30 March 2019

Crowd-sourced Forensics

FamilyTreeDNA, the US recreational genomics business that attracted attention for warrant-free cooperation with investigators leading to identification of the 'Golden State' serial killer, is now advertising with a pitch urging consumers to contribute DNA to help catch criminals. That gifting will presumably boost the company's databases and its subsequent value.

The FamilyTreeDNA television ads ask  anyone who has had a direct-to-consumer (DTC) DNA test from a competitor such as 23andMe or Ancestry.com to upload a copy so that law enforcement can spot any connections to DNA found at crime scenes.

The ads feature an  abductees father saying '“If you are one of the millions of people who have taken a DNA test, your help can provide the missing link'. Nothing like crowd-sourced forensics for profit.

In  February the company disclosed that, absent advice to its customer, it had been letting the FBI compare the DNA of unknown criminals with that of more than a million genealogy enthusiats whose genetic profiles are on file.  Bennett Greenspan, the firm’s founder, referred to a moral obligation to help solve old murders and rapes.
An avid genealogist, Greenspan created FamilyTreeDNA to help other family researchers solve problems and break down walls to connect the dots of their family trees. Without realizing it, he had inadvertently created a platform that, nearly two decades later, would help law enforcement agencies solve violent crimes faster than ever.  
Gene-by-Gene, Ltd., which is privately owned by Greenspan and his business partner Max Blankfeld and is a CAP and CLIA accredited laboratory that performs all of the consumer DNA testing for their company FamilyTreeDNA as well as several other commercial clients, is working with the FBI to test DNA samples provided by law enforcement in order to help identify perpetrators of violent crimes and to identify the remains of deceased individuals. 
After receiving inquiries from the FBI, Greenspan found himself asking whether, as a trusted guardian of consumer DNA data and consumer privacy according to U.S. News and World Reports, FamilyTreeDNA in good conscience and without violating consumers’ trust could help the FBI identify the remains of deceased persons or perpetrators of violent crimes (as defined in 18 U.S. Code § (924) (e) (2) (B)), saving lives and preventing others from becoming victims? 
“We came to the conclusion,” says Greenspan, “that if law enforcement created accounts, with the same level of access to the database as the standard FamilyTreeDNA user, they would not be violating user privacy and confidentiality. In order for the FBI to obtain any additional information, they would have to provide a valid court-order such as a subpoena or search warrant.” 
Working with law enforcement to process DNA samples from the scene of a violent crime or identifying an unknown victim does not change our policy never to sell or barter our customers’ private information with a third party. Our policy remains fully intact and in force.” ...  
According to Greenspan, “If we can help prevent violent crimes and save lives or bring closure to families, then we’re going to do that. We’re going to do it within a framework that continues to ensure that the privacy of our customers, which has been paramount to us since day one and remains so today, is protected to the greatest degree possible.”
The FamilyTreeDNA  site states prominently
We won’t share your DNA 
We believe your DNA belongs to YOU and only you . . . period. For that reason, we will never sell your DNA to third parties. 
Can the other guys say that?

Heckling, Chilling and Evidence

'Recording as Heckling' by Scott Skinner- Thompson in (2019) 108 Georgetown Law Journal comments 
A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy. 
This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public, while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, as a form of confrontation to authority, is also a direct method of expression. Likewise, efforts to maintain privacy while navigating public space may create an incubator for thought and future speech, and also serve as direct expressive resistance to surveillance regimes. 
As this Article explains, once the First Amendment values of both the right to privacy and the right to record are systematically understood, existing doctrine—including the concept of the “heckler’s veto”—can help restore balance between these sometimes competing forms of “speech,” permitting citizen recording of police as well as allowing government regulation of certain recordings that breach the privacy shields of other citizens. 
Just as a heckler’s suppression of another’s free speech justifies government regulation of the heckler’s speech, so too when recording (a form of speech) infringes on and pierces reasonable efforts to maintain privacy (also a form of expression), then the government may limit the ability to record. The heckling framework underscores that liberated and vibrant public space is contingent on a balance between the ability to gather information and maintain privacy in public, while also providing a doctrinally-grounded path for adjudicating those interests.
In Australia the Canberra Times reports that the Australian Federal Police appear to be continuing the practice of chilling legitimate observation by the public through claims that recording is illegal or, more subtly, seizing recordings as 'evidence'. Such seizure should be unnecessary if we have systematic recording by officers and preservation of that evidence, through for example bodycams.

The CT states that an officer
adopted a heavy-handed approach to seizing evidence after an onlooker used his mobile phone to film a public arrest in the city on Thursday. The incident on Barry Drive shows a man attempting to evade police on his bicycle. He is caught by several officers, tackled to the ground, and handcuffed. 
The onlooker filmed the arrest of a man on Barry Drive. Then police approached him.  It appears to be a textbook albeit clumsy arrest until one of the officers sees the person filming and tells him to stop filming and back away. The person filming complied and turned to go away but the Traffic Operations officer then chased after him, seized the phone, and according to the new victim in this incident's online comments, would not return it until he could record the person's details and get him to send any recorded footage to police. 
Legal advice provided to The Canberra Times says that while police have the power to seize evidence, the more pressing issue in this case was whether the police "genuinely had grounds to suspect the footage could be important evidence in court". On the face of the limited public footage shown on social media, the evidence would appear to be to the contrary. 
The ACT Law Society goes on to suggest that the person was well within their rights to film the incident. The more likely reason the phone footage was seized was that "[the police] were more concerned about PR given it was a less than glamorous arrest". ACT Police media are continually requesting via their media interactions that anyone holding CCTV or dash cam footage to assist in their investigations. 
Police released a statement on Friday about the incident in which they identified the offender as in breach of his bail conditions. "The man was placed under arrest, and was subsequently charged with breach of bail, fail to appear, possess knife without reasonable excuse, and unlawful possession of stolen property," police said. "The video was provided to police. "As this matter is now before the courts, we are unable to comment further. However, in general terms police have the power to seize footage from members of the public as evidence."
One response is that having a power is not identical with an obligation to use that power.

My experience on campus several years ago, ironically as I was walking to give a privacy lecture, was being told by a uniformed AFP officer that it was illegal to film that officer - irrespective of circumstances - and that if I chose to do so I could be arrested. Possibly the thin blue line needs some more education.

The 'needed for evidence' seizure of devices poses challenges for advocates of sousveillance.

