22 June 2018

Service and Health Practitioner Vetting

The ACAT decision in Medical Board of Australia v Dhaimat (Occupational Discipline) [2018] ACAT 64 reveals vetting failures and procedural questions regarding an ACT health practitioner convicted of sexual assault.

The ACAT report notes
On 5 January 2015 the Medical Board of Australia (Board) applied to the Tribunal for orders cancelling the registration as a medical practitioner of Dr Ammar Dhaimat. 
The Board alleged that on 14 September 2011, during a consultation, Dr Dhaimat engaged in inappropriate comments and inappropriate touching of a female patient, and inappropriately disclosed information about that patient to a third party. The Board further alleged that on 25 April 2013 during a consultation with another female patient, he placed his hands on her bottom, forcefully pulled her towards him and kissed her on the lips. In relation to the 25 April 2013 incident, Dr Dhaimat had been charged, and on 12 March 2014 he was convicted in the ACT Supreme Court on two counts of committing an act of indecency.
The report states
On 19 January 2015 when the matter first came before the Tribunal for directions Ms Tomlins for the Board advised the Tribunal that the Board had been unable to effect service upon Dr Dhaimat at his previous addresses in O’Malley and Isaacs. She proposed to issue subpoenas to ACT Corrective Services and ACT Health to identify a more current address. The matter was adjourned to allow this to occur. 
When the matter came back before the Tribunal on 18 March 2015, Ms Tomlins advised the Tribunal that although documents had been produced, there had been no success in finding a current address for Dr Dhaimat. The Board proposed to file an application to dispense with service. The matter was adjourned for the anticipated application to be filed and heard. 
The Board filed an interim or other orders application on 25 March seeking orders that the application for disciplinary action proceed without service of that application on the respondent. That application was heard on 15 May 2015. The Board sought that either the requirement to serve Dr Dhaimat with the application be dispensed with, or that substituted service orders be made allowing for service to be effected by post to the most recent residential and practice addresses of Dr Dhaimat. 
The Board relied upon affidavits of Ms Tomlins which detailed the extensive efforts undertaken to locate Dr Dhaimat in order to effect service of the application for disciplinary action upon him:
(a) Personal service had been attempted at both the O’Malley and Isaacs addresses, ineffectively. The process server advised that Dr Dhaimat was not known at those addresses. 
(b) Attempts to serve by post at the Isaacs address, resulted in mail being returned to sender. 
(c) An attempt to serve by post to Dr Dhaimat’s last professional address resulted in the practice advising that it had no contact with Dr Dhaimat and could not provide the documents to him. 
(d) Contact was made with Dr Dhaimat’s lawyers for the criminal trial, they had no current instructions and referred to a more recent solicitor. Contact with that solicitor was also unsuccessful, he had no instructions and no current contact with Dr Dhaimat. 
(e) As foreshadowed, ACT Government entities were issued subpoenas, and further addresses in Hughes (from 2014) and Mawson were elicited, but these also proved unsuccessful when service was attempted. The process server advised Dr Dhaimat was not known at the Hughes address, and was no longer at the Mawson address with the current occupant believing he had left Australia in 2014. 
(f) Enquiries with the practice manager of Dr Dhaimat’s previous practice and with the Jordanian embassy were unsuccessful. (g) Searches of Facebook and the Whitepages were unproductive. 
(h) A subpoena to the Australian Customs and Border Protection Service produced records which indicated that Dr Dhaimat had not left Australia under his own name, in the past year. 
(i) An advertisement had been placed in the legal notices section of the Canberra Times on 28 March 2015 in the following terms: “Notice is given to DR AMMAR DHAIMAT, you should contact the ACT Government Solicitor on (02) 6205 2502 or actgso@act.gov.au by COB 8 April 2015, otherwise legal proceedings may be determined in your absence.” No telephone call or email was received in response to that advertisement.
The Board advised that in accordance with section 193 of the National Law Dr Dhaimat had been notified of the referral to the tribunal by letter dated 6 May 2014. That letter had been sent to the Isaacs address. The Board also advised that Dr Dhaimat had failed to comply with the requirement under section 131 of the National Law that he advise the Board of any change in the address to be used to correspond with the practitioner. 
I noted that on the tribunal file, the registry had received marked ‘return to sender’ earlier correspondence notifying Dr Dhaimat of the time and place of the previous directions hearings. That correspondence had been sent to both the Mawson and Hughes addresses. 
From this evidence I was satisfied that Dr Dhaimat was likely to be still in Australia, and that attempts to serve him by post with the application at the addresses suggested by the Board were not likely to bring the application to his attention, but on the contrary were likely to be completely ineffective.
ACAT concludes
After consideration of the material filed by the Board and its submissions, I was satisfied that the alleged behaviour had occurred. The behaviour in relation to each of the female patients was in my view, both individually and taken collectively, so far short of the standard of practice reasonably expected of a practitioner of Dr Dhaimat’s level of training and experience as to amount to professional misconduct . 
The material filed by the Board further indicated that Dr Dhaimat’s misbehaviour was not an isolated occurrence. Dr Dhaimat had trained in Jordan, and was in practice in the United Kingdom when on 29 September 2007 police were notified of an allegation that he had sexually assaulted a female patient. Dr Dhaimat was arrested that day, interviewed by the police and granted bail which he subsequently breached. At the time of the hearing before the Tribunal he was still wanted by UK police. The UK General Medical Council (GMC) in 2008 suspended his registration, and advised the Jordanian authorities of this action. 
It transpired that Dr Dhaimat had moved quickly to obtain a certificate of good standing from the GMC only weeks after his arrest and had relied upon this to obtain registration in Australia. When a further certificate of good standing was required in 2008, it seems that he submitted a fraudulent document to the Australian authorities. 
Police executing a search warrant at Dr Dhaimat’s residential premises in 2013 found evidence of fraudulently created documents, and numerous appointment cards containing the names and telephone numbers of women, including the details of one of the complainants in this matter. 
Against this background, I was satisfied that the continued practice of Dr Dhaimat posed such a risk to the public that the only appropriate orders to make were those cancelling Dr Dhaimat’s registration as a health practitioner.

