to the Australian Law Reform Commission regarding that body's issues paper about a statutory cause of action for serious invasion of privacy.

It also coincides with media coverage of a data breach involving Australian online dating service Cupid Media, with a hacker reportedly accessing client names, email addresses, unencrypted passwords and birthdays for around 30 million customers. The data apparently relates to current and "old, inactive or deleted accounts". Cupid's security regime appears to have been less than state-of-the-art and it would have been better, for example to encrypt the data or take information about inactive accounts wholly offline.

Its spokesperson offered the standard apology, being quoted as stating
we are committed to investigate this matter further and make any additional improvements still required. Protecting our customers' privacy and data is important to us and we will continue to make additional investments in improved security for our members. We sincerely apologise for the inconvenience this has caused our members.

Disasters

 'Pandemic Planning as Risk Management: How Fared the Australian Federation?' by Terry Carney, Richard Bailey and Belinda Bennett in (2012) 19(3) Journal of Law and Medicine 550 comments
The role of law in managing public health challenges such as influenza pandemics poses special challenges. This article reviews Australian plans in the context of the H1N1 09 experience to assess whether risk management was facilitated or inhibited by the “number” of levels or phases of management, the degree of prescriptive detail for particular phases, the number of plans, the clarity of the relationship between them, and the role of the media. Despite differences in the content and form of the plans at the time of the H1N1 09 emerging pandemic, the article argues that in practice, the plans proved to be responsive and robust bases for managing pandemic risks. It is suggested that this was because the plans proved to be frameworks for coordination rather than prescriptive straightjackets, to be only one component of the regulatory response, and to offer the varied tool box of possible responses, as called for by the theory of responsive regulation. Consistent with the principle of subsidiarity it is argued that the plans did not inhibit localised responses such as selective school closures or rapid responses to selected populations such as “cruise ship” passengers.

22 November 2013

Tracked

The NSW Information & Privacy Commissioner (counterpart of the OAIC) has made a formal Direction under s. 41(1) of the Privacy and Personal Information Protection Act 1998 (NSW) in relation to Youth on Track.

The Direction - in essence delegated legislation that represents an exemption from provisions of the key NSW privacy statute - "has been made to permit the collection, use and disclosure of personal information by participating agencies for the purposes of Youth on Track".

Youth on Track is "a trial strategy for reducing juvenile offending through improved early intervention and post release support". It is administered by NGOs under the state Department of Attorney General & Justice, with the aim of -
a) identifying young people at risk of offending;
b) identifying needs that contribute to the risk of those young people offending; and
c) addressing those needs at an early stage before offending becomes entrenched, through case management and the provision of appropriate evidence-based interventions for the young person.
...The Program involves the collection, use and disclosure/exchange of personal information about a potential participant, his or her family and social environment based on known risk factors and protective factors that can be used to predict the risk that a young person will offend or re-offend. The risk factors are inter-related and cumulative. ...
This involves collection and use by the NGO of personal information from multiple sources that the young person and their parents/guardians have consented to the NGO collecting their personal information from, the use to which that personal information will be put, and the disclosure of that personal information to other parties. The personal information collected mainly relates to the young person, but may include personal information about family, peers and other third parties.
Personal information in paragraph 3.14 relating to third parties will only be collected by the NGO from a public sector agency if the third party consents to the collection, use and disclosure of that personal information by the NGO.
Information exchange potentially encompasses -
Category A – DAGJ agencies
  • NGO 
  • Youth on Track Unit
Category B – Agencies that may already be providing case management to the young person
  • Community Services 
  • Ageing Disability and Home Care 
  • Department of Education & Communities 
  • NSW Health
Category C – Agencies in respect of which the young person and/or parents/guardian may consent to share personal information for the purposes of Youth on Track

  • Ageing, Disability and Home Care 
  • Births Deaths and Marriages 
  • Bureau of Crime Statistics and Research (BOCSAR) 
  • Community Services 
  • Department of Education & Communities (School and TAFE) 
  • NSW Health including Justice Health 
  • NSW Housing 
  • Juvenile Justice 
  • Legal Aid and/or Aboriginal Legal Services 
  • State Debt Recovery Office 
  • Such of the following organisations or individuals as may be specified on the consent form signed by the young person in the particular case: Counsellor Drug and alcohol services, Medical practitioner , Non-government agencies, Treatment facilities, Youth Accommodation Services (refuges), Any named individual(s) 
The Commissioner indicates (at 4.2 and 4.3) that
I am satisfied that the public interest in making this Direction is greater than the public interest in requiring the participating agencies to comply with the information protection principles contained in Pt. 2, Div. 1 of the PPIP Act.
A corresponding direction applies in respect of health information under the HRIP Act.