One perspective is provided in 'Context, visibility, and control: Police work and the contested objectivity of bystander video' by Bryce Clayton Newell in (2019) 21(1) New Media and Society, which
examines how police officers understand and perceive the impact of bystander video on their work. Drawing from primarily qualitative data collected within two police departments in the Pacific Northwest, I describe how officers’ concerns about objectivity, documentation, and transparency all manifest as parts of a broader politics of information within policing that has been amplified in recent years by the affordances of new media platforms and increasingly affordable surveillance-enabling technologies. Officers’ primary concerns stem from their perceived inability to control the context of what is recorded, edited, and disseminated to broad audiences online through popular platforms such as YouTube.com, as well as the unwanted visibility (and accountability) that such online dissemination generates. I argue that understanding the effects of this `new visibility’ on policing, and the role played by new media in this process, has become vitally important to our tasks of organizing, understanding, and overseeing the police.
'Points of View: Arrestees’ Perspectives on Police Body-Worn Cameras and their Perceived Impact on Police–Citizen Interactions' by Emmeline Taylor and Murray Lee in (2019) The British Journal of Criminology comments
Entirely absent from debates about the desirability and potential impacts of police body-worn cameras (BWCs) are the views of a significant group on the other side of the lens—individuals who have recently experienced arrest by a police officer. In a bid to redress this significant gap, this article reports findings from the first study to examine arrestee views and experiences of police BWCs. Data from interviews with 907 police detainees reveal that they are largely in favour of officers wearing cameras, believing that they can provide greater accountability and improve the behaviour of both law enforcement officers and members of the public. Importantly, however, this support is contingent on a number of operational and procedural policies regulating the use of BWCs.
The authors argue
 ‘Release the tapes. Release the tapes’ chants a throng of protesters in North Carolina, USA following the fatal shooting of Keith L. Scott by police in September 2016. Amid mounting pressure, the police released segments of two videos; one from a police dash-cam and the other from a police officer’s body-worn camera (BWC). Although neither recording provided conclusive evidence about the events that unfolded, or crucially whether Scott was indeed carrying a gun as had been claimed by the officer that shot him dead, the controversy highlights the degree to which audio-visual technologies have come to play a politically laden role in policing internationally, and importantly, symbolically represent notions of fairness, legitimacy, transparency and accountability. Despite such high-profile examples emphasizing their fallibility, recent years have seen billions of public monies invested in police BWCs internationally. A lack of evidence demonstrating effectiveness, or an understanding of how they operate in practice, has certainly not hampered their rapid adoption. Rather, an evidential desert has enabled police BWCs to be ascribed many ‘mythical properties’ (Palmer 2016). Elevated to ‘best practice’ from multiple sources including the American Civil Liberties Union (ACLU 2015) and the International Association of Chiefs of Police (IACP 2014), their costly adoption has proceeded on an exiguous evidence base. Although not unusual for police technologies to be heavily invested in without sufficient understanding of their effectiveness (Lum et al. 2019; Taylor 2010), the lack of awareness regarding how the public view and understand the police use of BWCs runs the risk of them inadvertently negatively impacting on perceptions of procedural justice and police legitimacy. 
Since the publication of a 2015 literature review that refrained ‘from drawing any definitive conclusions about BWC’ due to the scarcity of research (Lum et al. 2015: 11), Lum et al. (2019) report a five-fold increase in empirical studies. In addition to a modest catalogue of randomized control trials (RCTs) that typically use officer behaviour (e.g. use of force) and citizen behaviour (e.g. resisting arrest and citizen complaints) as proxy measures for assessing impact (see, e.g. Jennings et al. 2014; Ariel et al. 2016a; Braga et al. 2018), several studies have sought to gain insight into the views and experiences of police officers (Jennings et al. 2014; Katz et al. 2014; Roy 2014; Gaub et al. 2016; Goetschel and Peha 2017; Headley et al. 2017; Sandhu 2017); law enforcement leadership (Smykla et al. 2016; Sandhu 2017), and public attitudes toward police BWCs (Ellis et al. 2015; Maskaly et al. 2017; White, Gaub and Todak 2017). Yet, remarkably, entirely absent in debates about the desirability and potential impacts of BWC thus far are the views of an important group on the other side of the lens—i.e. arrestees. It is this literature on the perceptions of police BWCs that this study contributes a vital and unique dataset. By understanding the views of arrestees, we can begin to see how they might animate their encounters with camera-wearing officers and influence their perceived understanding of any subsequent involvement with criminal justice procedures. 
The article is organized into five sections. First, an overview of developments in the use of audio-visual surveillance technologies in policing is provided before looking at the emergence of police BWCs specifically. The second section offers a précised overview of empirical research, focusing on the impact that BWCs have been found to have on the behaviour of police officers and citizens. Adding a vital international perspective, an overview of developments in Australia, the site of this study, is provided in the third section.1 This is followed by details of the methodology before the article turns, in the fifth section, to the findings. The study elicited a large amount of data and this article focuses specifically on four thematic domains not elsewhere reported: police use of force; arrestee aggression and violence; procedural justice; and, the operation of the cameras. By shifting the focus to those individuals on the other side of the lens, the analysis offers essential insights into the nuanced ways that police arrestees interpret and respond to police wearable cameras. This is of global significance if police legitimacy is to be maintained in the era of ‘new visibility’ (Goldsmith 2010). The sixth and final section discusses the implications for the ongoing operation of police BWCs and avenues for future research.
Another perspective is offered in 'Eyes and Apps on the Streets: From Surveillance to Sousveillance Using Smartphones' by Vania Ceccato in (2019) 44(1) Criminal Justice Review, which
explores the concept of surveillance by assessing the nature of data gathered by users of a smartphone-based tool (app) developed in Sweden to assist citizens in reporting incidents in public spaces. This article first illustrates spatial and temporal patterns of records gathered over 9 months in Stockholm County using Geographic Information Systems (GIS) to exemplify the process of sousveillance via app. Then, the experiences of user group members, collected using an app-based survey, are analyzed. Findings show that the incident reporting app is more often used to report an incident and less often to prevent it. Preexistent social networks in neighborhoods are fundamental for widespread adoption of the app, often used as a tool in Neighborhood Watch schemes in high-crime areas. Although the potentialities of using app data are open, these results call for more in-depth evaluations of smartphone data for safety interventions.
Ceccato comments
Since Jacobs’s seminal work, The Death and Life of Great American Cities in 1961, we have heard the powerful key concept of “eyes on the street” countless times. Jacobs (1961) wrote that in order for a street to be a safe place, “there must be eyes upon the street, eyes belonging to those we might call the natural proprietors of the street” (p. 35). But the era of smartphones and location-based services (LBS) has changed the way that the individuals interact with a city. Now, “eyes” are complemented by “apps,” giving expression to new ways of depicting what happens in public space and perhaps redefining the role of guardians in surveillance. Compared with the traditional eyes on the street, the new exercise of social control invites a number of senses other than sight, such as touch and sound. An incident that happens on the street is still local (attached to a physical place with a pair of coordinates) but can now be seen by faraway eyes, literally by the whole world. Jacobs’ sense of “natural proprietors of the street” acquires a different meaning, as those who set a record on the (m)app are not only local residents but also visitors or transients, perhaps with no attachment to the area. With networks of smartphone app users, the process of sousveillance (Mann, 2004, p. 620), from French for “to watch from below,” seems to be more appropriate than surveillance (“to watch from above”). “Sousveillance describes the present state of modern technological societies where anybody may take photos or videos of any person or event, and then diffuse the information freely all over the world” (Ganascia, 2010, p. 489). This article calls for a reconceptualization of the term surveillance in the context of crowdsourced data (as sousveillance) gathered by LBS apps. 
The aim of this article is to explore the concept of surveillance and related terms by evaluating the nature of the data captured by users of an incident-reporting app,1 which was developed to support crime-prevention initiatives across Sweden. The aim is achieved by first characterizing this type of crowdsourced data as a result of the processes of sousveillance with an LBS app. Nine months of reports (app entries) in Stockholm County are assessed using geographic information systems (GIS) in relation to other indicators of safety and area characteristics. Also, the experiences of app users are analyzed via a survey. Then, by looking at the nature of the app-based data and the characteristics of the app users, we reflect upon some ideas that are taken for granted and traditionally characterize the process of surveillance. 
A reason to choose Stockholm, the capital of Sweden, as a case study is the availability of app-based data coming from smartphones (the app is an award-winning, free digital tool) that promote sousveillance through an online “Neighborhood Watch” scheme (NWS) and support local emergency services. Moreover, another reason for this choice is the degree of media penetration in the country, which is one of the highest in the world (Fox, 2013). According to The Internet Foundation in Sweden, as many as 77% of the population has a smartphone, 62% uses the Internet on their smartphone on a daily basis, and 57% navigates with help of a GPS in the smartphone. In 2015, over 95% in the 8–55 age-group were using the Internet, and this percentage is increasing within all age groups (Internetstiftelsen i Sverige, 2016). 
This article is structured as follows. It first reviews the literature in guardianship and surveillance and indicates how they may be affected by new technological developments, for example, LBS apps. We identify the current knowledge gaps in the international literature and use the Stockholm case study to contribute to filling some of these gaps. Note, however, that the Stockholm study presented here is based on a small sample data set, which means that some of the conclusions are driven by an exploratory analysis of the data rather than by rigorous, confirmatory hypotheses testing. Instead of claiming generality of the results, this analysis provides examples that are illustrative for the field. This article ends with a discussion of relevant topics to be pursued in future research and some of the technical, legal, and ethical challenges that lie ahead when using smartphone data.