Algorithms

'Against Algorithmic Decision-Making' by Guido Noto La Diega comments 
This paper deals with the reasons why algorithms cannot and should not replace human decision-makers. Some statutory remedies against algorithmic decisions are presented. 
In August 2013, Eric Loomis was sentenced to a six-year imprisonment for attempting to flee a traffic officer and operating a vehicle without its owner’s consent. This sentence is one that seems disproportionate to the alleged actions. What makes this decision even more illogical is that this sentence was decided on the basis of a COMPAS report. COMPAS is a proprietary algorithmic system which is used in law enforcement. This system claims to augment human intuition and predict an individual’s risk of recidivism and it suggested that Loomis had a high risk of violence, high risk of recidivism and a high pretrial risk. The judge at Loomis’ hearing agreed with the COMPAS report, stating that through the COMPAS assessment, Loomis was identified as an individual who was a high risk to the community and therefore a six-year sentence was ‘just’. Loomis’ lawyers tried to challenge this algorithmic decision but could not as the algorithm was covered by a trade secret and therefore the rationale of the decision was not accessible. In 2016, the Supreme Court of Wisconsin upheld the circuit court’s denial of the defendant’s motion for post-conviction relief requesting a new sentencing hearing. Loomis had unsuccessfully argued that the circuit court’s consideration of a COMPAS risk assessment at sentencing violated his right to due process. The Supreme Court held that, if used properly, a court’s consideration of a COMPAS risk assessment at sentencing does not violate a defendant’s right to due process. 
In Milan, Marica Ricutti, a 39-year-old single mother of two children, was dismissed from her job at Ikea after 17 years of working there. Once again, the consequence of another algorithmic decision. Ms Ricutti had to swap her working shifts around from time to time with her colleagues as she had to take her children to school and to the hospital as one of her children was disabled. Although her colleagues and employers agreed to her swapping shifts, Ikea’s algorithmic workload system did not take note of these changes as they were not ‘authorised’ or ‘programmed’ and had come up with an account of Ms Ricutti working less than seven days per month for a period of eight months. This led to Ms Ricutti getting dismissed. Ikea’s reliance on the algorithmic system had resulted in heavy criticism, among them being a statement from Marco Beretta, a representative from Filcams Cgil (the Italian retail workers’ union), who stated that modern innovations including algorithms have made it harder to accommodate workers’ individual circumstances. 
From these examples, it is evident that the replacement of human decision-makers with algorithms is problematic. An algorithm may be able to come up with more consistent decisions, but not necessarily more appropriate. In order to make appropriate decisions, several factors need to be taken into account – individual circumstances, personal characteristics, context and nature, among many other things. There is no doubt that an algorithm can make decisions based on statistical analysis, but this is not always sufficient. In most situations, there is a need for a holistic understanding of a number of factors including context and human intention – something that algorithms are not capable of. In the next part of this paper, some arguments against algorithmic decisions will be presented.

