26 April 2014

Workplace surveillance

The Administrative Appeals Tribunal decision in Azary and National Australia Bank Limited [2014] AATA 222 offers an insight into the use of covert surveillance in relation to alleged fraudulent compensation claims.

Hashem Azary was employed as a banking adviser with the NAB. He claims that despite meeting performance targets his manager Mr Adhami subjected him to increasing pressure to meet unrealistic targets, bullied and intimidated him, and then directed him to accept a lower level position or be subjected to "extended micro-management" with the threat of termination if his results did not improve. Azary has not worked since the April 2012 meeting at which he received the direction and has been under the care of a psychiatrist for much of the time. In May 2012 he claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) for "Acute Anxiety Attacks/Depression".

The NAB disputed Azary's claim to suffer from a psychiatric condition and argued that even if he suffers from such condition his employment did not contribute to it to a significant degree. Going further, the NAB argued that even if Azary's employment contributed significantly to his condition, he did not suffer a compensable injury because it was the result, in whole or in part, of reasonable administrative action taken in a reasonable manner in respect of his employment.

The NAB called in contractors for covert surveillance.

The AAT states -
Mr Azary attended the four and a half days of the [AAT] hearing with his wife. Throughout the hearing, he displayed what some doctors noted in their consultations with him and describe as “regressive behaviour”: walking stooped with his hands clasped in front of him, rocking continually in his seat, avoiding eye contact and speaking in a somewhat child-like voice. Mr Azary gave evidence that his symptoms started within one or two days of his meeting with Mr Adhami on 20 April 2012. He said he was unable to control the rocking and it “never stops”.
However -
Although he clearly found the hearing stressful at times, Mr Azary had no apparent difficulty answering questions, recalling details of events, or responding to matters asked of, or put to him, in evidence. The discrepancy between his physical presentation and his ability to respond to questions was considered significant by a number of medical witnesses whose evidence is considered below. Further, as we discuss below, Mr Azary’s appearance when under surveillance on four occasions was markedly different from his presentation at the hearing.
The AAT refers to "surveillance evidence" -
Surveillance of Mr Azary was carried out by Adroit Business Advisers Pty Ltd on behalf of the respondent over seven days in September and October 2013, four days in February 2014 and two days in March 2014. He was filmed for a total of 16 minutes on four days when he was observed at home, or coming and going from his home. The investigator’s report and films are in evidence.
On 15 October 2013, Mr Azary was filmed for a total of four minutes outside a relative’s address in company with another man, whom he identified as his brother, and driving his car away from the address with his brother a passenger. The following day, he was filmed briefly walking to his letterbox and wheeling a rubbish bin inside the fence of his property while carrying his son.
On 18 February 2014, Mr Azary was filmed for a total of four minutes driving his son to day care in the morning. He was filmed picking his son up in the afternoon and shopping at a local shopping centre.
On 11 March 2014, he was filmed for a total of nearly seven minutes driving his wife and children to day care, taking his son into the centre, and from there driving his wife and daughter to McDonalds and then to the railway station. They caught the train to the city, returning some hours later when he drove his family to the day care centre and collected their son.
At all times while filmed, Mr Azary’s presentation bore no resemblance to how he presented at the Tribunal hearing: he was clean-shaven and appeared quite neatly dressed; he appeared to move about and walk normally, without any sign of stooping or clasping his hands; and while seated talking with his brother, he showed no sign of rocking behaviour.
Save for Dr Mustapha Alameddine, the DVD was made available to each of the doctors who gave evidence at the hearing. Their evidence is considered below.
Giving evidence, Mr Azary maintained he was unable to control the rocking but “sometimes it stops”. He claimed he was seen seated with his brother without rocking because he had just been driving with his seat belt on which helps stop the rocking. He said he stoops and clasps his hands when he is stressed or anxious.
Contrary to Mr Azary’s claim that he only drives the car in an emergency, he is seen driving his wife and his brother and could not satisfactorily explain what emergency prevented them from driving him on those occasions other than that he had to take his son to child care.
The AAT considered evidence from  Ms Al-Haddad, Azary's wife, who
Al-Haddad [Azary's wife] claims Mr Azary is “totally dependent” on her: she has to help him shower, shave and dress, and has to put his food out for him and encourage him to eat. He has little social interaction and is afraid of open spaces. He only drives under “extreme” circumstances. She says she first noticed him rocking a day or two after the meeting with Mr Adhami. It became worse until, about two weeks later, she urged him to see a doctor after he mentioned suicide.
Ms Al-Haddad was not shown the surveillance DVD but was asked about her husband’s physical presentation and driving. She said he rocks when under pressure but “occasionally” stops when he “takes his medication”. Asked if she could explain why he might be observed sitting without rocking, she said he could have just been driving and the seat belt would have helped. She was asked repeatedly about how often he walks stooped with his hands clasped but she would not say. Asked whether Mr Azary goes out alone, Ms Al-Haddad said sometimes he will take out the bins; if they go out together, he asks to go home after about 15 minutes. She said she can sometimes urge him to stay out for about 45 minutes. She could not recall an occasion when he managed to go out twice on the same day (as he was observed in her company on 18 February 2014).
Ms Al-Haddad maintained she drives if they are together and Mr Azary only drives in an emergency. Despite being pressed, she could not say how often emergencies happened. Asked about the occasions when he was observed driving on the DVD, she could not recall what the emergency was that meant he had to drive. When pressed, she said her daughter had a fever that lasted two days so he drove their son to child care; another time she had a headache and could not drive. Asked about him driving to the train station on 11 March 2014, she said they went to the embassy to complete the children’s citizenship applications. She could not explain why this was an emergency or why she could not drive.
Ms Al-Haddad’s evidence was not convincing. Even allowing for some misunderstanding due to interpretation (which was not evident), her responses were frequently evasive. Her explanations strongly suggested she had discussed the DVD overnight with Mr Azary and tailored her evidence accordingly. We find her evidence unreliable and we reject it.
Consultant Dr O'Neill examined Azary in August 2013
Dr O’Neill took a detailed history from Mr Azary and administered a range of psychometric tests. Mr Azary’s scores were low enough to indicate a mild intellectual impairment. Dr O’Neill commented on the “significant discrepancy” between his reported pathology and his presentation and noted “he showed clarity of thought despite his rocking behaviours and complaints of impairments”. On the Structured Interview of Reported Symptoms test, considered the “gold-standard assessment of feigning”, Mr Azary’s overall response indicated “a likelihood of 81.8% of feigning mental disorder”.
Dr O’Neill reported: On multiple scales measuring feigning of mental disorder, he endorsed a high degree of exaggerated, unusual and extreme symptoms atypical of bona fides clients, but more typical of individuals asked to feign mental disorders in simulation research.
The Tribunal comments that
We have considered carefully the evidence about the diagnosis of any psychiatric condition suffered by Mr Azary, bearing in mind especially that he has undergone ECT. That fact alone is not easily reconciled with the absence of any psychiatric disorder but nor is it evidence in itself of a psychiatric illness. ...
Drs Bell, Champion and Newlyn each saw Mr Azary only once. However, their unanimous conclusion, having seen the DVD, was that he has, and has had, no psychiatric disorder. Dr Newlyn changed his opinion completely, though not on the basis of the DVD alone.
Dr O’Neill suggested it was possible that Mr Azary’s cognitive functioning had been deteriorating in the year or so before meeting with Mr Adhami and Dr Bell also thought it possible (before seeing the DVD) that his deteriorating performance at work signalled the gradual development of a mental illness. If that is so, it could be open to us to find that Mr Azary suffered an aggravation of a pre-existing condition as a result of the meeting on 20 April 2012. However, we prefer the evidence of Drs Bell, Champion and Newlyn that Mr Azary does not, and has not, suffered from a psychiatric condition.
It seems extraordinary that any person would submit to ECT and anti-psychotic medication if not suffering from a psychiatric condition. On the evidence before us, however, we find Mr Azary has not suffered, and does not suffer, from a psychiatric disorder."