Quackery

The Guardian reports that a joint report by France's Academy of Medicine and  Academy of Pharmacy has concluded that homeopathic products should no longer be subsidised under the nation’s health system. The reason? There is no evidence that the products work.

The academies also recommended stopping degrees in homeopathy from medical faculties.

In a joint statement the academies are reported as stating that
no homeopathic preparation should be reimbursed by Assurance Maladie [France’s health insurance] until the demonstration of sufficient medical benefit has been provided. No university degree in homeopathy should be issued by medical or pharmaceutical faculties.
I've elsewhere noted that until recently private educational institutions in Australia, accredited by TEQSA, were until recently charging around $75,000 for a Bachelors degree in homeopathy and that public institutions, including universities, featured homeopathy units in 'health sciences' degrees.

The French academies are reported as commenting
The reimbursing of these products by the social security seems aberrant at a time when, for economic reasons, we are not reimbursing many classic medicines because they are more or less considered to not work well enough.

Last year the Collège National des Généralistes Engseignants (France's national association for teaching doctors) stated that it was not possible to justify subsidisation of homeopathic products or the teaching of homeopathy in medical school: 'It is necessary to abandon these esoteric methods, which belong in the history books'.

Identity and Victoria's Justice Legislation Amendment (Police and Other Matters) Act 2019

'Limiting Identity in Criminal Law' by Mihailis Diamantis in (2019) 61 Boston College Law Review comments 
 People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person. This transience of human identity has profound implications for criminal law. Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know that the ordinary processes of growth, maturation, and decline alter us all in fundamental respects. Many young adults find it hard to identify with their adolescent past. Senior citizens often reflect similarly on their middle years. However tightly we hold on to the people we are today, at some tomorrow we inevitably find ourselves changed. 
Criminal justice has not come to grips with this aspect of the human condition. The law — by imposing lengthy sentences, allowing enduring consequences of conviction, and punishing long bygone violations — assumes that people’s identities remain fixed from birth to death. If people do change with time, these policies must violate the criminal law’s most basic commitment to prosecute and punish present-day people only for crimes they (and not some different past person) committed. 
Drawing on contemporary psychology and philosophy of personal identity, this Article concludes that criminal law punishes too often and too severely. Lengthy prison terms risk incarcerating people past the point at which their identity changes. Elderly inmates who have languished on death row for decades should have a new claim for release — that they are now different people, innocent of the misdeeds of yesteryear. One-time felons should recover lost civil rights sooner. And defendants should benefit from juvenile process well into their twenties, when personal identity first begins to stabilize. By confronting the challenges posed by the limits of personal identity, the criminal law can become more just and humane.
In Victoria the Justice Legislation Amendment (Police and Other Matters) Bill 2018 received assent earlier this month. The new Act amends the Bail Act 1977, Confiscation Act 1997, the Corrections Act 1986, Crimes Act 1958, Drugs, Poisons and Controlled Substances Act 1981, Firearms Act 1996, Magistrates' Court Act 1989, Protected Disclosure Act 2012, Road Safety Act 1986, Second-Hand Dealers and Pawnbrokers Act 1989, Sentencing Act 1991, Sex Offenders Registration Act 2004, Sex Offender Registration Amendment (Miscellaneous) Act 2017, Surveillance Devices Act 1999 and the Victoria Police Act 2013.

From the perspective of identity law the salient feature is Part 8, which
introduces a new scheme for the taking of DNA profile samples in Subdivision (30A) of the Crimes Act 1958. This scheme is comprised of 3 elements—senior police authorisation of DNA profile samples from adults and children (aged 15 to 17 years) who are suspected of or charged with an indictable offence; senior police authorisation of DNA profile samples from adults after a finding of guilt, or a finding of not guilty because of mental impairment, for a DNA offence; senior police authorisation to take a DNA profile sample from certain adults and children who have previously provided a sample and, new oversight mechanisms governing the authorisation, use, retention and destruction of DNA profile samples.
The lower house 2nd Reading Speech states
Streamlining and expanding police powers to collect DNA evidence has the potential to significantly enhance Victoria Police’s ability to keep the community safe. Victoria Police indicate that there are approximately 11,000 unsolved crimes in Victoria where an unidentified DNA sample has been identified and recorded. These crimes range from rapes and murders to serious assaults and burglaries. Under current practice, however, Victoria’s level of forensic capture is not as expansive as some other states. The reforms in this Bill will address this matter and result in improved forensic capability which is essential to modern and contemporary policing. 
The Bill will provide Victoria Police with new streamlined powers to take DNA samples from persons suspected of committing, or found to have committed a serious offence. These new powers will enhance Victoria Police’s ability to identify criminals, particularly serious recidivist offenders. The additional evidence will not only solve serious and high-volume crime, but through successful prosecutions will prevent further offending and the resultant significant impact on victims in our community. It will also reduce the administrative burden on police and courts. 
The Bill achieves these changes by introducing a new class of procedure called a 'DNA profile sample’. A DNA profile sample will include procedures for the taking of a DNA sample by way of a mouth scraping, saliva, a pin prick to take blood or a sample of hair with the root. These changes give police the power to authorise the taking of a DNA profile sample from adults found guilty, or not guilty because of mental impairment, of an indictable offence or a specified summary offence. 
These changes mean that police will no longer need to seek a court order and demonstrate to the court that taking the sample is justified in all the circumstances. This recognises that there are no excuses when it comes to serious crimes, and highlights that Victoria Police will be provided with the powers they need to deal with offenders. 
The reforms will also give a senior police officer the power to authorise the taking of a DNA profile sample, without a court order, from persons suspected of committing serious offences. These powers will apply to adults suspected of committing an indictable offence as well as children aged 15 to 17 years who police believe on reasonable grounds have committed a DNA sample offence. A list of DNA sample offences will be set out in new Schedule 9 to the Crimes Act, and capture serious violent, sexual and drugs offences including gross violence offences, rape, home invasion, dangerous driving causing serious injury, carjacking, trafficking in a drug of dependence, armed robbery and aggravated burglary. 
To reflect the fact these suspects are yet to be found guilty, DNA may only be taken in two circumstances: either with the consent of the suspect (and where the suspect is aged 15 to 17 years, the consent of their parent or guardian), or where the suspect does not consent, by the authorisation of a senior police officer. 
First, if a police officer is satisfied that the carrying out of the procedure is justified in all of the circumstances, the police officer may request the suspect to provide a DNA sample by consent. For 15 to 17 year old suspects, their parent or guardian will also need to consent. This will allow DNA profile samples to be obtained by consent without having to arrest the person under suspicion, which may assist with the elimination of an innocent suspect and free up police resources to focus on other suspects. 
Second, if the suspect does not consent, the taking of a DNA profile sample may be authorised by a senior police officer. The senior police officer would have to be satisfied that there are reasonable grounds to believe that the suspect committed the indictable offence or DNA sample offence if the suspect is a child, and that the carrying out of the procedure is justified in all the circumstances. 
It is important to emphasise that the senior police officer’s ability to authorise such a procedure applies only to suspects who are in lawful custody. A court order will still be required under the existing DNA powers in the Crimes Act 1958, which will continue to operate alongside the new powers in specific circumstances. Existing requirements for how police may use DNA samples, and the length of time that samples may be retained, will stay the same. 
This means that if police do not charge the suspect, or the charges are withdrawn, or the charges are not proven, the DNA sample must be destroyed. DNA samples taken from adult suspects who are subsequently found guilty or not guilty by mental impairment, may be retained indefinitely without a court order. For child suspects, a court order will still be required to retain the DNA sample, which requires the court to consider the seriousness of the circumstances of the offence and that the making of the order is justified. A court order will also be required to seek an offender sample from a child. Maintaining court oversight in both of these circumstances is consistent with various other extra protections afforded to children in the justice system and reflects the potentially life-long consequences of having their DNA sample retained. 
The taking of DNA profile samples will be governed by the current legislative requirements to ensure that the procedures are carried out safely and with respect to the person’s privacy. For example, the person may elect to take the mouth scraping themselves rather than have another person take it for them. If a blood sample is to be taken, only a medical practitioner or nurse will be able to take that sample. For children, the procedure must be witnessed by their parent or guardian or an independent person. 
The Bill also includes a new requirement that police must use the least intrusive and least painful method practicable in the circumstances. This provides an additional safeguard that applies to all forensic procedures, not just when taking DNA profile samples, and regardless of how the procedure was authorised. The admissibility of any evidence obtained as a result of a DNA profile sample will be a matter for the courts and will be a question for the trier of fact in each case. As is currently the case, the evidence will generally be inadmissible in proceedings against the person if the police fail to comply with the requirements set out in the legislation. The current exceptions will continue to exist, for example where the prosecution satisfies the court on the balance of probabilities that the circumstances justify the reception of the evidence. 
The Crimes Act 1958 makes clear that the probative value of the evidence does not of itself justify the reception of the improperly obtained evidence. Finally, to ensure that these new powers are being used in the manner intended, the Bill also provides that the Independent Broad-based Anti-corruption Commission (the IBAC) will have oversight of Victoria Police’s use of these powers, and the Attorney-General will also be able to make a complaint to the IBAC the use of these powers.