ALRC Disability Inquiry

The Australian Law Reform Commission's issues paper [PDF] regarding Equality, Capacity and Disability in Commonwealth Laws reflects
movement from viewing persons with disabilities as ‘objects’ of charity, medical treatment and social protection towards viewing persons with disabilities as ‘subjects’ with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.
The issues paper asks the following questions -
United Nations Convention on the Rights of Persons with Disabilities
Q1. Australia has an Interpretative Declaration in relation to Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. What impact does this have in Australia on: (a) provision for supported or substitute decision-making arrangements; and (b) the recognition of people with disability before the law and their ability to exercise legal capacity?
National Disability Strategy 2010–2020
Q2. What changes, if any, should be made to the National Disability Strategy 2010–2020 to ensure equal recognition of people with disability before the law and their ability to exercise legal capacity?
Framing principles
Q3. The ALRC has identified as framing principles: dignity; equality; autonomy; inclusion and participation; and accountability. Are there other key principles that should inform the ALRC’s work in this area?
A uniform approach to legal capacity?
Q4. Should there be a Commonwealth or nationally consistent approach to defining capacity and assessing a person’s ability to exercise their legal capacity? If so, what is the most appropriate mechanism and what are the key elements?
The role of family, carers and supporters
Q5. How should the role of family members, carers and others in supporting people with disability to exercise legal capacity be recognised by Commonwealth laws and legal frameworks?
Anti-discrimination law
Q6. What issues arise in relation to Commonwealth anti-discrimination law that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to the Disability Discrimination Act 1992 (Cth) to address these issues?
General protections provisions
Q7. In what ways, if any, should the general protections provisions under the Fair Work Act 2009 (Cth) be amended to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q8. There is substantial overlap between the general protections provisions under the Fair Work Act 2009 (Cth) and Commonwealth anti-discrimination legislation. In what ways, if any, should this legislation be amended to improve or clarify their interaction in circumstances of disability discrimination?
Administrative law
Q9. What issues arise in relation to review of government decisions that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to administrative law to address these issues?
Competition and consumer law
Q10. What issues arise in relation to competition and consumer law that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to competition and consumer law to address these issues?
Privacy
Q11. What issues arise in relation to privacy that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to privacy to address these issues?
The National Disability Insurance Scheme
Q12. What changes, if any, should be made to the National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules, or disability services, to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q13. What changes, if any, should be made to the nominee or child’s representative provisions under the National Disability Insurance Scheme Act 2013 (Cth) or NDIS Rules to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q14. What changes, if any, should be made to the nominee provisions or appointment processes under the following laws or legal frameworks to ensure they interact effectively: (a) the National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules; (b) social security legislation; and (c) state and territory systems for guardians and administrators?
Employment
Q15. In what ways, if any, do Commonwealth laws or legal frameworks relating to employment diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity?
Citizenship rights, public service and board participation
Q16. What changes, if any, should be made to the Commonwealth Electoral Act 1918 (Cth) or the Referendum (Machinery Provision) Act 1984 (Cth) to enable people with disability to be placed or retained on the Roll of Electors or to vote?
Q17. What issues arise in relation to electoral matters that may affect the equal recognition before the law of people with disability or their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks to address these issues?
Q18. How does the language used in Commonwealth laws and legal frameworks affect the equal recognition of people with disability before the law or their ability to exercise legal capacity?
Q19. In what ways do Commonwealth laws and legal frameworks relating to holding public office diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity?
Q20. What changes, if any, should be made to Commonwealth laws and legal frameworks to ensure that people with disability are not automatically or inappropriately excluded from serving on a jury or being eligible for jury service?
Q21. In what ways do Commonwealth laws and legal frameworks relating to membership of, or participation on, boards diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity?
Q22. What issues arise in relation to identity documents for people with disability? In what ways, if any, should Commonwealth laws and legal frameworks relating to identity documents be amended to ensure people with disability are recognised as equal before the law and able to exercise legal capacity? 
