02 July 2016


Noting the provocative (but for me unconvincing) 'Individual Sovereignty, Freer Sex and Diminished Privacy: How an Informed and Realistic Modern Sexual Morality Provides Salvation from Unjustified Shame' by Rory D. Bahadur in (2016) 8(2) Elon Law Review 245, which explores
the effect that increased accessibility to electronically stored information has had on Millennials’ viewpoints regarding sexuality and morality and concludes that the democratized mass dissemination of information has resulted in a radically diminished need for privacy. This controversial perspective is developed through an historical recounting of the means by which traditional morality developed and became a tool of sexist and racial oppression wielded by the dominant class through monopolistic control of the media and mass messaging. Exposure to modern sexual morality through the internet has revealed the fallacy of adherence by most individuals to these traditional norms. The result is an elimination of the feelings of shame felt by those who previously believed themselves to be deviant as they recognize that they are actually part of the norm. Privacy is the doctrine that allows us to control how we are perceived by others. If we keep private that which makes us ashamed, then the current, internet catalyzed, informed sexuality has reduced our need for privacy because it has reduced the things for which we experience shame. Contemporary sexuality, as reflected by Tinder for example, typifies these increasingly informed views of morality, sexuality, shame and ultimately privacy. The associated decrease in the need for privacy results from nothing less than an unprecedented, information based, reconceptualization of sex, sexuality, religion and morality. This altered conception of privacy is ultimately echoed in our jurisprudence, which reflects the shift away from an antiquated morality of higher purposes to a Constitutionally based, age of enlightenment influenced, morality of self-fulfillment.
Bahadur argues
Society is moving from a morality of higher purposes to a morality of self-fulfillment lacking any stigma associated with consensual, adult sexual relationships. This new morality is very different from the traditional mainstream morality or the Judeo-Christian-based morality of higher purposes. This is not a vacuous morality based on convenience; rather, it might actually be the very morality that our founding fathers envisioned.
The Constitutionality of the New Sexual Morality and the Resulting Massive Decrease in Privacy
The morality of self-fulfillment is not only an essential element of the Constitution, but it is in fact an indispensable one.  Kris McDaniel-Miccio argues the founding fathers deliberately included Age of Enlightenment moral principles, which were based on individual liberty and equality, in the Constitution.  These moral principles were derived from a period where the devolution of “arcane institutions—including the monarchy, the feudal system, and the primacy of the Roman Catholic Church,” was occurring.
During this time, massive political change resulted in the revolutions of France, England, and the United States. 
At the center of the social and political upheavals of the seventeenth and eighteenth centuries was the notion of the dignity and worth of the person because humans are not only sentient but rational beings capable of reason or rational thought. The ability to think, to reason, to interrogate ideas, was—in and of itself—worthy of approbation and protection. Thus, freedom of thought, expression, association, and religious belief were indelible concepts of the Enlightenment and of the creation of America as a nation-state. 
As a result, the governmental structure of the United States, which can be found in the Constitution, is actually founded on a deliberate balance between two principles: (1) the retention of individuality within the notion of a state; and (2) that “the authority to govern is not a result of conquest, divine right[,] or initiated by a religious hierarchy.”  The central tenets of American governance structure are therefore equality and liberty,  and these in turn are premised on a morality based on equality and individual dignity. 
In contrast to Judeo-Christian morality, each person is equal before the law, community, and state.  Because of this, no person should be subject to governance or laws based on “an accident of birth, inherited title or wealth or divine right.”  The essence of American morality and justice is “the dignity and worth of all individuals, mani- fest in the Fourteenth Amendment guarantee of liberty and equality. Thus, religion and ideology are baggage that should be left at the courthouse door.”  This normative shift in sexual morality is even reflected in Supreme Court jurisprudence. For example, in Lawrence v. Texas,  which overruled Bowers, the Court said,
Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons
If we contrast this with the jurisprudential calculus of Bowers, which is based entirely on interpretations of Judeo-Christian sexual morality, the massive jurisprudential shift away from a morality of higher purposes to a morality of self-fulfillment becomes abundantly clear. This jurisprudential shift away from using religious beliefs as part of the legal structure results in a jurisprudence more in sync with the true morality of the American Constitution.
With this new morality, which Rubin describes as the morality of self-fulfillment based on the individual dignity, comes a decrease in shame associated with the things for which we previously felt shame. If shame is connected to privacy, then the resulting decrease in shame equates to decline in the need for privacy.
One commentator went so far as to suggest that the constitutional right to privacy actually reinforces the shame associated with any sexual behavior outside the scope of what the moral majority considers acceptable.  She argues that, if Lawrence can be interpreted as a repudiation of morals legislation, then we may be approaching the era where the right to privacy is no longer as necessary as the constitutional jurisprudence currently reflects and where nonconformity with Judeo-Christian moral constructs and their legislative products is no longer associated with shame. Ultimately, then, they would no longer need to be hidden or protected by a doctrine of privacy.
Extrapolating the jurisprudential shift, especially after Obergefell v. Hodges, it is not far-fetched to envision the Supreme Court declaring all morals legislation, sans an independent, actual, and significant empirical public health basis, invalid. For example, polygamy laws may need to be re-examined in the near future because polygamous relationships entered into between consenting adults appear to pose no threat to public health, but instead are unlawful simply because they do not comport with mainstream morality. In 1890, the Supreme Court justified the illegality of polygamous unions as follows, “polygamy is . . . contrary to the spirit of Christianity and of the civilization which Christianity has produced in the western world.” In that same year, the Court “justified the suppression of polygamy with reference to Christian values and ‘the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation.’”
Bahadur concludes
Traditional American morality is based on unrealistic, Judeo-Christian constructs, which perpetuate the subjugation of women and other forms of discrimination. The normative nature of this morality was reinforced because, before the Internet and ESI, those institutions and individuals (e.g., public officials seeking elected office and churches aimed at perpetuating religious oppression) who benefitted from its perpetuation traditionally had monopolistic control of the media. Therefore, this morality was largely accepted as normal human behavior, and anyone who did not conform or deviated from it experienced shame internally or externally if his or her deviations were made public. The Internet and ESI have destroyed this media monopoly, and anyone with access to a computer can now be considered a media outlet. The unprecedented availability and distribution of realistic information related to actual human behavior has shattered the reality of the previously prevalent, singular, sterilized, and manicured presentation of human behavior and morality.
More and more Millennials and subsequent generations are realizing that the shame they thought to be associated with desires and complex sexuality previously labeled deviant and immoral are actually normal facets of being human. As the absurdity of the shame dissipates in this Internet-dominated age, more people are comfortable publicizing this aspect of their lives. Thus, not only does the need for privacy decrease, but there also may actually be liberated public celebration on the Internet of realities previously considered private for fear of retribution.
Our jurisprudence also reflects this rapid decline in the influence of Judeo-Christian constructs as an appropriate basis of our morality. At the end of the day, I am left feeling that morality as it relates to sexuality is a combination of Sheryl Crow and John Stuart Mill on liberty. If it makes you happy, it can’t be that bad, as long as it does not cause hurt to another.


Belatedly catching up with the Governmen'ts response to the ACIP Review of the Designs System (noted here).