International Students

A New Minority? International JD Students in US Law Schools' by Swethaa Ballakrishnen in (2019) Law and Social Inquiry (Forthcoming) comments 
This Article reveals the significance of a new and growing minority group within US law schools - international students in the Juris Doctor (JD) program. While international students have received some attention in legal education scholarship, it mostly has been focused on their participation in the context of programs specially designed for this demographic (e.g. post-graduate programs like the LLM and SJD). Drawing from interview data with fifty-eight international JD students across seventeen graduating US law schools, our research reveals the rising importance of international students as actors within a more mainstream institutional context. Particularly, in examining the ways these students navigate their law school environments, we find that although international status often impacts identity and participation, not all students encounter its impact similarly. While some students use the identity to their advantage, others cannot escape negative implications, even with effort. This is consistent with other scholarship on minority students, and adds to a growing literature that uses their socialization experiences to better understand professional stratification. To unpack these different ways of “being international,” we borrow from Goffman’s theorization of stigma to suggest illustrative variations in the ways international students experience their environments. In doing so, we offer an introductory landscape to better understand this growing population and hope this enables new insights to theorize about other kinds of minority experience.

29 March 2019

Trigger Warnings

Trigger Warnings Are Trivially Helpful at Reducing Negative Affect, Intrusive Thoughts, and Avoidance' by Mevagh Sanson, Deryn Strange and Maryanne Garry in (2019) Clinical Psychological Science comments
Students are requesting and professors issuing trigger warnings—content warnings cautioning that college course material may cause distress. Trigger warnings are meant to alleviate distress students may otherwise experience, but multiple lines of research suggest trigger warnings could either increase or decrease symptoms of distress. We examined how these theories translate to this applied situation. Across six experiments, we gave some college students and Internet users a trigger warning but not others, exposed everyone to one of a variety of negative materials, then measured symptoms of distress. To better estimate trigger warnings’ effects, we conducted mini meta-analyses on our data, revealing trigger warnings had trivial effects—people reported similar levels of negative affect, intrusions, and avoidance regardless of whether they had received a trigger warning. Moreover, these patterns were similar among people with a history of trauma. These results suggest a trigger warning is neither meaningfully helpful nor harmful. 
The authors argue
Universities around the world are grappling with demands for trigger warnings—cautions to students about upcoming course content that may cause them distress (Medina, 2014; Palmer, 2017). The ideas that various topics may trigger distress—because the material itself is negative or reminds people of prior negative experiences—and warnings about the material’s topic can prevent this distress have long circulated online (Vingiano, 2014). But now these ideas have spread to universities: Two recent surveys of U.S. professors found over half reported using trigger warnings about their course content (Kamenetz, 2016; National Coalition Against Censorship, 2015). Some professors believe trigger warnings help decrease their students’ distress following an encounter with negative material, rather than merely allowing students to avoid that material altogether (e.g., Gust, 2016; Manne, 2015). Other professors, however, believe trigger warnings are not only an affront to academic freedom but might actually increase students’ distress either by allowing students to avoid material altogether (thereby preventing them from learning to cope effectively with reminders of prior negative experiences) or encouraging a more negative reaction to material they do encounter and contributing to the rising levels of anxiety and depression among college students (American Association of University Professors, 2014; Center for Collegiate Mental Health [CCMH], 2016; Lukianoff and Haidt, 2018; McNally, 2014). 
When it comes to the effects of trigger warnings, these conflicting positions are not simply ideological; they are also psychological. Yet when we turned to the psychological literature to find out what effects trigger warnings have, we found research suggesting they would be helpful, research suggesting they would be harmful, but no data directly addressing their effects—until we were writing this manuscript, when Bellet, Jones, and McNally (2018) published a single experiment. In this experiment, trigger warnings produced a small increase in people’s self-reported anxiety after reading negative passages—but only among people who strongly believed words can cause emotional damage. In addition, trigger warnings led people to believe they and others were slightly more susceptible to emotional harm from future, hypothetical traumatic experiences. Taken together, these results suggest trigger warnings mostly did very little. 
But there are at least three reasons Bellet et al.’s (2018) findings are not conclusive on the effects of trigger warnings. First, it is plausible that at least some of their primary findings become nonsignificant once corrected for the increased false discovery rate that arises from multiple comparisons. The rest of their findings regarding the effects of trigger warnings are nonsignificant without correction. This collection of null findings is difficult to interpret, particularly against a backdrop of a single experiment and a modest sample size. Second, anyone with a history of exposure to an extremely distressing event was not permitted to complete the experiment (comprising roughly 50% of those who started it; Jones, 2018). Considering that the majority of the population has been exposed to a potentially traumatic event (Breslau et al., 1998), this exclusion limits generalizability. Third, inasmuch as Bellet et al. tell us something about peripheral effects of trigger warnings, most crucially, they do not tell us much about trigger warnings’ putative ability to alleviate people’s symptoms of distress. 
The fact that this issue remains unresolved is a problem—one we aim to remedy in this article. We systematically and empirically examined the consequences of trigger warnings for three symptoms of people’s distress: negative affect following exposure to negative material, intrusive thoughts related to the negative material, and avoidance of reminders of the negative material. These symptoms at their extreme can constitute part of a posttraumatic stress disorder (PTSD) diagnosis (American Psychiatric Association [APA], 2013). But many people experience these symptoms following exposure to a traumatic experience or negative material without developing PTSD (Breslau et al., 1998; Rothbaum, Foa, Riggs, Murdock and Walsh, 1992). These symptoms are also therefore the very ones that negative course materials could evoke—and that trigger warnings might alleviate or exacerbate. 
They conclude We conducted six experiments investigating the effects of trigger warnings. Meta-analyses revealed that people who saw trigger warnings, compared with people who did not, judged material to be similarly negative, felt similarly negative, experienced similarly frequent intrusive thoughts and avoidance, and comprehended subsequent material similarly well. Although some measures yielded effects in a “trigger warnings are helpful” direction, these effects were so small as to lack practical significance (Ferguson, 2009). As a reference point, a Cochrane review found the standardized mean difference in self-reported symptoms between those who underwent therapy for PTSD and controls was ‒1.60, 95% CI = [‒2.02, ‒1.18] (Bisson, Roberts, Andrew, Cooper, and Lewis, 2013). Of course, trigger warnings are not intended to substitute for therapy; nevertheless, the symptom reductions we observed are minuscule in comparison. Moreover, our meta-analytic confidence intervals were narrow, suggesting high precision—yet still showed trigger warnings plausibly have no effect or might even work slightly in the direction of causing harm (Cumming, 2012). 
