09 July 2015


'Gradual Marriage' by Jessica Feinberg in (2015) Lewis and Clark Law Review (forthcoming) argues
The time has come to reform the law governing marriage. In determining the rights and obligations between spouses arising from marriage, current law does not adequately account for the way in which spousal behaviors and expectations change over the course of a marriage. With regard to intact marriages, under the existing legal framework the spousal rights and obligations enjoyed by couples in intact marriages arise all at once, at the moment a couple is granted a marriage license, and do not change as the years of marriage pass or as children are born to the marriage. In terms of dissolving marriages, with few exceptions, all marriages are subject to the same broad default rules for determining post-dissolution spousal rights and obligations without regard to the length of the marriage or the presence of children within the marriage. Moreover, the substantial discretion granted to judges in the marital dissolution context often leads to unpredictable and inconsistent results. Perhaps as a result of the law’s problematic approach to determining spousal rights and obligations, marriage rates have declined significantly over the past several decades and the institution of marriage has come to occupy an increasingly perilous place in US society. This Article sets forth a comprehensive proposal for an improved legal framework governing marriage that is based upon the concept of spousal rights and obligations arising gradually over the course of a marriage. Under the proposed system, various marriage levels would be established, each providing a package of spousal rights and obligations tailored to marriages that had reached that particular level under the default rules. Ascension among the levels would be based primarily upon the length of the marriage and the presence of children within the marriage, factors which play a strong role in shaping spousal conduct and expectations. Implementation of the proposal would result in a significantly improved legal framework governing marriage.
Feinberg comments
[T]his Article proposes that the legal framework governing marriage should identify multiple levels of marriage, and spousal rights and obligations should differ depending on the marriage level. Ascension among the levels would be based primarily upon the length of the marriage and the presence of children within the marriage, factors which play a strong role in shaping spousal conduct and expectations. The first level under the proposed system would provide couples with the opportunity to receive important, relevant rights and protections in a low-risk, supportive setting while the couple determines if marriage is right for their relationship. Each additional level would provide a package of rights and obligations tailored to spouses who had reached that level, with the rights and obligations generally becoming more significant with each marriage level. Judicial discretion in altering the default spousal rights and obligations applicable to a couple‘s marriage level would be limited, thereby providing more fairness, predictability, and efficiency in the context of marital dissolution. Recognizing that there will be some marriages in which expectations differ from that which generally would be expected based upon the length of the marriage and the presence of children with in the marriage, couples would have the flexibility to opt-out of the default level applicable to them if they determined that the level was ill-suited at the time for their particular relationship.
This Article is organized in the following manner. Section I provides an overview of the current state of marriage, divorce, and cohabitation with in the United States. Section II analyzes the limitations of the current legal framework governing marriage, addressing the problems within the framework with regard to both intact marriages and dissolving marriages. Section III identifies and explains the goals that an improved legal framework governing marriage should seek to further. Section IV sets forth an innovative and comprehensive proposal for an improved legal framework governing marriage that is based upon the gradual accrual of spousal rights and obligations over the course of a marriage. Finally, Section V explains how implementation of the proposal would further the goals identified in Section III and addresses the concerns most likely to arise with regard to the proposed framework.

08 July 2015


'The Birth of Death: Stillborn Birth Certificates and the Problem for Law' by Carol Sanger in (2012) 1(6) California Law Review states
Stillbirth is a confounding event, a reproductive moment that at once combines birth and death. This Essay discusses the complications of this simultaneity as a social experience and as a matter of law. While traditionally, stillbirth didn't count for much on eitherscore, this is no longer the case. Familiaritywith fetal life through obstetric ultrasound has transformed stillborn children into participating members of their families long before birth, and this in turn has led to a novel demand on law. Dissatisfied with the issuance of a stillborn death certificate, bereaved parents of stillborn babies have successfully lobbied state legislatures nationwide to issue stillborn birth certificates under newly enacted "Missing Angel Acts." These Acts raise a perplexing set of questions. While acknowledging the desire of grieving parents to have some form of recognition for their children, it is important to think carefully aboutjust what is being certified in the name of the largercommunity. How has issuing birth certicates to babies who never lived come to seem a reasonable rather than an eccentric legislative gesture? And importantly,do stillborn birth certificates have implications for other areas of law involving prenatal death,particularly the regulation of abortion?