'Panvasive Surveillance, Political Process Theory and the Nondelegation Doctrine' by Christopher Slobogin in (2014) 102 Georgetown Law Journal comments
Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should be bound by the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely’s political process theory and principles derived from the closely associated nondelegation doctrine.
Part I introduces the notion of panvasive law enforcement — large-scale police actions that are not based on individualized suspicion — and exposes the incoherence of the Supreme Court’s “special needs” treatment of panvasive investigative techniques under the Fourth Amendment. It then contrasts the Court’s jurisprudence, and the variations of it proposed by scholars, to the representation-reinforcing alternative suggested by Ely’s work, which would require that panvasive searches and seizures be approved by a body that is representative of the affected group and be applied evenly. Part II explores the impact of political process theory on panvasive surveillance that is not currently considered a search or seizure under the Fourth Amendment, using fusion centers, camera surveillance, drone flights and the NSA’s metadata program as examples. Part III mines administrative law principles to show how the rationale underlying the nondelegation doctrine — if not the (supposedly moribund) doctrine itself — can help ensure that the values of representative democracy and transparency are maintained even once control over panvasive surveillance is largely ceded to the Executive Branch.
'The Snowden Disconnect: When the Ends Justify the Means' by John Robinson Jr. comments that
People react to Edward Snowden and his national security disclosures in radically different ways. Security hawks want his head and call him a traitor; privacy advocates think him a whistleblower and a national hero. This essay examines those positions and finds that there is a fundamental disconnect between them, which influences and prohibits an important national conversation concerning the scope of the NSA’s work, the laws under which it operates, and privacy rights of United States citizens. This essay concludes that the privacy advocates have the stronger interests, and that it is wildly inconsistent for the government to simultaneously seek Snowden’s prosecution at the same time it engages in substantive national-security legal reforms.
Robinson goes on to state
Wide disparity exists across the United States in the response that American citizens have to Mr. Snowden and his disclosures. On one end of the spectrum, the security hawks present leaking the files as a traitorous act with grave national security implications. At the extreme, some claim that the leaks will lead to American deaths.  On the other side, privacy advocates view the disclosures as essential information concerning governmental overreach and constitutional violation. In their view, such knowledge empowers society to make cogent choices concerning privacy and security and Snowden should be hailed, not condemned.
However, the current Snowden-based dialogue generally sees little “conversation” taking place—both positions are talking past each other, not to each other. This gives ride to an interesting, if not altogether unique, situation. And until there is some remedy to it, there can be little progress toward reconciling the interests of the two groups. Without a meaningful dialogue, both sides will continue to dig in their heels and take positional, rather than interest-based, postures.
Positional thinking is black and white — Snowden is a bad guy or a good guy — but fails to understand the connection between the position and the interests that underlie it. That is, security hawks forget that their interest is in national security, not in trampling on the Fourth Amendment. Such a positional approach ignores the interests of the other side (e.g., privacy rights) and does not allow a meaningful conversation to take place.
Ultimately, this lack of conversation stems from the two diametrically opposed ways of interpreting the Snowden disclosures. That is, the two positions are not in conversation because they are not using the same lens; each position views the Snowden revelations in completely different light. To explain, this essay groups Snowden’s revelations in two distinct ways—the red lens and the blue lens.
Through the red lens, Snowden’s revelations have done damage to the U.S. security apparatus. Take disclosure of NSA’s MYSTIC program, discussed supra Part I.B.3, for example. Assuming that MYSTIC is in fact targeting Iraq, and Iraq did not know about the program, one can easily imagine the damage done. Terrorists and security threats within that country are now on notice that their communications are completely compromised; before the Snowden files, they probably were not taking appropriate precautions because they did not even know they were under surveillance. In this view, it is not particularly important that some American conversations might get swept up among the mass of Iraqi calls, and the efficacy of NSA’s MYSTIC program is severely compromised.
Through the blue lens, Snowden’s revelations simply exposed a vast and unknown security apparatus. For instance, the PRISM program and Verizon metadata-collection disclosures, discussed supra Parts I.B.1–2, tell the story of a government agency gone astray. The NSA, an agency that supposedly only operated outside of the U.S., had instead turned its eyes and ears on the homeland — surreptitiously collecting data about U.S. citizens that were on American soil. Adding to that baseline, the fact that many large companies seemed to be complicit, whether knowing or not, in the NSA’s data collection meant to many people that Snowden revealed a military-industrial complex that disregards large sections of the Constitution.
This major and fundamental difference trickles down into other aspects of the Snowden affair and the media’s portrayal thereof. The position that a person takes on the Snowden revelations depends on which version of the Snowden account, illustrated above, that she accepts. For example, people infer Snowden’s intentions based on the color of their own personal lens. Those seeing red portray Snowden as an egotistic, self-interested attention seeker who cares little for the safety of the United States. The blue-lens people, though, portray him as a moral and principled patriot who risked it all because of his convictions.
Two reasonable people can take radically different positions on the whole affair based simply on their own bias—elevating one view automatically subjugates the other. In this way, privacy advocates and security hawks are really not even part of the same conversation. ...
Understanding the viewpoint disconnect illustrated above informs the associated disconnect between Snowden the hero versus Snowden the traitor. Because the security hawks only see the harm that Snowden did, they call for his prosecution. Privacy advocates take the opposite line, concluding that his disclosures fueled democratic debate and cast light into a dark area of government action—and that Snowden should therefore be indemnified. However, arriving at a real answer — whether Snowden is a hero or a traitor — requires rejecting the notion that this is a positional black or white debate, an either/or question. Indeed, the only way to find the “right” answer is to balance the benefits produced by the Snowden files against the harms. And then, to apply that analysis to United States democracy.
So far, the government has been unwilling to engage in such a balanced inquiry. Indeed, President Obama’s proposed reforms to the NSA’s bulk data collection policy do not even acknowledge the Snowden files as the precursor (or even a precursor) to the proposal. It is disingenuous for the government to disclaim or ignore such an obvious connection; one must infer that President Obama had some purpose for avoiding it. One obvious purpose for avoiding a direct discussion of the Snowden-to-reform connection is to maintain the ideological disconnect between the two. Of course, maintenance of the disconnect is an illegitimate policy rationale.