The Response is as follows -
ACIP Recommendation 1
ACIP recommends that the Designs Act should be amended, as soon as practicable, to address anomalies identified by stakeholders and to adopt certain specific reforms that will bring Australian designs law into better alignment with equivalent laws of major trading partners, international treaties and proposed international treaties.
Government response
The Government accepts this recommendation. The Government accepts the need for legislative change to address many of the specific recommendations of the review. Responses to the specific recommendations are below.
Recommendation 2
a. ACIP recommends that Australia promote efforts to harmonise a nd streamline procedures for acquiring international registered design rights.
b. Australia should commence an investigation into the implications of joining the Hague Agreement, including consulting with WIPO. Australia should monitor usage of the Hague system and in particular whether usage of the system increases as a result of recent expansions of its membership.
c. Australia should work actively through the Designs Law Treaty process to promote harmonisation of filing requirements.
Government response
a) The Government accepts this recommendation. IP Australia will continue its efforts to encourage international harmonisation and streamlining of registered design systems in different jurisdictions.
b) The Government accepts this recommendation. IP Australia will investigate the implications of Australia joining the Hague Agreement, and continue to monitor usage of the Hague System by our major trading partners.
c) The Government accept s this recommendation. IP Australia will continue its active involvement in promoting harmonisation of international filing requirements through development of the Designs Law Treaty.
Recommendation 3
ACIP recommends extending the maximum term of protection of designs to 15 years only if a decision is made to join the Hague Agreement.
Government response
The Government accepts this recommendation. The Government notes that if Australia joins the Hague Agreement it will be obliged to provide a maximum term of protection of 15 years. The implications of changing the maximum term of protection will be reviewed further as part of investigations into joining the Hague Agreement (see recommendation 2 (b)). This issue is also being considered by the Productivity Commission (PC) in its inquiry into Intellectual Property (IP) arrangements.
Recommendation 4
ACIP recommends changing the terminology for a registered but uncertified design to make it clear that the design does not, until certification, confer enforceable rights. ACIP suggests the term ‘uncertified design’ should be used.
Government response
The Government accepts this recommendation. The Government accepts that it is desirable to clarify when a design is enforceable. The exact terminology will be finalised before implementation.
Recommendation 5
ACIP recommends removing the option of the publication regime ( i.e. without registration) from the designs process.
Government response
The Government accepts this recommendation. Amendments to implement this recommendation are to be included in a forthcoming Intellectual Property Laws Amendment Bill. The Bill will provide for a number of changes to streamline IP processes and support small business. Public consultation on an exposure draft of the Bill will occur before the Bill is introduced to Parliament.
Recommendation 6
ACIP recommends requiring a request for examination of the design by the first renewal deadline (five years).
Government response
The Government notes this recommendation. The Government considers that the response to this recommendation will be closely tied to and dependent on the outcome of the investigation into the implications of Australia joining the Hague Agreement, which the Government will undertake in response to recommendation 2(b).
Recommendation 7
ACIP recommends introducing a system of opposition following certification, if recommendation 6 is accepted.
Government response
The Government notes this recommendation. The Government considers that the response to this recommendation is dependent on the response to recommendation 6, which is itself closely tied to and dependent on the outcome of the investigation into the implications of Australia joining the Hague Agreement.
Recommendation 8
a. ACIP recommends improving the process for multiple design applications by reducing the fees for each additional design added to the application, in accordance with the original proposal of the ALRC.
b. ACIP further recommends that details regarding the eligibility of designs for inclusion in a multiple design application be developed with a view to consistency with relevant international treaties and proposed international treaties and harmonisation, if possible, with requirements in other major offices where Australians are likely to file design applications.
Government response
a) The Government notes this recommendation. The Government considers it appropriate to consider this recommendation further in the context of IP Australia’s current fee review, to be completed in 2016.
b) The Government notes this recommendation. The Government considers that the response to this recommendation will be closely tied to the outcome of the investigation into the implications of Australia joining the Hague Agreement, which the Government will undertake in response to recommendation 2(b).
Recommendation 9
ACIP recommends automatic publication at six months after the filing date, with the possibility to request publication earlier if desired, and with an amendment to the innocent infringer defence in subsection 75(2) of the Designs Act.
Government response
The Government notes this recommendation. The Government considers that the response to this recommendati on requires further consultation as acceptance of this recommendation may have unintended consequences for particular applicants. IP Australia will consult further with stakeholders in order to develop an appropriate response.
Recommendation 10
ACIP recommends retaining the requirement of distinctiveness and section 19 of the Designs Act in its current form.
Government response
The Government accepts this recommendation.
Recommendation 11
ACIP recommends allowing amendment of the Statement of Newness and Distinctiveness in ways that identify particular visual features of the design as new and distinctive, up to the point of certification.
Government response
The Government accepts this recommendation in principle. The Government notes that at present a Statement of Newness and Distinctiveness (SoND) cannot be amended when new prior art is identified in the course of examination. This means an applicant cannot amend the SoND to clarify what makes their design new and distinctive from prior art they may have been unaware of at the time of filing the SoND. This limits its usefulness to applicants. The Government accepts the principle that an applicant should be able to amend the SoND, provided that it does not broaden the scope of the design owner’s right. However, the Government considers that this recommendation requires further consultation to ensure that there are no unintended consequences before implementing change.
Recommendation 12
ACIP recommends introducing a grace period of six months before the filing date, together with a prior user defence. Applicants who rely on the grace period to protect the validity of their design rights should be required to file a declaration to that effect.
Government response
The Government accepts this recommendation. The Government agrees to introduce a grace period together with a prior user defence. The length of the grace period and requirement for an applicant to declare any disclosures at the time of filing will be determined at a later stage following further stakeholder consultation and development of international norms.
Recommendation 13
a. ACIP recommends retaining the current requirement that protection relates to the visual appearance of a whole product.
b. ACIP recommends that, in investigating opportunities for international cooperation in design application processes and requirements with other offices overseas, IP Australia consider whether allowing partial product registrations would enhance harmonisation of application requirements in a way that would substantially advantage Australian applicants. If significant advantages to Australian applicants can be shown and IP Australia can confirm that such protection does not give rise to substantial practical or legal issues overseas, then ACIP would support reform of Australian law.
Government response
a) The Government accepts this recommendation.
b) The Government accepts this recommendation. The Government notes the potential benefit of aligning Australia’s designs system with those of key trading partners for Australian applicants seeking international protection. However, extending protection to partial designs would be a fundamental change to the current Designs system, and would provide legal rights that broadly encompass a large range of very different-looking products sharing one particular design feature. This could lead to increased complexity and costs in challenging the validity of any relevant design. Australia should not change the current system without detailed analysis of the costs and benefits. Through its international engagement activities, IP Australia will continue to assess whether allowing partial product registrations would enhance harmonisation of application requirements in a way that would substantially benefit Australian interests. This issue is also being considered by the PC in its inquiry into IP arrangements.
Recommendation 14
ACIP recommends that the treatment of virtual or non-physical designs be reconsidered, for example by allowing consideration of the product in its active state, not just its resting state, when considering validity.
Government response
The Government accepts this recommendation. Through its international engagement activities, IP Australia will continue to assess whether specific considerations for the treatment of virtual or non-physical designs would benefit Australian interests. This issue is also being considered by the PC in its inquiry into IP arrangements.
Recommendation 15
ACIP recommends that steps should be taken to make section 18 of the Designs Act consistent with the overlap provisions of the Copyright Act 1968.
Government response
The Government accepts this recommendation in principle. IP Australia, which administers the Designs Act 2003 (Designs Act), and the Department of Communications and the Arts, which administers the Copyright Act, will investigate taking steps to make section 18 of the Designs Act and the overlap provisions of the Copyright Act consistent with each other.
Recommendation 16
ACIP recommends the Government consider introducing (with appropriate resourcing of Customs) border protection measures that align with the Trade Marks and Copyright Acts (Notice of Objection Schemes) to allow for the seizure by Customs of alleged design infringements which are identical to certified designs.
Government response
The Government does not accept this recommendation. The Government considers that the proposed introduction of border controls in respect of alleged design infringements would pose a range of practical difficulties, and would be resource intensive for the Australian Border Force (ABF) to implement. The Government notes that the Designs Act currently provides rights holders with opportunities to take action domestically, for example seeking injunctive relief and damages, against suspected infringements of certified designs. A determination in relation to whether a  product infringes a design right is a decision made through the courts. In practice this means the rights holders, under current legislation, can provide the ABF with a court order preventing the release of particular imported goods, along with actionable intelligence to assist in identifying the specific shipment. ACIP Designs Review
Recommendation 17
ACIP recommends retaining section 71 of the Designs Act in its present form.
Government response
The Government accepts this recommendation. The Government notes that although ACIP considered there is an anomaly between section 71 in relation to infringement of design and section 10 in relation to the exclusive rights of owners, this has not given rise to any problems in the operation of the Designs Act. Furthermore, ACIP cautioned that ‘fixing’ this anomaly would create uncertainty and could have unintended effects. ACIP Designs Review
Recommendation 18
ACIP recommends amending the legislation as soon as practicable to address specific anomalies identified by stake holders and listed by ACIP below. ACIP considers that these amendments would improve the operation and consistency of the Act and in some cases, consistency with other IP systems. The Designs Act and/or the Designs Regulations 2004 should be amended to ensure:
a. That rules regarding the identity of Convention applicants are consistent with rules relating to entitlement to designs;
b. That international Convention applicants are not disadvantaged in cases where formal requirements differ between jurisdictions, by expanding the rules relating to priority claiming;
c. Courts have the power, similar to that available under the Patents Act 1990 to refuse to revoke a design registration on the basis of lack of entitlement of the named applicant in appropriate circumstances;
d. Design registrations are revocable on the basis of a lack of entitlement at the time of the revocation proceeding (rather than at the time of registration);
e. The prior art base against which newness and distinctiveness is considered is expanded to include designs for products other than the product the subject of the registered design;
f. The ground of revocation on the basis of fraud, false suggestion or misrepresentation extends to fraud, for example, during certification (not just registration);
g. The opportunity to amend is broadened to allow for amendment other than to overcome a ground of revocation;
h. Exclusive licensees have the right to bring proceedings for infringement; and
i. Grace periods for renewal deadlines align with other IP Rights.
Government response
The Government accepts these recommendations with the proviso that Australia will continue to comply with relevant international treaties and conventions; and any change to the Designs Act does not result in an unintended advantage of one type of application ( i.e. convention claim) over another type of application ( i.e. non-convention claim). Amendments to implement recommendation 18(i) are to be included in the forthcoming Intellectual Property Laws Amendment Bill. The Bill will provide for a number of changes to streamline IP processes and support small business. Public consultation on an exposure draft of the Bill will occur before the Bill is introduced to Parliament.
Recommendation 19
ACIP recommends no change to the trade mark/design overlap. Government response The Government accepts this recommendation. The Government notes that the present Review found no evidence of any problem with the present trade mark/design overlap.
Recommendation 20
ACIP recommends no change to the Repair Defence.
Government response
The Government accepts this recommendation. The Designs Act introduced a Repair Defence provision into the Designs system. Where a component part is used for repair of a complex product to r estore its overall appearance, the manufacturers and suppliers of the component part are exempted from any liability for infringement. The Government notes that ACIP found no evidence of any problem with the present repair defence provision that would warrant changing the present system.
Recommendation 21
ACIP recommends no change to the designs system at this time to respond to 3D printing and scanning technologies.
Government response
The Government accepts this recommendation. The Government notes that ACIP received few submissions supporting reforms in this area, while other submissions noted that it would be premature to amend the Designs Act to account for technological advances. The Government considers that it would be premature to take legislative action when there is no evidence of any existing problem. The Government will continue to monitor technological developments and their implications for the designs system.
Recommendation 22
ACIP recommends that Australia should not introduce protection for unregistered designs.
Government response
The Government accepts this recommendation. Unregistered Design Rights give a designer the right to prevent others from copying their designs for a certain period without requiring them to register their design or satisfy an innovation threshold. The Government notes that submissions to ACIP were generally opposed to the introduction of Unregistered Design Rights, and suggested it would undermine the current registered design system.
Recommendation 23
ACIP recommends that the role of the designs system be specifically included in any broader review of Australia’s IP framework, such as a broader review that may be proposed in the Final Report of the Competition Policy Review.
Government response
The Government accepts this recommendation. The role of the designs system has been included in the terms of reference of the PC inquiry into Australia’s IP arrangements. This inquiry was announced by the Treasurer and the Minister for Small Business on 18 August 2015, and the PC is expected to report in August 2016.