Access to justice, evidence and federal offences
Q23. What issues arise in relation to access to justice that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to access to justice to address these issues?
Q24. What issues arise in relation to evidence law that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to evidence to address these issues?
Q25. What issues arise in relation to the law on federal offences that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to federal offences to address these issues?
Social security, financial services and superannuation 
Q26. In what ways do Commonwealth laws and legal frameworks relating to social security diminish or facilitate the equal recognition of people with disability before the law and their ability to exercise legal capacity?
Q27. What changes, if any, should be made to the nominee provisions under the Social Security (Administration) Act 1999 (Cth) to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q28. What issues arise in relation to banking for people with disability? What changes, if any, should be made to Commonwealth laws and legal frameworks to ensure people with disability control their own financial affairs and have equal access to bank loans, mortgages and other forms of financial credit?
Q29. In what ways, if any, do Commonwealth laws or legal frameworks relating to insurance deny or diminish the equal recognition of people with disability before the law and their ability to exercise legal capacity?
Q30. What changes, if any, should be made to the insurance exemption under the Disability Discrimination Act 1992 (Cth) to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q31. What additional guidance or supporting material relating to the application and operation of the insurance exemption under the Disability Discrimination Act 1992 (Cth) would assist people with disability?
Q32. What changes, if any, should be made to the superannuation exemption under the Disability Discrimination Act 1992 (Cth) to ensure people with disability are recognised as equal before the law and able to exercise legal capacity?
Q33. What issues arise in relation to superannuation for people with disability that may affect their equal recognition before the law or their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks to address these issues?
Health care and aged care
Q34. What issues arise in relation to health care that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to health care to address these issues?
Q35. What issues arise in relation to aged care that may affect the equal recognition before the law of people with disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to aged care to address these issues?
Restrictive practices
Q36. In what ways, if any, should the proposed National Framework for Reducing the Use of Restrictive Practices in the Disability Service Sector be improved?
Q37. What is the most appropriate approach to the regulation, reduction and elimination of restrictive practices used on people with disability at a national or nationally consistent level? What are the key elements any such approach should include?
Marriage, intimate relationships, parenthood and family law
Q38. What issues arise in relation to marriage that may affect the equal recognition before the law of people with a disability and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to marriage or marriage celebrants to address these issues?
Q39. What issues arise in relation to people with disability and intimate relationships that may affect their equal recognition before the law or ability to exercise legal capacity? What changes, if any, should be made to Commonwealth law and legal frameworks to address these issues?
Q40. What issues arise in relation to family law that may affect the equal recognition of people with disability before the law and their ability to exercise legal capacity? What changes, if any, should be made to Commonwealth laws and legal frameworks relating to family law to address these issues?
Particular disability communities
Q41. How do Commonwealth laws and legal frameworks relating to equal recognition before the law and capacity affect people with disability who are: (a) children; (b) women; (c) Aboriginal and Torres Strait Islander; (d) from culturally and linguistically diverse backgrounds; (e) older; (f) lesbian, gay, bisexual, transgender or intersex; or (g) living in rural, remote and regional areas.
In discussing "five interlinking principles" of dignity, equality, autonomy, inclusion & participation, and accountability the issues paper states
Dignity
The theme of ‘dignity’ emerges clearly in recent literature regarding people with disability. Importantly, it is seen as a ‘relational concept’ as it comes into play in transactions between individuals and between individuals and the State. In the international context, dignity is one of the guiding principles of the CRPD.
The first paragraph in the Preamble recalls ‘the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth’ of ‘all members of the human family’. Dignity is also recognised in a number of other international human rights instruments.
In the domestic context, the NDS prioritises the concept of dignity in its principles. Similarly, the P[roductivity] C[ommission] identified human dignity as ‘an inherent right’ of persons with disability and suggested that dignity as a human being is linked to self-determination, decision-making and choice.