Soft Whistles

'Soft Whistleblowing' by Amanda C. Leiter in (2014) 48(1) Georgia Law Review 3-71 considers
the underappreciated role that agency insiders play in directing outside oversight of their employer agencies and, in turn, manipulating agency policy development. Specifically, the Article defines, documents, and evaluates the phenomenon of “soft whistleblowing” — an agency employee’s deliberate, unsanctioned, substantive, and instrumental disclosure of nonpublic information about issues of policy. This phenomenon is ubiquitous but has received no systematic attention in the academic literature.
As the Article demonstrates, agency employees regularly engage in soft whistleblowing to congressional staff, journalists, and agency watchdog groups, in an effort to bring outside pressure to bear on their employer agencies to shift policymaking direction. The phenomenon results in a high-volume, employee-generated flow of information out of agencies. This flow has significant implications for the distribution of policymaking power within agencies and for the direction and efficacy of agency oversight. For example, the Article posits that soft whistleblowing empowers those agency professionals whose codes of ethics encourage some information disclosure (engineers are one example), while disempowering agency lawyers, whose code of ethics all but forbids unsanctioned disclosures about their client agencies’ activities. With respect to outside oversight, soft whistleblowing increases agency transparency, and strengthens congressional oversight, but undermines so-called “presidential administration.” Consequently, the activity likely serves a keel-like function, keeping the agency on a relatively steady policymaking course in the face of shifting political winds.
Leiter comments
To explore the implications of soft whistleblowing for agency governance and accountability, it is first necessary to define the term. Many agency leaks (particularly those that make the front pages of national newspapers) fit the traditional understanding of “whistleblowing.” While there is no universal definition of that term, it is generally understood to refer to "‘the disclosure by organization members (former or current) of illegal, immoral, or illegitimate practices under the control of their employers to persons or organizations that may be able to effect action.’" The WPA suggests an alternative, narrower definition: the “disclosure of information . . . which the employee reasonably believes evidences—(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” For its part, the House Ethics Manual encourages government employees to disclose evidence of “corruption wherever discovered.” The unifying feature of these various definitions is their focus on the disclosure of misconduct or malfeasance — “illegal, immoral, or illegitimate practices,” violations of laws or rules, gross mismanagement, waste, or corruption. These kinds of disclosures have important and well-explored implications for agency function and democratic accountability.
I focus on a very different kind of disclosure that is subtler, more ubiquitous, and even more consequential for agencies: low-level, mid-level, and even senior employees’ disclosure of inside information about decisions, policies, or practices that are presumptively legal and moral, but are nonetheless open to debate or controversy. “Soft whistleblowing” thus refers to an agency employee’s deliberate, unsanctioned, substantive, and instrumental disclosure of non-public and policy-relevant information, in the absence of evidence of malfeasance.
To put the distinction in more general terms, traditional or hard whistleblowing often involves leaked evidence, or at least allegations, of a legal or ethical lapse at an agency. Soft whistleblowing, by contrast, refers to disclosures about agency actions that may seem arbitrary or ill-advised but are neither illegal nor immoral — for example, an agency’s adoption of a policy that, in the soft whistleblower’s view, lacks scientific support or exceeds (or falls impermissibly short of) the agency’s statutory mandate. The narratives in Part III provide concrete examples. The line between “hard” and “soft” whistleblowing may sometimes be difficult to draw, of course, because “illegal” and “immoral” can be imprecise terms. That said, the fact that some leaks cannot easily be categorized as hard or soft does not undermine the importance of the underlying distinction for understanding the causes and consequences of each type of disclosure.
Before turning to my case studies, it is important to distinguish the subject of this Article from some neighboring areas. First, the Article is not about White House or agency efforts to “test[ ] the political waters for a policy” by planting news of the policy prior to its official release. Nor does it address accidental leaks. Finally, and most significantly, the Article reserves important questions about the legality and ethics of soft whistleblowing. Any discussion of leaks by government employees provokes widely divergent reactions. Some consider the behavior inherently disloyal or unethical; others argue that stringent protection of government whistleblowers is critical to a functioning democracy; and still others view government whistleblowing as a necessary evil, with benefits for democratic accountability that must be weighed against costs to workplace morale and national security. Reflecting these divisions, “U.S. senators, depending on their perspective of citizenship and organizational citizenship, have described government informants as either ‘patriotic’ and ‘citizen crime-fighters’ or ‘snitches’ and ‘rats’” — comments that expose deep national “ambivalence . . . about the role of individuals in resisting illegality in their group settings.”
Soft whistleblowing seems likely to provoke a similar range of reactions, depending on one’s views about the relative importance of public accountability, on the one hand, and loyalty, confidentiality, and administrative efficiency on the other. Whatever one thinks of the ethical choices of individual soft whistleblowers, though, their actions are too easy and too free of personal consequences to be easily quashed.48 This Article therefore reserves questions about soft whistleblowing ethics, the potential civil or criminal liability of individual soft whistleblowers, and constitutional protections for the journalists who receive soft whistleblowers’ disclosures, and focuses instead on the central governance questions: how to expand our understanding of agency structure and function, and of congressional, presidential, judicial, and public oversight of agencies, to take better account of the undeniable fact that people — including agency personnel — are prone to talk.

24 April 2014

Faux Collectibles

The mass media are reporting yet another fake wine dispute, with US property developer, Julian LeCraw Jr suing the London-based Antique Wine Company (AWC) over allegedly counterfeit bottles of Yquem, Lafite Rothschild and Margaux. AWC has strongly denied the claims and will “vigorously defend” the case.

LeCraw is seeking US$25m on the basis of accounting, punitive and treble damages for breach of contract, fraud, conspiracy to defraud, negligent misrepresentation, RICO violations, conversion, breach of fiduciary duty, and Georgia laws violations. That reflects claims that AWC owes him several million dollars for hundreds of bottles taken on consignment,

He gained attention several years ago by paying £55,000 for a supposedly 219-year-old bottle of Château d’Yquem, which AWC then transported across the Atlantic by private jet on a special delivery basis. He now claims that the 15 bottles purchased from AWC featured computer-printed labels, incorrect corks and inauthentic bottle shapes - "worthless glass containing unknown liquids".

In 2013 controversial US billionaire William Koch won US$12.5m, later reduced to US$0.924m, in a separate dispute with another party after 24 bottles turned out to be fake. Koch, who features in The Billionaire's Vinegar: The Mystery of the World's Most Expensive Bottle of Wine (Random House, 2013) by Benjamin Wallace, was reportedly down around US$7m in legal costs.

Last year Rudy Kurniawan was found guilty in New York of making and selling over US$1m of counterfeit fine wines, in authentic bottles with authentic labels or otherwise, some allegedly concocted in his kitchen.