29 June 2016

US Fertility Law

The short 'Religion and Reproductive Technology' by I. Glenn Cohen in Holly Fernandez Lynch, I. Glenn Cohen, Elizabeth Sepper (eds) Law, Religion, and Health in the United States (2017, Forthcoming) examines
places where law, religion, and reproductive technology conflict. It examines four particular intersections: The first involves religiously motivated denials of service, in particular as they pertain to single and gay and lesbian couples. The second involves embryo adoption, where the largest providers of the service in the United States are religious organizations. The third is a bit of a dog that didn’t bark (at least so far): the “personhood movement” and its attempts to gain state constitutional protection for zygotes, embryos, and fetuses. Finally, the chapter will close by discussing relatively new attempts by religious organizations to bring forward objections to embryo destruction in pre-embryo disposition disputes between private individuals, in particular a recent case in Missouri that is currently being litigated.
'Selective Procreation' by Dov Fox in (2016) 64 UCLA Law Review Discourse appraises
emerging powers to choose genetic traits in future children. It sets forth a comprehensive new way to think and talk about the ethics and law of offspring selection, and applies this framework to live legal controversies over efforts to single out characteristics including sex, race, deafness, and donor compatibility. I adapt the methodological lens of ambivalence developed by Robert Burt to advance conditions under which to pursue a complex regime of ambiguous or even contradictory strategies between the extremes of compulsion and prohibition. These include protection or promotion, as through public subsidies, tax breaks, mandated insurance, and private causes of action, combined with restriction or discouragement, as through sin taxes, required counseling, limits on advertising, and prenatal choice architecture.


'Identifying ‘Indigenous’ Peoples in International Law' by Ben Saul in Indigenous Peoples And Human Rights: International And Regional Jurisprudence (Hart/Bloomsbury, 2016) considers
various international and regional efforts to identify the ‘indigenous’ peoples and individuals entitled to the rights and protections that have been incrementally recognised and tailored to their needs. 
It is roughly estimated that there are 370 million indigenous peoples in 90 countries, speaking 4,000 languages, and comprising around 5,000 distinct groups. Taken literally, the term ‘indigenous’ refers to the descendants of the first or original inhabitants of a place, in contrast to later arrivals from elsewhere with different cultures. As shown, however, this definition is deceptively simple and fails to capture the experience of other kinds of indigenous peoples, particularly in Africa and Asia. In world of startlingly diverse indigenous communities, and of governments with divergent political interests and ideologies, the question of who is indigenous has been notoriously difficult and controversial to resolve. There are political sensitivities amongst certain governments about recognising indigenous peoples. For example, quite a few Asian, African and Pacific governments have objected that indigenous peoples do not exist in their countries because all of their inhabitants can be said to be native or autochthonous there. The absence of a conclusive international law definition has not, however, precluded the international community from forging a workable, functional understanding of who is ‘indigenous’ – and thus who benefits from that status. 
The issue of definition matters a great deal because legal definitions can determine who is entitled to rights in critical resources such land and water, to vote in elections for representative institutions, to exercise cultural practices and control over traditional knowledge, and so on. Definitions can equally identify obligations on governments to provide social services, or on mining, agricultural or fishing companies to negotiate with indigenous groups to access their resources. Internationally, law can determine who has access to international institutions and procedures for diplomacy, politics, legal standard setting, monitoring, and dispute resolution.