A critic might wonder if some subjects found the warnings helpful because they withdrew from the experiments after being warned, thereby avoiding the material and any ensuing symptoms (Gross, 2015). But when we examined responses from subjects who quit our experiments before completion, we found similar proportions quit in the warned and unwarned conditions, and the number of subjects who quit specifically after seeing the warning was very small (none in Experiment 1a, 1b, or 2a; nine in Experiment 2b; six in Experiment 3; one in Experiment 4), suggesting few if any subjects used the warning to avoid negative material (for more detail about when subjects quit, see the Supplemental Material). Moreover, because avoidance is a PTSD symptom (APA, 2013), the use of warnings to avoid material could be construed as harmful. 
There are other possible reasons to explain why trigger warnings exerted only trivial effects, and those accounts are less interesting. For example, perhaps subjects did not notice the trigger warning or the wording did not change expectations about the material to follow. But a large majority of warned subjects said they remembered seeing the warning, and in Experiment 3, we found that warned subjects expected the material to follow would be more negative than unwarned subjects. Of course, it is possible that for people’s expectations to matter, warnings need to target people’s beliefs about their symptoms rather than about the material (Kirsch, 1997). It is also possible the warnings did not constitute an obvious enough prompt that, or indeed how, people should prepare to regulate their emotions—possibilities that fit with the literature showing people often cannot optimally use warnings to adjust their behavior (Gross, 2015; Wilson and Brekke, 1994). We based our warnings on “real-world” uses, but future research could examine the effects of variations that target a range of theoretical issues. 
Our results run contrary to findings that warnings encountered before films made people feel worse afterward (Cantor et al., 1984; de Wied et al., 1997). But given our warned and unwarned subjects found the material similarly negative, it makes sense they then reported symptoms to similar degrees (Hall and Berntsen, 2008; Rubin et al., 2008; Wenzlaff and Wegner, 2000). Indeed, it could be we found little effect of warnings because of a floor effect—our materials did not make people feel sufficiently negative, such that warnings could not help much. Yet for unwarned subjects who saw material of greater negativity, the 95% CIs around their reported negative affect did not overlap with the bottom of the scale. Put another way, although these scores could have been decreased by trigger warnings, they were not. In addition, our finding that more negative materials produced more symptoms of distress fits with the idea that over-accessible memories of traumatic experiences contribute to symptoms of PTSD, and our finding that trigger warnings produced similar effects before material of greater and lesser negativity fits with the idea that the same mechanisms are at play during more and less traumatic experiences (Rubin et al., 2008). Our results also extend recent work suggesting trigger warnings had little effect on most people’s self-reported anxiety; we showed that trigger warnings have little effect on people’s distress (Bellet et al., 2018). 
Taken together, our findings show that trigger warnings are at best trivially helpful. But this conclusion comes with at least three caveats and limitations. First, we did not recruit people with a history of psychopathology (e.g., those with a diagnosis of PTSD, anxiety, or depression), and so we do not know how well our results generalize to clinical populations (although the results of Experiment 4 fit with the idea that most of our subjects—like most of the population—have had a traumatic experience; Breslau et al., 1998). Second, we did not ask our subjects their socioeconomic status or education level, which limits our ability to characterize the samples on whom we tested the effects of trigger warnings. Our samples were, however, drawn from populations for whom trigger warnings are often provided. Third, trigger warnings may have nontrivial effects we did not measure. For example, we did not ask about the phenomenology of the intrusions, yet warnings may have altered the vividness of the intrusions, for instance (Takarangi and Strange, 2010). Further, we used only self-report measures rather than taking physiological measures of hyperarousal symptoms, for instance (APA, 2013). Indeed, when people can precisely predict the timing of an unpleasant experience (e.g., an electric shock), they have lesser physiological responses to it even though their ratings of its magnitude are unaffected (Lykken, Macindoe, and Tellegen, 1972; for a review, see Lykken and  Tellegen, 1974). It is possible, therefore, that if trigger warnings allow people to predict an encounter with negative material, those warnings may reduce people’s physiological responses to the negative material. These issues constitute interesting directions for future research. 
Where do the current findings leave us? Some might wonder if professors should continue to issue trigger warnings. After all, if the warnings do not worsen distress and students believe the warnings are helpful, then why not? Put simply, people are not always good judges of the effects interventions have on themselves or others (Lilienfeld, Ritschel, Lynn, Cautin, and Latzman, 2014; Wilson and  Brekke, 1994), and the chronic effects of trigger warnings may be different from their acute effects. College students are increasingly anxious (CCMH, 2016), and widespread adoption of trigger warnings in syllabi may promote this trend, tacitly encouraging students to turn to avoidance, thereby depriving them of opportunities to learn healthier ways to manage potential distress.

28 March 2019

Character, Visas and Citizenship

Ongoing tightening of character requirements regarding migration is evident in the national government's  Ministerial Direction, effective 28 February 28,  "stop the entry to Australia of people convicted of violent crimes against women and children".

The Direction to visa decision-makers under s499 of the Migration Act 1958 (Cth) builds on existing law, including mandatory cancellation powers in s501 of the Act providing that a person’s visa must be cancelled if they have been sentenced to 12 months or more in prison.

The Direction applies to decision-makers within the Department of Home Affairs who are considering the cancellation or refusal of a visa under s501 of the Act  or who are considering the revocation of a mandatory cancellation of a visa under s501CA.

 The Direction is binding on departmental decision-makers and the Administrative Appeals Tribunal. In considering a case, the decision-maker or AAT member must consider all crimes against woman and children as serious and abhorrent crimes, regardless of the length of sentence imposed by the courts.

The Direction further specifies that in these circumstances, individuals should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

 The Home Affairs media release states  that under the previous Government (in five years between 2009 and 2013) 582 visas were cancelled under the character provisions in s 501 of the Act. the currentGovernment has cancelled over 4150 visas of foreign criminals.

Three recent AAT Decisions are
Navab Esfahani and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4221 - AAT affirmed the Home Affairs’ decision to refuse Australian citizenship to the applicant finding he did not pass the character due to his past conduct. 
Nkali and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 76 - AAT affirmed the Home Affairs’ decision to refuse to grant Australian citizenship to the applicant. The applicant did not satisfy the general residence requirement because he was an unlawful citizen a year prior to their application. 
QSNT and Minister for Home Affairs (Citizenship) [2019] AATA 24 - AAT set aside the Home Affairs’ decision to refuse to grant Australian citizenship to the applicant. The primary issue was whether the AAT was satisfied of the applicant's identity.

