11 January 2014

Geolocation, surveillance and smart vehicles

The New York Times in an article about 'in-car surveillance' features a classic own goal
Jim Farley, Ford Motor Company’s top sales executive, who is known for making off-the-cuff comments, told a panel at the CES: “We know everyone who breaks the law. We know when you’re doing it. We have GPS in your car, so we know what you’re doing.” Although he quickly added, “By the way, we don’t supply that data to anyone,” and later issued a full retraction, the comments, even if overblown and meant to be provocative, fueled the concerns. 

The article notes that senators John Hoeven and Amy Klobuchar are about to introduce a bill stipulating that US car owners control the data collected on vehicle event data recorders, which will be mandatory from September 2014 and which collect data such as direction, speed and seatbelt use in a continuous loop.
The data collected by the black box has already been the center of litigation by law enforcement agencies and insurance companies seeking to use the information against car owners. The bill would limit what the data could be used for and would require a warrant to release the data without the owner’s consent.
 Khaliah Barnes of the Electronic Privacy Information Center is quoted as commenting that vehicle owners should be able to request and delete at their discretion the information recorded by manufacturers. “Consumers should decide what level of surveillance they want to be under. None of that should be on default. You should have to opt in.”
At the CES, G.M. introduced a new camera in the 2015 Corvette Stingray designed to give track enthusiasts real-time feedback on their driving. The performance data recorder, as it is called, uses a camera mounted on the windshield and a global positioning receiver to record speed, gear selection and brake force.
The Corvette’s system goes further than traditional black boxes.
A camera mounted on the windshield records the driver’s point of view and a microphone in the cabin records any noises made in the car.
Chevrolet said that the consumer owned the data, which is collected in a digital card housed in the glove compartment.
But privacy lawyers say that the information can still be used against a driver, as well as G.M. and its suppliers, in litigation or by an insurance company investigating a driver’s habits. . . .
Garmin introduced a new windshield-suctioned camera that turns on automatically when the car starts. It records wide-angle footage as well as speed, location and time in the event of a collision, and also has a microphone that can record sound from within the car.
“We hope it takes some of the ‘he said, she said’ out of an incident in your car,” said Ted Gartner, a spokesman.
He said the device’s owner also owned the data and that Garmin could not access it.
“There’s no way that we have access to that data because there’s no way to transfer the data out of the car wirelessly,” Mr. Gartner said. 
The Times notes this week's Government Accountability Office report, requested by Senator Al Franken.

The report found that the 10 automakers, navigation device manufacturers and application developers surveyed did not make owners aware of all the risks of the data collection, like allowing third parties to track their location or gather sensitive information such as their religious and political activities and preferences.
“Information about your location is extremely sensitive,” said Senator Franken, who is chairman of a Judiciary subcommittee on privacy and said he planned to introduce a bill that would legislate guidelines on when a vehicle owner’s location could be shared. “If someone has a record of your location, they can figure out where you live, where you work, the doctors you visit and where your kids go to school.”
The 32 page GAO report - In-Car Location-Based Services: Companies Are Taking Steps to Protect Privacy, but Some Risks May Not Be Clear to Consumers - states that
Representatives from all 10 selected companies--auto manufacturers, portable navigation device (PND) companies, and developers of map and navigation applications for mobile devices--said they collect location data to provide consumers with location-based services. For example, companies collect location data to provide turn-by-turn directions. Nine companies share location data with third-party companies, such as traffic information providers, to provide services to consumers. Representatives from two companies said they share data where personally identifiable information has been removed (de-identified data) for purposes beyond providing services (e.g., for research), although such purposes are not always disclosed to consumers. All company representatives said that they do not share personally identifiable location data with or sell such data to marketing companies or data brokers.
All 10 selected companies have taken steps consistent with some, but not all, industry-recommended privacy practices. In addition, the companies' privacy practices were, in certain instances, unclear, which could make it difficult for consumers to understand the privacy risks that may exist.
Disclosures: Consistent with recommended practices, all selected companies disclose that they collect and share location data. However, inconsistent with recommended practices, nine companies' disclosures provide reasons for collecting data that are broadly worded (e.g., the stated reasons for collecting location data were not exhaustive), and five companies' disclosures do not describe the purposes for sharing de-identified location data. Without clear disclosures, risks increase that data may be collected or shared for purposes that the consumer is not expecting or might not have agreed to.
Consent and controls: Consistent with recommended practices, all selected companies obtain consumer consent to collect location data and obtain this consent in various ways. In addition, all companies offered consumers some controls over location data collection. However, if companies retained data, they did not allow consumers to request that their data be deleted, which is a recommended practice. Without the ability to delete data, consumers are unable to prevent the use or retention of their data, should they wish to do so.
Safeguards and retention: All selected companies take steps to safeguard location data--a recommended practice--but use different de-identification methods that affect the extent to which consumers may be re-identified and exposed to privacy risks. Also, there is wide variation in how long companies retain vehicle-specific or personally identifiable location data. To the extent that a company's de-identification methods allow a consumer to be identified or that identifiable data are retained, risks increase that location data may be used in ways consumers did not intend or may be vulnerable to unauthorized access.
Accountability: All selected companies disclose to consumers or take steps to protect location data that they share with third parties; such efforts are consistent with recommended practices. However, inconsistent with recommended practices, none of the selected companies disclose to consumers how they hold themselves and their employees accountable. The companies told GAO that internal company policies serve this function.

Breach and privacy penalties

The New York Times features more on the [US] Target data breach -
Target on Friday revised the number of customers whose personal information was stolen in a widespread data breach during the holiday season, now reporting a range of 70 million to 110 million people.
The stunning figure represents about a third of all American adults at the low end, and is nearly three times as great as the company’s original estimate at the upper end. The theft is one of the largest ever of retail data.
Not only did Target’s announcement disclose a vastly expanded universe of victims, but it revealed that the hackers had stolen a broader trove of data than originally reported. The company now says that other kinds of information were taken, including mailing and email addresses, phone numbers or names, the kind of data routinely collected from customers during interactions like shopping online or volunteering a phone number when using a call center.
On Dec. 19, Target confirmed reports that payment data was stolen from about 40 million customers who shopped in its stores in the United States from Nov. 27 to mid-December. As its investigation into the theft continued, the company said it had found that an additional quantity of data, collected over time on 70 million people and stored separately from the in-store data, was stolen. ....
The effect of the data theft has reached far beyond one of the nation’s largest retailers. Major credit card companies and banks have been issuing warnings about potential fraud to their customers and providing them with new cards and account numbers as a precaution. Some banks have limited cash withdrawals. As banks and companies continue to monitor customers’ accounts for suspicious activity, the Secret Service and the Justice Department have opened an investigation.
“This will impact many Target business partners — Visa, MasterCard and the host of banks and credit agencies that now have to keep an eye on the 110 million customers now vulnerable to identity theft,” said Hemu Nigam, founder of SSP Blue, a security and privacy consulting firm. “It affects more than Target customers. It affects mortgage lenders and car sales. It affects the entire economic infrastructure.”
Fraud experts said the information stolen from Target’s systems quickly flooded the black market. On Dec. 11, shortly after hackers first breached Target, Easy Solutions, a company that tracks fraud, noticed a 10 to twentyfold increase in the number of high-value stolen cards on black market websites, from nearly every bank and credit union.
The company apologized again on Friday for the broadening violation of its customers’ privacy.
“I know that it is frustrating for our guests to learn that this information was taken, and we are truly sorry they are having to endure this,” Gregg W. Steinhafel, Target’s chief executive, said in a statement....
After the initial breach, Target said that it had protected customers’ payment information with encryption and that it had stored the keys to descramble it on separate systems not affected in the breach. But the encryption algorithm Target used to protect that data — a standard known as triple DES, or 3DES — is vulnerable in some cases to so-called brute force attacks, when hackers use computers for high-speed guessing. In a breach on Adobe last year, hackers were able to bypass 3DES encryption through brute force attacks and exposed tens of millions of Adobe passwords within weeks of the breach.
On Friday, a Target spokeswoman would not comment on whether the second batch of information stolen from its 70 million customers was encrypted.
In Europe France's CNIL has imposed a €150,000 penalty on Google.