Equality
The UNCRPD commenced its Draft General Comment on article 12 of the CRPD in September 2013 by saying that ‘[e]quality before the law is a basic and general principle of human rights protection and is indispensable for the exercise of other human rights’. Similarly, article 5 prohibits all discrimination on the basis of disability and requires States to promote equality; and articles 6 and 7 emphasise equality for women and children.
. In the domestic context, the NDS principles emphasise equality of opportunity. A range of Commonwealth laws also protect the equality of people and proscribe discrimination on the basis of disability — for example, the DDA. Similarly, in the ACT and Victoria, specific human rights legislation reinforces the ‘right to recognition and equality before the law’.
The concept of equality is also considered above at paragraphs 48 to 51 in the discussion of equal recognition before the law.
Autonomy
Autonomy is a significant principle underlying the ability of persons with disabilities to exercise legal capacity. The principle of autonomy is enshrined in the general principles of the CRPD79 and is a key principle of the NDS. The objects and principles of the NDIS also reflect the notion of autonomy.
Autonomy can be understood in two distinct senses. A focus on the individual emphasises ideas of self-agency. A focus on the individual in relation to others is expressed in the concept of ‘relational autonomy’. This understanding of autonomy connects to respect for the family as the ‘natural and fundamental unit group unit of society’ that is entitled to protection by States Parties. Such a view sits comfortably with the social model of disability and a shift in emphasis towards supported decision-making, which ‘acknowledges that individuals rely to a greater or lesser extent on others to help them make and give effect to decisions’.
At times, tensions may arise between the role of the family in providing support to people with disability to build their capacity for autonomy and their often protective role, which may limit the individual autonomy of a person with disability.
Inclusion and participation
Closely related to the principles of dignity and equality, the principles of inclusion and participation are central to many contemporary perspectives on disability, particularly to the social model. This essentially suggests that ‘whilst a person might have an impairment, their disability comes from the way society treats them, or fails to support them’. It has been suggested that promoting inclusion, through legal and social mechanisms, is a significant way of reducing these social barriers.
The inclusion and participation of people with disability is a commitment that is grounded in both international law and in Australia’s domestic policy aims. One of the principles of the CRPD is ‘full and effective participation and inclusion in society’. At a domestic level, the Australian Government’s social inclusion agenda specifically prioritised people with disability in the goal of reducing disadvantage. An emphasis on inclusion has important consequences for education, workforce participation and economic security, as people with disability are seen as ‘citizens with rights, not objects of charity’. Further, one of the objects of the NDIS Act is to facilitate greater community inclusion of people with a disability.
In the NDS, inclusion is seen to involve a consultative and collaborative approach to law reform and policy development. As it is ‘the principle that we are all entitled to participate fully in all aspects of society ... that we all have something to contribute’, the NDS recognises the need to include people with disability and their carers in consultation with government to develop a ‘shared agenda’. Thus, inclusion is also linked with civic participation, voting and public office.
The concept of inclusion refers both to the inclusion of persons with disability in social and public life and inclusion within the community of people with disability. Accordingly, the NDS expressly notes the importance of recognising diversity within the community of persons with disability, particularly due to the intersection of multiple disadvantage. Age, sex, sexuality, ethnicity, socio-economic status and location are all factors that also shape a person’s lived experience. Therefore, particular emphasis is placed on the need to address the variety of needs and perspectives that exist.
Accountability
The concept of accountability has a number of key components. The first is the need for systemic and specific accountability mechanisms and safeguards associated with measures that relate to arrangements for the exercise of legal capacity.
One important consequence of the shift towards empowering persons with disability to exercise their full legal capacity, is the need to ensure that any ‘supporters’ who fulfil a supportive or assisted decision-making role are properly accountable. Article 16(1) of the CRPD stresses the need for States Parties to take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.
Consequently, an important focus of any reform relating to decision-making schemes is to ensure the inclusion of effective accountability mechanisms, both at a systemic and practical level.
Another important component is the accountability and responsibility of people with disability for their decisions, recognising that with rights come responsibilities.