Cloning and Recreational Genomics

'Dolly and Alice' by Dan Burk in (2015) 2 Journal of Law and the Biosciences comments
The opinion of the United States Court of Appeals for the Federal Circuit, In re Roslin Institute, rejecting patent claims to mammals cloned from somatic cells, was rendered about a month before the United States Supreme Court’s decision in Alice Corp. v. CLS Bank International. The Alice opinion explicitly sets out the standard for determining whether an invention falls within statutory patentable subject matter. Thus one is thus left to wonder what the Roslin opinion might have looked like had it been decided only a few weeks later, after the Alice decision was published, with the benefit of the Supreme Court’s further direction on patentable subject matter. 
In this essay I explore whether in hindsight the Alice standard might have dictated a different outcome in Roslin, suggesting how the two-part test articulated by the Supreme Court in Alice might apply to a “products of nature” analysis for cloned mammals. Drawing on that analysis, I then use the Roslin case as a vehicle to highlight certain issues with the Supreme Court’s current subject matter jurisprudence as applied to biotechnology. By juxtaposing Dolly with Alice, it becomes clear that the Supreme Court has revivified a number of dormant biotechnology patent problems in the guise of subject matter analysis.
'‘Just a Bit of Fun’: How Recreational is Direct-to-Customer Genetic Testing?' by Heike Felzmann in (2015) 21(1) The New Bioethics - A Multidisciplinary Journal of Biotechnology and the Body 20-32 comments
Direct to consumer (DTC) genetic testing has given rise to much controversy, especially in relation to testing for health diagnostic purposes. This paper will consider whether consumers' use of DTC genetic testing should be understood as predominantly recreational. It will be argued that recreational testing can encompass all information domains, including most kinds of predictive health risk information. In relation to recreational testing the potential identity implications for the consumer become a significant concern, more so than the risks more traditionally associated with genetic testing. It will be concluded that while the DTC genetic testing sector is beset by numerous problems and an increase in consumers' genetic literacy is highly desirable, consumers' engagement with DTC genetic testing may be less problematic than sometimes assumed.