CNIL's action was foreshadowed here. A €900,000 penalty last year by the Agencia Española de Protección de Datos (AEPD) was noted here.

CNIL indicates that its Sanctions Committee imposed the penalty
upon considering that the privacy policy implemented since 1 March 2012 does not comply with the French Data Protection Act. It ordered the company to publish a communiqué on this decision on its homepage Google.fr, within eight days as of its notification. 
On 1 March 2012, Google decided to merge into one single policy the different privacy policies applicable to about sixty of its services, including Google Search, YouTube, Gmail, Picasa, Google Drive, Google Docs, Google Maps, etc. Nearly all Internet users in France are impacted by this decision due to the number of services concerned.
The G29 (the Working Group of all EU Data Protection Authorities) then decided to carry out an assessment of this privacy policy. It concluded that it failed to comply with the EU legal framework and correspondingly issued several recommendations, which Google Inc. did not effectively follow-up upon. 
Consequently, six EU Authorities individually initiated enforcement proceedings against the company. In this context, the CNIL's Sanctions Committee issued a monetary penalty of €150,000 to Google Inc. on 3 January 2014, upon considering that it did not comply with several provisions of the French Data Protection Act.
In its decision, the Sanctions Committee considers that the data processed by the company about the users of its services in France must be qualified as personal data. It also judged that French law applies to the processing of personal data relating to Internet users established in France, contrary to the company's claim.
On the substance of the case, the Sanctions Committee did not challenge the legitimacy of the simplification objective pursued by the company’s merging of its privacy policies.
Yet, it considers that the conditions under which this single policy is implemented are contrary to several legal requirements:
  • The company does not sufficiently inform its users of the conditions in which their personal data are processed, nor of the purposes of this processing. They may therefore neither understand the purposes for which their data are collected, which are not specific as the law requires, nor the ambit of the data collected through the different services concerned. Consequently, they are not able to exercise their rights, in particular their right of access, objection or deletion. 
  • The company does not comply with its obligation to obtain user consent prior to the storage of cookies on their terminals. It fails to define retention periods applicable to the data which it processes. 
  • Finally, it permits itself to combine all the data it collects about its users across all of its services without any legal basis.
These conclusions are similar to those laid down by the Dutch and Spanish Data Protection Authorities in November and December 2013 on the basis of their respective national laws. 
This financial penalty is the highest which the Committee has issued until now. It is justified by the number and the seriousness of the breaches stated in the case. 
Furthermore, the Sanctions Committee ordered Google Inc. to publish a communiqué on this decision on the website https://www.google.fr, during 48 hours, within eight days as of the notification of the decision. This publicity measure is justified by the extent of Google’s data collection, as well as by the necessity to inform the persons concerned who are not in a capacity to exercise their rights.


In Gonzalo Miró v Gestevisión Telecinco SA the Spanish Constitutional Court has held that speculation during a 2005 broadcast about the paternity of television presenter Romero Gonzalo Miró violated his right to privacy.

The broadcast by Gestevisión Telecinco claimed that Gonzalo Miró had 'a big secret', with his mother Pilar Miró having taken the undisclosed identity of his father "to the grave". As I have noted in past posts, it is desirable to differentiate between public interest and public curiosity; reports about the judgment do not seem to indicate that there was a compelling public interest in knowing who was Gonzalo Miró's dad if mother and son did not want to share the information with the crowd. One of the broadcasts reportedly indicated that the father's initials, mentioned the name of a man with those initials and feature photographs of that man with Gonzalo Miró.

Litigation by Gonzalo Miró in his own name and in the name of his late mother regarding an injury to his right to privacy was dismissed by the Court of First Instance in June 2006. His appeal was successful, with an award in his favour of €300,000. The broadcaster appealed to the Supreme Court, which dismissed Gonzalo Miró's claim in June 2010 on the basis that there had been no violation of privacy because the programs involved speculation.

Gonzalo Miró appealed to the Constitutional Court, which in November last year found in his favour, holding that parentage is part of an individual's private life and that the right to privacy “implies the existence of an area which is reserved against the action and knowledge of others”, with a duty to refrain from unjustified interference. Reports indicate that the Constitutional Court rejected the speculation argument, holding that
The right to privacy may be affected not only by the specific and truthful statement about the identity of the father of appellant, but by mere speculation or rumors about his parentage. 
Interestingly, the Court appears to have recognised a post-mortem of the right to privacy, reflecting application by Gonzalo Miró in the name of his deceased mother and his own name.

The Court  noted a tension in arguments by the broadcaster:  claiming to reveal a "big secret" but denying that privacy had been violated. It also noted that although an intimate detail may become well known without that person's consent it may still be protected by the right to privacy. Denial of that protection would burden the individual with litigation  to avoid passivity being construed as a waiver of privacy.


'Serious Invasions of Privacy in the Digital Era: Australian Privacy Foundation Submission to the Australian Law Reform Commission' (UNSW Law Research Paper No. 2013-79) by Bruce Baer Arnold, David F. Lindsay, Graham Greenleaf, David Vaile, Nigel Waters and Roger Clarke comments that
The Australian Privacy Foundation strongly endorses establishment in national legislation of a cause of action for serious invasion of an individual’s privacy which, for convenience, this submission shall generally refer to as a statutory tort. The submission answers the 27 questions asked by the Australian Law Reform Commission (ALRC) in its October 2013 Issues Paper 'Serious Invasions of Privacy in the Digital Era'.
Such a tort has been recommended by a succession of law reform commissions and other bodies. Recurrent recommendation demonstrates that there is a substantive and significant need for the tort and that after wide consultation those bodies consider that legislation is both desirable and viable. The tort has not been ruled out by the High Court and could be accommodated under the national constitution. As noted by the law reform commissions the tort will not inhibit effective law enforcement or national security activity. It will not inhibit the implied freedom of political communication, a freedom that the High Court and Supreme Courts have indicated is not absolute. There is no reason to believe that the tort will burden the legal system with inappropriate litigation. Criticisms of the tort are exaggerated and typically reflect vested interests.
Fundamentally, the tort offers an effective remedy for problems that are evident in Australian law, that are of concern to many Australians, and that have been acknowledged by both courts and law reform bodies over a considerable period of time. The tort will provide coherence across the Australian jurisdictions, where there is major inconsistency including, for example, in surveillance devices legislation. The tort will also offset regulatory incapacity, in particular the very restricted scope of the Privacy Act 1988 (Cth) – concerned with information privacy – and under-resourcing of the Office of the Australian Information Commissioner (OAIC). It will fill a long-standing gap in the common law protection of the right to privacy, which is not adequately covered by existing causes of action. The Foundation further considers that an important role of the tort is in signalling to all Australians that privacy should be respected as a matter of rights and obligations; that ‘signalling’ function is likely to be as significant as any deterrent associated with damages under the tort. 