LeCraw's statement of claim indicates that
In early 2013, a wine merchant visited LeCraw’s cellar to determine whether he wished to purchase some of LeCraw’s bottles or offer them at auction. The merchant questioned the authenticity of the 1787 d’Yquem and other bottles, including some of the Lafites. The merchant recommended that LeCraw have a wine authentication expert inspect various bottles in his cellar.
In March 2013, LeCraw began discussions with Maureen Downey of Chai Consulting, a well-known wine authentication expert located in San Francisco, California. LeCraw contacted Ms. Downey to inspect bottles in his cellar to determine whether they are counterfeit.
Ms. Downey recently testified in the high-profile trial in New York in March and April 2013 where billionaire Bill Koch sued Eric Greenberg for “wine fraud” for knowingly selling counterfeit wine which Koch ultimately purchased. Mr. Koch obtained a jury verdict against Mr. Greenberg for more than $12.3 million in connection with the sale of fake wine (although later reduced). See William I. Koch v. Eric Greenberg, et al., United States District Court, Southern District of New York, Civil Action No. 07-CIV-9600, filed October 26, 2007.
After testifying in the Koch trial, in April 2013, Ms. Downey traveled to Atlanta and inspected bottles in LeCraw’s cellar. Ms. Downey and her photographer spent two full days inspecting and photographing bottles in LeCraw’s cellar and Ms. Downey determined that many were fake.
Ms. Downey issued a report in June 2013 (the “Downey Report”) which opines that all of the Lafites, the 1908 Margaux, the 1847 d’Yquem, and the prized 1787 d’Yquem are all counterfeits (the “Fake Wine”).
The Downey Report explains why each bottle of Fake Wine is not what it purports to be. For instance, on some of the bottles that are supposedly centuries old, the labels were printed by computer. Others show excess glue around the labels which could not have been used by the chateaux. Other indicia of counterfeiting relates to the corks, the capsules, the sediment inside the bottle, the shape and color of the bottle, and the color of the liquid in the bottle, among other things.
After receiving the Downey Report, LeCraw, through counsel, provided relevant portions of the Downey Report to Defendants and made demand on Defendants with respect to the counterfeit wine, among other things described hereinbelow.
In a series of written communications following LeCraw’s initial demand, Defendants, through counsel, refused LeCraw’s demands and denied that the Fake Wine is counterfeit.
Although the Downey Report provided detailed and irrefutable evidence that each of the bottles of the Fake Wine is not authentic, Defendants attacked Downey’s methodologies and refused to acknowledge that the Fake Wine is fake. Thus, because Defendants continued to deny that the Fake Wine is fake in the face of irrefutable evidence of counterfeiting, LeCraw was forced to submit the Fake Wine to the respective chateaux in France for the definitive word on whether the bottles are genuine.
On March 19, 2014, LeCraw had the 1787 d’Yquem and the 1847 d’Yquem presented to the senior management of Chateau d’Yquem at the chateau in Sauternes, France for inspection. Consistent with the Downey Report, Chateau d'Yquem's management concluded that both the 1787 d’Yquem and the 1847 d’Yquem are not authentic Chateau d’Yquem.
On March 20, 2014, LeCraw had the Lafites presented to the senior management of Chateau Lafite Rothschild for inspection at the chateau in Pauillac, France. For logistical reasons related to customs, duties and tariffs, four of the 12 Lafites did not travel to France, although they were presented to the chateau for inspection in high-definition photographs on a laptop computer. The other eight Lafites were presented for the in-hand inspection by the chateau.
Consistent with the Downey Report, Chateau Lafite Rothschild’s management concluded that each of the Lafites are not authentic Chateau Lafite or Chateau Lafite Rothschild.
The Directeur des Domaines of Chateau Lafite Rothschild declared all of the Lafites to be “FAUX, FAUX, FAUX.”
LeCraw decided not to incur the cost of transporting the 1908 Margaux to France because of its large size and because it is objectively fake.
Chateau d’Yquem having confirmed that the d’Yquem bottles in the Fake Wine are not genuine, and Chateau Lafite Rothschild having confirmed that the Lafites are not genuine, it is indisputable that each bottle of the Fake Wine sold by Defendants to LeCraw is counterfeit and completely worthless and unmarketable.
Defendants are renowned and self-described experts in the fine and rare wine industry, and they boast of being on the cutting edge of rare wine authentication. Williams has held himself out as a wine expert since he met LeCraw. Williams and his companies told LeCraw that each of the bottles of Fake Wine was authentic and genuine, but as fine and rare wine experts who supposedly researched and guaranteed the provenance and histories of each bottle sold, they knew that all of the Fake Wine was counterfeit when they sold it to LeCraw.
In fact, if Williams is truly one of the world’s foremost experts on fine wine as he says, and as the founder, CEO, and Managing Director of AWC which is one of the “world’s leading experts on fine and rare wine” as Defendants claim, then it would be impossible for Defendants not to know that the Fake Wine they were selling to LeCraw is counterfeit. Defendants knew the Fake Wine was not authentic before selling it to LeCraw, and Defendants’ ongoing and unsupported refusal to acknowledge that it is counterfeit is part of their scheme to conceal the fraud.
Deception and authentication in the collectible wine market are generating an interesting literature, including 'The Case of the Questionable Jeffersonian Lafites: Forensic Applications in Detecting Wine Fraud' by John Daab in (2011) 5 Journal of Art Crime and Patrick Keefe's 2007 'The Jefferson Bottles' .

US Restatement of Privacy

'A Prolegomenon to Any Future Restatement of Privacy' by Ronald J. Krotoszynski Jr in (2014) 79(2) Brooklyn Law Review is described as
my contribution to the "Restatement of..." symposium, jointly sponsored by the Brooklyn Law School and the American Law Institute (ALI). Since the 1950s, the ALI has been significantly engaged with the project of defining and protecting important privacy interests. However, the ALI's involvement has occurred incident to broader law reform projects largely unrelated to privacy as such. For example, the ALI’s work to secure reproductive rights and sexual autonomy arose in the context of revisions of the Model Penal Code – rather than as part of a comprehensive effort to restate privacy law as such. To date, the ALI’s engagement with privacy has occurred in this fashion; privacy receives coverage incident to Restatements in other substantive areas of law. The ALI should consider whether this piecemeal approach to privacy law represents the best approach. An alternative approach would be to undertake a comprehensive and sustained effort to restate privacy law as a distinct field. Significant benefits could be associated with a more systematic and sustained treatment of privacy as such. On the other hand, a privacy-specific approach would present serious difficulties, beginning with the problem of ascertaining what rights and interests properly fall within the rubric of “privacy,” the public/private distinction and its important impact on privacy rights, and the thorny conflicts that inevitably arise between securing privacy and other important legal interests (such as freedom of speech and the press). This Essay posits that it would be quite difficult – perhaps even impossible – to address these issues successfully. I suggest that utilizing a comparative law analysis to understanding and defining privacy could provide some necessary, indeed essential, baselines that would help to facilitate the creation of a comprehensive Restatement of Privacy Law.
Krotoszynski comments
Simply put, a privacy regime limited to the United States will not be sufficient to prevent or deter the collection and dissemination of personal data in the wider world.
To facilitate the successful completion of a Restatement of Privacy, the ALI must effectively address two major problems. First, the concept of privacy would need to be defined with greater precision. At present, privacy lacks clear contours and meaning. As Professor James Q. Whitman has observed, “[H]onest advocates of privacy protections are forced to admit that the concept of privacy is embarrassingly difficult to define.” We would have to agree on the discrete interests that fall under the rubric of privacy before we could seek to restate the field. Second, and to a degree not present in most other areas of the law, successfully securing privacy interests would require transnational cooperation. Restating privacy law, at least in the context of data protection and the privacy torts, cannot be solely a domestic affair.
I do not suggest that it would be impossible to create a Restatement of privacy; I do believe that such a project would be very difficult. ...
A good way to begin working toward a Restatement of privacy would be for the ALI to constitute a transnational working group, including legal scholars from multiple jurisdictions, that could undertake an empirical project of identifying and classifying privacy interests within specific domestic legal systems. In other words, before we attempt to say what privacy should or could be, it would make sense to first understand what privacy is from a more global perspective. Rather than making bald normative claims about privacy, I would argue that a better approach would first seek to understand the ways in which the law already succeeds and fails in securing interests that fall within the ambit of privacy (or its German first cousin, dignity). At least initially, we should undertake an effort to understand privacy from the bottom up, rather than the top down. Such an approach would also help to facilitate forging a global legal consensus on how best to address privacy interests.
In some important respects, pinpointing discrete subjects related to privacy interests and addressing them incident to larger and broader restatement projects might constitute the best approach to restating the law of privacy. Rather than attempt to address the definitional and operational problems, one could simply seek to avoid them by locating privacy rules deeply within other domestic law subjects. Under this approach, the ALI should simply continue to do what it already has been doing—addressing privacy interests incident to Restatements of other, more general, areas of law. Nevertheless, we should pursue a bigger, bolder, and more unified approach to the question of privacy law. To the extent that law reform projects seek to bring order to areas of law that seem to lack focus, definition, and clarity, privacy law would appear to be an ideal candidate for restatement. The fact remains that designing and implementing such a project would be difficult.
A comparative and empirical approach would undoubtedly shed light on the meaning and scope of privacy; both points of tangent and points of divergence would emerge from such an undertaking. To be clear, I am not suggesting that the United States should simply fall into lockstep behind other nations with respect to privacy law—whether the question at issue relates to search and seizure law, data protection, or reproductive rights. I do, however, think that careful consideration of how other democratic societies have addressed common problems might shed important, and non-obvious, light on how best to address these issues, both in the United States and more globally.
At its best, of course, this is precisely what the ALI’s restatement projects attempt to do: synthesize legal understanding, not merely as part of a descriptive enterprise, but instead as part of an effort to improve and advance the underlying values that the law seeks to protect. A Restatement of privacy would be particularly difficult to accomplish, but it would also be particularly useful in advancing and improving the state of legal knowledge in this important field of law.