Health Right

'On the Human Right to Health: Statistical Lives, Contingent Persons, and Other Difficult Questions' by I. Glenn Cohen in Silja Voeneky and Gerald Neuman (eds) Human Rights, Democracy, and Legitimacy in a World of Disorder (Cambridge University Press, 2018) comments
 In ethics and political philosophy, it is not uncommon to distinguish the question of who is a moral agent (one who bears moral responsibility) from the question of who is a moral patient (one to whom moral obligations are owed). The two need not go together: one could be a moral patient but not have moral agency – infant children are a plausible example. 
In this draft chapter, I examine the allied notion of a human rights patient for the human right to health. 
I consider two particular questions. First, to what extent should a human right to health focus on identified lives, those whom we have identified as currently in need and who make claims on us, as opposed to statistical lives – the faceless masses who may also need our help just as much? This question sadly comes up all the time for ministries of health – whether to fund an expensive treatment for a sympathetic child who has come forward and demanded the treatment to save his or her life or to invest in programs that distribute less expensive, more quotidian benefits to hundreds of children in need. xxx In particular, I will dwell on how countries like Colombia that have made a right to health justiciable may have tilted spending towards identified lives in a way that is potentially troubling. This discussion will occupy Section I of this chapter. 
In Section II I will go into even more murky territory and discuss whether a human right to health ought to encompass as its moral patients only those who currently exist, those who certainly will exist but do not yet exist, those whose existence may be contingent on the decisions we make, all of the above, or only some of the above. 
To give some tangible examples: How should a health care allocator, trying to fulfill a human right to health, make trade-offs between expending resources to prevent a very bad disability (say blindness) in an individual who currently exists versus implementing a program that works on asymptomatic adults but prevents them from transmitting the same bad disability to the children they are about to conceive? This is a trade-off between currently existing lives and lives that are certain to exist but do not yet exist. What if the way that “prevention” is accomplished is by having those women delay getting pregnant (think of the Zika virus) or choosing a sperm donor rather than their romantic partner who is a carrier of the disease? This form of prevention does not prevent a disease for those who do not currently exist but will certainly exist, instead it prevents the disease by changing who comes into existence – a different sperm meets the egg and a different child is born. Call this the question of contingent persons. Does the human right to health treat contingent persons as its moral patients?

Religion

The Place of Religion in Human Rights Law: Distinguishing Freedom of Religion from the Right Against Religious Discrimination' by Tarunabh Khaitan and Jane Calderwood Norton argues 
while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. The right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. Thus understood, the two rights have distinct normative rationales. Key doctrinal implications follow for the respective scope of the two rights, whether they may be claimed against non-state actors, and their divergent assessment of religious establishment. These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously.