Sanger comments
This Essay discusses the history, meaning, and politics of stillborn birth certificates. Recognizing that Missing Angel Acts may seem a compassionate and seemingly harmless use of law, I want to considera more complicatedstory. Law's relationship to mourning practices in the difficult circumstances of stillbirth raises important issues concerning the effective authority of law, the use of legal fictions in modern identity documentation,and the desirability of lines between private and public responses to death.
The delivery of a stillborn child is a confounding event. Stillbirth is a devastating obstetric outcome-a reproductive moment that at once combines birth and death. The term "stillborn" refers to a child who "issues forth" from its mother after twenty weeks of pregnancy, but who has already died in utero or during the birthing process.' In other languages this juxtaposition of life and death is met head-on: the child is not stillborn but "born dead": nacido muerto, totgeboren,or mort-ne. In English, the softer term is used. It suggests that the newborn may simply be still and that there is yet time to discern whether or not it is dead.
Of course, many women who deliver stillborn children today, at least under systems of advanced health care, know before labor begins that the baby is already dead and they deliver with this knowledge. In such cases, birth is a grim experience as the traditional expectations of a newborn's cry are met instead with silence. Stillbirth is, as poet Seamus Heaney has written, "[the] [b]irth of death."
This Essay discusses the complications of this simultaneity - the birth of death - as a social experience and as a matter of law. To be sure, for most of Western history, stillbirth has not counted for much on either score. The birth of a stillborn child was regarded as an event of little official moment and to which traditional mourning practices rarely attached. A baby was either born alive - and thereby a person for purposes of family lineage and descent - or it was not. Over time, however, stillbirth has become a more noteworthy phenol- menon, increasingly recognized as a fitting occasion for the public expression of grief and for the ceremonial solemnity that attends any other death.
Law's relation to stillbirth has also changed over time. Early legal concerns were largely criminological: might an unmarried woman's claim of stillbirth be masking an infanticide? In the late nineteenth century, demographic interests also emerged, as the state's investment in the composition and well-being of its citizenry, particularly its children, took firmer hold. Public health concerns regarding infant mortality drew attention to stillbirth, which by the mid-twentieth century had been formally recognized as a discrete category of death, recorded among other vital statistics collected by the state.
Such criminological, demographic, and public health interests in stillbirth continue. Stillbirth remains a common defense in modern infanticide prosecutions, and there are on-going efforts to improve stillbirth data collection, particularly in developing countries. But, in addition to these traditional concerns, in the last decade the law has also taken a novel and somewhat therapeutic turn.
In response to lobbying efforts by bereaved parents dissatisfied with the issuance of a stillborn death certificate, well over half the states now issue stillborn birth certificates under newly enacted "Missing Angel Acts." These are laws that authorize parents to request, and require the state to provide, a birth certificate for a stillborn child. The certificates do not replace but are issued in addition to fetal death certificates, which remain compulsory. Stillborn birth certificates are not issued automatically but only upon application by a parent. Arizona passed the first such statute in 2001 and thirty states have since followed suit.
Missing Angel Acts raise a set of perplexing questions about the meaning and status of stillbirth as a social matter, as the subject of legal regulation, and about the interplay between the two categories. How is it that a child who has never taken a breath has come to be understood as a proper subject for a birth certificate in early twenty-first-century America? Why has the movement toward greater recognition of stillboms focused specially on the documentation of birth? And what is the relationship between private or familial responses to stillbirth and public or state responses? The two are surely related, for the transformation of stillborn infants into accepted subjects of private mourning has led to the demand that they also count in the official record-not merely for statistical purposes, but as beings worthy of individual recognition through that traditional marker of arrival, the birth certificate.