21 November 2013

Secrets and spooks

'The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information' (Columbia Public Law Research Paper No. 13-341) by David Pozen comments
The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.
This article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's "leakiness" is often taken to be a sign of organizational failure. The article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.
Pozen concludes -
In 1975, Michel Foucault famously asked why, after more than a century, the Western world’s efforts to rehabilitate prisoners had proven utterly unsuccessful. The failure to transform criminals into law abiding citizens was routinely denounced by public officials, in a “monotonous critique,” and yet neither the practices of punishment nor the rate of recidivism seemed to budge. The answer to this question, Foucault theorized, lay in the motivations and dispositions of those individuals and institutions who ran the carceral state: these groups, these social structures, these patterns of thought — at some fundamental level they did not want to rehabilitate prisoners. They preferred delinquency.
It is time to ask a similar question about the persistence of massive leaking of government information. There is no need to accept Foucault’s methodology or worldview to embrace his revisionist instincts in this case. The literature on leaks has largely taken it for granted that the authorities would like to escalate enforcement, if only they had the capacity to punish more offenders. Relax this assumption — which Part II demonstrated to be untenable in any strong form — and a different set of variables, a new way of looking at leaks, comes into focus. This Article has unearthed the executive branch’s varied interests in maintaining a regime of widespread classified information disclosures to the press, as well as the various tools the executive has developed to manage this regime. Considered in light of these dynamics, the longstanding failure of leak-law enforcement can be seen as something else entirely. It can be seen as a strategic response facilitated by Presidents and their appointees to a set of profound challenges confronting the modern administrative state. Even if we bracket all of the standard arguments about leaks’ value for transparency, public debate, and the like, the counterintuitive yet inescapable conclusion is that some substantial amount of leaking is deeply valuable for the executive itself. Foucault told a story about the disciplinary impulses that lay beneath the Enlightenment rhetoric of the early welfare state. This is a story about the permissive (though still power-serving) impulses that lie beneath the disciplinary rhetoric of the postwar national security state.
It is easy to find fault with the equilibrium that has emerged. Indeed, from virtually any first-best normative standpoint, it is difficult to justify such high levels of classification and clandestineness and such low levels of legal accountability. That this regulatory regime has proven workable hardly means that it is attractive, or that new approaches to secretive executive branch activities — from strengthening congressional and judicial oversight, to reducing classification, to enhancing whistleblower protections — could not improve on the status quo. Any effort to recalibrate the practice of leaking itself, however, would have to take into account the tangle of factors that has historically generated so many disclosures, curbed so many disciplinarians, served so many interlocking agendas, frustrated so many formal designs.
This Article has tried to detail the interaction of these factors within the larger ecosystem of presidential information control, and thereby to deepen our understanding of government secrecy and executive power. The Article offers mainly positive theory in the middle range, out of a conviction that this is the kind of scholarly work most needed in this field at this time — that many higher-level normative accounts of the information state and the national security state cannot get off the ground without a fuller understanding of how this ecosystem has actually worked. The Article devotes less attention to cases and statutes because they have mattered less in this area, far less than the legal literature’s fixation on them would suggest. It explores intentional, organizational, and functional considerations because each of these conceptual frameworks enables valuable, and largely compatible, explanatory insights. It offers no sweeping prescriptions because the complexity and difficulty of the subject render them inapposite. Some well-known policy problems cannot be solved. Some are not even problems.
The great secret about the U.S. government’s notorious leakiness is that it is a highly adaptive mechanism of information control, which has been refined through a nuanced system of social norms. The great secret about the laws against leaking is that they have never been used in a manner designed to stop leaking — and that their implementation threatens not just gauzy democratic ideals but practical bureaucratic imperatives, not just individual whistleblowers but the institution of the presidency. A delicate web of constraints has accommodated the competing objectives of many powerful actors with respect to leaks. If unauthorized disclosures were ever to be systematically suppressed, it would jeopardize so much more, and so much less, than First Amendment principles. And thus we may find that the “war” against leaking yields once again to monotonous and ineffectual critique.
There is a short response in 'Whose Secrets?' by Josh Chafetz in (2013) 127 Harvard Law Review Forum which argues that
Drawing on Pozen's subtle and persuasive account of the ways that our existing secrecy regime broadly serves executive-branch ends, ... "secret" is a political category, not a natural one. It is only within a particular political context that facts can be said to require secrecy. By deferring almost entirely to the executive branch's executive-friendly secrecy determinations, we largely cede the construction of that political context to the executive.
This Response proposes that, instead of treating secrets as the particular property of the executive, we treat them as belonging to the collective political community. Of course, for them to be secrets, we cannot all know them, but we can allow a role for other institutions of collective decisionmaking. Members of Congress have on occasion played such a role, and they could do so more vigorously. Drawing on examples ranging from the Pentagon Papers to WikiLeaks, this Response examines the rationales for, and the rules governing, an increased role for Congress.
In Australia former government economist Dr Yeon Kim is reported to have discontinued Federal Court proceedings that earlier this year revealed South Korean intelligence personnel had worked to "cultivate Australian officials and public servants to obtain sensitive information".

As I've commented elsewhere, it is axiomatic that liberal democratic states - in furthering their interests or merely aiming to secure their continued existence - engage in intelligence collection, analysis and sharing with special 'friends'. That includes information from other liberal democratic states. It's a matter of we spy on them, they spy on us, and don't get caught.

In 'Spooks, suspects and suppression orders: the Kim, Sands and 'AA' judgments' (2013) 9(7) Privacy Law Bulletin 115 I noted that Dr Kim has had trouble with his security assessment but has not been found guilty in an Australian court of an offence under the Crimes Act 1914 (the equivalent of the UK Official Secrets Act).

