23 March 2019

De-extinction and Criminology

'A Criminology of Extinction: Biodiversity, extreme consumption and the vanity of species resurrection' by Avi Brisman and Nigel South  in (2019) European Journal of Criminology explores
an issue pertaining to the commodification of nature and related market processes—reviving extinct species. It begins by offering an overview of the aesthetic, economic, scientific and ethical reasons to preserve biological diversity. The article then considers how and why biological diversity is actually being reduced at an unprecedented rate—the ways in which, and the explanations for why, human acts and omissions are directly and indirectly, separately and synergistically, causing extinctions— quite possibly of species that we do not even know exist. From here, the article draws on the growing body of research on resurrecting species—a process known as de-extinction—  to contemplate the questions raised about the permanency of extinction, as well as whether we should revive extinct species and the meaning and criminological implications of doing so. Keywords biodiversity/biological diversity; consumption; de-extinction; extinction; hunting/poaching; wildlife (crime, trade, trafficking) 
The authors comment
Significant international work in recent years has drawn attention to “animal abuse,” “wildlife crime” and, more broadly, harms and crimes affecting non-human species (Bayrachnaya et al., 2018; Beirne, 1995, 1997, 1999, 2009, 2014; Gibbs et al., 2010; Maher and Sollund, 2016; Maher et al., 2016; Moreto, 2018; Nurse, 2013, 2015; Pires and Clarke, 2011; Sollund 2011, 2013a, 2013b, 2015; Wyatt, 2013). In some respects, this work has been pioneering. In other ways, it builds on the past work of others and serves as a reminder of the historical complexity of human-non-human relations. Bryant (1979:412) made an early call for the study of “zoological crime”—a term coined to refer to the violation of “animal related social norms . . . [that] may well be among the most ubiquitous of any social deviancy.” Beirne’s (1995) essay, some sixteen years later, was, in part, a  frustrated reaction to the failure to respond to Bryant’s proposal. Although Beirne (1995:5) acknowledged that “the field of crimes against animals does not yet constitute a recognized, let alone a coherent, object of study,” he maintained that it would be inaccurate to state that “animals are never present in criminological discourse,” and he noted the wide range of materials involving animals as central figures in relation to “inter alia, the configuration of rural class relations in 18th-century England, the alleged links between crime and human nature, and the behavioral manifestations of children who are likely to be violent as adults.” For example, the American scholar and linguist E.P. Evans (1906/1987) had documented the role nonhuman animals play in human society in The Criminal Prosecution and Capital Punishment of Animals, while historians such as E.P. Thompson, Linebaugh and others outlined the importance of wildlife in terms of property law, moral economies, class oppression, and social and environmental transformation (Hay, 1975; Linebaugh, 1976; Thompson, 1975). Game laws and poaching/anti-poaching activities and initiatives reflect centuries of human relationships with nature, as have measures aimed at balancing conservation, culling, hunting for sport, and killing for food. Many sociological studies of deviance and leisure have produced descriptive accounts of the recreational pursuit of wildlife, abuse of animals, and breaking of wildlife protection laws (Eliason, 2003; Nurse, 2013).  Hence, although Moreto and colleagues (2015:360) may in general be correct that   law enforcement and criminal justice systems have accorded wildlife offences a “low priority when compared to other crimes (Cook et al. 2002),” this is not to suggest they have been ignored completely or have not been regarded as important. 
Criminological attention to poaching, trafficking and related animal abuse is now substantial, and encompasses contributions aimed at market reduction and enhancing conservation efforts (e.g., Lee et al., 2014; Schneider, 2008; Shepherd, 2017). While all of this represents a welcome shift, attention to the dynamics of the illegal market for a particular species or the investigation of the scope, extent, and geographical range of the international trade in specific wildlife as live bodies or as harvested “parts and products” has overshadowed—and has perhaps come at the expense of—broader criminological considerations of “biological diversity” (or “biodiversity”) loss, decline and extinction, of which wildlife crime is but one cause (see, e.g., http://www.cnn.com/interactive/2016/12/specials/vanishing/). 
In 2016, the World Wildlife Fund for Nature’s Living Planet Report (WWF, 2016: 4) noted that for some decades, “scientists have been warning that human actions are pushing life toward a sixth mass extinction” (see also Kolbert, 2014; Mirzoeff, 2014:227 (citing Novoacek 2007)). The data from the Living Planet Index—which offers an indication of the state of global biological diversity, based on trends in the populations of vertebrate species from around the world—show that between 1970 and 2012, the planet experienced a “58 per cent overall decline in vertebrate population abundance” with populations of vertebrate species falling, on average, “by more than half in little more than 40 years … an average annual decline of 2 per cent,” with “no sign yet that this rate will decrease.” This decline of other species is one measure of the magnitude of human impact on the planet stemming from the expansion and acceleration of human activity designed to meet the demands of human survival as a growing global population needs more food, requiring more human engineered change to natural habitats (e.g., deforestation) and contributing to more over-fishing and over-hunting (EEA, 2015). 
Along with pollution and global warming, these anthropogenically-induced pressures on the planetary ecosystem are now sending warning signals (Brannen, 2017). Some believe that by responding to these signals now, policy changes and technological developments can help provide remedies; others caution that some change is already irreversible and only drastic reorganization of global economic and consumption systems can slow down species decline and extinctions (for a discussion, see, e.g., Ripple et al., 2017).  
This article considers human contributions to the rate of loss of biological diversity, beliefs that science and regulation can control the extent and nature of any consequences  (Fukuyama, 2002; Wilson, 1998, 2004), and related efforts to explore the plausibility, viability and implications of reviving extinct species (Wray, 2017). It first provides an overview of the reasons for preserving biological diversity, before turning to an outline of the causes of recent (unprecedented) extinctions. The implications of extinction trends have been explored thoroughly within relevant natural sciences and some areas of the social sciences, but not so far within criminology. This article explores the prospects of species extinction in terms of the merger of conservation and consumerism (e.g., “conservation tourism” (AWF, n.d.; Buckley, 2010)), as well as the bases for denial and deferral of action furnished by faith in the new science of “de-extinction.” It concludes by arguing the case for considering “extinction” as a matter of criminological concern, and for why this is not only justifiable but necessary.