Migration and Fraud

Xiao Ying Wu (aka Amy Wu) has pleaded guilty to forging immigration documents and defrauding clients seeking assistance with visa applications, in order to obtain over $80,000. Wu was sentenced yesterday in the Downing Centre District Court to 21 months' imprisonment (five months to be served) in relation to two Commonwealth charges of using false documents to obtain benefits.

Wu received 18 months' imprisonment (with five months' minimum term) for two charges under the Crimes Act 1900 (NSW) of dishonestly obtaining a financial advantage. That term is to be served concurrently with imprisonment re the Cth offences.

The Court also made a reparation order in relation to the Commonwealth charges of $13,405 and $18,935 to the respective victims. A separate compensation order of $31,550 and $10,000 was made relating to the NSW charges.

Assistant Minister for Immigration and Border Protection Senator Michaelia Cash said that "The government takes allegations of fraud by those in trusted positions, such as registered migration agents, very seriously", noting that any individual who provides immigration assistance in Australia must be registered as a migration agent with the Office of the Migration Agents Registration Authority.

In unrelated matters the Administrative Appeals Tribunal has this month affirmed decisions to cancel the registration of other migration agents in Chang and Migration Agents Registration Authority [2014] AATA 235 and Qian and Migration Agents Registration Authority [2014] AATA 185 and refuse registration in Haque and Migration Agents Registration Authority [2014] AATA 225.

'Confronting the Two Faces of Corporate Fraud' by Miriam H. Baer in (2014) 66(87) Florida Law Review comments -
Some criminals engage in meticulous planning. Others commit crimes in the heat of the moment. Corporate fraud incorporates both planned and spur-of-the-moment misconduct. Although law and economics scholars have traditionally viewed corporate fraud as a manifestation of opportunism among the corporation’s agents, a new generation of scholars, influenced by findings in behavioral psychology, has focused on the temporal aspects of corporate misconduct. Wrongdoing comes about, not simply because an agent opportunistically takes advantage of her principal, but also because her short-term self falls prey to temptations and cognitive biases that effectively disable her law-abiding long-term self.
Although the law and economics and behavioral psychology accounts separately offer important lessons for observers of corporate fraud, neither theory addresses the regulatory implications confronting opportunistic behavior and temporal inconsistency at the same time. How can an internal corporate enforcer best respond to the “two faces” of corporate fraud? This Article explores this question, first by analyzing the interaction between the two dispositions, and then by considering the relative merits of various enforcement approaches.

23 April 2014

Disasters and Dollars

The Australian National Audit Office has released a 106 page  report [PDF] on Emergency Defence assistance to the civil community, assessing "the administrative effectiveness of Defence’s procedures to provide emergency assistance to the civil community".

The report comments that emergencies (inc bushfires, floods and cyclones) are frequent and range in severity from small-scale incidents to large-scale, catastrophic events.
The human and economic cost of these events can be substantial. For example, the Black Saturday bushfires in Victoria in 2009 claimed the lives of 173 people, affected over 78 communities and destroyed 2029 homes; and the insured cost for losses due to Cyclone Oswald in 2013 was estimated at $1.1 billion in Queensland and New South Wales, with $154 million in State and Australian Government assistance provided to those affected.
A well‑directed, coordinated and timely emergency management response acts to minimise the impact of an emergency on the community and support the recovery process. When a natural disaster or other domestic emergency occurs, it is primarily the responsibility of the relevant state or territory (state) government to protect life, property and the environment. State governments draw on a range of emergency services, volunteer organisations and commercial resources when responding to emergencies. State governments may also request Australian Government non‑financial assistance to provide additional resources for response and recovery activities.
The Department of Defence undertakes a large majority of Australian Government emergency assistance tasks in response to state requests. When Defence accepts a request and provides emergency assistance, this is referred to as emergency ‘Defence Assistance to the Civil Community’ (DACC). The benefits of utilising Defence in support of emergency responses include that Defence is often able to deploy Australian Defence Force (ADF) personnel (including Reserve personnel) with relevant expertise and skills (for example, engineers), as well as equipment (from transport aircraft to water purification units). Defence may also have the capacity to deploy its personnel and equipment at relatively short notice due to the geographical proximity of certain bases to incident areas and its access to transport assets. Further, Defence has developed approaches to the planning, coordination and conduct of operations, which may be readily adapted to emergency responses.
The report considered 275 emergency DACC tasks from 2005–06 to 2012–13, with emergency assistance that included the airlift of equipment and personnel, engineering support, search and support, temporary accommodation, health and psychological support, aviation refuelling; and communications.