In this Essay, I uncover and parse some of the complexities in the relationship between private grief and public recognition in the case of stillbirth. To locate the subject generally within the structures of law and family, I begin in Part I with a brief history of the social and legal practices around stillbirth. I trace how over time stillbirth has become a category for both affective concern and public recognition. I then look at how Missing Angel Acts came into being: their background in public advocacy and how such legislation was developed, drafted, and advanced.
The widespread enactment of Missing Angel Acts also prompts a prior and more philosophical question. How is it that authorizing birth certificates for children who have never lived has come to seem a reasonable rather than an eccentric legislative gesture? Part of the answer is surely compassion toward grieving parents, a compassion that originates, at least in part, from shared understandings about the baby-like status of a stillborn infant. Part II explores the technological and social origins of these understandings, which derive from now familiar attitudes in the United States regarding the vitality and personability of the fetus. Many readers will be familiar with the idea that, in wanted pregnancies, social birth now frequently precedes biological birth.
With this phenomenon in mind, how should we think about stillborn birth certificates? What does the certificate mean? Part III suggests several ways to think about this: the stillborn birth certificate as an artifact of mourning, as documentary proof of the baby's existence, or as an aspect of parental identity. Another possibility is that the certificate operates like a posthumous change in status, bracketing the question of whether one who has not lived can receive something posthumously. These characterizations attempt to clarify what parents seek from this form of documentation and the apparent ability of law to provide special consolation.
Yet accepting that Missing Angel Acts may provide meaning and solace for grieving parents may not tell us quite enough. For whatever the merits of the legislation, there is also something unsettling upon first hearing about birth certificates for stillborn children. The sympathetic response may simply be to acquiesce and accept Missing Angel Acts as somewhat peculiar, but at core essentially harmless and possibly beneficial. But before we do that, it is worth investigating the origins or causes of our instinctive uneasiness.
Doing so is not easy. Putting anything into the balance against the exigencies of parental grief may suggest a cold indifference to suffering. That is not the case here. I proceed in my analysis ever mindful of the utter calamity of stillbirth for the parents of a stillborn baby. It is, as novelist Elizabeth McCracken states in her generous memoir of stillbirth, "the worst thing in the world." There is immediate recognition and sympathy for this shattering form of loss and for the desire of some grieving parents to have their baby's exis- tence acknowledged through the mechanism of a birth certificate. At the same time, a birth certificate is an official document that carries the imprimatur of the state. It is therefore important to understand just what is being certified by the state in the name of the larger community when a stillborn birth certificate is issued, and what the implications of this empathic use of law may be.
Part IV addresses five specific concerns. The first considers the nature of a stillborn birth certificate. What exactly does it certify? To what extent might stillborn birth certificates be rightly regarded as a form of legal fiction? What function does the fiction serve, and why must it be legal? What is the special role of law in all this? To answer these questions, I turn to other instances where a person's status is adjusted after death and other cases where a birth certificate is used to capture social, rather than biological, reality.
The second concern regards the therapeutic use of law in the context of stillbirth. Should the law be used to make grieving citizens feel better or are such gestures toward law's affective potential a misstep? And if a misstep, what is the nature of the harm, in light of the declared benefit of the certificates? To think this through, I compare stillborn birth certificates with another legal intervention urged and defended as a mechanism for providing solace: victim impact statements offered up in capital trials by the families of murder victims.
The third concern is the matter of what I call "compulsory reproductive mourning." What are the prescriptive implications of stillborn certificates? By providing for their official issuance, is the state implicitly endorsing one, intensely personal response to this form of familial tragedy and discrediting others? Do stillborn birth certificates not only reflect but shape norms about what to feel and how to value certain lives and relationships?
Fourth, the certificates raise questions about demographic integrity. What are their implications for population figures, for mortality statistics, and for other key demographic indicia?