The Australian Security Intelligence Organisation reportedly believed in 2010 that Kim, then a trade analyst in the Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES), had been meeting South Korean diplomat Hoo-Young Park - who was an officer of South Korea's National Intelligence Service (NIS).

The ASIO Director-General David Irvine then issued an adverse security assessment of Dr Kim after finding that "he had had contact with successive NIS officers who he had not reported, as required by Australian government policy". ASIO alleged that Kim had been involved in "an act of foreign interference" by disclosing confidential information about Australian-Korean trade negotiations - presumably the forthcoming FTA - to the NIS officer. ASIO recommended revocation of his secret-level security clearance, effectively ending his public service career and no doubt crimping opportunities in the private sector.

Kim insisted his contact with South Korean diplomats was purely social, covering nothing more than non-sensitive and publicly available information. The Administrative Appeals Tribunal upheld ASIO's adverse security assessment in August 2012, with Kim then resigning from ABARES but appealing the AAT decision in the Federal Court.

The matter attracted attention, as I noted in my PLB article, because ASIO sought to prevent public disclosure of the incident and protect the identities of NIS personnel, who weren't expelled from Australia. Kim's lawyers understandably questioned that, wondering why ASIO's effort to avoid embarrassing the NIS was necessary for Australia's national security.

Foster J agreed and ruled in RJCG v Director-General of Security [2013] FCA 269 that suppression of information identifying the mysterious 'other country' was unjustified. However, in September Kim v Attorney-General of the Commonwealth [2013] FCA 902 saw him dismiss Kim's application for access to the ASIO security assessment.

Kim's appeal against that dismissal was scheduled to be heard by the full Federal Court next week. Kim has, however, reportedly abandoned the litigation, supposedly because the matter would have returned to the AAT and costs of course would not disappear.

BDSM Commerce

'To Buy or Not to Buy? Vulnerability and the Criminalisation of Commercial BDSM' (Edinburgh School of Law Research Paper No. 2013/37) by Sharon Cowan examines
the interaction of law and policy making on prostitution, with that of BDSM (bondage and discipline, sadism and masochism). Recent policy and legal shifts in the UK mark out prostitutes as vulnerable and in need of ‘rescue’.  BDSM that amounts to actual bodily harm is unlawful in the UK, and calls to decriminalise it are often met with fears that participants will be left vulnerable to abuse. Where women sell BDSM sex, even more complex questions of choice, exploitation, vulnerability, power and agency might be thought to arise. Does the combination of activities take two singular behaviours into the realm of compound harm? Are those who sell BDSM doubly vulnerable in a way that would justify criminal intervention? This paper argues that in imposing categories of vulnerability, the state engages in the heteronormative construction of risky sexual subjects who must be rehabilitated, responsiblised or punished. Through an examination of existing empirical studies on BDSM, the paper offers a feminist critique of the potential criminalisation of commercial BDSM and calls for more research on the lived experiences of those who buy and sell BDSM.
In discussing the Max Mosley 2008 litigation against News of the World Cowan comments -
Justice Eady ruled that with respect to his acts of commercial (heterosexual) sadomasochism with prostitutes, Mr Mosley was entitled to privacy, no matter how unconventional his sex life. It may well be that this is not contradictory to the finding in R v Brown - although Mosley was paying for BDSM sex, perhaps neither he nor the sex workers was criminally charged because the level of ‘harm’ inflicted was so minor. However, as I have argued elsewhere, the level of harm is never the sole driver of criminalisation; even where injuries are extreme, criminal punishment is not inevitable, as in the case of R v Slingsby, where a man, having inserted his fist into his female partner’s vagina whilst wearing a signet ring, was later acquitted of manslaughter when she died of septicaemia. In other words, although it might seem to be Max Mosley’s, or indeed his sex workers’, perceived lack of physical or psychic vulnerability or injury that makes this encounter non-criminal, it may in fact have more to do with our social expectations and norms around ‘good’ (kinky) versus ‘risky’ (sado-masochistic) sex.
This is not to say that Mosley’s sexual encounters fully accord with hegemonic hetero-monogamous norms; rather that he does not altogether challenge those norms. Although Mosley was engaging in multiple partner, commercial BDSM sexual power-play (including switching between dom/sub roles), the framework remained one of heterosexuality, and the court and press emphasised the ‘kinky’, low-end nature of his activities. Indeed the most problematic question that seemed to capture the attention of the public (and formed the basis of his suit against the News of the World) was whether or not Mosley had engaged in offensive behaviour by re-enacting Nazi scenes.
Popular culture has played a significant role here. Films such as Secretary, the press coverage of Max Mosley’s libel suit, music, literature and adverts have all brought SM into the public imagination, and been vehicles for the portrayal of ‘low-end’ SM as sexy and titillating (rather than disgusting, risky and criminal) (Wilkinson 2009; Langdridge and Butt, 2004; Pa, 2001). Khan points to this popular culture embrace of kinky SM sex as having occurred only within “particular heteronormative strictures” (2009a: 117), or where, as Wilkinson (2009) warns, a ‘heteropatriarchal’ version of SM becomes the norm, thereby resulting in ‘SM-normativity’. Here, it seems as though concerns about the potential vulnerability of those engaging in SM (whether commercial or not) can be assuaged where SM is cast, heteronormatively, as kink rather than as the extreme behaviours of sexual deviants; the question of vulnerability collapses on to the question of what kinds of SM are engaged in by whom. Likewise, as Khan (2009b) has argued, although law and other discourses, such as film, sometimes allow space for women to take on a dominant BDSM role (commercial or otherwise), this is often countered by a disciplinary move that attempts to contain the woman within a more traditionally heteronormative and submissive role.
In contrast to this rose-tinted depiction of kink, those who transcend the norm struggle to represent themselves in a ‘sympathetic’ way, or as meriting privacy. Deckha argues that where SM has “glamorous” – e.g. Hollywood - connotations, it is more likely to be publicly acceptable and idealised, but if it is perceived as the practice of a sexual ‘underclass’ then it can provoke anxiety about its sordid and deviant nature, thus revealing an ‘othering’ process “enabled by oppressive class and racial knowledges” (2011, 140). This presumably will be doubly so where BDSM occurs in the context of prostitution, which is an activity marked also by stigmatising ‘othering’ discourses (Scoular and O’Neill 2008). However, as Hoople notes, even where SM practitioners do get to represent themselves in popular culture, they may yet be read as (classed, racialised and gendered) caricatures, because they are “inserted into the dominant cultural codes that regulate the production of meaning within that field and which produce SM as kinky sex (eroticized misogyny, a cult of violence etc) in the first place” (1996, 197).