22 March 2019

Religious Freedom and Prisoners

Haigh v Ryan [2018] VSC 474 involved a prisoner in Barwon Prison seeking judicial review of a decision of the defendant to refuse him access to cards in a deck of Tarot cards.

Haigh sought orders to compel the defendant (the Prison General Manager) to remake the decision according to law, relying on provisions of the Corrections Act 1986 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). Haigh is serving life sentences for committing a number of murders, discussed in R v Haigh [2009] VSC 185.

 The judgment states
 A dispute about Tarot cards might hardly seem worth a Supreme Court case. But it is the underlying issues that are important. The Parliament has given prisoners, even those convicted of the most terrible crimes, rights they can seek to exercise while in prison, one of which is the right to practise their religion. Section 47 of the Corrections Act contains 15 paragraphs listing prisoners’ rights and s 47(2) states that those rights are additional to, and do not affect, any other rights which a prisoner has under another Act or at common law. The rights in the Charter also apply to prisoners. The Court must resolve this dispute as no other Court or Tribunal in Victoria has jurisdiction to do so. 
Corrections Victoria accepts and states in documents used to govern the operation of prisons that, in accordance with the laws passed by the Parliament: Prisoner’s human rights are limited only to the extent that it is reasonably and demonstrably justified. All staff must act compatibly with human rights and consider human rights when making decisions. 
Because of the range of questions that prisoners’ rights can raise and the number of written prison policy statements that need to be considered, many legal arguments were raised in this case.
It continues
The plaintiff practices what he describes as the Pagan religion and claims that his religious observance involves the use of Tarot cards. The defendant does not dispute that the plaintiff’s religious belief can be described as Paganism, that Paganism is to be regarded as a religion and that the use of Tarot cards can be an element of that religious observance. 
 The plaintiff did not attempt a simple definition of Paganism. The term is used to describe a wide variety of beliefs. Many Pagan religions recognise the Divine in nature. That is why Corrections Victoria considers Paganism to be a Nature Religion. For instance, the plaintiff says that, as a Pagan, he does not try to divorce himself from any part of his fundamental physical processes, or his inseparable relationship with nature, the planet and the universe. 
Corrections Victoria recognises the right of prisoners to practise the religion of their choice, subject to the good order and security of the prison. It has particular procedures for prisoners who practise various religions. For instance Islam, Buddhism, Sikhism, Judaism and Christianity. Nature Religions are also recognised, of which Paganism is one. 
Victorian prisons use policy documents, called Deputy Commissioner’s Instructions (‘DCIs’), which describe prisoners’ rights concerning religious practice. 
These policy documents, including the DCIs, do not have the force of law. They are more in the nature of guidelines which are permissible as long as they do not fetter the administrator’s exercise of discretionary powers. 
The plaintiff argued that the defendant had applied DCI 1.04 titled ‘Contraband and Controlled Items’ in a way that subordinates the operation of s 47(1)(i) of the Corrections Act and ss 14, 15 and 22 of the Charter. 
DCI 3.07 titled ‘Religion’ states:
OUTCOME Prisoners have the right to practice the religion of their choice, subject to good order and security of the prison. Prisoners’ human rights are limited only to the extent that it is reasonably and demonstrably justifiable. All staff must act compatibly with human rights and consider human rights when making decisions. 
OPERATING PRINCIPLES Corrections Victoria recognises the contribution which the practice of religion and pastoral care make to the individual’s well being and stability in the community and supports the maintenance of such contact in the prison environment. Staff will demonstrate and respect and support and will be mindful of others’ religious beliefs when dealing with prisoners, visitors and service providers. 
1. PROCEDURES 1.1. General Prison General Managers will: establish prison routines, staffing levels and facilities that allow prisoners to attend religious services on a regular basis inclusive of mainstream and minority denominations; ... 
3.12. Religious and Spiritual Items, Hard Cover Religious Books and Publications Religious and spiritual literature, including hard cover publications, may be brought into the prison subject to security requirements. If the prisoner is in management or a high security unit, the chaplain must obtain permission from the General Manager to provide the prisoner with hard cover books (which includes religious materials). ... 
The Schedules to DCI 3.07 provide for religious observances in respect of a number of religions. Schedule 3.07(4) deals with ‘Religious Observance – Nature Religions’ and states: This Schedule serves to provide basic guidance to staff on the general requirements for prisoners who observe Nature Religions. 1. Worship The term ‘Nature Religions’ has been identified by the Australian Bureau of Statistics as a broad category of beliefs including Paganism, Animism, Druidism, Pantheism and Wiccan . E*Justice’s religious categories replicate this identification system. Prayer and meditation are the main methods of worship for prisoners who identify themselves as believers of Nature Religions... Prisoners may request the use of Tarot cards for meditation, however, Tarot cards are not an essential religious tool. Prisoners who request the use of Tarot cards can submit a Special Spend request to the prison General Manager. Staff are required to note that prisoners approved to purchase Tarot cards should be monitored as they are not to involve other prisoners. If it found that Tarot cards are being used for other purposes they can be removed from the possession of the prisoner and returned to the prisoner’s stored property. ... Texts are to be made available to prisoners who observe Nature Religions who request them and they will need to be sourced by the Regional Liaison Chaplains (please note that there is no one ‘sacred scripture’). Advice about specialised texts can be sourced from Pagan Awareness, please contact the Projects Officer, Operations Directorate for details. 
This Schedule dealing with Nature Religions also deals with ‘Food/Diet’, ‘Dress’, ‘Work’ and ‘Festivals’. The plaintiff’s evidence about his use of Tarot cards 
The plaintiff made many lengthy affidavits, which included details of his practice of Paganism and the importance of his use of Tarot cards. In essence, he states that Tarot cards are like a religious text or a ‘spiritual tool’. The defendant did not suggest that this evidence was a sham, or that it did not contain the plaintiff’s genuine beliefs, or that the Court should be sceptical about it. He was not cross-examined on his affidavits. 
The plaintiff gave evidence that Paganism is a religion and that the use of Tarot cards is a recognised and well-established practice of that religion. According to his evidence, they are a contemplative doorway to access his inner-self and assist him in finding a deeper meaning. They are quite different from a deck of ordinary playing cards. 
The images in the Tarot cards are deliberately put together to stimulate contemplation on their surface and deeper element. He uses them to contemplate on fundamental problems of life and his beliefs. They play an important part in the furthering of the plaintiff’s spiritual and religious pursuits and developments. An outsider should not be the judge of the relevance of the Tarot imagery to an individual’s spiritual and religious practice. The surreal imagery in the cards concerned was intended to hook the mind and pull it in certain directions. Believers in Paganism use a number of differently designed Tarot decks to consider different points of view. There are hundreds of versions of Tarot cards. He said that the relevant pack was ‘deliberately designed to stimulate the darker parts of the mind’. But he also described them as ‘benign’ stating that: The crones etc., in the Deviant Moon Tarot are beneficent platforms from which to safely dive into the deep and dark end of the mind. They are intended as an opportunity to better understand the regions of the mind that generate personal woes, and contemplation of their unique forms enables a glide into, and out of, the fringe areas of the mind and life that are neglected to my detriment. The surreal imagery of the crones etc., is not a malevolent aberration designed to corrupt innocent minds. Rather, it extends a welcoming hand in friendship, offering insights that refine us intellectually and morally. The images are rescuers, selflessly offering themselves for explorations that can lead to one’s extrication from ignorance, folly and evil. The cards are far from perversions, as in themselves they are harmless benefactors. They are designed to expand considerations, analysations, and meditations beyond the borders of traditional Tarot imagery. 