28 June 2016

Mandatory Blood Testing

From the 2nd Reading Speech for the Police Administration Amendment Bill 2016 (NT) on 27 June.
The purpose of the Police Administration Amendment Bill 2016 is to provide for the mandatory blood testing of a person who has, in proscribed circumstances, transferred a substance to a police officer, and to enable the analysis of that sample to determine if that person has an infectious disease.
Early detection will allow appropriate medical, physical and psychological treatment to be provided to that police officer. I will go through a few key features of the bill to provide clarity for those who do not appear to fully grasp its content. I will also provide responses to issues that have been raised, most notably by the nurses’ federation and the organisation supporting lesbian, gay, bisexual, transgender and intersexual populations.
A key feature of the bill is to organise a blood sample to be taken from a person by a medical practitioner, nurse or qualified person and the analysis of the blood sample for an infectious disease. The bill will also provide powers for police to apprehend and detain a person to enable the determination of an application of a disease test approval. Or, to apprehend and detain as long as reasonably necessary to enable the taking of a blood sample and to enable the disclosure of the results of the analysed blood sample to be provided to the authorised persons.
In the history of the bill and its consultation phase, the Northern Territory Police Association has long lobbied for police to be given broader powers in seeking non-consensual orders for intimate procedures on offenders who spit, bite or otherwise assault an officer in way likely to have transferred blood or any other bodily fluid to that officer.
The police association sought reform in line with the current model which is operating in Queensland. The bill is based on the Mandatory Testing (Infectious Diseases) Act 2014 from Western Australia. That follows a jurisdictional comparison where it was considered that Western Australia has the most appropriate model as it provides a level of transparency of the processes. In late 2015, the following organisations were targeted in consultation in relation to introducing similar powers under the Police Administration Act as in the Mandatory Testing for Infectious Diseases Act of 2014. They include the Police Association, the Law Society of the Northern Territory, the NT AIDS and Hepatitis Council, the Chief Magistrate and the Chief Justice, the Anti-Discrimination Commissioner and the Information Commissioner.
During that process, concerns were raised by the Law Society, the NT AIDS and Hepatitis Council, the Anti-Discrimination Commissioner and the Information Commissioner. I will go through the concerns that were raised, and I will provide a response.
One concern was about the infringement of a person’s rights by the conduct of a medical procedure without consent. The response is that there is already power under section 145 of the Police Administration Act which provides for this. Testing will only occur where there has been a transfer of a substance from a person to a police officer following an assault of the officer by the person or during the arrest or detention of the person. The procedure will be conducted by a medical practitioner, nurse or qualified person and oversight is provided where approval for the procedure is given by a Superintendent or above, or a Local Court judge in instances where the transferer is a protected person who is satisfied there are grounds for such disease testing.
In relation to the disclosure of a person’s private health information, analysis of the blood sample will be conducted by a pathology laboratory. Provision of the results will only be disclosed to the transferer or affected member, their respective health practitioner or psychologist, psychiatrist or social worker, and where required, notified to the Department of Health Centre for Disease Control. This will maintain, as much as possible, the confines of the doctor/patient relationship and ensure sensitive health information is limited to authorised persons. Information relating to a transferer’s medical result will not be placed on the PROMIS system or the police real time online management information system.
In relation to false positive or false negative results, it is acknowledged that there is potential for false positive and false negative results. The intent of this legislation is not to change how officers respond to biological exposure incidents, but to provide a means for early identification to reduce stress and anxiety for exposed officers and their families and contribute to decisions regarding treatment and appropriate counselling.
Transfer of bodily fluids from victims to a person to whom an officer is providing first aid was a question raised. This power does not apply to these situations and it is not a result of an assault against a police officer, or during an apprehension or detention of a person.
Police take all reasonable precautions against exposure to contagion such as personal protective clothing apparatus, and also Hepatitis B vaccinations appropriate to such situations.
There was a question about the transfer of a substance from a person to a police officer’s clothing or skin that is intact. The power in this bill does not apply in these situations.
A question has been raised about the reinforcement of a common misunderstanding of the way blood-borne viruses are transmitted. The Northern Territory Police Force is working with the Department of Health to provide guidance and education, such as appropriate material and information sessions on infectious diseases which may be transferred to police officers.
There are questions about detaining those not linked to serious criminal offending. Assaulting a police officer is an indictable offence, and in its own right a separate offence in the Criminal Code, section 189A. In some circumstances this can attract a penalty of imprisonment for up to 16 years, otherwise if found guilty summarily, three years.
In regards to inequity in appeal mechanisms for protected and non-protected persons, a high level of oversight should be provided to those who are be too young or not capable of fully understanding the implications of compliance.
In relation to no discretion to the decision maker to evaluate the likely risk of infection, Northern Territory police will include a process for risk assessment to be made by an on-call physician prior to seeking a disease test authorisation. The information provided by the physician will be noted by the senior member on the application for a Disease Test Authorisation. It was not considered appropriate to legislate this process. It will form part of the internal policies and procedures under this new regime.
There was a final question about detaining a person for disease testing when the person has not been and will not be charged with an offence. A person has committed an offence by spitting at or biting a police officer.
It is interesting to go through the information that has brought us to the position where we are able to introduce this bill. The problem being solved through the amendment is an issue of workplace health and safety for Northern Territory police officers. We will support NT Police officers’ welfare following a biohazard incident, allowing early identification of potential transmission of an infectious disease to an officer or provision of prophylactic medication, treatment and counselling, further reducing stress and anxiety for exposed officers, especially their partners and families, including their children. We will allow notification of results from a transferor, identifying a positive test to an infectious disease to obtain appropriate treatment and counselling through the health system.
It is important to look at the circumstances in a numerical point of police officers who are spat at or bitten in the line of duty. In the financial year 2013-14 there were 27 cases of officers on the front line who were spat at or bitten, with a [potential transfer of saliva, blood or faecal material, which has caused disturbing and distressing situations.
In the 2014-15 financial year there were 35 incidents, and this current financial year, which is currently drawing to a close, there have been 37 incidents. Of those incidents in the 2015-16 financial year, needle and syringe injuries have had an occurrence of one. There has been one occurrence where an alleged offender has vomited on a police officer. There have been 19 occurrences where a police officer has been spat at or upon. There have been 15 occurrences where a police officer has been exposed to a potential transfer of blood. There has been one instance of a police officer being bitten.
I want to run through some example of these occurrences through the financial year. I will only read a few, and I will not include any identification in these examples. An offender who was placed under arrest resisted violently and in the process bit the police officer on the wrist, then, immediately after, bit the officer on the hand. The bite caused the member’s skin to break and expose blood. The member attended hospital to have the wound cleaned and bloods taken. That officer, under the current regime before this bill passes, will have to wait three months to identify whether or not he has been subjected to the transfer of a communicable disease.