ANAO concludes
Under national emergency management arrangements, state and territory (state) governments have primary responsibility for protecting life, property and the environment in the event of an emergency in their jurisdiction. When state resources are inadequate, the Australian Government can be called upon to provide assistance, representing a ‘surge’ capacity within the federation. Some of the skills and assets available to Defence to conduct military operations can be readily applied in support of states responding to natural disasters and other emergencies, and as a consequence there is a regular demand for Defence assistance. Defence can provide assistance either directly for local emergency assistance (category 1 tasks), or through Emergency Management Australia (EMA) for significant emergency assistance (category 2 tasks) and emergency recovery assistance (category 3 tasks). Defence’s emergency Defence Assistance to the Civil Community (DACC) procedures therefore need to establish clear decision making, coordination and administrative arrangements to guide Defence commanders and personnel on the conduct of tasks outside of core military operations.
The effective contribution of Defence in emergency situations is highly dependent on the quality of relationships across the areas of Defence with emergency DACC roles, and between Defence, EMA and state emergency management authorities. It also depends on a strong feedback loop so that on-the-ground experience informs future operations.
In recent years Defence has played a prominent role in responding to natural disasters in Australia. As part of five major emergency DACC operations between 2008–09 and 2012–13, Defence has deployed significant human and physical resources, organised in Joint Task Forces (JTF), to provide assistance to state emergency management authorities. For example, Defence assistance to the 2009 Black Saturday bushfires in Victoria reached a peak operational strength of approximately 800 Defence personnel per day, and over 1250 Defence personnel provided assistance over the seven weeks of the operation. For these major operations, Defence also recorded supplier expenses totalling some $6.7 million, for items such as travel, consumable goods and garrison support. Defence has also undertaken many smaller scale emergency DACC tasks utilising Defence base personnel and resources located in the area of an incident, at the discretion of local commanders.
ANAO considers that
Overall, Defence’s emergency DACC procedures are generally effective in guiding and enabling the provision of Defence assistance in response to emergencies. The DACC Manual outlines principles for Defence commanders to consider when judging the merits of requests for Defence assistance, including the need to evaluate the readiness of Defence resources to achieve the Government’s expected defence outcomes against the capacity to make those same resources available in an emergency. Defence has also developed sound coordination arrangements with state emergency management authorities, involving the appointment of Defence liaison officers, who communicate with states about their emergency assistance needs and Defence’s capability to provide support, both prior to and during emergencies. Emergency management authorities interviewed as part of this audit acknowledged the responsiveness of Defence and the value of the support provided. However, emergency DACC has been largely focused on response efforts, with less attention given to meeting the administrative requirements set out in the DACC Manual, particularly in the areas of task recordkeeping and cost recovery. There is also scope for Defence to develop a stronger feedback loop to inform decision making on future emergency DACC delivery approaches.
While emergency DACC is only a small part of Defence’s overall responsibilities, it can involve a large number of Defence personnel, and the utilisation of valuable Defence equipment and supplies. In the circumstances, there is a need for Defence to develop straightforward administrative requirements. The Instruction of 2004 and the DACC Manual of 2012 set out extensive reporting requirements for individual DACC tasks, indicating a desire by Defence to understand the nature and cost of the provision of DACC, and to learn from experience. However, for many years Defence has not met these requirements across the DACC tasks it undertakes. The main focus of Defence units has been to complete tasks, and they have not prioritised reporting on tasks outside of the Service chain of command. The failure to record key task data means that other areas of Defence responsible for emergency DACC strategy, procedures and reporting are not routinely informed about the nature, resource impact and cost of emergency DACC tasks, as well as any task acceptance and delivery issues. To address these issues, Defence should review task reporting requirements to ensure they do not present an unnecessary administrative burden, but instead give priority to meeting an appropriate set of requirements that generates useful information to help shape future emergency DACC activities while satisfying recordkeeping requirements for accountability purposes.
To further encourage states to manage emergency recovery efforts using their own resources, the DACC Manual requires that the direct costs incurred by Defence in undertaking category 3 ‘recovery’ tasks be reimbursed by states, and only allows the ‘waiver’ of cost recovery in limited ‘special circumstances’. However, Defence has not consistently recovered or waived costs in accordance with the requirements of the DACC Manual. In contrast to its current policy, Defence has advised that it plans to amend the DACC Manual to indicate that costs are ‘generally not recovered unless the government recipient agrees to pay costs’, and that cost recovery ‘may not be warranted where it is not cost effective or it would be inconsistent with government policy objectives’. However, this approach does not clarify the circumstances in which cost recovery is warranted and Defence personnel are obliged to pursue the recovery of costs.
ANAO acknowledges  a decision for Defence and the Government before commenting that it
suggests  Defence review and clarify its cost recovery policy for emergency DACC, and develop practical thresholds for the application of cost recovery, in terms of the estimated value and type of recovery assistance provided. Pursuing such an approach would reinforce the responsibility of state governments for emergency recovery when the immediate threat to life, property and the environment has passed.
The emergent nature of emergency DACC tasks means that it is difficult to develop and apply objective measures of performance. Nevertheless, identifying lessons from emergency DACC activities, including the efficiency and effectiveness of the approaches adopted remains important. Defence has established some elements of an emergency DACC evaluation and learning system, including reports on major operations and an annual Lessons Board. The Lessons Board considers key themes arising from these reports, and can recommend procedural changes to improve the efficiency and effectiveness of emergency DACC.
However, these elements are not currently supported by an information system to record and manage key lessons and recommendations arising from DACC activities, creating a risk that learning will be lost and actions not pursued. The initial roll-out of a Defence‑wide system for managing lessons learned is planned for July 2014, presenting an opportunity for Defence to develop a stronger feedback loop to inform improvement in the administration and delivery of emergency DACC activities.
Within Defence, various office holders, Groups and Services have different emergency DACC responsibilities, ranging from the development of strategy and procedures to the completion of tasks.
ANAO indicates that
The audit highlights that the overall effectiveness of emergency DACC administrative arrangements depends on the collective contribution of all of these areas toward planning, delivery, monitoring and review efforts.
It goes on to recommend that
Defence review the minimum information necessary to be reported for each emergency DACC task for planning, management and accountability purposes.
Defence should also "take steps to strengthen the priority afforded by Defence units to meeting mandatory reporting requirements".

The Treasurer has meanwhile tasked the Productivity Commission with an inquiry into natural disasters funding.

The Commission is to
analyse the full scope (incorporating the quantum, coherence, effectiveness and sustainability) of current Commonwealth, state and territory expenditure on natural disaster mitigation, resilience and recovery, and develop findings on the following:
1. The sustainability and effectiveness of current arrangements for funding natural disaster mitigation, resilience and recovery initiatives, including – where directly relevant to an improved funding model – the management of disaster relief and recovery;
2. Risk management measures available to and being taken by asset owners – including the purchase of insurance by individuals, business and state, territory and local governments, as well as self-insurance options;
3. The interaction between Commonwealth natural disaster funding arrangements and relevant Commonwealth/state financial arrangements;
4. Options to achieve an effective and sustainable balance of natural disaster recovery and mitigation expenditure to build the resilience of communities, including through improved risk assessments. The options should assess the relationship between improved mitigation and the cost of general insurance. In doing this, the Commission should consider:
a. How business, the community, Commonwealth, state, territory and local governments can most effectively fund natural disaster recovery and mitigation initiatives;
b. How to ensure the right incentives are in place to support cost-effective decision making within and across all levels of government, business, non-government organisations and private individuals;
c. Mechanisms and models to prioritise mitigation opportunities and evaluate the costs and benefits of a range of mitigation options;
d. Options for urban planning, land use policy and infrastructure investment that support cost-effective risk management and understanding of the changes to the risk profile;
e. Options to fund identified natural disaster recovery and mitigation needs, including thresholds for triggering Commonwealth assistance to the states and territories;
5. Projected medium and long term impacts of identified options on the Australian economy and costs for governments as compared to impacts of the current funding arrangements; and
6. Options for transitioning to and implementing any proposed reforms to national natural disaster funding arrangements.
In undertaking the inquiry the Commission is to "take into account the roles and responsibilities of Commonwealth, state, territory and local governments, communities, insurers, business (including private providers of essential infrastructure), non-government organisations and private individuals".  It
should consider funding for disaster response only where directly relevant to mitigation, relief and recovery and existing Commonwealth/state joint funding arrangements. The Commission should also take into account evidence from previous reports, reviews and inquiries, including best practice, from overseas and in Australia. It should also take into account relevant recommendations of the Commission of Audit and developments in federal financial relations, noting that the Commonwealth is developing a White Paper on Reform of the Federation. Further, since much disaster spending is directed towards infrastructure, the Commission should take into account evolving infrastructure and asset management policy and practice at the national, state and local levels.
The scope of the inquiry will be focused on naturally occurring rapid onset events that cause a serious disruption to a community or region, such as flood, bushfire, earthquake, storm, cyclone, storm surge, tornado, landslide or tsunami.