The plaintiff argued that, by withholding the four cards in issue from a particular Tarot pack, the defendant removed its value and integrity as a spiritual and religious tool. Conventional Tarot packs contain 78 cards, with each card being an inseparable part of its functions. Removing cards from a pack could be likened to taking parts from an engine. A pack of Tarot cards is divided into two groups, one a group called the ‘Minor Arcana’ comprised of 56 cards, which are in turn divided into four sub-groups. The smaller of the two groups is called the ‘Major Arcana’, comprised of 22 cards. They are the more profound, important and instructional cards and are of primary interest to the plaintiff, who uses them for contemplation in conjunction with the letters of the Hebrew alphabet. The defendant withheld from the plaintiff both Major and Minor Arcana cards in the set, prevented him from using the set as a whole, and from using the now incomplete Major Arcana separately. 
In late 2016, the plaintiff requested access to Tarot cards for his use as a ‘spiritual tool’. As the decks of cards were not available through ‘internal prison processes’, he had to submit a written request. In it, he specified three decks, in order of preference, that were available for purchase online and that he sought to acquire. His third choice was the Deviant Moon deck. 
An Operations Manager at Barwon Prison received the plaintiff’s written request for the three sets of Tarot cards and sought advice from the Prison’s multi-faith chaplaincy officer with respect to Correction Victoria’s policy on Tarot cards. The Operations Manager referred the plaintiff’s request to the General Manager of Barwon, Mr B Ryan (the defendant). 
Mr Ryan refused the plaintiff’s request in January 2017. He later stated that: I refused Mr Haigh’s request because I considered he could use the Tarot cards in a way that could undermine the security and good order of the prison, such as conducting readings for other prisoners. This could undermine the security and good order of the prison because, in my experience, Tarot readings could be used to prey on or manipulate vulnerable prisoners (such as those with mental illness), could unsettle prisoners or could encourage or cause unrest in prisoners. Ensuring that security and good order of the prison and the safety and welfare of prisoners, staff and visitors underpins all my decision-making as Barwon General Manager. 
In February 2017, the plaintiff complained to the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) about Mr Ryan’s refusal to allow him access to Tarot cards. Mr R Wise, Deputy Commissioner of Operations, Corrections Victoria, advised Mr Ryan that the plaintiff should have access to the Tarot cards on the basis that they were necessary for the practice of his religion. ... ... 
Mr Ryan told the Barwon Prison Operations Manager, Mr L Doherty, that the plaintiff could be issued with one deck of Tarot cards, and the other two were to be placed in his stored property. But, for unexplained reasons, the plaintiff received two decks of Tarot cards and one was placed in his stored property. 
Next, Mr Doherty showed Mr Ryan four Tarot cards from the ‘Deviant Moon’ deck which he considered were ‘objectionable material’ within DCI 1.04. The four cards each bear an abstract, mystical illustration of an other-worldly female character displaying breasts, sometimes more than two. The plaintiff rejected any suggestion that they had anything to do with family violence and disrespect for women and argued they were incapable of offending a reasonable person. 
The images on the cards are titled: Temperance, Empress, Queen of Wands and 5 of Pentacles. The plaintiff described them as ‘benign’ images. He stated that the Deviant Moon Tarot: resonated with my sense of spiritual Self in relation to my Pagan thought, conscience, religion and belief at this point in time. I believe that I may learn a lot from the Deviant Moon Tarot, and my being restrained from accessing it harms my inner spiritual and religious life. ... 
Mr Ryan made his decision to withhold the four cards because he believed they contained objectionable material. He explained: I agreed with Mr Doherty that, by reference to DCI 4.08A, the subject cards were objectionable and there was no reason to depart from the policy established by Regulation 33 and DCIs 1.04 and 4.08A. Apart from my concern about Mr Haigh having ‘objectionable material’ in his prison cell and what Mr Haigh might do with the cards, I was also concerned about workplace health and safety concerns for my staff that might arise, for example, if prison staff members came across the subject cards when searching Mr Haigh’s cell. Some staff members could be offended by the subject cards. I considered that the cards should be withheld in accordance with Regulation 33 and DCI No. 1.04. I therefore told Mr Doherty not to issue Mr Haigh with the subject cards.
The Court concluded
The plaintiff’s case is principally based on allegations of breaches of human rights conferred by the Charter (see grounds 16, 17 and 21 to 25 and 27) and by s 47(1)(i) of the Corrections Act (see grounds 14 -16, 18, 25-27). I shall deal with each in turn. 
The Charter rights 
As a preliminary point, the plaintiff argued that Paganism should be accepted as a religion. This characterisation was not disputed by the defendant and I accept the argument for the purposes of this case. 
The plaintiff argues that because of the withholding of the four cards, the Tarot pack is incomplete and cannot be used and that this is an unlawful limitation on his right to freedom of thought, conscience, religion and belief contained in s 14 of the Charter; his right to freedom of expression contained in s 15 of the Charter; and his right to humane treatment during imprisonment contained in s 22 of the Charter. 
While the Corrections Act and the Corrections Regulations provide the legislative basis for prison governance and management in Victoria, s 38(1) of the Charter makes it unlawful for a public authority to act in a way that is incompatible with human rights or to fail to give proper consideration to a relevant human right. The defendant has conceded that he is a ‘public authority’ within the meaning of the section. ...
The third Charter right on which the plaintiff relies is the right recognised by s 22. He alleges that his dignity was affected by the removal of the subject cards in breach of the human right contained in s 22. He states that: The dignity right very much protects my right to have a reasonable space in my own mind, and to engage in behaviours to give effect to a spiritual and religious inner life. My dignity as a person is only respected if I am allowed a reasonable avenue of finding self-worth, and my spirituality allows me to maintain a more positive state of mental health than would otherwise be the case. 
I do not consider that the plaintiff has established that his dignity right has been curtailed by the withholding of the cards.
Further
The defendant was entitled to adopt guidelines in the form of DCIs, to facilitate the everyday running of the Prison. The DCIs are only guidelines. I do not see them in their terms or in their application as restricting the discretions or powers of the defendant. 
The defendant submitted that there was no duty imposed on Mr Ryan to allow a prisoner access to any particular item of property, or even to consider whether to do so, and as a result there was no justification for issuing an order in the nature of mandamus. He also submitted that certiorari could not be granted because his decision has no continuing legal effect as it did not stop him from making a different decision. 
However, when a decision is unlawful for a failure to give proper consideration to human rights, the Court may make an appropriate declaration and set aside the decision when an error appears on the face of the record. The Court may also order the decision-maker to remake the decision. I consider those orders appropriate in this case. 
The plaintiff claimed a wide range of declarations and other judicial review remedies to reflect any claims upon which he might succeed. A number of the proposed declarations state matters which are not in dispute, e.g. whether Paganism is a religion, and about which declaration should therefore not be made. 
In my opinion, the plaintiff is only entitled to a declaration that the defendant’s decision to withhold the four Tarot cards from him was unlawful for failure to comply with s 38(1) of the Charter, as well as an order in the nature of certiorari issuing for error of law on the face of the record setting aside the defendant’s decision contained in his letter of 22 June 2017. The plaintiff’s application for access to the four withheld Tarot cards must be reconsidered in accordance with law. 
Finally, I note that my decision requires implementation of the legal obligations that Corrections Victoria acknowledges in its printed Deputy Commissioner’s Instructions, that in making decisions, prisoners’ human rights are to be limited only to the extent that is reasonably and demonstrably justifiable. 
I do not decide that the plaintiff is entitled to all Tarot cards that he requests, but that when he requests them for religious practice, his rights acknowledged by the Charter must be given proper consideration in the making of the decision about the request.