'Inferring Desire' by Jessica Clarke in (2013) 63 Duke Law Journal 525 comments that
In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results.
This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual advances toward a woman discriminates on the basis of sex, courts presume, because he would not have made sexual advances toward another man. In 1998, the Supreme Court ruled that the same presumption is available in a case of same-sex harassment, i.e., a man harassing a man, if there is “credible evidence that the harasser was homosexual.” Since then, federal courts have decided 154 cases on whether a harasser was homosexual or experienced same-sex desire, often conflating the two questions.
Empirical assessment of these cases raises questions about legal determinations of sexual orientation and sexual desire. First, it finds that courts rely on overly simplistic assumptions about sexual orientation that are contradicted by social science research. Surprisingly, in searching for evidence of same-sex desire, courts compare the harasser’s behavior to an idealized vision of romantic courtship that resonates with the picture of same-sex intimacy drawn by advocates of gay marriage. Second, these judicial inquiries into desire reinforce biases in favor of heterosexuality. Courts interpret sexually charged interactions to be devoid of desire when the harasser is involved in a heterosexual marriage, while reading desire into far less suggestive scenarios when the harasser self-identifies as nonheterosexual. And third, the judicial preoccupation with desire distracts from the purpose of sexual harassment law: eliminating invidious sex discrimination.
This study has implications for other legal doctrines that may require definitions of sexual orientation or inferences of desire. It suggests that a relationship model of sexual orientation may not be appropriate in all legal contexts, and it calls into question the project of devising any all-purpose legal definition of sexual orientation. It also argues that reformers should be wary of how inquiries into sexual desire may operate as distractions and reinforce conventional notions of sexuality.


Two pieces by Kimberlee Weatherlee on the TransPacific Partnership Agreement (TPPA), the very important and still very secret international trade agreement that potentially has strongly adverse implications for Australian intellectual property, environmental and consumer protection law, health law and privacy law.

(The Office of the Australian Information Commissioner - exponent of the national pro-disclosure Freedom of Information regime  - refuses to provide access to its over 300 documents regarding privacy aspects of the TPPA, unredacted or otherwise, on the basis that it doesn't have the resources to handle such queries. It is ironic that the ostensible champion of access and accountability, an agency that includes the national Freedom of Information Commissioner, places itself outside the FOI regime by explaining that it is an under-resourced "micro-agency". That is a welcome signal for Ministers seeking to evade appropriate scrutiny: just cut and thereby permit agencies to disregard accessability on the basis that they have too few resources. )

Weatherall's 'TPP – Australian Section-by-Section Analysis of the Enforcement Provisions' (Sydney Law School Research Paper No. 13/84) analyses -
the leaked 30 August 2013 text of the TPP IP Chapter from an Australian perspective, focusing on the enforcement provisions only. The goal is to assess the compatibility of provisions in the current draft with Australian law and Australia’s international obligations: including TRIPS and the Australia-US Free Trade Agreement (AUSFTA). The review has several key purposes:
1. To contribute careful analysis to the current debate on the TPPA IP proposals;
2. To offer input into the Australian processes considering the TPPA;
3. To demonstrate to an international audience the relationship between these provisions and TRIPS; and
4. To demonstrate the relationship between these provisions and existing US Free Trade Agreements like AUSFTA.
A surprising number of the provisions go beyond AUSFTA.
Reading the IP provisions of the TPP IP chapter leak dated August 2013 is a maddening, dispiriting process. The provisions are written like legislation, not treaty, suggesting a complete lack of good faith and trust on the part of the negotiating countries. There are subtle tweaks of language, the phrases included or not included from previous treaties; the subtle re-wordings that might give a treaty provision an entirely different meaning. Working out the scope of a country’s obligations if even half of this text becomes treaty is going to be extremely difficult. A range of big picture questions arise as to the relationship between any TPP IP chapter and other obligations to which countries may be subject, and I’m not at all convinced we know the answers. On a substantive level, much about the language of these provisions has changed since the US proposals dated February 2011. Some more extreme elements of the US proposals have been removed or watered down; some safeguards or qualifications have been inserted that preserve domestic flexibility or require consideration of user interests or civil liberties and fair process. Despite this, the chapter is still radically unbalanced. There are still far too few safeguards for defendants and third parties in the context of IP litigation. And there are many specific proposals with potentially negative impacts on the litigation process and on the balance of IP law.
Her 'Ignoring the Science: What We Know About Patents Suggests Dire Consequences from ACTA and the TPPA' in Mercurio and N. Kuei-Jung, eds Science and Technology in International Economic Law: Balancing Competing Interests (Routledge, 2013) looks -
at what research into the operation of the IP system, and particularly IP enforcement, tells us about the issues facing research-based firms, focusing on the ‘science’ side of IP, particularly patents, and using research, and information about domestic developments, to critique the approach taken in the most recent IP negotiations to affect the Asia-Pacific Region – namely, the Anti-Counterfeiting Trade Agreement (ACTA), concluded in late 2010, and the Trans-Pacific Partnership Agreement, which at the time of writing is under negotiation. While much of the literature on patents in ACTA and the TPPA has focused on the (very important) impact on access to medicines, this chapter is concerned with the likely impact on the patent system more generally. We have grown used to hearing that the latest efforts at international IP standard-setting, the ACTA and proposals for IP in the TPPA, will have a deleterious impact on digital copyright law and on access to essential medicines. We have heard much less about the potential impact on the patent system as a whole – a much less sexy topic, no doubt, but in the long term, equally important. The patent research explored in this article suggests that both ACTA and the US’ TPPA proposal are not likely to be helpful in addressing the most pressing issues in patent law today; they risk being positively counterproductive, and exporting to the world the US’ own ‘patent crisis.’ The thought of a flood of low quality patents issuing from patent offices throughout the Asia-Pacific, should give everyone – including the negotiators of these and future agreements – serious pause.

10 January 2014

The other CSG

The Australian Communications and Media Authority has announced that Telstra has paid an administrative penalty of $510,000 for failing to provide timely new urban landline customer connections in the 2012-13 financial year.

ACMA issued an infringement notice to Telstra following the annual assessment of Telstra’s compliance with Customer Service Guarantee (CSG) benchmarks.
The CSG benchmarks provide important safeguards for fixed-line telephone service customers for connecting a service, repairing a fault or service difficulty and for attending appointments with customers.
There are nine such benchmarks, of which Telstra met seven. The two that were not met were:
  • for new connections in urban areas (88.6 per cent performance against a 90 per cent benchmark), and 
  • for new connections in remote areas (89.0 per cent performance against a 90 per cent benchmark).
The infringement notice has been issued with respect to the first benchmark, with a formal warning  issued with respect to the second.
In deciding to issue the infringement notice and the formal warnings,  ACMA took into account Telstra’s positive and early responses and its open engagement with the ACMA. The ACMA also took into account that 2012-13 was marked by extreme weather events which affected Telstra’s fixed line network, particularly in remote areas.

CV Fraud

Occasionally scholars of CV fraud see the flash of a silvery fin above the waves.