The fifth and final concern may already have occurred to readers. This is the connection between stillborn birth certificates and the regulation of abortion. To many, the two issues seem obviously and perhaps inevitably linked. Indeed, I am one of the many. In a culture where great effort has gone into securing attributes of personhood for fetuses, stillborn birth certificates may seem like the latest legislative innovation equating unborn life with born life as part of the ongoing political campaign against legal abortion. Despite the compelling appeals by parents, one cannot help but notice the implications of Missing Angel Acts for how we think about other forms of fetal death.
Yet concerns about abortion-whether ideological, political, or strategic-should not overwhelm an analysis of Missing Angels Acts. Stillborn birth certificates have much to say about the nature and purpose of modem identity documentation, about the affective authority of law, and about the relation between private and public responses to death. I want therefore to consider the significance of these matters in their own right, putting the matter of abortion to the side for the moment. Only in the Essay's final section will I return to the connections between stillborn birth certificates and the political culture that now surround abortion. There I pay particular attention to the work done by the rhetoric of birth. Investigating law's relationship to social practices in the difficult circumstances of stillbirth sheds some light on the use and meaning of the word "birth" in twenty-first-century America, and what the effects of this new category of recognition might be.

Systemic global insecurity

'Keys Under Doormats: Mandating Insecurity by requiring government access to all data and communications' [PDF] by Harold Abelson, Ross Anderson, Steven M. Bellovin, Josh Benaloh, Matthew Blaze, Whitfield Diffie, John Gilmore, Matthew Green, Peter G. Neumann, Susan Landau, Ronald L. Rivest, Jeffrey I. Schiller, Bruce Schneier, Michael Specter and Daniel J. Weitzner notes
Twenty years ago, law enforcement organizations lobbied to require data and communication services to engineer their products to guarantee law enforcement access to all data. After lengthy debate and vigorous predictions of enforcement channels “going dark,” these attempts to regulate the emerging Internet were abandoned. In the intervening years, innovation on the Internet flourished, and law enforcement agencies found new and more effective means of accessing vastly larger quantities of data. Today we are again hearing calls for regulation to mandate the provision of exceptional access mechanisms. In this report, a group of computer scientists and security experts, many of whom participated in a 1997 study of these same topics, has convened to explore the likely effects of imposing extraordinary access mandates.
We have found that the damage that could be caused by law enforcement exceptional access requirements would be even greater today than it would have been 20 years ago. In the wake of the growing economic and social cost of the fundamental insecurity of today’s Internet environment, any proposals that alter the security dynamics online should be approached with caution. Exceptional access would force Internet system developers to reverse “forward secrecy” design practices that seek to minimize the impact on user privacy when systems are breached. The complexity of today’s Internet environment, with millions of apps and globally connected services, means that new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws. Beyond these and other technical vulnerabilities, the prospect of globally deployed exceptional access systems raises difficult problems about how such an environment would be governed and how to ensure that such systems would respect human rights and the rule of law.
The authors comment
Political and law enforcement leaders in the United States and the United Kingdom have called for Internet systems to be redesigned to ensure government access to information — even encrypted information. They argue that the growing use of encryption will neutralize their investigative capabilities. They propose that data storage and communications systems must be designed for exceptional access by law enforcement agencies. These proposals are unworkable in practice, raise enormous legal and ethical questions, and would undo progress on security at a time when Internet vulnerabilities are causing extreme economic harm.
As computer scientists with extensive security and systems experience, we believe that law enforcement has failed to account for the risks inherent in exceptional access systems. Based on our considerable expertise in real-world applications, we know that such risks lurk in the technical details. In this report we examine whether it is technically and operationally feasible to meet law enforcement’s call for exceptional access without causing large-scale security vulnerabilities. We take no issue here with law enforcement’s desire to execute lawful surveillance orders when they meet the requirements of human rights and the rule of law. Our strong recommendation is that anyone proposing regulations should first present concrete technical requirements, which industry, academics, and the public can analyze for technical weaknesses and for hidden costs.