21 April 2014


'Thou Shalt Not Go about as a Talebearer among Thy People: Jewish Law and the Private Facts Tort' by Elie Mischel in (2006-7) 24 Cardozo Arts & Entertainment Law Journal 811 comments
As we begin the twenty-first century, the viability of the public disclosure of private facts tort in America very clearly has been called into question. Indeed, the individual's right to keep sensitive personal information private has been under fire for some time; its very existence threatened by an increasingly broad interpretation of the right to free speech. The classic example of the inherent conflict between the right to privacy and free speech occurs when a newspaper publishes information about an individual that is embarrassing, yet truthful.' Theoretically, the newspaper should be liable for the public disclosure of a private fact. However, the courts have generally granted the media tremendous leeway in publicizing truthful information, effectively rendering the private facts tort impotent in all such cases. Legal thinkers like Diane Zimmerman have taken the next step, questioning the very validity and desirability of the private facts tort. Indeed, many of the arguments marshaled against the private facts tort have proved quite convincing.
In such an atmosphere, it may prove very rewarding to those debating the scope of an individual's right to privacy to consider the approaches of other legal systems in the matter of privacy and the law. In particular, the traditional Jewish legal system has developed a novel approach to privacy that may shed some light on the efficacy of the disclosure of private facts tort in the United States.
Part I of this Note chronicles the evolution of the private facts tort in the American legal system and the challenges posed by numerous critics to its legitimacy and effectiveness as a cause of action. Part II examines some fundamental differences between the American and Jewish legal systems, focusing on the interplay of law and morality, as well as the role of human rights in both systems. In addition, the Jewish legal system's approach to freedom of speech and its expression in Jewish history are also considered. Part III analyzes Jewish law's rough equivalents of the private facts tort, Lashon Hara and Tzeniut, highlighting some significant differences between the two legal systems' approaches to privacy law. Part IV compares the application of American and Jewish privacy law to damages for the violation of privacy rights. The conclusion argues that while the Jewish equivalent of the private facts tort is entirely legitimate within the Jewish system of divine law, the private facts tort represents an improper imposition of a particular set of values upon American society.
Mischell goes on to comment
As noted above, both Jewish and American legal thinkers testify to the fact that money does little to compensate the victim of disclosures of private fact. Consequently, the primary purpose of the existence of the private facts tort in American law is to prevent such disclosures in the first place and to "chill" the media. For Warren and Brandeis, the chief aim in creating the tort was not to make the victims of such invasions whole again, but rather to prevent increasingly insidious invasions of privacy from recurring in the future. Conceptually, monetary damages awarded under the private facts tort are more punitive than compensatory. Jewish law, by contrast, does not rely on punitive damages to protect against violations of privacy. The right to privacy is protected by a greater authority, i.e., God Himself.
It is now useful to return to Stanley Ingber's three purposes for the private facts tort. In what way does Jewish law respond to these goals? The first objective in establishing a tort is to publicly acknowledge the very existence of privacy rights by recognizing their violation." For its part, Jewish law succeeds in clearly establishing a right to privacy by creating an extensive web of laws regulating every aspect of speech. Through repeated and earnest warnings and injunctions, both the Bible and the Talmud limit man's right to speak as he pleases. The second objective of the private facts tort is to act as a deterrent to other members of the media who might have committed the same violation of privacy rights. This goal, too, is met quite effectively by the Jewish legal system despite the lack of pecuniary repercussions for those who ignore the law. The divine nature of the law itself acts as a safeguard towards observance. The final goal of the private facts tort is to compensate the plaintiffs whose private lives have been exposed to the public. According to Jewish law, however, this goal simply cannot be accomplished. Emotional harm cannot be made whole through monetary compensation.
Mischel concludes
Privacy and modesty are clearly and unambiguously assigned primary importance within the scheme of Jewish law. Jewish legal scholars are not troubled by arguments that gossip is essential to a working society, nor are they concerned by any contradictory right to free speech. As privacy represents a central element of Jewish law, it is safe to say that Jewish scholars would encourage a similar kind of law in other legal systems. Though Jewish law does not mandate damages for non-physical violations of privacy, it can be argued that its legal scholars would encourage the existence of such a tort in a secular system lacking the inherent coercive power of a divine system of law.
Jewish law, in practical terms, is only effective so long as the people believe in its foundational values. Although it is technically binding upon every Jew, simply by virtue of his or her being born Jewish, a Jew who does not agree with Jewish law is under no compunction to follow it. Nevertheless, regardless of the people's level of observance, Jewish law remains inherently valid. Due to its divine nature, the Torah and Jewish law dictate standards of morality to the people, and not vice versa.
American law, by contrast, depends upon the continued ideological support of the majority of its citizens. Consequently, American law can only maintain its legitimacy by conforming to the belief system of a majority of its citizens; as notions of morality change, so does the law. No part of the law is "divine"; theoretically, should a great majority of Americans wish to amend every last letter of the Constitution, they would have the right and ability to do so. Indeed, the First Amendment has achieved its present power and influence only because the American people have assigned increasingly more importance within their scheme of values to the notions of self expression and personal choice. As such, Americans are commonly upset when they perceive justices to be "legislating from the bench," or imposing a belief system upon society that is not consistent with the values held by a majority of the people.
Although a majority of the states appear to have recognized the private facts tort as legitimate, plaintiffs rarely win such cases. This is, of course, no accident. As standards of morality have grown increasingly liberal, judges, in a conscious and justifiable effort to keep up with contemporary values, have correspondingly narrowed the applicability of the private facts tort. As explained above, we live in a culture that values the exposure of "prurient details of sexual relations" and supports a thriving trade of "unseemly gossip." Given such a culture, were judges to strictly apply the private facts law as originally intended, they would essentially be imposing an outdated ideological perspective upon society.
Modern proponents of Jewish law cannot ignore the prevailing cultural norms of society. Nevertheless, as a system of religious law, it is precisely the mission ofJewish law to reject those social norms and encourage an alternative system of values among its adherents. Whereas the private facts tort represents an inappropriate imposition of a particular value system in American law, its Jewish equivalent, Lashon Hara, embodies the unique ability of Jewish law to influence the consciousness of its adherents.
The picture of an American people obsessed with gossip, so compellingly painted for us by Warren and Brandeis, has no doubt come to fruition. But it is for this very reason that the solution they suggested, the private facts tort, is no longer viable. Secular law, by its very nature, lacks the right to dictate values and morality to the people. For those troubled by America's culture of exposure, the task at hand is not to legislate against it, but to change the culture itself.