26 March 2019

Platforms and Privacy

'Digital Platforms: The Need to Restrict Surveillance Capitalism (Australian Privacy Foundation Submission to the Australian Competition and Consumer Commission (ACCC) – Digital Platforms Inquiry – Preliminary Report' by Graham Greenleaf, Anna Johnston, Bruce Baer Arnold, David F. Lindsay, Roger Clarke and Elizabeth Coombs comments 
On 4 December 2017, the Australian government directed the Australian Competition and Consumer Commission (ACCC)a to conduct an inquiry into digital platforms. The inquiry, says the ACCC, ‘is looking at the effect that digital search engines, social media platforms and other digital content aggregation platforms have on competition in media and advertising services markets. In particular, the inquiry is looking at the impact of digital platforms on the supply of news and journalistic content and the implications of this for media content creators, advertisers and consumers’. On 10 December 2018 the ACCC released its preliminary report for the inquiry, and called for submissions. The final report by the ACCC is due by 3 June 2019. 
This submission by the Australian Privacy Foundation (APF) has been prepared by the above-listed authors with expertise in privacy-related issues, and focuses on the ACCC recommendations that are particularly relevant to privacy issues. The APF gives general support to all of the draft Recommendations made by the ACCC, but makes the following eighteen specific submissions as to how those recommendations should be strengthened: 
(i) We submit that it is essential that the ACCC give full weight to all of the companies that Google and Facebook have acquired, and also to all the streams of personal information to which they have access because of those acquisitions and because of other business arrangements. 
(ii) The issues at stake also go beyond questions of correcting market imperfections. We submit that the ACCC should explicitly recognise that they constitute a new and dangerous economic formation, where flows of data have been used to create what is now widely described as ‘surveillance capitalism’, or ‘the surveillance economy’, 
(iii) We support strongly Recommendations 1 (additional relevant factors in merger laws, to include the amount and nature of data acquired in a merger), Recommendation 2 (prior notice of acquisitions), and Recommendation 3 (required choices rather than defaults when operating system providers supply browsers, and when browser providers supply search engines). 
(iv) We submit that Recommendation 2 is not strong enough, because the history of the platforms shows that any voluntary measures will be evaded and defeated, and that the only realistic approach when dealing with these companies is legal compulsion coupled with penalties severe enough to be deterrents. The ACCC should state that platforms will be legally compelled to give the required notice. 
(v) We support Recommendation 8(a), but submit that it should be more specific and should specify (as ACCC suggests) ‘the identity and contact details of the entity collecting data; the types of data collected and the purposes for which each type of data is collected, and whether the data will be disclosed to any third parties and, if so, which third parties and for what purposes’ 
(vi) We submit that Recommendation 8(a) will not be sufficient to achieve its aims unless the definition of ‘personal information’ in the Privacy Act is amended to clarify that it does include an IP address, a URL, or other information which can be used to identify an individual. 
(vii) We further submit that the definition of ‘personal information’ in the Privacy Act ought be amended to clarify that it encompasses data drawn from the profiling or tracking of behaviours or movements such that an individual can be singled out and thus can be subjected to targeting or intervention, even if the individual cannot be identified per se from the data. 
(viii) We submit that the certification schemes proposed in Recommendation 8(b) must be developed with considerable care to avoid problems identified in the submission, but do not oppose appropriate certification being used as a means of implementing ‘demonstrable accountability’. 
(ix) We support Recommendation 8(c) concerning consent, but submit that it should specifically state that the onus of proof of compliance with all consent conditions lies with the collector of the information; that such separate consents should be required for each separate purpose; and that information for which consent is required should be unbundled from any information for which consent is not required. 
(x) We further submit that the ACCC should require companies to rely on ‘consent’ as the legal basis for collecting, using or disclosing any personal information that is not strictly necessary to fulfil the original transaction. 
(xi) We support Recommendation 8(d) to enable the erasure of personal information, but submit that it is far too limited in its scope, being restricted to information provided by the data subject on the grounds of ‘consent’ in the first place. We submit that it should be expanded to encompass an Australian equivalent of the EU’s ‘right to be forgotten’. 
(xii) In relation to Recommendation 8(e) concerning increase in the penalties for breach, we submit that if Australian privacy law is to have a deterrent effect on companies of the scale of Google and Facebook, the maximum fines that can be issued should be proportional to the global turnover of the company concerned, and the proportion should be in the range 2-4%. 
(xiii) We further submit that ACCC should in addition recommend a statutory damages provision whereby a specified amount of statutory damages may be awarded to all persons whose personal data was disclosed as a result of a data breach due to negligent security (or other reasons in breach of the law), without need for proof of actual damage by the data subject whose personal data was disclosed. 
(xiv) We give strong support to Recommendation 8(f) to introduce direct rights of action for individuals to take actions for breach of the Privacy Act before the Courts, without need to first complain to the OAIC. 
(xv) While not opposing Recommendation 8(g) to expand resourcing for the OAIC, we submit this is not the most significant cause of the lack of interpretation of the Privacy Act by courts or tribunals. We submit that the ACCC should recommend the removal of the s41(1)(a) and s41(2)(a) Privacy Act impediment to s52 determinations, by amendment to the sub-section to provide that, if a complainant objects to the Commissioner’s dismissal of a complaint under these sub-sections, the Commissioner will then make a formal determination under s52. This will give complainants (and respondents) the opportunity to appeal to the AAT. 
(xvi) We support Recommendation 9, and in particular the involvement of the ACCC in the development of such a Code of Practice. 
(xvii) We endorse strongly Recommendation 10 that there should be a statutory cause of action for serious invasions of privacy. The ALRC’s examination of this issue was very thorough and its recommendations well-balanced, but we further submit that the ACCC may also wish to examine both the APF submission to the ALRC and the NSW Parliamentary Committee report on this topic, and to consider strengthening its recommendation accordingly. 
(xviii) The ACCC preliminary report identifies 9 areas which require further analysis and assessment, and we submit that two of those areas are particularly relevant to privacy protection and do require such further consideration: deletion of user data and opt-in targeted advertising.
The national Attorney-General and the Minister for Communications and the Arts have meanwhile announced  ' new penalty regime under the Privacy Act and other measures to ensure Australians were protected online and that major social media companies took action to protect the personal information they collect about Australians, particularly children'. Nothing like an election on the horizon, with the new-found commitment to privacy being somewhat at odds with the Government's indifference over the past four years..
"Existing protections and penalties for misuse of Australians' personal information under the Privacy Act fall short of community expectations, particularly as a result of the explosion in major social media and online platforms that trade in personal information over the past decade," the Attorney-General said. 
"What the Morrison Government is doing today is outlining a new regime of protections for Australians and penalties for those who misuse Australians' personal information.  This regime will update our privacy laws without impeding the continued innovation and development of companies working in the online space." 
Minister for Communications and the Arts, Mitch Fifield, said it was clear the Australian community enjoyed using social media and technology platforms, but was increasingly concerned about how personal data is captured, analysed and shared. This was particularly the case for children and members of other vulnerable community segments, he said. 
"The tech industry needs to do much more to protect Australians' data and privacy," Minister Fifield said. "Today we are sending a clear message that this Government will act to ensure consumers have their privacy respected and we will punish those firms and platforms who defy our norms and our laws." 
The amendments to the Privacy Act will:
  • Increase penalties for all entities covered by the Act, which includes social media and online platforms operating in Australia, from the current maximum penalty of $2.1 million for serious or repeated breaches to $10 million or three times the value of any benefit obtained through the misuse of information or 10 per cent of a company's annual domestic turnover – whichever is the greater 
  • Provide the Office of the Australian Information Commissioner (OAIC) with new infringement notice powers backed by new penalties of up to $63,000 for bodies corporate and $12,600 for individuals for failure to cooperate with efforts to resolve minor breaches 
  • Expand other options available to the OAIC to ensure breaches are addressed through third-party reviews, and/or publish prominent notices about specific breaches and ensure those directly affected are advised 
  • Require social media and online platforms to stop using or disclosing an individual's personal information upon request Introduce specific rules to protect the personal information of children and other vulnerable groups.
"This penalty and enforcement regime will be backed by legislative amendments which will result in a code for social media and online platforms which trade in personal information. The code will require these companies to be more transparent about any data sharing and requiring more specific consent of users when they collect, use and disclose personal information," the Attorney-General said. 
"We will also be requiring platforms to implement a mechanism to ensure they can take all reasonable action to stop using an individual's personal information if a user requests them to do so and have even stronger regimes to address these issues when the user is a child or other vulnerable person." 
The OAIC will be provided with an additional $25 million over three years to give it the resources it needs to investigate and respond to breaches of individuals' privacy and oversee the online privacy rules. 
Legislation will be drafted for consultation in the second half of 2019 [which is of course after an election likely to be lost by the Government]. 
"This new regime builds on other Government initiatives to improve online safety and provide Australians with greater control over their personal data, including the Online Safety Charter and Online Safety Research program, and the Consumer Data Right," the Attorney-General said. 
"The draft legislation will also incorporate any relevant findings of the current Digital Platforms inquiry by the Australian Competition and Consumer Commission which is due to issue its final reportin June 2019.  Whilst focused on the impact of large digital media platforms on competition in news media, it is also touching on privacy-related issues and, in its interim report late last year, recommended the tougher penalty regime being outlined today by the Morrison Government."