21 June 2018

Fake Cures

The Queensland Government reports that Sun Beef Pty Ltd (trading as SunUltima) has been ordered by the Brisbane Magistrates Court to pay more than $11,000 for failing to substantiate claims regarding a cure for skin cancer.
 Sun Beef Pty Ltd, trading as SunUltima, operated by directors Colin Uebergang and Anthony Roger Asmus, failed to comply with a notice issued by the OFT [Office of Fair Trading] which was seeking to substantiate claims about its product curing skin cancer. 
Sun Beef was fined $10,000, plus professional costs of $1,500, in addition to $92 court costs. A conviction was recorded.
The court heard the OFT  received a complaint in 2017 regarding a SunUltima product in an advertisement. The product, a 5ml SunUltima Skin Cancer Cure, retailed for $560 and was marketed as a ‘natural herbal derived skin cancer cure’. SunUltima’s website also featured testimonials from three people who claimed the product had cured their cancers.   
The OFT commenced an investigation into SunUltima as it was concerned the trader was misleading vulnerable consumers, many of whom may be desperate for a cure, that the SunUltima product was a cure for skin cancer.
As the Queensland marketplace regulator, the OFT requested SunUltima provide information to substantiate the claims, identify the people who had provided testimonials and show the product was appropriately endorsed for the treatment of skin cancer. SunUltima refused to provide documents substantiating the claims made for the product. 
Fair Trading Executive Director Brian Bauer said the result served as a prompt to businesses to treat consumers fairly.
“Businesses must ensure they are aware of their Australian Consumer Law obligations and aren’t misrepresenting their products to consumers,” Mr Bauer said.
“A failure to follow these obligations will result in enforcement action by Fair Trading.
“It is particularly despicable when a business preys on desperate and vulnerable consumers. The OFT will investigate and bring matters like this before the courts.”

20 June 2018

Supremes and others

How Do People Think About the Supreme Court When They Care?' by David Fontana in (2018) 90 NYU Law Review Online 50 comments
This Essay — part of a symposium hosted by the Brennan Center at NYU Law School on the Trump Administration — responds to a new paper by political scientists James Gibson and Michael Nelson about public opinion related to courts in the Trump Era. Their essential finding is that various versions of criticisms of the Court made by President Donald J. Trump are not substantially undermining public support for the Court. This Reply questions how much this and related papers tell us about how people think about the Court when they actually care about the Court. This study and other important ones like it are measuring how people think about the Court when the policy implications of Court decisions are presented to subjects as relatively low. Their findings tell us a lot, but not everything. They do not tell us what happens when passions about the Court are high — precisely the moment when the Court could be at its greatest jeopardy and convincing people to believe in the Court for reasons independent of the policies it delivers is the hardest. We can have confidence about how people think about the Court when they do not care about it, but not how they think about it when they do.
'Studying the 'New' Civil Judges' by Jessica Steinberg, Anna E. Carpenter, Colleen F. Shanahan and Alyx Mark in 2018 Wisconsin Law Journal 249 comments
We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the public. From top to bottom, we can describe and theorize about our existing civil justice system in only piecemeal ways. Given legal scholarship's near-complete focus on federal civil courts, the stories we tell about the civil justice system may be based on assumptions and models that only apply in the rarefied world of federal court. Meanwhile, state judges and courts--which handle ninety-nine percent of all civil cases--are ripe for theoretical and empirical exploration. 
In response, we call for more research aimed at increasing our understanding of state civil courts and judges and offer a theoretical framework to support this work, one that reflects how state courts differ from federal courts. This framework is grounded in a core fact of American civil justice, one both easily observed and largely overlooked: the majority of parties in state civil courts are unrepresented. Given this new pro se reality, our theoretical framework identifies four novel assumptions to guide future research: (1) the adversary process is disappearing; (2) most state court business is still conducted through in-person interactions between judges and parties; (3) the judicial role is ethically ambiguous in pro se cases; and (4) a largely static body of written law has not kept pace with the evolving and dynamic issues facing state courts. Building on the growth of empiricism and empirically grounded theory in traditional legal scholarship and access to justice research, we call on scholars to develop theory and gather data to map the new reality of civil justice and judging in America, and suggest questions to guide future research.