Exits

‘I Lost My Job Over a Facebook Post – Was that Fair?’ Discipline and Dismissal for Social Media Activity' by Virginia Mantouvalou in ( 2019) International Journal of Comparative Labour Law and Industrial Relations comments 
 Is it fair to be dismissed for social media activity, and are there any limitations to the employer’s managerial prerogative? These are the questions that this article addresses by examining the compatibility of discipline or dismissal with human rights law, with a primary focus on United Kingdom (UK) and European human rights law. It argues that UK courts and tribunals erroneously accept the lawfulness of such dismissals most of the time. This is due both to weaknesses in the English law of unfair dismissal, and to courts’ and tribunals’ limited engagement with human rights at work. Technical aspects of social media usage, with which courts and tribunals are often unfamiliar, add a further layer of complexity. Two factors make dismissals for social media activity particularly challenging for courts: first, the fact that social media are online platforms that everyone can potentially access, and hence public rather than private space; second, that expression on social media, often spontaneous and thoughtless, is not viewed as a particularly valuable form of speech. The argument of the article is that both the right to private life and the right to free speech are implicated in dismissals for social media activity, and that they should be viewed as lawful in very limited occasions, for employers should not have the right to censor the moral, political and other views and preferences of their employees even if it causes business harm.

21 March 2019

Information Fiduciaries

'A Skeptical View of Information Fiduciaries' by Lina Khan and David Pozen in (2019) 133 Harvard Law Review comments 
 The concept of “information fiduciaries” has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support and essentially zero critical pushback. 
This Essay seeks to disrupt the emerging consensus by identifying a number of lurking tensions and ambiguities in the theory of information fiduciaries, as well as a number of reasons to doubt the theory’s capacity to resolve them satisfactorily. Although we agree with Balkin that the harms stemming from dominant online platforms call for legal intervention, we question whether the concept of information fiduciaries is an adequate or apt response to the problems of information insecurity that he stresses, much less to more fundamental problems associated with outsized market share and business models built on pervasive surveillance. We also call attention to the potential costs of adopting an information-fiduciary framework—a framework that, we fear, invites an enervating complacency toward online platforms’ structural power and a premature abandonment of more robust visions of public regulation.