Genomics

'The Web of Legal Protections for Participants in Genomic Research' by Leslie E. Wolf, Erin C. Fuse Brown, Ryan Kerr, Genevieve Razick, Gregory Tanner, Brett Duvall, Sakinah Jones, Jack Brackney and Tatiana Posada in (2019) 29 Health Matrix: Journal of Law-Medicine comments 
The identification and arrest of the Golden State Killer using DNA uploaded to an ancestry database occurred shortly before recruitment for the National Institutes of Health's (NIH) All of Us Study commenced, with its goal of enrolling and collecting DNA, health, and lifestyle information from one million Americans. It also highlighted the need to ensure prospective research participants that their confidentiality will be protected and their materials used appropriately. But there are questions about how well current law protects against these privacy risks. This article is the first to consider comprehensively and simultaneously all the federal and state laws offering protections to participants in genomic research. The literature typically focuses on the federal laws in isolation, questioning the strengths of federal legal protections for genomic research participants provided in the Common Rule, the HIPAA Privacy Rule, or the Genetic Information Nondiscrimination Act (GINA). Nevertheless, we found significant numbers and surprising variety of state laws that provide greater protections than federal laws, often filling in federal gaps by broadening the applicability of privacy or nondiscrimination standards or by providing important remedies for individuals harmed by breaches. Identifying and explaining the protections these laws provide is significant both to allow prospective participants to accurately weigh the risks of enrolling in these studies and as models for how federal legal protections could be expanded to fill known gaps.
In the US the federal Justice Department has announced that GenomeDx Biosciences Corp. (GenomeDx) has agreed to pay US$1.99 million to resolve allegations that it violated the False Claims Act, 31 U.S.C. §§ 3729 et seq., by submitting claims to Medicare for the Decipher® post-operative genetic test for prostate cancer patients.

 GenomeDx is a genetic testing laboratory headquartered in Vancouver, with operations based in San Diego.

 The Justice media release states
 “The Department of Justice is committed to ensuring that Medicare reimburses costs for laboratory testing that are reasonable and necessary for the individual patient,” said Assistant Attorney General Jody Hunt for the Department of Justice’s Civil Division.  “Medically unnecessary and unproven testing increases costs for federal health care programs.” The United States alleged that GenomeDx knowingly submitted claims for the Decipher test to Medicare between September 2015 and June 2017 that were not medically reasonable and necessary because the prostate cancer patients did not have risk factors necessitating the test, including pathological stage T2 disease with a positive surgical margin, pathological stage T3 disease or rising Prostate-Specific Antigen (PSA”) levels after an initial PSA nadir. 
“As this settlement demonstrates, we are committed to protecting the integrity of the Medicare program and will hold health care providers accountable under the False Claims Act when they engage in improper billing,” said Robert S. Brewer, Jr., United States Attorney for the Southern District of California. “This settlement is also another example of our commitment to vigorously investigate cases brought to our attention by whistleblowers. We commend the two employees of GenomeDx who had the courage to come forward and work with investigators.” 
“Lab tests and other medical services should only be conducted or provided when medically necessary,” said Christian J. Schrank, Special Agent in Charge for the Office of Inspector General of the U.S. Department of Health and Human Services.  “Whistleblowers play a critical role in keeping entities honest and accountable, and are encouraged to report suspected waste, fraud and abuse by those billing federal healthcare programs.” 
“The message is clear, if you take advantage of programs like Medicare, you will be held accountable,” said John Brown, FBI Special Agent in Charge of the San Diego Field Office.  “Companies who engage in filing false claims to generate more corporate revenue are not only stealing from the federal taxpayer, but also from people who rely on federally funded programs for their health care needs.” 
The settlement resolves allegations originally brought in a lawsuit filed under the qui tam or whistleblower provisions of the False Claims Act, which allow private parties to bring suit on behalf of the government and to share in any recovery.  The whistleblowers will receive $348,316.50 from the False Claims Act recovery.  The investigation was conducted by the Civil Division of the Department of Justice, the U.S. Attorney’s Office for the Southern District of California, the Department of Health and Human Services Office of Inspector General, and the Federal Bureau of Investigation. 
The case is captioned United States ex rel. La Fleur et al. v. GenomeDX Biosciences Corp., No. 17-CV-1959 (S.D. Cal.).  The claims resolved by the settlement are allegations only, and there has been no determination of liability.

25 March 2019

Property

Authority without identity: defending advance directives via posthumous rights over one’s body' by Govind Persad in (2019) 45(4) Journal of Medical Ethics is described as taking
 a novel approach to the active bioethical debate over whether advance medical directives have moral authority in dementia cases. Many have assumed that advance directives would lack moral authority if dementia truly produced a complete discontinuity in personal identity, such that the predementia individual is a separate individual from the postdementia individual. I argue that even if dementia were to undermine personal identity, the continuity of the body and the predementia individual’s rights over that body can support the moral authority of advance directives. I propose that the predementia individual retains posthumous rights over her body that she acquired through historical embodiment in that body, and further argue that claims grounded in historical embodiment can sometimes override or exclude moral claims grounded in current embodiment. I close by considering how advance directives grounded in historical embodiment might be employed in practice and what they would and would not justify.

Cheating

The Australian Government has broadly endorsed the 'Consideration' by the Higher Education Standards Panel on Student Academic Integrity and Cheating in Australian Higher Education.