'Picture Imperfect: Mug Shot Disclosures and the Freedom of Information Act' by Lisa Chinai in (2013) 2 Seton Hall Circuit Review comments
“Look at the picture of this guy. Do you realy [sic] need to do a backgroung [sic] check? One look and the answer shou;d [sic] have been ‘no, you can’t have a gun,’”  wrote one commenter in the comments section following The Huffington Post article, “Jared Lee Loughner’s Mug Shot (PHOTO).” The commenter’s reaction to Jared Lee Loughner’s photograph illustrates the prejudicial effect of releasing mug shot photographs to the press. In the photograph, a bald Loughner smirks directly into the camera. As one publication described, “[h]e grabs the viewer with his eyes, looking straight ahead and not backing down or showing any sign of shame or remorse.” In 2012, Loughner plead guilty for shooting Congresswoman Gabrielle Giffords, killing six people, and wounding thirteen others in 2011 at a political rally in Tuscon, Arizona.
United States courts have long recognized the prejudicial nature of submitting a defendant’s mug shot into evidence during trial. In Barnes v. United States, the court stated that the “double-shot” (front and profile) feature of a mug shot photograph “is so familiar, from ‘wanted’ posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic.” Some courts have guidelines that regulate the submission of mug shot photographs into evidence. For instance, the United States Court of Appeals for the First Circuit and the United States Court of Appeals for the Second Circuit require prosecutors to prove a demonstrable need to introduce the mug shot photograph and do not permit photographs that imply a defendant’s prior criminal record and suggest the source setting of the photograph.
While these guidelines discuss the admittance of mug shot photos to courtrooms during trials, they do not discuss the impact of releasing mug shot photographs to the media during an ongoing trial. This Comment does not concentrate on the evidentiary function of mug shot photographs in courtroom proceedings. Instead, this Comment focuses on how the release of a defendant’s mug shot photograph to the media affects a defendant’s privacy rights.
The United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Eleventh Circuit disagree over whether releasing a defendant’s mug shot to the media violates a defendant’s right of privacy. The Sixth Circuit, in Detroit Free Press v. Department of Justice, held that disclosing mug shots to the media during “ongoing criminal proceedings in which the names of the indicted suspects have already been made public and in which the arrestees have already [revealed their visages in] court appearances” does not implicate those defendants’ privacy rights. On the other hand, the Eleventh Circuit, in Karantsalis v. Department of Justice, held that mug shot disclosures during an ongoing proceeding implicate privacy rights. Both Detroit Free Press and Karantsalis discussed whether releasing a defendant’s mug shot photo to the press violated Exemption 7(C) of the Freedom of Information Act (“FOIA”), which prohibits the government from disclosing records that could “reasonably be expected to constitute an invasion of personal privacy.”
Releasing a defendant’s mug shot to the press during an ongoing judicial proceeding violates Exemption 7(C) of FOIA. Defendants do not waive their right of privacy simply by appearing in a court proceeding. Disclosing a defendant’s mug shot to the press after a defendant has appeared in court poses a unique privacy challenge. A mug shot captures one particular moment in a defendant’s life and communicates a message wholly distinct from a defendant’s courtroom appearance. In turn, releasing this mug shot to the press during an ongoing criminal proceeding negatively impacts the defendant’s personal privacy long after the end of the criminal proceeding. Thus, the long lasting effects of the release constitute a violation of a person’s reasonable expectation of privacy. Courts must adopt a legal standard, which robustly protects defendants’ privacy rights under FOIA Exemption 7(C) against the countervailing public need for mug shots disclosures.
Sections II through V of this Comment demonstrate how mug shot disclosures to the press during a court proceeding violate a defendant’s right of privacy guaranteed under Exemption 7(C) of FOIA. Section II provides a background on ways the public can legally access documents in government possession. Specifically, this section examines Karantsalis, Detroit Free Press, the legislative history of FOIA and Exemption 7(C), and First Amendment rights to access government information. Section III analyzes the theoretical underpinnings of privacy as a legal right by discussing Supreme Court and common law tort jurisprudence on privacy. These legal theories are helpful in defining the privacy interests under FOIA that protect mug shot photographs. Section IV explores the impact that mug shot disclosures to the press has on privacy even after the end of a criminal proceeding. In addition, Section IV presents social science evidence showing that any public benefit of releasing mug shots to the press is far from conclusive. Finally, Section V concludes this Comment by discussing a possible solution to the conflict between the defendant’s right to privacy and the public’s right to know.

20 April 2014


Vladimir Putin's response to last week's phone-in question by Edward Snowden prompts thoughts of Mandy Rice Davis, ie "well he would say that, wouldn't he".

The US Daily Beast aptly but rather unkindly commented that -
Sorry, Snowden: Putin Lied to You About His Surveillance State - And Made You a Pawn of It
Putin just trolled President Barack Obama and the entire U.S. intelligence community. He trolled them hard.
On live Russian television Edward Snowden, the former NSA contractor who exposed America’s dragnet surveillance of call records and internet traffic, asked the Russian leader whether Moscow does the same: “Does Russia intercept, store or analyze in any way the communications of millions of individuals?”
Not to worry, Putin tells America’s most famous intelligence leaker: “We don’t have a mass system for such interception and according to our law it cannot exist.”
That statement may be true in a parallel universe where Crimean citizens all on their own with no orchestration from Russia spontaneously voted to join the Russian federation after random mercenaries with no ties to Moscow seized its airports and government buildings.
... on Thursday Snowden looked to some like he was participating in a Soviet-style propaganda play. “Whatever else Snowden might think he has been doing, surely he must understand he was just used as a prop by the president of the Russian federation,” said Michael Hayden, a former NSA and CIA director under the George W. Bush administration who has been one of his former agency’s most ardent public defenders. Benjamin Wittes, a senior fellow at the Brookings Institution who has also been critical of Snowden and the journalism his leaks have helped produce said, “It speaks volumes that Snowden lends his name to Putin’s propaganda efforts.”
Galeotti says he found the display of Snowden’s question for Putin on eavesdropping to be depressing. “I believed he was an honest man who made some stupid choices,” says Galeotti. “But in this case he was doing what was in his handler’s interests.”
“We have to think of two Snowdens,” Galeotti tells The Daily Beast. “There was the original whistleblower who thought he was doing something good for the world. Now there is the Snowden—to put it crassly—who is bought and paid for entirely by the Russians. The Russians are not altruistic, if they are protecting him they are doing so because there are things he can do to repay them.”
But not everyone viewed Snowden’s appearance with Putin so negatively. Jesselyn Radack, one of Snowden's American lawyers, said, "Unfortunately it can play into the incorrect meme that he is some how being controlled by Russia." Radack added however that Snowden's question should not be judged by Putin's response. "The public is capable of making their own determination of whether they find Putin or Obama credible. It’s not that bizarre or sensational that he asked the question."
... Julian Sanchez, a research fellow at the Cato Institute who has written extensively on government surveillance, said “The best you can say about this is he may have thought he was trying to broaden the conversation to talk about Russian surveillance. If that is the case, this is probably a naïve way to go about it." Sanchez said Snowden began "a healthy conversation for us in the United States to be having about mass scale government surveillance. It would be equally healthy for the Russians to have a similarly open conversation.”
One problem for Snowden now is that he is at the mercy of the Russian government. In June Snowden will likely have to reapply for temporary asylum again in Russia. "The United States has stranded him in Russia by revoking his passport and making him dependent on the good will of Putin," Radack said. "He is not being controlled by Russia and he is certainly not a spy. Anyone who would use his question to try to portray him in that way is not really paying attention to what is happening in our own country."
Snowden responded in The Guardian to criticism, saying
I was surprised that people who witnessed me risk my life to expose the surveillance practices of my own country could not believe that I might also criticise the surveillance policies of Russia, a country to which I have sworn no allegiance, without ulterior motive. I regret that my question could be misinterpreted, and that it enabled many to ignore the substance of the question – and Putin's evasive response – in order to speculate, wildly and incorrectly, about my motives for asking it. 
Edward Lucas earlier commented -
I freely admit that it is possible that Snowden conceived his plan on his own, and with honourable if mistaken motives. It may well be that his allies are without exception enthusiastic and careless but not actually malevolent. It may be that Russia has watched the whole affair with bemusement, was reluctant to offer asylum, and is eager for him to leave. It is possible that Vladimir Putin is entirely sincere, if ineffective, when he says he wants no damage to be done to America as a result of Snowden's sojourn. It is all possible.
As first year law students learn, there is somewhat of a difference between what is possible and what is probable.