AI Personhood and Liability

'Advanced Artificial Intelligence and Contract' by John Linarelli in Uniform Law Review (Special Issues on Transnational Commercial Law and the Technology/Digital Economy) comments 
 The aim of this article is to inquire whether contract law can operate in a state of affairs in which artificial general intelligence (AGI) exists and has the cognitive abilities to interact with humans to exchange promises or otherwise engage in the sorts of exchanges typically governed by contract law. AGI is a long way off but its emergence may be sudden and come in the lifetimes of some people alive today. How might contract law adapt to a situation in which at least one of the contract parties could, from the standpoint of capacity to engage in promising and exchange, be an AGI? This is not a situation in which AI operates as an agent of a human or a firm, a frequent occurrence right now. Rather, the question is whether an AGI could constitute a principal – a contract party on its own. Contract law is a good place to start a discussion about adapting the law for an AGI future because it already incorporates a version of what is known as weak AI in its objective standard for contract formation and interpretation. Contract law in some limited sense takes on issues of relevance from philosophy of mind. AGI holds the potential to transform a solution to an epistemological problem of how to prove a contract exists into solution to an ontological problem about the capacity to contract. An objection might be that contract law presupposes the existence of a person the law recognizes as possessing the capacity to contract. Contract law itself may not be able to answer the prior question of legally recognized personhood. The answer will be to focus on how AGI cognitive architecture could be designed for compatibility for human interaction. This article focuses on that question as well.
'When AIs Outperform Doctors: Confronting the Challenges of a Tort-Induced Over-Reliance on Machine Learning' by A Michael Froomkin, Ian Kerr and Joelle Pineau in (2019) 61 Arizona Law Review 33 comments 
Someday, perhaps soon, diagnostics generated by machine learning (ML) will have demonstrably better success rates than those generated by human doctors. What will the dominance of ML diagnostics mean for medical malpractice law, for the future of medical service provision, for the demand for certain kinds of doctors, and – in the long run – for the quality of medical diagnostics itself? This Article argues that once ML diagnosticians, such as those based on neural networks, are shown to be superior, existing medical malpractice law will require superior ML-generated medical diagnostics as the standard of care in clinical settings. Further, unless implemented carefully, a physician’s duty to use ML systems in medical diagnostics could, paradoxically, undermine the very safety standard that malpractice law set out to achieve. Although at first doctor + machine may be more effective than either alone because humans and ML systems might make very different kinds of mistakes, in time, as ML systems improve, effective ML could create overwhelming legal and ethical pressure to delegate the diagnostic process to the machine. 
Ultimately, a similar dynamic might extend to treatment also. If we reach the point where the bulk of clinical outcomes collected in databases are ML-generated diagnoses, this may result in future decisions that are not easily audited or understood by human doctors. Given the well-documented fact that treatment strategies are often not as effective when deployed in clinical practice compared to preliminary evaluation, the lack of transparency introduced by the ML algorithms could lead to a decrease in quality of care. This Article describes salient technical aspects of this scenario particularly as it relates to diagnosis and canvasses various possible technical and legal solutions that would allow us to avoid these unintended consequences of medical malpractice law. Ultimately, we suggest there is a strong case for altering existing medical liability rules to avoid a machine-only diagnostic regime. We argue that the appropriate revision to the standard of care requires maintaining meaningful participation in the loop by physicians the loop.
'Negligence and AI’s Human Users' by Andrew D Selbts in (2019) Boston University Law Review (forthcoming) comments
Negligence law is often asked to adapt to new technologies. So it is with artificial intelligence (AI). But AI is different. Drawing on examples in medicine, financial advice, data security, and driving in semi-autonomous vehicles, this Article argues that AI poses serious challenges for negligence law. By inserting a layer of inscrutable, unintuitive, and statistically-derived code in between a human decisionmaker and the consequences of that decision, AI disrupts our typical understanding of responsibility for choices gone wrong. The Article argues that AI’s unique nature introduces four complications into negligence: 1) unforeseeability of specific errors that AI will make; 2) capacity limitations when humans interact with AI; 3) introducing AI-specific software vulnerabilities into decisions not previously mediated by software; and 4) distributional concerns based on AI’s statistical nature and potential for bias. Tort scholars have mostly overlooked these challenges …

Health Data Apps

'Data sharing practices of medicines related apps and the mobile ecosystem: traffic, content, and network analysis' by Quinn Grundy, Kellia Chiu, Fabian Held, Andrea Continella, Lisa Bero and Ralph Holz in (2019) 364 BMJ l920 considered  whether and how user data are shared by top rated medicines related mobile applications (apps) and characterised privacy risks to app users, both clinicians and consumers.