I am not a police officer, but I can only imagine the amount of pain and suffering an officer goes through, emotionally, physically, psychologically as an individual and how does that impact on their families. Particularly from an intimate point of view with their partner, or with the play time they may have with their kids. I think that this legislation is a no brainer. I will give more examples to prove the point. In a second example, an offender was taken into protective custody and placed into the back of a police vehicle. Without warning, the offender spat through the cage directly into the member’s face with the spittle making direct contact with the member’s right eyeball, cheek and nose. The member attended hospital to have bloods taken.
The third example, while arresting an offender the member has been bitten by the offender under their left armpit. The bite caused instant pain, bruising, swelling and a 5 cm laceration. Medical treatment was obtained at hospital and a blood test completed, a tetanus injection was also received and the wound addressed, but this officer has to wait three months as well.
Another offender had a cut lip and spat a combination of blood and saliva into a member’s face, droplets of their spittle landed in their eye and their face. It is horrific to hear about the circumstances in which police operate in the Northern Territory, but I find it offensive to think there may have been the transfer of a communicable disease and currently there is no testing regime that can shorten the information cycle to be less than three months.
Another example, members attended a general disturbance and arrested a person. That person was placed in the rear of a police van with handcuffs due to their high level of aggression. While checking the welfare of the offender, the offender spat at the member, hitting the member in the face. When the police member made a second arrest the offender again spat at the police officer. The affected police member placed antibacterial lotion over their face and hands as aftercare, in an attempt to clean the spit from their face. The member’s mouth was open at the time; however there was no blood in the spit, only saliva.
They are a few examples of the circumstances police are facing on an everyday basis. This legislation is designed to fix that. I will go through some more information briefly. These are the concerns that have been raised by the Northern Territory AIDS and Hepatitis Council. There is a question about the bill perpetrating the common misunderstanding that HIV can be transmitted through contact with saliva, such as through spitting. As clearly stated in the Australian Society of HIV Medicine’s guiding document entitled Police and Blood-borne Viruses, which I will refer to as BBV, there are only certain bodily fluids that contain HIV in sufficient concentration to be implicated in an HIV transmission, that is, blood, semen, pre-ejaculation and vaginal fluids and breast milk. Saliva is not only of those.
The response to that is testing of a transferer is not simply triggered because an officer has been exposed to bodily fluids during their course of duty. The legislation provides for defined circumstances where an application for testing may be authorised such as if a person spits, throws or wipes a substance – that is, blood, spit or faeces – on that police officer and it enters their mouth or eyes or lands on an open wound.
Notwithstanding the proposed amendments specify BBV or blood-borne viruses, this is so the police force is open and transparent to the public about the standard testing that will be conducted on a blood sample. It is also consistent with the tests that are currently undertaken on a police officer’s sample following exposure.
There is provision to include a broader definition of ‘infectious diseases’ by regulation which will allow the testing of infectious diseases that are not BBV, but is transmissible by saliva or faeces into the broken skin or mucous membrane of a police officer.
A second area of concern raised by the Northern Territory AIDS and Hepatitis Council was even if a positive BBV result is returned, it cannot establish whether an officer has contracted a BBV. A negative BBV result is also not conclusive as there is a window period for BBV tests of a minimum of three months.
That is correct in the test in time, but current protocol for an officer who has suffered a biohazard injury is to seek medical attention for a risk assessment and undergo testing or treatment if warranted. The intent of the legislation is not to change how officers respond to such incidents in the workplace.
There was a question about the HIV testing policy which states that informed consent is required for HIV testing, except when a legal order is made for testing. Generally taking blood from a person without their consent involves the criminal offence of assault and civil trespass. That is the question that was raised. The response is that the proposed amendments will introduce a power to test a person for an infectious disease, regardless of consent. If approved it is required to be served on the transferor to explain the purpose and effect of the approval, that force may be used and that failure to comply is an offence. It does not remove the need to request consent. This will form part of the application process when an officer seeks a Disease Test Authorisation.
Another question concerned individuals who test positive for HIV may be charged under general criminal law for exposure and transmission of HIV with laws that potentially criminalise people with HIV that undermine the suite of national BBV strategies.
My response is that the test results under this new power will not be placed on systems such as PROMIS nor available to police officers in general. A restricted list of authorised persons will have access to the results, including the transferor, the affected police officer and their respective health practitioners.
The results from this process cannot be used for any other purpose than a test for an infectious disease. There are significant penalties which follow the disclosure of information or use of blood sample for any other purpose.
Under these provisions there is no penalty should a positive result be returned from a transferor.
A final point responds to a point which raises the question of guidelines and procedures. To minimise the risk of an officer contracting HIV or other blood-borne viruses following an exposure the Northern Territory AIDS and Hepatitis Council provided a community-based training on BBVs on a fee-for-service basis. The Northern Territory police already have vigorous guidelines and procedures in place regarding the risk of infectious diseases and minimising exposure in a policing environment.
If the legislation is passed in Parliament today, further work will be undertaken with the Department of Health on education about infectious diseases.
I would now like to respond to questions raised by the Australian Nursing and Midwifery Federation. One of their concerns is that the bill will provide no further protection to police in contracting communicable diseases. The Federation say is it their protective equipment that helps to reduce and stop contamination.
My response is that the proposed legislation has been drafted with officer health and welfare in mind. The proposed legislation is based on keeping officer health and welfare in mind. It will support the workplace health and safety of police officers and their welfare following a biohazard injury, allowing earlier identification of potential transmission of such infectious diseases and provision of earlier treatment to be provided, which assists in further reducing the stress and/or anxiety for exposed officers and their partners and families.
The NT Police already have rigorous guidelines and procedures in place regarding risk of infectious diseases and how they better prepare for it. Some questions have been asked about whether police could wear safety masks when they leave the station, and I think that is a ridiculous request.
There is a subsequent question about concerns regarding putting health professionals under pressure to forcibly take blood for testing, saying this would be an ethical and human rights dilemma, besides possibly putting their registration at risk for professional conduct. There is already a provision under the Police Administration Act, most notably under section 145, which allows for the taking of a blood sample, known as an intimate procedure. For the purpose of providing evidence relating to an offence punishable by imprisonment, in the Traffic Act – a good example is section 29AAG, which requires a blood sample if a police officer reasonably believes the concentration of alcohol in the person’s breath or blood is such that a person has committed an offence against the act, or the officer has reasonable cause as a result of a positive indication from a saliva, to suspect the person’s body contains a prohibited drug.
Section 147FR(4) under clause 6 of the bill provides for a medical officer, nurse or qualified person to not be required to take a blood sample as authorised in the disease test authorisation until the practitioner, nurse or qualified person is satisfied that: (a) there is no serious risk that serious harm would be caused to the transferor, or another person, by the taking of the sample; and (b) the health of the transferor would not be adversely affected by the taking of the sample.
Protection from liability is also provided for medical practitioners, nurses or qualifies persons under section 148B, which is clause 7 of the bill. It states under ‘Protection from liability’: (1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act. ...
To those who say that this is not fair and is a breach of human rights, I have one very pointed message: if you do not like it do not spit on police, do not bite police, do not pass bodily fluid to police and do not pass faeces to police. It is abhorrent; police are out there protecting every single citizen in the Northern Territory. To think that police currently have to go through the pain and suffering of waiting three months is outrageous.