19 November 2013

UK Intellectual Property Finance report

The UK Intellectual Property Office has released its final report [PDF] on Banking on IP? The role of intellectual property and intangible assets in facilitating business finance.

The report states that
Small and Medium sized Enterprises, or SMEs, are the lifeblood of the UK economy. Their ability to grow is a key determinant of the nation’s future economic health. In recent years, businesses of all sizes have been investing more in intangible assets, in particular Intellectual Property (IP), than in fixed or physical assets. This study sought to examine how effectively SMEs are able to use these assets to secure the finance they need for company growth. 
IP: an under-appreciated asset class 
Company cash flow, perhaps the chief consideration in debt finance, is often closely connected to company IP assets. Despite this, and good evidence to show that high growth, IP-rich businesses are more resilient and perform better than others over time, the IP and intangibles which equity investors value highly are rarely considered in mainstream lending practice. This is unsurprising: balance sheets do not represent their value, and current regulations actively work against consideration of IP as an asset class but the result is a real and important disconnect between banking regulation and practice and the UK’s ambition for growth. Recent banking initiatives targeting growth businesses are finding that traditional fixed assets simply no longer exist. In the asset based lending market, too, many examples have emerged of transactions where control over intangibles is recognised as being important. IP and intangibles are, in effect, unbankable. Change seems inevitable: how can it be accelerated? 
Key Recommendations 
The key recommendations of the report include the design and assembly of a resource toolkit and supporting services. When integrated, these will: 
• help old and new economy businesses identify and communicate their IP and its relationship to cash flows 
• help companies and lenders understand the business value of IP 
• improve efficiency in due diligence on IP assets 
• improve practice in obtaining reasonable and effective charges over IP 
• make room for development of more effective IP markets, supported by a better information infrastructure 
• enable risk to be reduced through insurance and other mechanisms

17 November 2013

US Data Brokers

The US Congressional Accountability Office (GAO) has released a 61 page report [PDF] on Information Resellers: Consumer Privacy Framework Needs to Reflect Changes in Technology and the Marketplace.