The authors comment
Sharing of user data is routine, yet far from transparent. Clinicians should be conscious of privacy risks in their own use of apps and, when recommending apps, explain the potential for loss of privacy as part of informed consent. Privacy regulation should emphasise the accountabilities of those who control and process user data. Developers should disclose all data sharing practices and allow users to choose precisely what data are shared and with whom.
They note
 Journalists recently revealed that Australia’s most popular medical appointment booking app, HealthEngine, routinely shared 100s of users’ private medical information to personal injury law firms as part of a referral partnership contract. Although the company claimed this was only done with users’ consent, these practices were not included in the privacy policy but in a separate “collection notice,” and there was no opportunity for users to opt-out if they wished to use the application (app). 
Mobile health apps are a booming market targeted at both patients and health professionals. These apps claim to offer tailored and cost effective health promotion, but they pose unprecedented risk to consumers’ privacy given their ability to collect user data, including sensitive information. Health app developers routinely, and legally, share consumer data with third parties in exchange for services that enhance the user’s experience (eg, connecting to social media) or to monetise the app (eg, hosted advertisements). Little transparency exists around third party data sharing, and health apps routinely fail to provide privacy assurances, despite collecting and transmitting multiple forms of personal and identifying information. 
Third parties may collate data on an individual from multiple sources. Threats to privacy are heightened when data are aggregated across multiple sources and consumers have no way to identify whether the apps or websites they use share their data with the same third party providers. Collated data are used to populate proprietary algorithms that promise to deliver “insights” into consumers. Thus, the sharing of user data ultimately has real world consequences in the form of highly targeted advertising or algorithmic decisions about insurance premiums, employability, financial services, or suitability for housing. These decisions may be discriminatory or made on the basis of incomplete or inaccurate data, with little recourse for consumers. 
Apps that provide medicines related information and services may be particularly likely to share or sell data, given that these apps collect sensitive, specific medical information of high value to third parties. For example, drug information and clinical decision support apps that target health professionals are of particular interest to pharmaceutical companies, which can offer tailored advertising and glean insights into prescribing habits. Drug adherence apps targeting consumers can deliver a detailed account of a patient’s health history and behaviours related to the use of medicines. 
We investigated the nature of data transmission to third parties among top rated medicines related apps, including the type of consumer data and the number and identities of third parties, and we characterised the relations among third parties to whom consumer data are transmitted.
They conclude
 The collection and commercialisation of app users’ data continues to be a legitimate business practice. The lack of transparency, inadequate efforts to secure users’ consent, and dominance of companies who use these data for the purposes of marketing, suggests that this practice is not for the benefit of the consumer. Furthermore, the presence of trackers for advertising and analytics, uses additional data and processing time and could increase the app’s vulnerability to security breaches. In their defence, developers often claim that no “personally identifiable” information is collected or shared. However, the network positions of several companies who control the infrastructure in which apps are developed, as well as the data analytics and advertising services, means that users can be easily and uniquely identified, if not by name. For example, the semi-persistent Android ID will uniquely identify a user within the Google universe, which has considerable scope and ability to aggregate highly diverse information about the user. 
Taking a systems view of the mobile ecosystem suggests that privacy regulation should emphasise the accountabilities of third parties, known as “data processors,” in addition to first parties or “data controllers.” Currently, within the “big data” industry, users do not own or control their personal data; at minimum, regulators should insist on full transparency, requiring sharing as opposed to privacy policies. The implementation of the GDPR in the European Union resulted in greater transparency around data sharing relationships among some developers in our sample. However, as big data features increasingly in all aspects of our lives, privacy will become an important social determinant of health, and regulators should reconsider whether sharing user data for purposes unrelated to the use of a health app, for example, is indeed a legitimate business practice. At minimum, users should be able to choose precisely which types of data can be accessed and used by apps (eg, email, location), and to have the option to opt-out for each type of data. More effective regulation, however, might focus instead on third parties engaged in commercialising user data or the companies that own and operate the smartphone platforms and app stores

18 March 2019

Uber

Subsidising Billionaires: Simulating the Net Incomes of UberX Drivers in Australia by Jim Stanford for the Centre for Future Work at the Australia Institute comments 
This report estimates the net incomes of UberX drivers in six Australian cities, on the basis of public information regarding Uber’s pricing structure, a representative benchmark urban trip, and other parameters (including vehicle expense guidelines in Australia’s tax system). 
The main findings of these simulations include:
  • UberX services are provided at significantly lower prices than traditional taxi services in all major Australian cities; on average, traditional taxis are about 40 percent more expensive than UberX, based on a representative benchmark trip. 
  • Under normal pricing schedules, it is very unlikely that UberX drivers earn net income (after all expenses) equivalent to Australia’s statutory minimum wages for workers in this industry. 
  • We estimate the net income of Uber drivers (on average across the six cities considered in the report) under plausible assumptions to be $14.62 per hour. The highest simulated net incomes are generated in Canberra and Sydney (over $18 per hour); the lowest are in Perth (under $11 per hour). 
  • The simulated average hourly net income for Uber drivers is well below Australia’s basic statutory minimum wage, of $18.29 per hour. And it equals less than half the statutory minimum payments required under the relevant Modern Award that would apply to waged workers in this sector (taking into account casual loading increments and penalty rates for evening and weekend work).
The implicit wage subsidy paid to Uber by its drivers, in the form of below-minimumwage labour, is large relative to the overall fares and margins generated in this business. It is equivalent to a subsidy paid to Uber (and ultimately its owners) by its Australian drivers, that is worth hundreds of millions of dollars per year. And if UberX prices were increased enough to pay minimum statutory wages to its drivers, almost all of UberX’s price advantage relative to traditional taxis would disappear. 
The report concludes that Australian lawmakers and regulators should urgently investigate the low net incomes received by UberX drivers (and other workers in the so-called “gig economy”), consider their relationship to normal minimum labour standards, and then develop effective regulatory responses to ensure these workers are afforded the same protections as other workers in Australia. In particular, regulators need to modernise and strengthen the definition of who constitutes an “employee” in Australian workplaces, to take account of the growth of irregular labour practices associated with digital business models.

post-GFC consumer protection

With the Hayne Royal Commission in mind it is interesting to see 'Consumer Protection After the Global Financial Crisis' by Edward Balleisen and Melissa B. Jacoby in (2019) 107(4) Georgetown Law Journal.