Many of us worked together in 1997 in response to a similar but narrower and better-defined proposal called the Clipper Chip. The Clipper proposal sought to have all strong encryption systems retain a copy of keys necessary to decrypt information with a trusted third party who would turn over keys to law enforcement upon proper legal authorization. We found at that time that it was beyond the technical state of the art to build key escrow systems at scale. Governments kept pressing for key escrow, but Internet firms successfully resisted on the grounds of the enormous expense, the governance issues, and the risk. The Clipper Chip was eventually abandoned. A much more narrow set of law enforcement access requirements have been imposed, but only on regulated telecommunications systems. Still, in a small but troubling number of cases, weakness related to these requirements have emerged and been exploited by state actors and others. Those problems would have been worse had key escrow been widely deployed. And if all information applications had had to be designed and certified for exceptional access, it is doubtful that companies like Facebook and Twitter would even exist. Another important lesson from the 1990’s is that the decline in surveillance capacity predicted by law enforcement 20 years ago did not happen. Indeed, in 1992, the FBI’s Advanced Telephony Unit warned that within three years Title III wiretaps would be useless: no more than 40% would be intelligible and that in the worst case all might be rendered useless. The world did not “go dark.” On the contrary, law enforcement has much better and more effective surveillance capabilities now than it did then.
The goal of this report is to similarly analyze the newly proposed requirement of exceptional access to communications in today’s more complex, global information infrastructure. We find that it would pose far more grave security risks, imperil innovation, and raise thorny issues for human rights and international relations.
There are three general problems. First, providing exceptional access to communications would force a U-turn from the best practices now being deployed to make the Internet more secure. These practices include forward secrecy — where decryption keys are deleted immediately after use, so that stealing the encryption key used by a communications server would not compromise earlier or later communications. A related technique, authenticated encryption, uses the same temporary key to guarantee confidentiality and to verify that the message has not been forged or tampered with.
Second, building in exceptional access would substantially increase system complexity. Security researchers inside and outside government agree that complexity is the enemy of security — every new feature can interact with others to create vulnerabilities. To achieve widespread exceptional access, new technology features would have to be deployed and tested with literally hundreds of thousands of developers all around the world. This is a far more complex environment than the electronic surveillance now deployed in telecommunications and Internet access services, which tend to use similar technologies and are more likely to have the resources to manage vulnerabilities that may arise from new features. Features to permit law enforcement exceptional access across a wide range of Internet and mobile computing applications could be particularly problematic because their typical use would be surreptitious — making security testing difficult and less effective. Third, exceptional access would create concentrated targets that could attract bad actors. Security credentials that unlock the data would have to be retained by the platform provider, law enforcement agencies, or some other trusted third party. If law enforcement’s keys guaranteed access to everything, an attacker who gained access to these keys would enjoy the same privilege. Moreover, law enforcement’s stated need for rapid access to data would make it impractical to store keys offline or split keys among multiple keyholders, as security engineers would normally do with extremely high-value credentials. Recent attacks on the United States Government Office of Personnel Management (OPM) show how much harm can arise when many organizations rely on a single institution that itself has security vulnerabilities. In the case of OPM, numerous federal agencies lost sensitive data because OPM had insecure infrastructure. If service providers implement exceptional access requirements incorrectly, the security of all of their users will be at risk.
Our analysis applies not just to systems providing access to encrypted data but also to systems providing access directly to plaintext. For example, law enforcement has called for social networks to allow automated, rapid access to their data. A law enforcement backdoor into a social network is also a vulnerability open to attack and abuse. Indeed, Google’s database of surveillance targets was surveilled by Chinese agents who hacked into its systems, presumably for counterintelligence purposes.