Must Carry Identity Documentation

'Demanding Identity Papers' by Jonathan Weinberg in (2015) 5(1) Washburn Law Journal 197 comments
Language in the [US] Immigration and Nationality Act appears to make it a crime if a non-citizen, present in this country, fails to carry government-issued immigration documents on his person at all times. The resulting body of law, though, is deeply incoherent; it assumes an administrative process that has not existed for many decades. Analysis of the provisions’ history and context supports the conclusion that they should not be read to impose obligations on persons who have entered the U.S. without authorization. 
Weinberg argues that
Federal statutory law includes a set of provisions that appear to mandate the registration and fingerprinting of every person, age fourteen or above, who is present in this country but is not a U.S. citizen. Those same provisions direct that noncitizens, while in the United States, “at all times carry with [them] and have in [their] personal possession” the immigration documents issued to them as part of that process.  That body of law, as administered today, is convoluted, confusing, and significantly incoherent. There’s substantial uncertainty regarding to whom it applies and under what circumstances. In this short Article, I will set out the statute’s requirements and explain its modern administration. I will then explain the history of the statutory provisions, so as better to explain how we got where we are now. Finally, I’ll address key questions as to the scope of the law today.
II The Puzzle of Alien Registration
Our starting points are sections 262(a) and 266(a) of the Immigration and Nationality Act (“INA”), which require that “ every alien now or hereafter in the United States ... apply for registration and to be fingerprinted.” Section 264(d) of the Act directs the United States, upon such registration, to issue the alien a “certificate of alien registration or an alien registration receipt card.” And section 264(e) directs “ every alien, eighteen years of age and over, [to] at all times carry with him and have in his personal possession an y certificate of alien registration or alien registration receipt card issued to him.”
These provisions seem straightforward enough; they inspired the state of Arizona, just a few years ago, to enact a law it called Senate Bill 1070, the Support Our Law Enforcement and Safe Neighborhoods Act. Section 3 of that statute created a crime of “failure to ... carry an alien registration document.” Arizona read the INA to say that it was a federal crime for a noncitizen, here in this country without authorization, to walk its streets unaccompanied by an “alien registration document” issued by the U.S. government, and it reasoned that it could make the same conduct a state crime. The U.S. Supreme Court, while striking down that law as invading federal authority, did not challenge Arizona’s understanding of the INA.
Yet sections 264(e), 262, and 266 are not so simple, and there is good reason not to take them at face value. For starters, their language does not match up with modern immigration procedures or documentation: the registration process Congress had in mind when it enacted those sections has not existed for many decades. If you look in the Code of Federal Regulations today to find out how a noncitizen can register in conformance with the law, you’ll find eleven different documents listed as “prescribed registration forms” — apparently, the filing of any of these eleven documents, during a wide range of possible interactions with the immigration bureaucracy, counts as “apply[ing] for registration” from the government’s perspective.
But the list is an awkward one at best. The first-listed of its forms is an inspection record issued under a special statute providing for the s tatus legalization of refugees from the 1956 Hungarian uprising.  That is great, I guess, for elderly Hungarian refugees, but — by contrast — the more important and commonly filed I-589 asylum application is not on the list as a “ registration form [] .”
The second item on the list is the I-94 form historically filled out by foreign visitors to the U.S. That would work well enough, except that the Department of Homeland Security (“DHS”) no longer directs most visitors to fill out that form today. Instead, it collects the relevant information from their airline - supplied electronic travel records.   Elsewhere on the list are documents that might more plausibly work as registration forms, such as the I-485 green card application. But not every noncitizen in the United States has had the opportunity to file one of those forms.
Crucially, the list includes no “registration forms” that could be filed by a person in the United States without authorization — and that includes people who have been granted relief under the Deferred Action for Childhood Arrivals (“DACA”) program, people with Temporary Protected Status, or others with deferred action. If section 264(e) is read to criminalize those persons’ failure to file a form on the list, it would contravene long standing government policy, some of it explicitly set out in the statutory law.  It would effectively criminalize unlawful presence in the United States, something Congress has consistently declined to do.  Moreover, I will point out later in this Article, it would violate the Fifth Amendment privilege against self-incrimination. 
Next, the federal government does not issue any single document called, or easily understood as, a “certificate of alien registration or an alien registration receipt card.”  If we return to 8 C.F.R. § 264.1, we see instead a list of eleven or twelve documents that are said to constitute “evidence of registration.” That list works a little better. It includes the I-551 green card, the I-776 employment authorization document, and “a valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport.”  In general, people legally admitted to the United States will have one of these.
Again, though, people who were not legally admitted will not have one — and that includes people with Temporary Protected Status or DACA relief, unless they have work authorization. Presenting oneself for deportation might generate an “evidence of registration” document, because the I-862 Notice to Appear (typically, the first step in the removal process) is on the list. But the mere fact that DHS has been made aware of an illegal entrant does not mean that it will issue an I-862.
In sum, many noncitizens resident in the United States, often with the acquiescence of the U.S. government, have no “ evidence of registration ”document or anything else resembling an “alien registration receipt card,” and no way to get one. If we focus on the text of section 264(e)’s carry requirement (that is, the rule that a noncitizen must “at all times carry with him and have in his personal possession any [registration document] issued to him”), it is pretty clear that a person can not be criminally charged for failing to “carry with him and have in his personal possession” a document he never got and could not get.
But the U.S. government seems not to see it the same way. From time to time, federal prosecutors charge illegal entrants with violations of both sections 262 (the registration requirement) and 264(e) (the carry requirement); defendants do not contest those charges, and the cases end in guilty pleas.  In other cases not involving section 262 or 264(e) charges, courts have accepted the argume nt that section 264(e) provided probable cause for the arrests of suspected illegal entrants.
Outside of the courtroom, U.S. Customs and Border Protection (“CBP”) treats sections 262 and 264(e) as imposing an obligation on all noncitizens, authorized or unauthorized, to carry immigration documentation at all times. 8 U.S.C. § 1357 gives CBP agents the right, on or off the border, to “interrogate any . . . . person believed to be an alien as to his right to be . . . in the United States.” It gives CBP the right, without a warrant, to stop and search any vehicle within “a reasonable distance from any external boundary of the United States.” CBP has defined that “reasonable distance” as 100 miles, and is said to operate 170 checkpoints within that 100-mile-wide zone (which includes nine of this country’s ten largest cities, and two-thirds of our population). And the law gives CBP the right to conduct warrantless search of any property, other than dwellings, within twenty-five miles of the border.
CBP routinely detains people encountered within 100 miles of a border whom an agent believes to be foreign-born if they do not have on their persons what CBP describes as “required identification papers.” Its paperwork commonly notes § 264(e) as justification for those detentions.
CBP agents have told foreign students that the law requires them to carry the I-20 forms provided to them by their schools to support their visa applications. They have emphasized to foreign nationals in the United States that the registration law requires them to carry their passports or visas even on a “walk to the grocery store.” More generally, CBP believes that its agents have a duty to “verify the immigration status of the individuals they encounter.” Its view is that agents are empowered to arrest a person, and detain her at the station, whenever that person cannot produce documents establishing her legal status, and the agent cannot verify her status through a radio call requesting a database check. Because database checks are frequently inconclusive, CBP agents frequently detain persons with legal status but without papers on their persons demonstrating that status.
According to a study of CBP enforcement activity in the Buffalo region, the vast majority of the agency’s enforcement targets in that region are persons of South Asian, East Asian, African, and Caribbean backgrounds.  Those persons are subject to what amounts to a blanket requirement that, if they are within 100 miles of the border, they must carry papers or risk detention. All of this is based on a highly problematic reading of the relevant statute, and imposes on noncitizens a documentary surveillance regime that could not constitutionally be imposed on Americans.
Weinberg's 'Proving Identity' (Wayne State University Law School Research Paper No. 2016-09) comments 
United States law, over the past two hundred years or so, has subjected people whose race rendered them noncitizens or of dubious citizenship to a variety of rules requiring that they carry identification documents at all times. Such laws fill a gap in the policing authority of the state, by connecting the individual’s physical body with the information the government has on file about him; they also entail humiliation and some degree of subordination. Accordingly, it’s not surprising that we’ve almost always imposed such requirements on people outside our circle of citizenship -- African-Americans in the antebellum South, Chinese immigrants, legally resident aliens. Today, though, there’s reason to think that we’re moving closer to a universal identity-papers regime.
We’ve all been displaying identification documents a lot lately. You have to show ID in order to vote (though some argue that such rules unconstitutionally suppress minority voting power). Federal law requires that you show ID in order to accept employment (and there are some in Congress who would go further, requiring anyone in the U.S. to display a new national ID card before taking any job). More and more, we’re getting used to demands that we verify our identity at different moments of our daily lives.
And the nature of the docume ts that we need to show is changing. Visitors to U.S. military bases need to identify themselves to be admitted; historically, a state driver’s license has sufficed. If you live in Chicago, though, and display your Illinois driver’s license at the gate of the naval training center there, you’ll be turned away. The U.S. government recently ruled that it won’t accept the Illinois driver’s license for this purpose because, it says, Illinois driver’s licenses don’t satisfy federal standards.  The federal government has announced that in the future it will disqualify residents of certain states from using their driver’s licenses to pass through airport security.  So it’s not merely that the law requires us at various moments of our lives to show identification documents, but the federal government increasingly is seeking to dictate how those documents are issued.
If you’re not a U.S. citizen, but you are physically present in this country, federal law is stark: it requires you to carry, at all times, in yo ur personal possession, federally-issued documents establishing your identity and your immigration status.  This isn’t at all new. Looking back through U.S. history, people whose race rendered them noncitizens or of dubious citizenship have been subject to a variety of similar rules that they carry identification documents: free blacks in the antebellum period,  and Chinese immigrants beginning in 1892.  The current law requiring noncitizens to carry ID can be traced to a 1952 effort to save the country from Communism. White U.S. citizens as well sometimes have been subject to legal sanction if found without ID, including men of draft age during WWI and (nominally) from 1940 to 1975, and the disreputable poor in some jurisdictions during the 1970s and early 80s.
Current pushes for new ID requirements, like the older ones, tend to be attached to immigration and national security initiatives, and to be heavily rooted in race. Arizona’s 2010 Support Our Law Enforcement and Safe Neighborhoods Act  was exemplary. Enacted in an environment of widespread police racial profiling and unlawful stops, detentions, and arrests of Latinos,  it made it a state crime, enforceable by state police, for any non-U.S. citizen to fail to carry federal immigration documents.  Current U.S. Border Patrol enforcement can be seen through the same lens. Agents understand themselves to have the authority to detain, and demand papers from, anyone they encounter within 100 miles of a border who appears to be foreign-born; unsurprisingly, their enforcement targets skew brown.
How should we understand these mandates? Historically, we’ve most commonly used identity-papers requirements to control those outside our legal circle of citizenship -- African-Americans in the antebellum South, Chinese immigrants, legally resident aliens. All of these groups have been perceived as including members who were subversive, encroaching or illegal, but who would be too hard to identify and classify without the aid of forced identification. In the military draft context, we sought to use a less problematic version of the same technique to identify citizen “slackers” – to avoid a feared splintering of citizenship by means of (perceived) shirking from crucial national obligation and sacrifice. We’ve thus used identity - document controls to maintain hold over noncitizens, and to cleave to the group what the majority perceived to be unreliable citizens.
But there’s more going on. ID requirements are threatening, on multiple fronts, to those forced to identify themselves. From one perspective, the foundational aspect of identity cards is that they connect one’s physical body with a government database. Without a requirement that persons carry identity papers, a law enforcement officer encountering an anonymous citizen has no access to the database-stored information that would provide basis for arrest. With such a requirement, that information is visible to the officer, and it puts the holder’s body at risk.
From another perspective, the law enforcement’s ability to demand identity cards relates to issues of dominance and hierarchy. A free people, Americans tend to believe, can move about without having their bona fides questioned, without having a police officer able to demonstrate his authority and their subordination by forcing them to display identification. That understanding, indeed, is reflected in Supreme Court case law.
Either way, it’s unsurprising that we’ve been much more willing, throughout our history, to impose identification requirements on minorities – on the Other, on those outside our circle of citizenship – than on ourselves. A few years ago, the Senate drafters of a comprehensive immigration reform bill urged that every person who sought to work in the U.S. – citizen and noncitizen alike – should have to get a new machine-readable identification card bearing his biometric information and establishing his legal authorization to work.  But while the larger bill in which that proposal was embedded passed the Senate, the ID-card proposal did not: it was dropped.  Similarly, aspects of the 2005 REAL ID law seen as tending to create a national ID card have seen continuing resistence and pushback in some states and local communities. 
And yet it’s still fair to say that we‘re seeing a drift towards greater acceptance of ID requirements for all; indeed, those challenged REAL ID provisions are still on track to be implemented. How should we understand that development? In this paper, I’ll tell the story of identity-papers rules in the U.S., and draw some conclusions.
Part I of the paper will beg in by examining the pre-Civil War rule s imposed on many free blacks requiring that they carry documentation; part II will consider the more encompassing identity-papers requirement applied to Chinese migrants starting in 1892. Part I II will shift to World War One, and a regulation providing that all men of draft age carry draft registration certificates at all times. Part IV will look to the requirement, dating from the McCarthy era and still in force, that noncitizens register with the U.S. government and carry their registration cards at all times. Part V will consider the Vietnam-era draft card controversy, and a set of state and local laws in force roughly contemporaneously requiring vagrants and undesirables to provide identification on demand. Part VI, finally, will consider REAL ID and identity demands in the modern context.