The article comments
;Like other major events, the Global Financial Crisis generated a large and diffuse body of academic analysis. As part of a broader call for operationalizing the study of crises as policy shocks and resulting responses, which inevitably derail from elegant theories, we examine how regulatory protagonists approached consumer protection after the GFC, guided by six elements that should be considered in any policy shock context. After reviewing the introduction and philosophy of the Bureau of Consumer Financial Protection, created as part of the Dodd-Frank Act of 2010, we consider four examples of how consumer protection unfolded in the crises’ aftermath that have received less attention. Our case studies investigate a common set of queries. We sought to identify the parties who cared sufficiently about a given issue to engage with it and try to shape policy, as well as the evolving nature of the relevant policy agenda. We also looked for key changes in policy, which could be reflected in various forms—whether establishing an entirely new regulatory agency, formulating novel enforcement strategies, or deflecting policy reforms. 
The first of our case studies focuses on operations of the Federal Trade Commission in the GFC’s aftermath. Although the Dodd-Frank Act shifted some obligations toward the CFPB, we find that the FTC continued to worry about and seek to address fraud against consumers. But it tended to focus on shady practices that arose in response to the GFC rather than those that facilitated it. Our second case study examines the Congressional adoption of a carveout from CFPB authority for auto dealers, which resulted from strong lobbying by car companies worried about a cratering sales environment, and the aftermath of the policy. Here, we observe that this carveout allowed a significant amount of troubling auto lending activity to continue and expand, with potentially systemic consequences. Loan servicer misbehavior, particularly in the form of robosigning, is the focus of our third case study. Although Dodd-Frank did not explicitly address robosigning, the new agency it created, the CFPB, was able to draw on its broad authority to address this newly arising problem. And, because the CFPB had authority over student loan servicers, the agency could pivot relatively quickly from the mortgage context to the student loan context. Our fourth and final case study is the rise and fall of Operation Choke Point, an understandably controversial interagency program, convened by the U.S. Department of Justice, which, with the GFC fresh in mind, attempted to curtail fraudulent activities by cutting off access to online payment mechanisms. Here, we see an anti-fraud effort that was particularly vulnerable to a change in presidential administration and political climate because its designers had invested little effort in building public awareness and support for the program. 
The Article concludes with an overall assessment and suggestions for other focal points for which our approach would be useful. The examples span a range of other domestic and global policy contexts.

Social Media Addiction and Regulation

Yet another headline-grabbing but problematic report about social media addiction, this time from the UK All Party Parliamentary Group on Social Media and Young People’s Mental Health and Wellbeing Inquiry. Perhaps every generation gets its own version of the New Zealand Mazengarb report.