Today's New York Times reports that former hedge fund manager Mathew Martoma (on trial for alleged misbehaviour at SAC Capital Advisors) falsified his grades at Harvard Law School some 15 years ago.
 In 1999, Mr. Martoma was expelled from Harvard for creating a false transcript when he applied for a clerkship with a federal judge, court papers unsealed on Thursday showed. Mr. Martoma used a computer program to change several grades from B’s to A’s, including one in criminal law, and then sent the forged transcript to 23 judges as part of the application process. 
Then, during a Harvard disciplinary hearing to determine whether he should be expelled, Mr. Martoma tried to cover his tracks by creating a fake paper trail that included fabricated emails and a counterfeit report from a computer forensics firm that Mr. Martoma had created to help conceal his activities. 
After Harvard expelled him, Mr. Martoma, who at the time was known as Ajay Mathew Thomas, legally changed his name to Mathew Martoma . . . 
When he was at Harvard, Mr. Martoma told the law school administrators that he had falsified his transcript as a joke and did it mainly to impress his parents. 
Laughing all the way to the bank?
A Harvard Law School spokeswoman said on Thursday that the university had no record of Mr. Martoma’s graduating but could not comment further. She could not confirm whether he had attended or was expelled.

09 January 2014

Abuse and Astroturf

The Guardian reports that the Australian royal commission into child sex abuse has successfully sought access to information gathered through police phone-tapping.
A notice in the commonwealth government gazette this week revealed that in December the attorney-general, George Brandis, had added the royal commission to the list of organisations that can legally receive information under section 5AA of the Telecommunications (Information and Access) Act 1979. ...
A spokeswoman said the royal commission had "sought this authority from the attorney-general in order to legally receive … relevant information from police, and other agencies, including information that might have been gathered through interception".
She said the royal commission needed the authority to be given historical information that the police had gathered through phone intercepts, and had "no intention" of using it to instigate new phone tapping requests.
Under the act, police forces and organisations such as the NSW Crimes Commission and the Independent Commission Against Corruption can request and access information gathered through intercepts, but royal commissions must be explicitly conferred the power.
Meanwhile the Global Network Initiative (GNI) - "Protecting and Advancing Freedom of Expresssion [sic] and Privacy in Information and Communications Technologies" - has oh so very surprisingly awarded its members a shiny gold star for privacy compliance.

The GNI Public Report on the Independent Assessment Process for Google, Microsoft, and Yahoo [PDF] states that
This is the public report on the independent assessments of the Global Network Initiative’s (GNI) founding companies: Google, Microsoft and Yahoo. It also includes the first determination by GNI’s Board of the three companies’ compliance with the GNI Principles on Freedom of Expression and Privacy.
Created in 2008, GNI brings together companies, civil society organizations, investors, and academics to help companies respond to government requests while respecting the freedom of expression and privacy rights of their users. Companies participating in GNI are independently assessed on their implementation of the principles and guidelines. Only assessors accredited by GNI’s multi-­stakeholder Board are eligible to conduct assessments of member companies. The companies select assessors from among the accredited organizations. Foley Hoag, KPMG, and PwC were selected by the founding companies for the assessments described in this report.
The assessments focus on how companies respond to government requests implicating freedom of expression or privacy rights, looking at a selection of cases arising out of government demands from July 2011 through June 2013. Assessors asked the companies to provide cases based on criteria set out by the assessors, informed by consultation with GNI’s non-­company participants and independent research. The objective was to select a range of cases that were salient to each company’s business model, operating environments, and particular human rights risk profile.
GNI has established a three-phase assessment process. After the completion of the third assessment, the GNI Board makes a determination of compliance or non-­compliance with the GNI Principles for each company. A finding of compliance indicates that the GNI Board believes the company has committed to our Principles by adopting policies and procedures to implement them; and based on the cases reviewed, is making a good faith effort to implement and apply them, and improve over time. The assessment process did not and cannot determine whether these policies and procedures are functioning in every case, or whether the company has acted appropriately with respect to each of the many thousands of requests received each year from governments.
Based on its evaluation of each independent assessor’s report and other information described herein, GNI’s Board determined that Google, Microsoft, and Yahoo are compliant with the GNI Principles.

The report goes on to state that -
GNI and national security surveillance requests
The news headlines of the last six months have brought to the world’s attention the surveillance practices of the United States and other governments. Protecting the free expression and privacy rights of Internet users around the world - the goal behind the creation of GNI - has never been so vital. It was not possible, however, to assess the way in which GNI companies respond to U.S. national security requests because of the restrictions under U.S. law that prohibit the companies from disclosing any information related to such requests. This strengthens our belief that legal and policy reform is necessary and advocacy for increased transparency and other changes will be a greater part of our work in future.
Key findings from the assessments illustrate the challenges that companies are facing across a variety of operating environments.
  • The limitations on independent assessments regarding secret national security requests, where companies are prohibited by law from disclosing information about those requests, reinforce our conviction that significant reform by governments is urgently necessary. 
  • Implementing the principles during acquisitions—and with partners, suppliers, and distributors—remains a challenge. The use of contractual language to limit third party disclosure of company user data can be an important tool in this regard in various ways across the companies. The pace of acquisitions in the technology sector, where many acquisitions are highly confidential and time sensitive, also present a challenge for ensuring that human rights risks are integrated into the due diligence process. 
  • Decisions on whether content violates a company’s Terms of Service when facing government restrictions should be subject to appropriate internal review to ensure the company's compliance with its commitments to the GNI Principles.
This is the first time, to our knowledge, that such assessments involving case reviews of these types of requests have been undertaken by any organization. A number of challenges were encountered, including limitations on assessor access to company information due to assertions of attorney-­client privilege and other concerns identified below. Although assessing internal company policies and procedures for responding to law enforcement and other government requests in a highly charged legal environment is a complex undertaking, this report describes the significant progress we have been able to achieve.
In 2014, GNI will carry out a review of the assessment process to integrate learning from this first cycle of assessments, as we also begin assessments of new company members. We expect that the process will evolve over time, and we look forward to working with additional companies as they join us in our work to protect privacy and freedom of expression around the globe.
Attention to over-reaching by government agencies is laudable but the reports disregard of privacy invasive practices by its members erodes the credibility of the document and of the GNI as such.

Atrocity and Judicial Procedure

'The Eichmann Trial – Toward a Jurisprudence of Eyewitness Testimonies of Atrocity?' by Leora Bilsky in (2014) Journal of International Criminal Justice comments that
 The Eichmann judgment was overshadowed for many years by the Nuremberg proceedings that were considered the more important precedent for international criminal law. In this article I question this understanding by positing the Eichmann trial at the head of the chain of international criminal trials we have become more familiar with in the past two decades. 
An essential part of the article turns to the role of witnesses under the framework of 'atrocity jurisprudence'. It departs from previous literature that sharply distinguishes the legal from the historical or didactic role of victim testimony in the trial. In contrast, adopting the framework of collective crimes, the paper investigates the changing role of the victim as witness, which is to throw light on the new crime that is characterized not only by mass murders, but also by the separation - both physical and psychological - of victimizer from his victims. The court gave the witness this new role by juxtaposing the dry Nazi documents discussing best methods and numbers, with the most horrifying stories conveyed by victims and survivors. In this manner, the encounter that could not take place during actual events was recreated in the courtroom. … 
In his famous monograph "Basic Concepts of Criminal Law" George Fletcher describes the judicial development of the law: "[c]ourts proceed by identifying a core image of crime and punishing it. That precedent, then, becomes the paradigm for the offence." In this article, my aim was to show how the court in the Eichmann trial was on a legal mission to depict "a core image" of the relatively new type of criminality - crimes against humanity - by changing the paradigm offered in Nuremberg, one that makes the victims' testimonies relevant to the proof of guilt and integrates them into the trial. The court did so by interpreting the new crimes of genocide and crimes against humanity, by developing a theory regarding modes of liability in collective crimes, and finally by elaborating the role of victims' testimonies in atrocities trials, both expanding their relevance while constraining their didactic uses. Together these three moves offered a novel jurisprudence of atrocity trials, one that sees the humanity of the victims as the core value protected by these crimes. 
The Eichmann judgment has suffered for many years from bad public relations. This article suggests a belated correction by pointing to its potential contribution to international criminal law – an attempt to develop a new jurisprudence of atrocity trials that attempts to confer legal recognition and importance to the testimony of the individual victim in the trial of the perpetrator.