Robot Lawyering and Roadmaps

'Law Without Mind: AI, Ethics, and Jurisprudence' by Joshua P. Davis comments
Anything we can conceive that computers may do, it seems that they end up doing and that they end up doing it better than us and much sooner than we expected. They have gone from calculating mathematics for us to creating and maintaining our social networks to serving as our personal assistants. We are told they may soon become our friends and make life and death decisions driving our cars. Perhaps they will also take over interpreting our laws. It is not that hard to conceive of computers doing so to the extent legal interpretation involves mere description or prediction. It is much harder to conceive of computers making substantive moral judgments. So the ultimate bulwark against ceding legal interpretation to computers—from having computers usurp the responsibility and authority of attorneys, citizens, and even judges—may be to recognize the role of moral judgment in saying what the law is. That possibility connects the cutting edge with the traditional. The central dispute in jurisprudence for the past half century or more has been about the role of morality in legal interpretation. Suddenly, that dispute has great currency and urgency. Jurisprudence may help us to clarify and circumscribe the role of computers in our legal system. And contemplating AI may help us to resolve jurisprudential debates that have vexed us for decades.
The QUT A Robotics Roadmap for Australia 2018 characterises robots
as a tool to unlock human potential, modernise the economy, and build national health, well-being and sustainability 
Robotics in Australia will maintain our living standards, help protect the environment, provide services to remote communities, reduce healthcare costs, provide safer more fulfilling jobs, prepare the next generation for the future, encourage investment and reshore jobs back to Australia.
The authors state
Australia’s first Robotics Roadmap is a guide to how Australia can harness the benefits of a new robot economy. Building on Australia’s strengths in robot talent and technologies in niche application areas, the roadmap acts a guide to how Australia can support a vibrant robotics industry that supports automation across all sectors of the Australian economy.
1 We must develop new high-tech firms and a vibrant robotics industry in Australia if we are to maintain our standard of living 
2 We can prepare the next generation for the jobs of the future by providing education and upskilling opportunities to equip all Australians with Industry 4.0 relevant skills 
3 We have the opportunity to become a testbed for robotics technology by leading the world in ethical, legal and standards frameworks 
4 We can build national capability in robotics by forming research and technology clusters to develop existing talents and encourage new talent, technology and businesses 
5 We must develop an entrepreneurial culture to set moon shot goals and challenges and encourage VC investment in the robotics industry
Further
Australia has a unique opportunity to take advantage of our human talents and unique environment to transition to a robot-ready economy while retraining and upskilling its workforce. This requires the collaborative, multi-sector approach outlined in this summary of A Robotics Roadmap for Australia. This roadmap shows a pathway to the future we envision for Australia. 
A future where:
  • Robots do the dull, dirty and dangerous tasks not suited to human beings; 
  • Robots solve many of the world’s most pressing challenges such as war, famine, natural disasters and environmental damage; 
  • Robots help humans unlock potential and explore the furthest reaches of our universe.
This is a future where a prosperous Australia embraces a robot economy and builds national health, well-being and sustainability despite the challenges of our vast and remote geography. 
Underpinning A Robotics Roadmap for Australia are five key principles 
Jobs matter A robotics industry will enhance economic competitiveness to create meaningful jobs and, with the right policy settings, help adapt existing ones 
Time matters The right use of robotics eliminates workplace routine, improves efficiency and allows workers to dedicate time to interesting and more fulfilling tasks 
Safety is imperative Robotics reduces the risk of workers being placed in hazardous situations 
Remote communities need to be served Automation helps provide better and more consistent services to remote areas difficult to serve 
Certainty counts Investment decisions need clarity of understanding. 
The roadmap offers the means to find that clarity as well as demonstrating the current and likely future state of robotics in Australia
The consequent recommendations are -
Industry - Ensure Australia’s ongoing prosperity by stimulating formation of new hi-tech firms, encouraging global tech giants to invest in Australia, and reskilling Australian workers
  • Encourage formation of new hi-tech firms The venture capital sector is essential to technology investment but is small by international standards Encourage investment by large multinationals Quality graduates and researchers need stable employment to stay onshore 
  • Develop skills in firms Small- to medium- sized enterprises need help to build their capabilities to take advantage of robotics 
Education - Equip all Australians with Industry 4.0 relevant skills 
  • Build national capacity - More focus on education and better gender balance will build a skilled workforce 