The Group's Managing the Impact of Social Media on Young People’s Mental Health and Wellbeing report offers  'key findings' -
• Social media can have a range of positive effects: providing a platform for self-expression, enhancing social connections, and supporting learning. 
• Young people using social media to find support for mental health conditions are at high-risk of unintentional exposure to graphic content and that discourse could unhelpfully “glamorise” mental illness and prevent young people from accessing professional help. 
• While 12% of children who spend no time on social networking websites have symptoms of mental ill health, the figure rises to 27% for those who are on the sites for three or more hours a day. 
• Almost two-thirds (63%) of young people reported social media was a good source of health information. 
• Pressure to conform to beauty standards perpetuated and praised online can encourage harmful behaviours to achieve “results”, including disordered eating and body shame. 
• 46% of girls compared to 38% of all young people reporting that social media had a negative impact on their self-esteem. 
The consequent 'Calls To Action' are -
 That the UK and Devolved Government’s
• Establish a duty of care on all social media companies with registered UK users aged 24 and under in the form of a statutory code of conduct, with Ofcom to act as regulator. 
• Create a Social Media Health Alliance, funded by a 0.5% levy on the profits of social companies, to review the growing evidence base on the impact of social media on health and wellbeing and establish clearer guidance for the public. 
• That the Government publishes evidence based guidance for those aged 24 and younger to avoid excessive social media use, that is use of “websites and applications that enable users to create and share content or to participate in social networking”. 
• Urgently commission robust, longitudinal research, into understanding the extent to which the impact of social media on young people’s mental health and wellbeing is one of cause or correlation and into whether the “addictive” nature of social media is sufficient for official disease classification.
The Group proposes a statutory duty of care, commenting
The APPG commends actions being taken by industry to help protect children and young people online. However, polling commissioned by RSPH in April 2018 on behalf of the APPG found more than half of the public (52%) feel that not enough is being done by social media companies to address their potential impact on mental health and wellbeing, with a further 80% of respondents advocating that tighter regulation of social media companies was needed. 
In April 2018, in response to the Internet Safety Strategy consultation, the Government outlined it would collaborate with industry, charities and the public on a White Paper which would provide legislation to “cover the full range of online harms, including harmful and illegal content” . 
Throughout this Inquiry there has been considerable evidence provided supporting the case that social media companies have a duty of care to protect their users. A statutory duty of care would provide a robust, flexible legal framework within which the Government could require the implementation of a social media code of conduct for providers, which specifically includes measures to protect the mental health and wellbeing of users. 
i) A statutory duty of care 
The concept of a statutory duty of care to apply to people and companies has been defined by William Perrin and Professor Lorna Woods in their work for Carnegie UK Trust45 and summarised by the Science and Technology Committee in their report on the impact of social media and screen use on young people’s health, as a requirement to: “Take care in relation to a particular activity as it affects particular people or things. If that person does not take care, and someone comes to a harm identified in the relevant regime as a result, there are legal consequences, primarily through a regulatory scheme but also with the option of personal legal redress.” 
William Perrin, Trustee of Carnegie UK Trust, and Professor Lorna Woods from the University of Essex, provided oral evidence to the Inquiry informed by their ongoing work on a proposal for Internet Harm Reduction which advocates that social media networks should be seen as a public place. Using this analogy, when people go to social networks owned by companies, they should be protected. In their proposal, they outline a statutory duty of care model, which would require social media and other internet platforms to take reasonable steps to manage the impact of social media on young people’s mental health and wellbeing to prevent foreseeable harm from arising to users, whilst allowing a certain level of flexibility for social media platforms to take action appropriate to their respective services and the risks that those services create. Best practice could be agreed by industry and formulated into codes of conduct, with the emphasis on appropriate and proportionate responses allowing space for innovation. In the case that not enough progress is taken by industry, then appropriate action would be taken by an independent regulator. The independent regulator could have the role of approving industry agreed codes of conduct.
As is discussed by William Perrin in his blog post, Reducing harm in social media through a duty of care, “An industry code of conduct has the benefit of guiding companies on where to focus and makes sure that Parliament’s priorities are not lost” .  
ii) A statutory code of conduct 
The harm reduction principles behind the duty of care were also endorsed by a number of charities when recommending the introduction of a code of conduct for social media companies. For example, Barnardo’s called for a statutory code of conduct for all social media sites and an independent watchdog to hold them to account, with powers to issue fines. In written evidence, Barnardo’s told the Inquiry, “If playgrounds need health and safety in place before children can use them, the online world should have the equivalent safeguards.” 
Parentzone agreed, stating, “We believe that a service that is aware of a child experiencing harm in this country should be required, by law, to report that harm. A child enjoying an online service should reasonably expect the same level of legal protection as a child enjoying a game in public or private play park.” 
The Inquiry also heard that it was important that any regulation ensured the positives of social media were protected. Social media is an integral part of young people’s lives and by overly restricting their use, it is a risk that they will be denied its benefits. In written evidence the Corsham Charity Institute advised that “Self-regulation as a stand-alone solution, without any regulation from a higher body, is not a workable solution for the long term”. They advised that instead of prescriptive measures, the Government should focus on creating guidelines and ethical frameworks to support platforms in making decisions that benefit young people’s wellbeing. Rather than limiting young people’s freedom to use social media, they advised that any industry code of conduct should take specific care to encourage innovation and cooperation between companies to best promote young people’s wellbeing, and focus on protecting users’ privacy and ensuring platforms show a duty of care and remain transparent. 
On the basis of evidence received throughout this Inquiry, the Internet Harm Reduction Proposal and building upon those recommendations set out in the Government’s Internet Safety Green Paper and by the Science and Technology Committee, the APPG recommends that the Government in its forthcoming White Paper should introduce a statutory duty of care, including the definition of key harms for an independent regulator to focus on and supported by a code of conduct for all relevant service providers to address the defined harms. As a baseline, key harms would be identified in line with those set out in the Government’s Internet Safety Green Paper. 
The code of conduct would set out an expectation that service providers will prevent reasonably foreseeable harms from occurring and this will therefore require social media platforms to take action before activity reaches the level at which it would become a criminal offence. In agreement with the Science and Technology Committee’s recommendations, the APPG understands that it is essential such legislation is flexible “so that it can straightforwardly adapt and evolve as trends change and new technologies emerge”. 
The APPG suggests that, along with those harms outlined in the Internet Safety Strategy Green Paper, the following harms set out in the Carnegie UK Trust proposal,are reflected in the code of conduct:
• Harmful threats, including a statement of an intention to cause pain, injury, damage or other hostile action such as intimidation. 
• Psychological harassment, including threats of a sexual nature, threats to kill, racial or religious threats known as hate crime. 
• Hostility or prejudice based on a person’s race, religion, sexual orientation, disability, gender identity, or misogyny. 
• Economic harm, including financial misconduct and intellectual property abuse. 
• Emotional harm, including preventing emotional harm suffered by users such that it does not build up to the criminal threshold of a recognised psychiatric injury. 
• Harm to young people such as bullying, aggression, hate, sexual harassment and communications, exposure to harmful or disturbing content, grooming and child abuse. 
The code of conduct should also include specific protection against harms specifically to the mental health and wellbeing of young people using social media platforms including, but not limited to: 
• Self-harm; 
• Disordered eating; 
• Low-self-esteem; 
• A lack of sleep; 
• Over dependence on social media. 
Adolescence and early adulthood is a critical and potentially vulnerable time for social and emotional development and this, coupled with 91% of 16-24 year olds using the internet for social media, has led the APPG to recommend that this duty of care should apply to any social media site with registered UK users aged 24 years and under, regardless of size or the number of users of the platform. This is to ensure that all social media platforms take an appropriate level of care, regardless of the size or newness of a platform. 
Furthermore, it is important when developing a code of conduct that vulnerable young people are adequately protected, including those who have experienced abuse, those on child protection plans and in acute or hospital settings, children and young people with disabilities, young carers, minority ethnic groups, lesbian, gay, bi-sexual, transgender and questioning (LGBTQ+) young people, and those with poor mental health. 
This duty of care should also be extended as deemed appropriate by the regulator and the Social Media Health Alliance to protect all vulnerable social media users. 
5.4 Formation of a new body, the Social Media Health Alliance, to fund research, educational initiatives and establish clearer guidance for the public 
Prior to the implementation of statutory legislation, a Social Media Health Alliance would be established to work under the direction of Ofcom to advise on what harms are set out in this code of conduct. The objective of this Alliance would be to fund research and educational initiatives to address the harms associated with social media. The Alliance would be independent of industry, and would be independently constituted with representatives who have a shared interest in reducing the damage caused to young people’s mental health and wellbeing from social media, across England, Scotland Northern Ireland and Wales. 
The APPG believes that a Social Media Health Alliance would be well placed to regularly review evidence of the impact of social media on young people’s mental health and wellbeing. Based on a polluter pays principle the Social Media Health Alliance would be funded by a compulsory 0.5% levy on the profits of social media companies. 
iii) Ofcom to assume responsibility for regulation 
On the basis of evidence reviewed, the APPG recommendations that the Government resources Ofcom to assume responsibility for regulatory duties. 
As summarised by Maeve Walsh, Carnegie UK Trust Associate, “The regulator (would set out a harm reduction cycle involving civil society as well as companies at each consultative step. Companies would be required to measure and survey harm, produce plans to address these harms for public consultation and agreement with the regulator, then implement the plans. If the cycle does not reduce harms or the companies do not cooperate then sanctions could be deployed.” 
The APPG recommends that a code of conduct, regulated by Ofcom, should take effect by 31 October 2019. Prior to the implementation of statutory legislation, a Social Media Health Alliance would be established to work under the direction of Ofcom to advise on what harms are set out in this code of conduct.