Victim Support

The Australian Institute of Criminology has released a 52 page report [PDF] by Samantha Bricknell, Hayley Boxall and Hannah Andrevski on Male victims of non-sexual and non-domestic violence: Service needs and experiences in court (Research in Policy and Practice no. 126) funded through Victims of Crime Research Fund administered by Victims Services, NSW Department of Attorney General and Justice.

The AIC indicates that the study, which covers victims living in NSW, is "important because of the paucity of male-focused victimology research undertaken in Australia and internationally".

It involved "a comprehensive review of the currently available literature and interviews with focus groups, and criminal justice and support service representatives who have contact with male victims of violence as part of their everyday work", with the victim population defined as adult males (aged 18 years and over) who had experienced some form of non-sexual/non-domestic violence (eg aggravated or non-aggravated physical assault, armed robbery or stalking).

The focus was to explore the -
  • availability and appropriateness of support services in NSW for male victims of non-sexual and non-domestic violence; 
  • perceived barriers for male victims in accessing support services; and 
  • impact of participating in the court process on these victims. 
The research findings suggest, unsurprisingly, that violent offences and participating in the trials of perpetrators "can have a significant impact on male victims".
While many male victims of violence will obtain the support they require from informal sources, some would benefit from engaging with formal services. 
At time of writing, victim support services in NSW had some capacity to assist male victims of violence, particularly when they were participating in court proceedings. However, a range of barriers such as feeling ashamed of the victimisation and being seen as ‘weak’ and unmasculine, or just lack of knowledge about the availability and accessibility of support services, influenced whether a male victim engaged with formal support services. 
This was exacerbated by lack of recognition within the criminal justice that male victims of non-sexual violence may require assistance or even meet eligibility criteria for support services. Some male victims may choose not to engage with services if they were not seen as appropriate or meeting their needs.

08 January 2014

FOI and Suppression Orders

ACT Greens MLA Shane Rattenbury has proposed "legislation to substantially change the way that ACT Government information is made public"
on the premise that Government information is public information unless there is a really good reason for it to be kept confidential. 
The Rattenbury Freedom of Information Bill 2013 (ACT) has
been presented as an exposure draft so that the public can be involved in a discussion and make comments that will be considered on the legislation. It is important to consider the public’s views on which information should be available to the public and which information should be confidential to Government. The Bill repeals the existing Freedom of Information Act 1989 and creates a new modern freedom of information (FOI) scheme. 
The Bill recognises that a public right to government information is essential for an effective democracy and it is designed to make information held by the government much more accessible to the community. 
The Bill creates a statutory right of access to information held by the Government and sets up a clear framework for determining the public interest in the disclosure or non‐disclosure of information. Information will only remain confidential where it is on balance contrary to the public interest to release the information; that is there must be a clearly identifiable harm to the public interest from the release of the information that outweighs the public interest in disclosure and necessitates non disclosure.
It's thus similar to the revised Commonwealth FOI statute. The Commonwealth regime is increasingly problematical, with cuts in public sector resourcing being used as a justification - or excuse - for slow responses or non-responses.

The Office of the Australian Information Commissioner for example explains that it is a "micro-agency" and thus not able to supply information about privacy policy and implementation that it acknowledges is held by the OAIC and is covered by the FOI Act. The Act is of course overseen by the national Freedom of Information Commissioner within the OAIC.

Presumably we'll see numerous agencies discovering - quell surprise - that they too are micro-agencies and thus unable to give effect to the explicit Objectives in the Act.

The Rattenbury Bill elides questions about resourcing and regrettably does not address problems with the broader ACT government record keeping regime, in particular adherence to best practice protocols in the creation and management of 'active' records and the absence of an effective archives statute.