  • Develop micro-credentials and vocational education in robotics - Addition of micro-credentials to university programs offers Australia a chance to leapfrog other nations
 Government - Lead the region in catalysing robotics activity by setting ethical, legal, regulatory and standards frameworks, adopting robotics in government services
  • Develop ethical, legal and regulatory frameworks - Clear rules will build trust and create certainty for industry 
  • Create support infrastructure for robots - New network technologies and adequate bandwidth are essential to encourage robot use 
  • Collect information on robotics and robotics-related companies in Australia - Robotic activity is subsumed by the industries they serve but a full picture will guide national policy 
  • Develop policies to upskill and retrain and support skilled migration - Building Australia’s talent base helps build our capacity 
  • Establish robotics test beds - Our land mass and low population density makes us the ideal location to trial technologies 
  • Develop appropriate standards - More and more robots will work in public, unconstrained environments so safety is essential
R and D - Develop clusters of robotics activity, encourage VC investment, develop pathways to commercialisation and encourage application of the social sciences
  • Form robotics technology clusters - Hothouses for new ideas can bring together researchers, technologists and investors 
  • Develop appropriate funding framework for robotics technologies - Funding needs to be more accessible for new and existing firms to embrace robotics 
  • Develop robotics-related industry knowledge priorities - Prioritise R and D funding to make best use of existing strengths and avoid duplication 
  • Encourage inter-disciplinary research and develop social licence for robotics - Technology and social science collaboration will create robots that will be accepted and adopted
Culture - Support an entrepreneurial culture around Australia’s niche robotics capability and harness the nation’s imagination through aspirational goals solving Australian challenges
  • Develop national robotics strategy - Collaboration will help develop standards and to co-ordinate activity  
  • Improve awareness of benefits of robotics - Encourage narratives which show the success stories of robotics - safety, efficiency, reshoring 
  • Develop research priorities and challenges - The staging of technology challenges will spark creativity and imagination and solve real problems

Paramedicine

The Paramedicine Board of Australia has announced that it has approved an interim set of codes, guidelines and policies that outline the professional standards for the paramedicine profession.