27 June 2016

UK Asylum Seeker Data Breach

In TLT and others v Secretary of State for the Home Department Mitting J in the EWHC (QB) has ordered the UK Home Secretary to pay a total of £39,500 to six asylum seekers whose confidential information was accidentally published on a Home Office website and then republished on US document sharing site.

The incident resembles the Australian Department of Immigration and Border Protection disclosure of personal information about 10,000 asylum seekers noted in 2014 and featured in items here, here and here.

In the UK judgment the six claimants were part of a cohort of around 1,600 people whose details featured in a spreadsheet released in October 2013.

The litigants comprised three individual women and a family group. They were from different countries and had made an application for asylum.  The release featured comprised the claimant’s name, age, whether they were seeking asylum, details of the processing and the area in which the application was made by four of the litigants. For the other two litigants the applicants were not named but described as family members.

The data was removed from the Home Office site after two weeks.

As with the Australian data breach, the litigants expressed concern. The Court heard that at least one foreign government may have accessed the information and accordingly detained family members .

Mitting J found that the breach was a misuse of personal information and contravened the Data Protection Act in relation to all six claimants. He made awards of damages of £12,500 in two cases, £6,000 in one case, £3,000 in two cases and £2,500 in respect of the child.

The Court also ordered the Home Secretary to pay all costs, including an additional amount of costs and interest in one instance because a reasonable offer to settle had not been accepted.

The UK regime reflects Art 23 of the Data Protection Directive (Directive 95/46/EC), implemented in the UK by  the Data Protection Act  1998 s13. The Directive  provides
Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered. 
 In Google Inc v Vidal-Hall [2015] EWCA Civ 311, [105] the Court of Appeal  having regard to Art 23 held that
compensation would be recoverable under section 13(1) for any damage suffered as a result of a contravention by a data controller of any of the requirements of the Data Protection Act.

Death and Digital Artefacts

'Death and Privacy in the Digital Age' by Natalie M Banta in (2016) 94(927) North Carolina Law Review comments
Americans store an overwhelming amount of sensitive, personal information online. In email accounts, social networking posts, blogs, shared pictures, and private documents, individuals store (perhaps unwittingly) the secrets and details of their lives in an unprecedented manner. During an individual’s life, these accounts are seemingly under the direct control of an account holder. Privacy is occasionally threatened, but people continue to use online services and pour personal information into their online accounts.
When developers created these online services and platforms, it is unlikely that they gave much thought to what would happen to accounts when an account holder died. Yet, the treatment of these accounts after an account holder’s death is an increasingly pressing issue in today’s society as more and more Americans die with active, password-protected accounts in their name. In determining how these assets will be handled at an individual’s death, powerful principles collide — including privacy, contract, property, and freedom of information.
This Article discusses how privacy interests are traditionally terminated at death and explores how they should be revived and reshaped in a digital future. It argues that to align posthumous privacy interests with the needs of a digital future, the law must ensure that succession principles apply to privacy as well as property rights, and that decedents’ individual intent for the fate of digital assets is honored. The Article acknowledges that private contracts may be a sufficient tool to protect privacy after death in some instances, but argues that the lodestar in any discussion of posthumous privacy should be testamentary intent. In the absence of testamentary intent, state legislatures should enact default rules of digital asset succession that accord with the family-centered paradigm of inheritance.

TodayFM, the Royals and Privacy

The 'Case Note - Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd: Administrative Body as ‘Prosecutor, Judge and Jury’?' by Jeremy Leith in (2016) 38 Sydney Law Review 255 considers the 2012 prank call by a Sydney broadcaster that raised questions about privacy, identity and self-regulation.

Leith comments
In December 2012, radio station Today FM broadcasted a recorded telephone conversation between hospital staff members treating the Duchess of Cambridge and radio presenters impersonating Queen Elizabeth II and the Prince of Wales. This case note examines Today FM’s challenge to the statutory authority of the Australian Communications and Media Authority (‘ACMA’) to make a determination, as a precondition to taking administrative enforcement action, that the broadcaster had committed a criminal offence in recording the telephone conversation. It provides an analysis of the Full Federal Court of Australia and High Court of Australia judgments, giving particular attention to the application of the principle of legality as a presumption of statutory interpretation. The majority judgment of the High Court rejected the Full Court’s particular application of the principle of legality and the concurring judgment of Gageler J delivered a broader critique of the application of the principle to constitutionally imposed structural limitations on legislative power. In upholding the statutory authority of the ACMA, the High Court also provided confirmation as to the validity of the comparable powers of administrative bodies operating at both the state and federal level.
 He goes on to write that Today FM
broadcast a recorded telephone conversation between presenters of the ‘Summer 30’ radio program and staff members of a hospital at which the Duchess of Cambridge was an in-patient for a condition related to her pregnancy. Impersonating Queen Elizabeth II and the Prince of Wales, the presenters elicited an overview of the Duchess’ medical treatment from an on-duty nurse. [ACMA] commenced an investigation into the broadcasts following widespread publicity of the breach of patient privacy and the suicide of an on-duty nurse who had been recorded and broadcast in the Summer 30 segment, who blamed the presenters in a suicide note. In a preliminary investigation report, the ACMA formed the view that Today FM had contravened a criminal offence provision contrary to its licence conditions, which prompted the broadcaster to challenge the statutory authority and constitutional validity of this administrative power. In ACMA v Today FM, the Full Bench of the High Court of Australia held that the ACMA was authorised to make a determination that Today FM had committed a criminal offence for the purposes of administrative enforcement action. The High Court also held that the statutory power to do so was not an attempt on the part of the Australian Parliament to confer judicial power on a body that is not a court under ch III of the Australian Constitution.
This case note examines the judgments of the Full Court of the Federal Court of Australia (‘Full Federal Court’) and the High Court of Australia. Part II provides an overview of the factual background to the case and the statutory basis of the ACMA’s investigatory and enforcement powers. Part III and IV analyse the Full Federal Court and High Court judgments, which provide differing approaches to statutory interpretation with respect to the scope and applicability of the principle of legality.
Part V discusses the importance of ACMA v Today FM for administrative bodies with similar statutory powers to the ACMA, on which the Full Federal Court’s interpretation had the potential to cast doubt. In allowing the appeal, the High Court has provided clarity regarding the legality of administrative bodies operating across Australia to make determinations as to whether criminal offences have been committed as a precondition to taking administrative enforcement action. This issue was of such importance that the Attorneys-General of the Commonwealth of Australia, Western Australia, Queensland and South Australia intervened in support of the ACMA’s submissions.
Part V also outlines the implications of the case for future jurisprudence on statutory interpretation. Specific attention will be given to the principle of legality, which is a device of statutory construction that requires legislation be construed so as to avoid an infringement of common law rights and freedoms unless such an infringement is expressed by the legislature in ‘clear and unequivocal language’. In its narrower construction of the relevant provisions, the Full Federal Court applied the principle of legality to the constitutional doctrine that judicial power is vested exclusively in the courts. In the absence of clear language to the contrary, the Full Court held that ‘it is not normally to be expected that an administrative body’ would be granted the power to make its own determination as to whether an offence had been committed. The majority judgment of the High Court rejected the Full Court’s application of the principle of legality to the ACMA’s statutory authority. The concurring judgment of Gageler J went further than the majority, criticising more broadly the application of the principle of legality to rights sourced in constitutional limitations on legislative power.