The Explanatory Statement for the Rattenbury Bill indicates that
In addition to revising the scheme for providing information in response to particular requests, the Bill also places a much greater emphasis on the proactive disclosure of information without the need for a formal request for the particular information. Commonly referred to as the ‘push model’ for the provision of information, the Bill mandates that a range of information including policy documents, details about agency activities and budget as well as certain expert reports and from three years after they are written: incoming minister briefs, question time briefs and estimates and annual reports briefs.
The Bill further imposes an obligation on government agencies to continually consider what additional information they can make proactively available and authorises agencies to provide information in response to informal requests for information to avoid the need to go through the formal FOI process. The intention is that requests for information under the application process in the Bill will become a last resort and that the community will have access to a much larger range of government information without the need for formal requests. …
While other jurisdictions have created stand alone statutory information commissioners to oversee the operation of FOI laws, the Bill instead gives this role to the ACT ombudsman, similar to the model operating in South Australia, Tasmania and New Zealand. The ombudsman will play a very important role in the new scheme. The ombudsman is given the responsibility for making legislative instruments under the Bill as well as reviewing decisions and investigating complaints.
The Bill creates a new scheme for the review of decisions. It removes the option for internal review and provides for two avenues for the review of decisions under the Bill; ombudsman review and ACAT review. A person will be able to elect if they would like the decision to be reviewed by the ombudsman or by the ACAT. In addition, a person can apply for review of a decision of the ombudsman to the ACAT, in which case the ACAT must be constituted by three Members. The Bill will expand the ability for people to apply for review of decisions by allowing any person to make an application for ombudsman review and ACAT review of decisions. 
The Bill largely continues the system for the correction of incorrect records by allowing people to apply for amendment of their personal information to ensure that it is accurate, up-to date and not misleading. 
In providing greater access to government information, the Bill does potentially limit the right to privacy. There are significant protections restricting the release or publication of personal information within the Bill and anyone whose personal information is the subject of an access request must be consulted and given the opportunity to put their views about the release of the information (see clause 36). Schedule 2 (Factors to be considered when deciding the public interest) contains an explicit recognition of the public interest in protecting the human rights including the right to privacy of individual citizens. Any limitation on a person’s right to privacy must be considered by the decision maker and balanced against any relevant public interest factors favouring disclosure.
'An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12' by Jason Bosland and Ashleigh Bagnall in (2013) 35(4) Sydney Law Review 671 comments
It is frequently bemoaned that Victorian courts make far too many suppression orders compared to courts in other Australian jurisdictions, and that the rate is on the increase. However, it is not only the frequency of suppression orders that has attracted concern: commentators also claim problems exist with the breadth, clarity and duration of such orders. In response to these concerns, this article undertakes an empirical study of suppression orders made by the Victorian courts between 2008 and 2012. The results show that the rate of suppression orders in Victoria is, indeed, high and appears to be increasing. It is also found, consistent with anecdotal claims, that there are significant problems with the breadth, clarity and duration of orders. Each of these problems is considered in detail and, in light of the empirical findings, an evaluation is undertaken of the model legislation on suppression orders endorsed by the Standing Committee of Attorneys-General and a modified version of that model, the Open Courts Bill 2013 (Vic), introduced into the Victorian Parliament on 26 June 2013. 
Bosland and Bagnall argue
Judges in Victoria have repeatedly stressed that the making of a suppression order — an order restricting publicity being given to particular legal proceedings — is a ‘wholly exceptional’ event.  But despite such firm judicial statements, it is often lamented that in practice the Victorian courts grant far too many suppression orders compared to courts in other Australian jurisdictions and that the number of such orders is increasing.  Indeed, these concerns appear to be played out in some of the reported figures. For example, a 2008 study chaired by Prue Innes and commissioned by Australia’s Right to Know (‘Innes Study’) reported that between 2006 and 30 June 2008, 649 suppression orders had been issued by the Victorian courts; by comparison, only 54 orders were made in New South Wales during the equivalent period. Since then, figures produced by Andrea Petrie and Adrian Lowe for the Media, Entertainment and Arts Alliance suggest that the rate in Victoria has increased quite dramatically, with 644 such orders said to have been made in 2011 alone. But not only are the Victorian courts said to grant too many suppression orders, they have also been criticised for making orders that are far too broad and imprecise in scope, and often without sufficient temporal limitations. The suggestion is that many of these orders would not stand up to scrutiny and that the fundamental common law principle of open justice is being eroded in Victoria. 
In response to such claims, this article presents the results of an empirical study of all suppression orders distributed to the media by the Victorian courts over the period 2008–12. It is important to note, however, that this research does not merely update the earlier mentioned research undertaken by Innes. That study looked at the ‘basic numbers’ of suppression orders across multiple jurisdictions in Australia but did not, except for a relatively small sample of 141 orders made by the Victorian courts, analyse the orders themselves. Thus, the present study is both broader and narrower. It is limited to orders made by the Victorian courts; however, in addition to reporting how many orders have been made by year and by court, it also provides comprehensive data on the orders themselves, including the ‘types’ of orders that have been made, their duration, clarity, subject matter and scope, and the powers relied upon by the courts in making them. It is from this data that a clear picture can be gleaned of the orders that are actually being made. 
The present study is both important and timely for a number of related reasons. First, there is, of course, intrinsic value in simply providing a picture of what is happening in the courts. This can be used either to confirm or to deny many of the anecdotal concerns raised about the number of suppression orders coming out of Victoria. But, as pointed out by Andrew Kenyon, empirical and comparative research in this area also has a greater role to play in providing for a better understanding of suppression order law and practice, and in evaluating what reforms, if any, might be warranted. In presenting an in-depth, comprehensive and objective analysis of the suppression orders that have been made by the Victorian courts over an extended period, this article makes a key contribution to such a body of research. 
Second, the present empirical study is timely because of the current momentum for nationwide law reform in the area of suppression orders. In 2008, in an attempt to clarify the law, achieve greater uniformity across jurisdictions and respond to concerns that suppression orders were being made too often in some states, the Standing Committee of Attorneys-General (‘SCAG’) established a working group to develop draft model legislation. The draft legislation was endorsed by the SCAG in May 2010 and has since been implemented in New South Wales and in modified form at the federal level. The SCAG model has not yet been enacted in Victoria. However, on 26 June 2013, during the writing of this article, the Victorian Attorney-General introduced into the Victorian Parliament a Bill designed to ‘strengthen and promote open justice in Victoria’s courts’. 15 While the Open Courts Bill 2013 (Vic) (‘Open Courts Bill’) is based on the SCAG model, significant changes have been proposed to many of its provisions. The current research is, of course, directly relevant to decisions about whether the Bill should be passed in its current form and what, if any, modifications might be needed. An assessment of relevant aspects of the SCAG model and the Bill is undertaken in Part IV below. But even assuming the Open Courts Bill is passed, there remain at least two possible uses for the current research. First, it can be used as a ‘baseline’ to assess the effect of any legislative change that is introduced. Second, even if the legislation ultimately enacted mainly reinforces and clarifies existing law, the current research will be useful in providing guidance on what modifications might need to be made to matters of practice and procedure in applying that law. 
The article proceeds as follows: Part II sets out the fundamental legal principles governing open justice and the making of suppression orders. This description of the law is necessary to understanding and evaluating the empirical data. Part III outlines the methodology used in the present study as well as the results. The results show that the rate of suppression orders in Victoria is, indeed, high and appears to be increasing. It is also found, consistent with anecdotal claims, that there are significant problems with the breadth, clarity and duration of orders. Part IV explores the possible reasons for each of the main findings and considers, in light of the findings, whether either the SCAG model or the Open Courts Bill provides a suitable solution. Part V concludes.

07 January 2014

Safety Theatre

The national Attorney-General and Minister for Justice have
welcomed the decision by the Council of Australian Governments (COAG) to establish a Law, Crime and Community Safety Council to sharpen the nation’s focus on fighting crime. 
brings together law, police and emergency management Ministers and replaces the previous standing councils on law and justice, and police and emergency management. 
The Minister for Justice states that
the involvement of all police commissioners and CEO of the Australian Crime Commission in the new council would ensure that Ministers now had access to the best operational advice, and prepare policy accordingly. “The establishment of this new council will bring together law makers and law enforcers to ensure we build safe and secure Australian communities, and the fact that the practitioners can now sit down at the same table with policy makers will bring greater focus and clarity to this work. ...
COAG has already tasked the new council with reviewing emergency services personnel across state borders and examining ways to prevent children from being exposed to harmful simulated gambling material.
The new LCCSC will consider matters including
  • Border security arrangements within Australia; 
  • A national approach to organised crime gangs; 
  • Co-ordination of community crime prevention; 
  • New ways to ensure cyber safety, especially for children; 
  • Best practice approaches to the harmonisation of laws about working with children; and 
  • Building the preparedness of Australian communities to natural disasters.

Cremation Arbitrage

In Commissioner of Police v James [2013] QCA 403 Margaret McMurdo P, Fraser JA and Henry J considered an appeal following the respondent's pleading in the Magistrates Court to 59 charges of making a false statement for the purposes of registering births, deaths and marriages (i.e. contrary to s 501 of the Criminal Code), 15 counts of forgery and 15 counts of uttering a registration document (contrary to s 488 of the Criminal Code).

James was a funeral director in Brisbane. He had written agreements with families that their loved ones would be cremated in southeast Queensland (i.e. at the Mt Gravatt or Logan crematoriums). Instead he reportedly loaded the coffins in his station wagon (four at a time) and drove to Rockhampton, where cremations were cheaper, thereby making a profit of $30,426.

His barrister in the Magistrates Court reportedly argued that no great damage had been done, commenting that -
He put the wrong name down, where the service was conducted. He has dyslexia and stupidly filled out another form; he does not deserve going to jail.
James had pleaded guilty, with the matter being dealt with summarily pursuant to s 552BA(4)(b) of the Criminal Code. James was sentenced to 12 months imprisonment wholly suspended for two years. On appeal to the District Court against the sentence pursuant to s 222 of the Justices Act 1886 (Qld) the sentence was varied to a term of two years imprisonment wholly suspended for an operational period of three years and James was discharged for the forgery and uttering offences.

In the current instance the QCA considered whether the District Court judge had jurisdiction under s 222 of the Justices Act 1886 (Qld) to set aside those convictions.