 The Board states that it
is required to develop codes and guidelines for the profession to make professional standards clear, so they can deliver appropriate, safe and effective services within an ethical framework. 
These interim professional standards are based on a multi-professional approach to health practitioner regulation revised in 2014, which will provide for the effective regulation of the profession under the National Law. 
The four interim professional standards for paramedicine which take effect today are the:   
  • Code of conduct 
  • Guidelines for advertising regulated health services 
  • Guidelines for mandatory notifications, and 
  • Social media policy.
The Board is currently engaged in a multi-professional review of these professional standards to ensure they are relevant, contemporary and effective. 
The revised versions will be released for public consultation in the coming months. 
The Board urges all paramedics to familiarise themselves with this guidance to ensure their practice is in line with professional standards when paramedicine becoming regulated under the National Scheme in late 2018.
The Board states
From late 2018, paramedics must be registered with the Paramedicine Board of Australia (the Board) and meet the Board’s registration standards in order to practise in Australia. 
Registration standards 
There are five mandatory registration standards which the Board will be developing and consulting on. These are:
  • continuing professional development 
  • criminal history 
  • English language skills 
  • professional indemnity insurance arrangements, and 
  • recency of practice.
In addition, the Board has also released a time-limited grandparenting registration standard, which temporarily provides a path to registration for current paramedics who don’t have an approved or accepted qualification, but can demonstrate their competency via other training, qualification and/or experience. 
These registration standards were approved by the Ministerial Council on 13 April 2018. 
Codes and guidelines
The Board will also develop, or use the existing multi-profession codes, guidelines and policies to provide guidance to the profession. 
These will include:
  • guidelines for mandatory notifications 
  • code of conduct 
  • guidelines for advertising regulated health services, and 
  • social media policy.

18 June 2018

US Trade Secrets

'Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System' by Rebecca Wexler in (2018) 70(5) Stanford Law Review 1343 comments
The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, machine learning and other computer systems guide outcomes. Widespread debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. Developers often claim that details about how their tools work are trade secrets and refuse to disclose that information to criminal defendants or their attorneys. The introduction of intellectual property claims into the criminal justice system raises undertheorized tensions between life, liberty, and property interests. 
This Article offers the first wide-ranging account of trade secret evidence in criminal cases and develops a framework to address the problems that result. In sharp contrast to the general view among trial courts, legislatures, and scholars alike, this Article argues that trade secrets should not be privileged in criminal proceedings. A criminal trade secret privilege is ahistorical, harmful to defendants, and unnecessary to protect the interests of the secret holder. Meanwhile, compared to substantive trade secret law, the privilege overprotects intellectual property. Further, privileging trade secrets in criminal proceedings fails to serve the theoretical purposes behind either trade secret law or privilege law. The trade secret inquiry sheds new light on how evidence rules do, and should, function differently in civil and criminal cases.

17 June 2018

Spaces

Privacy Spaces' by Bert-Jaap Koops in (2018) 121 West Virginia Law Review comments 
Privacy literature contains conceptualizations of privacy in relation to role-playing and identity construction, and in relation to access control and boundary-management. In this paper, I combine both strands to introduce the concept of privacy spaces: spaces in which you can play, in your own way, the relevant role(s) you have in social life. Drawing from privacy conceptions in legal scholarship, philosophy, sociology, anthropology, human geography, and psychology, a systematic overview of traditional privacy spaces is offered, including mental bubbles, the body, personal space, personal writings, the home, private conversation space, cars, stalls, intimacy bubbles, professional black boxes, coffee house spaces, public places, and political privacy places. 
This overview yields important insights: privacy is an infrastructural condition relevant in all zones of social life (from personal to public); privacy boundaries can be visible or invisible, fluid or stable, impenetrable or permeable; privacy protection relies on complementary mechanisms of access restriction and discretion (a distinction that captures privacy protection more accurately than that between access and control); and, most importantly, privacy protection is primarily a process of social regulation rather than legal regulation. 
These insights are used to briefly discuss why digital, online, and onlife spaces pose privacy challenges. While traditional spaces of social interactions are being scrambled and rehashed into digital and onlife spaces, associated social norms do not necessarily co-evolve. Since digital spaces are often interconnected and interoperable, fewer boundaries avail to clearly delimit privacy boundaries, and digital spaces more often trigger different partial identities than traditional spaces do. Moreover, the co-habitation of service providers in digital spaces contrasts with traditional physical spaces, where “space providers” do not usually or systematically observe what people do. Thus, digital, or onlife, impression management virtually requires people to be aware of all their selves all of the time, severely hampering their feeling they can safely be “themselves” in any given situation, and leading to a demise of backstage spaces where people can relax from impression management.