The greatest impediment to exceptional access may be jurisdiction. Building in exceptional access would be risky enough even if only one law enforcement agency in the world had it. But this is not only a US issue. The UK government promises legislation this fall to compel communications service providers, including US-based corporations, to grant access to UK law enforcement agencies, and other countries would certainly follow suit. China has already intimated that it may require exceptional access. If a British-based developer deploys a messaging application used by citizens of China, must it provide exceptional access to Chinese law enforcement? Which countries have sufficient respect for the rule of law to participate in an international exceptional access framework? How would such determinations be made? How would timely approvals be given for the millions of new products with communications capabilities? And how would this new surveillance ecosystem be funded and supervised? The US and UK governments have fought long and hard to keep the governance of the Internet open, in the face of demands from authoritarian countries that it be brought under state control. Does not the push for exceptional access represent a breathtaking policy reversal?
The need to grapple with these legal and policy concerns could move the Internet overnight from its current open and entrepreneurial model to becoming a highly regulated industry. Tackling these questions requires more than our technical expertise as computer scientists, but they must be answered before anyone can embark on the technical design of an exceptional access system.
In the body of this report, we seek to set the basis for the needed debate by presenting the historical background to exceptional access, summarizing law enforcement demands as we understand them, and then discussing them in the context of the two most popular and rapidly growing types of platform: a messaging service and a personal electronic device such as a smartphone or tablet. Finally, we set out in detail the questions for which policymakers should require answers if the demand for exceptional access is to be taken seriously. Absent a concrete technical proposal, and without adequate answers to the questions raised in this report, legislators should reject out of hand any proposal to return to the failed cryptography control policy of the 1990s.

06 July 2015


The national Attorney-General, under the rubric 'Strengthening Legal Advice to the Commonwealth', has announced
Today the Australian Government completed the consolidation of the Australian Government Solicitor into the Attorney-General’s Department. The consolidation will strengthen the delivery of first class, seamless legal and legal policy advice to the Commonwealth.
The Attorney-General’s Department is the central legal policy department of the Commonwealth. AGS is the nation’s leading provider of legal services to government. Consolidation will result in a department that is the single source of authoritative advice on key Commonwealth legal and legal policy issues, and is well-placed to deliver on the core legal business of the Commonwealth and the most critical matters of state.
The Judiciary Amendment Act 2015 supports the consolidation by ensuring that there is minimal disruption to the operations of AGS and that it maintains its independent functional identity and name.
I look forward to working with AGS in their ongoing role led by the new Australian Government Solicitor, Mr Ian Govey AM.
The Secretary of the Attorney-General’s Department, Mr Chris Moraitis PSM, will shortly initiate a review of Commonwealth legal services to better organise, coordinate and align the provision of legal advice to government. The review will also examine the role of in house legal practices in Commonwealth departments and agencies.
The consolidation implements decisions made as part of the Government’s Smaller Government Reform Agenda, which was announced at the 2014 Mid-Year Economic and Fiscal Outlook in December 2014.
The Administrative Appeals Tribunal has meanwhile announced
Today the Administrative Appeals Tribunal merged with the Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT) and Social Security Appeals Tribunal (SSAT).
Decisions that could be reviewed in the former MRT-RRT are now reviewed in the AAT’s Migration & Refugee Division. Decisions that could be reviewed in the former SSAT are now reviewed in the AAT’s Social Services & Child Support Division. The AAT’s other jurisdictions are dealt with in one of the AAT’s six other Divisions which are the General Division, Freedom of Information Division, National Disability Insurance Scheme Division, Security Division, Taxation & Commercial Division and Veterans’ Appeals Division.
In general, the review processes that currently apply in the AAT, MRT-RRT and the SSAT will be maintained with some changes to aspects of our procedures. The two levels of merits review that currently exist for certain decisions reviewed by the SSAT will continue to be available with a second tier of review at the AAT.
Revised practice directions, guides, guidelines and forms have been developed to incorporate procedural and other changes made necessary by the legislative changes. We also seek to harmonise our procedures where possible and streamline our practice documents further in the future.