Nominalism and PolSci Humour

The oh so droll 'Is Political Science Meant for Every Tom, Dick, or Harriet? The Role of First Names and Middle Initials as Predictors of Academic Success' by A Wuffle and Kristine Coulter in (2013) 47(1) PS: Political Science & Politics 173-176 comments that
We take advantage of the data set compiled by Masuoka et al. (2007, PS: Political Science and Politics 40 (1): 361–66) on lifetime citation counts of political science faculty at PhD granting institutions in the United States to look for “lucky names,” that is, names parents can give babies that predispose them toward scholarly success in political science. Seeking to test an hypothesis offered by Wuffle (1972, PS: Political Science and Politics (Summer): 290), we also briefly look at the importance of middle initials for citation success in political science.
The authors note that
A Wuffle is an associate to professor. As far as s/he is aware s/he is the only person in political science with a single letter first name. (There is no period after the A.) Because Facebook will not allow what they insist on regarding as an initial to be used as a first name, A Wuffle's Facebook cognomen is Aismyfirstname Wuffle.
They go on to comment
Why are some successful and others not? Many scholars look to biological features that are given cultural meaning, for example, gender (Guinier, Fine, and Balin 1997; Monroe et al. 2008), good looks (Rosenberg et al. 1986), height (Hensley 1993; McCann 2001; Sorokowski 2010; Wilson, 1968; Young and French 1996), or race (Arrow 1998). Here, our interest will be in the determinants of citation counts, which have been found to be an important determinant of academic salaries in political science (Grofman 2009). We use the large data set compiled by Masuoka et al. (2007a, b) on lifetime citation counts of political science faculty at PhD-granting institutions in the United States ca. 2005. Unfortunately, variables such as good looks, height, and race are not found in the Masuoka et al. (2007a, b) data set, although we can approximate gender by using gender coding of first names. Moreover, as everyone knows, the most important predictor of success in any area is “luck,” but we found no plausible way to properly operationalize this variable.
In the light of these methodological limitations, we take our inspiration for choice of the key independent variable to predict citation success in political science from the art of naming, or “Nameology,” as this branch of scientific astrology is properly named. With the notable exception of Cash's (1969) definitive musical monologue on the importance of baby names for the formation of gender identity, the science of naming was remarkably neglected in the social sciences until Steven D. Levitt and Stephen J. Dubner, in their magisterial work, Freakonomics (2005), demonstrated the insights that could be gleaned from studying the evolution of racial and class preferences for baby names as a Veblenian race to distance oneself from the Jones's.
The direct inspiration for this article, however, was the intention of the first-named author's long-time officemate to teach a graduate course whose working title was “The Importance of Being Gary,” using the seminal contributions to the discipline of Gary Cox, Gary Jacobson, and Gary King as a means of giving students an appreciation of first-rate political science methodology and research design. The potential for such a course suggested that mothers/fathers who wished their (male) babies to grow up to be political scientists should consider giving them this auspicious first name. But, perhaps there are other Garys who do not publish as often or as well, but one tends only to remember the Garys who do? It was that question that led to this article. But, in the interests of comparative research, as the article has evolved, we go well beyond “Gary” studies. 
In the remainder of this article, drawing on the Masuoka et al. (2007a, b) data set of lifetime citation counts of political science faculty at PhD-granting institutions in the United States ca. 2005, we examine citations according to first name. There are 3,743 names in this data set. First, we compare all names with at least 20 instances, of which there are 29, to see if there are some that appear statistically distinct in their mean per year citation counts from the overall average of 6.7 citations per year. In particular, we check to see if “Gary” has an unusually high mean citation count. Then, we look to see if those whose first names match those of recent past presidents have a distinctive citation profile. Also we check whether sets of first names with Christian religious significance, such as the four authors of the Gospels (“Matthew,” “Mark,” “Luke,” and “John”), or famous names from the Old Testament (“Abraham,” “Isaac,” and “Jacob”), have an unusually high citation count relative to the entire data set. Next, to check for gender effects, we take advantage of a natural experiment involving paired comparisons of matched pairs involving similar first names (e.g., Paul and Paula), and we also compare some famous mixed gender pairings (e.g., Jack and Jill). Finally, to deal with potential confounding effects, we check to see whether those with middle initials or middle names have any citation advantage, and we look to see if those with first letters of their first name toward the end of the alphabet appear penalized relative to those with letters closer to the front.
They conclude
Our inspiration for this essay was the apparent citation success associated with the name “Gary.” But, like all too many political scientists, we failed to adequately take into account interaction effects, such as those associated with the interdependence of first name and last name. On the one hand, we now see the importance of not just being named “Gary” but also being named either “Cox,” “Jacobson,” or “King.” On the other hand, using coarse inexact pairwise matching techniques, we did find that, for large enough samples, men with certain first names do seem to be more cited than women with very similar, or frequently associated, first names. Thus, we see our work as definitely having further advanced the science of Nameology.
Wuffle - author of works such as 'Should you brush your teeth on November 6, 1984?: A rational choice perspective' [PDF] and 'The pure theory of elevators' - has a homepage here.

On a more serious note 'Children's Nomenclatural Adventurism and Medical Evaluation study' by Francis R Willis, Stephen L Adams, Sarah Doyle, Ian J Everitt, Michael Lovegrove, Jennie Slee, Annie Sparrow and Judith Willis in (2009) 45(12) Journal of Paediatrics and Child Health 711–714 reports a correlation between 'junk names' and and the likelihood of inpatient admission following presentation to a paediatric emergency department.