The GAO states that
No overarching federal privacy law governs the collection and sale of personal information among private-sector companies, including information resellers. Instead, a variety of laws tailored to specific purposes, situations, or entities governs the use, sharing, and protection of personal information. For example, the Fair Credit Reporting Act limits the use and distribution of personal information collected or used to help determine eligibility for such things as credit or employment, but does not apply to information used for marketing. Other laws apply specifically to health care providers, financial institutions, videotape service providers, or to the online collection of information about children.
The current statutory framework for consumer privacy does not fully address new technologies - such as the tracking of online behavior or mobile devices - and the vastly increased marketplace for personal information, including the proliferation of information sharing among third parties. With regard to data used for marketing, no federal statute provides consumers the right to learn what information is held about them and who holds it. In many circumstances, consumers also do not have the legal right to control the collection or sharing with third parties of sensitive personal information (such as their shopping habits and health interests) for marketing purposes. As a result, although some industry participants have stated that current privacy laws are adequate - particularly in light of self-regulatory measures under way - GAO found that gaps exist in the current statutory framework for privacy. And that the framework does not fully reflect the Fair Information Practice Principles, widely accepted principles for protecting the privacy and security of personal information that have served as a basis for many of the privacy recommendations federal agencies have made.
Views differ on the approach that any new privacy legislation or regulation should take. Some privacy advocates generally have argued that a comprehensive overarching privacy law would provide greater consistency and address gaps in law left by the current sector-specific approach. Other stakeholders have stated that a comprehensive, one-size-fits-all approach to privacy would be burdensome and inflexible. In addition, some privacy advocates have cited the need for legislation that would provide consumers with greater ability to access, control the use of, and correct information about them, particularly with respect to data used for purposes other than those for which they originally were provided. At the same time, industry representatives have asserted that restrictions on the collection and use of personal data would impose compliance costs, inhibit innovation and efficiency, and reduce consumer benefits, such as more relevant advertising and beneficial products and services. Nonetheless, the rapid increase in the amount and type of personal information that is collected and resold warrants reconsideration of how well the current privacy framework protects personal information. The challenge will be providing appropriate privacy protections without unduly inhibiting the benefits to consumers, commerce, and innovation that data sharing can accord.
In recent years, information resellers - companies that collect and resell information on individuals - dramatically increased the collection and sharing of personal data for marketing purposes, raising privacy concerns among some in Congress. Recent growth in the use of social media, mobile applications, and other technologies intensified these concerns.
GAO was asked to examine privacy issues and information resellers. This report addresses (1) privacy laws applicable to consumer information held by resellers, (2) gaps in the law that may exist, and (3) views on approaches for improving consumer data privacy.
To address these objectives, GAO analyzed laws, studies, and other documents, and interviewed representatives of federal agencies, the reseller and marketing industries, consumer and privacy groups, and others. GAO focused primarily on consumer information used for marketing purposes.
The GAO concludes -
The advent of new and more advanced technologies and changes in the marketplace for consumer information have vastly increased the amount and nature of personal information collected and the number of parties that use or share this information. While the views of stakeholders differ, based on our review, we found that gaps exist in the current statutory privacy framework. In particular, the current framework does not fully address changes in technology and marketplace practices that fundamentally have altered the nature and extent to which personal information is being shared with third parties. Moreover, while current laws protect privacy interests in specific sectors and for specific uses, consumers have little control over how their information is collected, used, and shared with third parties for marketing purposes. As a result, current privacy law is not always aligned with the Fair Information Practice Principles, which Commerce and others have said should serve as the foundation for commercial data privacy.
Thus, the current privacy framework warrants reconsideration in relation to a number of issues, including consumers’ ability to access, correct, and control their personal information used for marketing; the types of personal information collected and the sources and methods for collecting it; and privacy controls related to relatively new technologies, such as web tracking and mobile devices. At the same time, different legislative approaches to improving privacy - including comprehensive or sector-specific - involve trade-offs and have advantages and disadvantages. The challenge will be providing appropriate privacy protections without unduly inhibiting the benefits to consumers, commerce, and innovation that data sharing can accord.
Congress should consider strengthening the current consumer privacy framework to reflect the effects of changes in technology and the marketplace - particularly in relation to consumer data used for marketing purposes - while also ensuring that any limitations on data collection and sharing do not unduly inhibit the economic and other benefits to industry and consumers that data sharing can accord. Among the issues that should be considered are
  • the adequacy of consumers’ ability to access, correct, and control their personal information in circumstances beyond those currently accorded under FCRA; 
  • whether there should be additional controls on the types of personal or sensitive information that may or may not be collected and shared; 
  • changes needed, if any, in the permitted sources and methods for data collection; and 
  • privacy controls related to new technologies, such as web tracking and mobile devices.