06 January 2014

Counting Costs

'Lost in Translation: Law, Economics, and Subjective Standards of Care in Negligence Law' by Charles R Korsmo in (2013) 118 Penn State Law Review 285 comments that
The law and economics movement has been a victim of its own success. Over the past four decades, it has generated an enormous specialist literature, often explicitly intended for other specialists. As is so often the case with increased specialization, the result has been escalating technical complexity accompanied by forbiddingly formal mathematics and a tendency to retreat into abstraction. As a result, economic analysis has often failed to provide general legal audiences with insight into important legal questions, even where the tools of economics would be appropriate and useful. 
This Article examines – and rectifies – just such a failure. In particular, this Article examines departures from a uniform reasonable person standard in negligence law. From an economic standpoint, individuals might be held to different standards of care because: (1) they differ in their costs of taking precautions (e.g., a good driver can take additional precautions more cheaply than a bad driver); or (2) they differ in the accident costs they generate when exercising a given amount of care (e.g., a good driver causes fewer accidents than a bad driver who is exercising the same precautions). Though the two possibilities lead to sharply different prescriptions, the law and economics literature has focused almost entirely on the former scenario, while neglecting the latter. 
By examining both possibilities, I provide a new and superior explanation of how tort law treats disabilities and professional skill, with the potential to change the way these important topics are conceptualized, taught, and ultimately adjudicated. In doing so, I also demonstrate the extent to which important legal insights can remain unappreciated when buried in an overly abstract mathematical literature.
'Does Medical Malpractice Law Improve Health Care Quality?' by Michael Frakes and Anupam Jena comments that
Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current liability system plays at most a modest role in inducing higher levels of health care quality. We contend that this limited independent role for medical liability may be a reflection upon the structural nature of the present system of liability rules, which largely hold physicians to standards determined according to industry customs. We find evidence suggesting, however, that physician practices may respond more significantly upon a substantive alteration of this system altogether — i.e., upon a change in the clinical standards to which physicians are held in the first instance. The literature to date has largely failed to appreciate the substantive nature of liability rules and may thus be drawing limited inferences based solely on our experiences to date with damage-caps and related reforms.
They state that
We employ two approaches to identifying the influence of liability forces on health care quality. First, we take the more traditional route in the literature which typically estimates difference-in-difference specifications that draw upon the adoption of caps on non-economic damages awards and related reforms (i.e., ‘traditional reforms’ or “damage cap reforms”). These plausibly exogenous reforms primarily serve to decrease the expected consequences of liability and by doing so allow us to evaluate the impact on health care quality of malpractice reforms that essentially maintain the basic structure of the tort system, but that simply blunt its severity. Second, in contrast to these traditional, remedy-focused reforms, we study the impact on quality of care of more substantive reforms which directly alter the standards of care against which physicians are judged in medical malpractice suits. In particular, we study changes in state-level laws which led to the retreat from rules which expected physicians to follow customary local practices and the contemporaneous adoption of rules that physicians be held to national standards of care (Frakes 2013). 
The empirical malpractice literature to date, which again has focused primarily on damage-cap reforms, has largely viewed medical liability forces in a rather abstract sense. It has spoken about liability “pressure,” without necessarily asking: “pressure to do what?” We demonstrate that this failure to appreciate the substantive nature of liability rules and the clinical expectations such rules place on physicians may leave analysts relying solely upon our experiences to date with traditional reforms with incomplete information regarding the potential role of medical liability in shaping physician practices. We contend that, even if observed levels of health care quality happen to be relatively insensitive to the adoption of a damage cap or related remedy-focused reform, one would be premature to take such findings to conclude that physicians are, in fact, universally unresponsive to liability forces. Relative to such traditional reforms, substantive reforms that change the standards against which physicians are judged hold the potential to more directly and powerfully influence physician practice patterns. Such latter reforms thus merit separate attention. 
To understand the intuition behind the insufficiency in merely relying upon the results of the damage-cap studies, one must first understand the substantive nature of our present liability rules. In determining the legal standards against which physicians should be judged, malpractice law generally defers to customary market practices. In other words, physicians determine their own standards. Liability forces in a system of this nature thus impose few independent expectations on physicians. Generally, physicians in such a system may only alter their practices in response to liability fears due to uncertainty in their beliefs as to how courts will assess customary practices — i.e., they may aim to deliver higher quality than otherwise customarily desired over fear that courts will misjudge customary practices to entail such higher practices. Damage caps may therefore only induce changes in physician practices to the extent that they reduce the cost of uncertainty to physicians about whether their practice patterns deviate negatively from customary market practices. Caps otherwise do not alter the clinical expectations being placed upon physicians. 
One might not be surprised to find that the channel of influence inherent in a custom-focused liability system is limited in its ability to independently induce substantially higher levels of care. After all, as just suggested, liability forces in this system may only incentivize higher levels of care as a result of blind guesswork on the part of physicians. Consider, in contrast, an alteration of the structure of this system altogether — for example, by changing the way in which the clinical standards expected of physicians are determined in the first place. To the extent that these standards change in a way so as to explicitly expect higher levels of quality, one might be less surprised to find a substantial response in physician behavior. Following a reform of this nature, physicians will not deliver higher quality of care simply because they are guessing that this might be expected of them at court. Rather, they may deliver higher quality care as a result of explicit directions under the law to do so. The potential channel of influence created by standard-of-care reforms are direct and immediate and do not operate through any second-order reduction in uncertainty. 
Generally consistent with expectations, our empirical analysis of the impact of remedy-centric traditional reforms on the quality of care provided by physicians generally casts doubt upon the independent deterrent effect of medical liability forces in the present custom-focused liability system. For each measure of health care treatment quality, the estimated effect of malpractice pressure within our current liability system, as identified by the adoption of non- economic damage caps and related tort reforms, is both statistically insignificant and small in magnitude, with a 95% confidence interval that is relatively tightly bound around zero. For instance, at one end of this interval, the lack of a non-economic damages cap — which is indicative of higher malpractice pressure — is associated with only a 2 percent decrease in inpatient mortality rates for selected medical conditions. 
Importantly, however, while this remedy-centric-reform analysis implies at most a modest degree of deterrence stemming from the present system of liability rules, the results from the standard-of-care-reform analysis suggests that a substantive alteration of the malpractice system may lead to more meaningful changes in observed measures of quality. For example, for each measure of health care treatment quality, we find that when states modify their standard-of- care rules to expect physicians to provide a higher level of quality, observed levels of quality increase substantially in the direction of such new expectations. Moreover, when states modify their rules so as to condone lower provision of quality by physicians, physicians do not appear to respond by delivering lower quality care. Changing the legal standard of what is expected of physicians therefore has the potential to improve the quality of care provided by low-quality physicians without reducing the quality of care provided by already high-quality physicians. Our analysis suggests that medical liability forces—under the right structural framework—hold the potential to elevate the quality floor. 
The paper proceeds as follows. In Section II, we discuss existing evidence on the deterrent impact of medical liability. Section III presents a simple model of physician decision- making and discusses the various sources of ambiguity that cloud the channel of deterrence intended to be created by the malpractice system. Section IV discusses the data and empirical methodology. Section V presents the results of the empirical deterrence analysis. Finally, Section VI concludes.

05 January 2014


Biometrics in Schools: The extent of Biometrics in English secondary schools and academies by Big Brother Watch in the UK infers [PDF] that 40% of UK secondary schools are using biometric technology, over 1.2 million pupils have had fingerprints taken in recent years and that 31% of schools did not gain parental permission for that data capture prior to the Protection of Freedoms Act 2012.

The report states that
Until very recently there has even been very little awareness about the level of biometric technology being used in schools. The Department for Education keeps no record of the number of schools using biometric technologies nor does it collate whether parents have provided their consent. The Information Commissioner’s Office (ICO) stated that “such an enterprise should only be introduced when explicitly authorised by the Government and should be subject to public debate and appropriate legislation”. 
Legislation was introduced, with the Protection of Freedoms Act 2012 creating an explicit legal framework for the use of biometric technologies in schools for the first time. Parents and pupils were given a legal guarantee that no finger prints would be taken without explicit consent being obtained first and that an alternative must be made available if they did not wish to use a biometric system. 
This research, undertaken for pupils in the 2012-13 academic year, is the first effort to measure how many schools are using the technology and how many pupils have been fingerprinted without parental consent first being obtained – or even sought. Our research has found how one third of schools did not seek any parental consent when they first introduced biometric fingerprint technology, prior to the introduction of the Protection of Freedoms Act. 
Based on our research, undertaken with Freedom of Information Act Requests to more than 2,500 schools, we discovered that in the academic year 2012-13, more than 866,000 children had their fingerprints taken. As we are now one term into the 2013-14 academic year, and expect the number of schools using the technology to have increased over the summer, and the secondary school population now above 3.2 million, if the number of secondary schoolsusing biometric technology increased from 25% to 30%, more than one million children would be fingerprinted. 
We continue to be concerned that the use of biometric technologies threatens the development of a sense of privacy as young people develop, while also creating greater opportunities to track an individual pupil’s activity across multiple areas, from the library books they take out to the food they eat. Given the rise of schools making this information available to parents online, the biometric technology used in this way comes close to constituting not just an ID card but a way of monitoring all their behaviour. 
This report offers an insight into the growth of the use of biometric technology across the country and highlights the continuing concerns that schools are potentially failing to use the technology without seeking parental consent.