The Consideration states
In June 2015 the Minister for Education requested the Higher Education Standards Panel’s advice on options identified by the Tertiary Education Quality and Standards Agency (TEQSA) to deter commercial cheating activity. These options were canvassed in advice to the Minister on responses by higher education providers to the 2014 ’MyMaster’ contract cheating service incident.
TEQSA’s advice noted that all providers had appropriate policies and practices in place to meet the relevant Higher Education Standards concerning academic integrity, but that additional legislation and/or prosecution activity were options that could be considered to help address and deter cheating by higher education students – particularly commercial or other organised services intended to facilitate cheating activity. TEQSA’s report identified three options for future action that could be considered, some of which had been suggested by stakeholder providers with which it had engaged to assess the response to ‘MyMaster’:
  • the creation of new offences in legislation specifically targeting commercial cheating activity, along the lines of an approach taken by the Government of New Zealand; 
  • support for more effective prosecution by police and others under current laws; and 
  • a centralised register of detected cheating services
The Panel believes that inadequately constrained cheating activity has the potential to cause great damage to the domestic and international reputation of Australian higher education. Indeed, we have been given examples of this already occurring in the wake of the MyMaster incident. The Panel considers this is an issue which should be further addressed to reduce the incentives, rewards and opportunities for cheating to occur – particularly on an organised or commercial basis.
In 2011, New Zealand introduced penalties for cheating services into its Education Act 1989 (Section 292E – see Attachment A), which make it an offence to provide or advertise cheating services. A person convicted under this section is liable for a fine of up to $10,000. The Panel understands that when New Zealand introduced these provisions, there was an immediate deterrent impact without any actual convictions.
1. Legislative support
No Australian jurisdiction currently has offences on the books specifically aimed at deterring or punishing cheating by students or organised cheating services. Panel member Karen Thomas, Managing Partner Fisher Jeffries Barristers and Solicitors Adelaide, provided the Panel with a comprehensive survey of laws that may be applicable to cheating where it is detected. These include criminal offences for fraud, deception and dishonestly obtaining an advantage, conspiracy to defraud, forgery and related offences. Civil actions can revolve around breach of contract, the tort of deceit, and misleading or deceptive conduct under the Australian Consumer Law.
In many of these cases, the burden of proof is significant and may rely on being able to demonstrate a financial or commercial loss by an injured party in order to establish that an offence has occurred. This can be problematic for institutions to demonstrate, where reputation may be the commodity primarily at risk. Where an actor in the activity is or might be located overseas (e.g. an overseas academic paper authoring service), the difficulty is compounded. This complexity is one reason cited by stakeholders for the lack of enthusiasm from police and institutions to pursue cheating through the courts in other than the most serious and clear-cut cases.
Student awareness of responsibilities and consequences
In relation to individual students caught cheating or plagiarising, the clear preference of institutions is to take an educative approach as a first response. This is particularly the case where plagiarism is detected and may have been influenced by different cultural expectations. In the Panel’s view, this approach is appropriate. However, the Panel also considers it would be appropriate for the Government and individual institutions to proactively seek to counter such perspectives – both as students enter an institution and throughout their engagement in Australian education.
To ensure student awareness of the seriousness of the consequences from such activity, the Panel considers that wide adoption of the practice of some institutions to have enrolling students (particularly international students) make a signed commitment to academic integrity could be very beneficial. This would provide a clear basis to contrast any subsequent dishonest or criminal practice with the student’s explicit commitment at enrolment; providing no doubt about the gap between the agreed expectation and actuality.
Recommendation 1 The Panel recommends that the Government consider advocating or requiring higher education providers to adopt a template or standardised statement of personal commitment to academic integrity, which all students would be required to sign upon entering Australian higher education.
The statement should indicate that the student understands they have an obligation to undertake their studies and associated assessment activities with honesty and integrity; and that in the event the student is found to have cheated, misrepresented the work of another as their own, or wilfully plagiarised the work of others, this could lead to the student’s enrolment being cancelled or their academic results being invalidated. In the case of international students, cancellation of enrolment could lead to their student visa being cancelled also.
Constitutional advice
The Panel asked the Department of Education and Training to seek advice from the Australian Government Solicitor (AGS) on the constitutionality of Commonwealth legislative action to provide better support to institutions and regulators to deter, prevent and penalise cheating activity. The department received advice from the AGS in two separate tranches – on the constitutional powers of the Commonwealth to pursue a legislative response and options to address cheating activity within the bounds of the constitution, including joint action with the states and territories. The AGS’ advice and the Panel’s subsequent consideration focused on the potential for and appropriateness of such action targeting any or all of: • commercial cheating activity • domestic student individual cheating; and • international student individual cheating.
Constitutionally, the situation is problematic, particularly in relation to domestic students and commercial or organised cheating activity that does not involve a corporate entity. The AGS confirmed its view that the Commonwealth does not have sufficient legislative power to neatly or adequately regulate this area. While reliance can be placed on a number of constitutional heads of power, such as the communications, the territories and the trade and commerce powers, significant regulatory gaps would remain.
The AGS noted the complexity of the policy issues involved in determining: • when a student has cheated • how a spectrum of penalties would be applied, and • how any penalties would fit with universities’ own systems for policing cheating.
Organised cheating
In the Panel’s view, organised or commercial cheating presents a clear and possibly the biggest current reputational risk to Australian higher education. The Panel recommends the Government give consideration to legislative changes that would make commercial cheating activities an offence. This legislation should create an offence that would enable prosecution of organised cheating services targeting students enrolled with Australian institutions, including any individuals or organisations that facilitate or profit from such services. A secondary but significant aim of the legislation would be to discourage and frustrate organised cheating services, whether the service is located, facilitated or benefited from financially in Australia or overseas.
The approach taken by New Zealand in section 292E of its Education Act 1989 appears an appropriate model for Australia to adopt. However, the Commonwealth’s limited s constitutional heads of power mean this could not be achieved unilaterally. Were a purely Commonwealth legislative solution to be pursued, AGS advice identifies that regulatory gaps would remain where the provision of cheating services: • is purely within a state; • does not involve a constitutional corporation; • is by means other than a communication service (for example, in person) and • is directed purely at domestic students.
Cooperation with the states and territories appears to be the only basis on which the Government could develop a comprehensive legal solution. Relying on the broader powers of the states and territories could enable a simpler approach to be taken, along the lines of New Zealand’s model. Based on the AGS’ advice, an applied laws legislative model would appear the most practicable approach. Under this model, The Commonwealth could enact a law - for example, regulating the provision of cheating services in the ACT – and each State and remaining Territory would agree to apply that law by reference in legislation in each of the other jurisdictions.
The advantage of this approach is that any amendments to the law can apply automatically in the states and the other territory. In contrast, mirror legislation schemes are more likely to result in inconsistency as laws are amended.
Alternatively, in line with the approach taken for the Australian Consumer Law, the Commonwealth could enact a law applying across Australia relying on its legislative powers (e.g. regulating the conduct of constitutional corporations) and the States and Territories could agree to apply that law.
If a cooperative approach were to be pursued with other jurisdictions, the panel understands that the process would normally involve an intergovernmental agreement being entered into by the Commonwealth and the states and territories. This would be followed by the development and enactment of ‘model’ legislation by the Commonwealth with each state and the remaining territory subsequently enacting legislation which applied the Commonwealth model law in that jurisdiction. There are a variety of methods of achieving this, subject to agreement by the states. AGS have advised it would be necessary to engage the Office of Constitutional Law in the Attorney-General’s Department in relation to the constitutional policy issues relating to a cooperative legislative approach.
Legislation to address commercial cheating would necessarily be new legislation, rather than an amendment to existing legislation. The Tertiary Education Quality and Standards Agency (TEQSA) could potentially be appointed as a single national regulator with responsibility for the laws’ oversight. Further AGS advice would be required to confirm whether there are any constitutional difficulties with TEQSA undertaking such a role.
Recommendation 2:
The Panel recommends that the Government consider introducing legislation making it an offence for any person to provide or advertise cheating services, modelled on section 292E of New Zealand’s Education Act 1989. This would need to be done in cooperation with states and territories to minimise any constitutional risks. An applied laws approach appears the most efficient way to achieve this.
Recommendation 3:
The Panel recommends that the Government, in cooperation with the states and territories, consider appointing the Tertiary Education Quality and Standards Agency to act as the single national regulator with responsibility for oversight of the new cheating provisions.
Domestic students
For domestic students, under the students benefits power, the Commonwealth could place conditions on the provision of support to students, for example access to a Commonwealth Supported Place or to a HELP Loan. However the AGS notes that there would be difficulty in enforcing penalties such as cancellation of awards for a number of reasons, including: • the awarding institution would need to be induced or required to take action to cancel awards or enrolments, and it is unclear whether the Commonwealth would have the power to enforce this action • there would likely be issues relating to ‘acquisition of property’ under such an arrangement.
Given the sensitive nature of taking action in the courts against individual students, and the issues outlined in the AGS advice, the Panel does not recommend pursuing the creation of offences against individual students at this stage.
As noted above, an educative approach in the first instance appears the better response. Cancellation of enrolment, where warranted by the seriousness of an offence, is a response that is available to institutions now. Supplementing this with the possibility of criminal or civil penalties would seem overreach in the Panel’s view.
International students
For international students the issue is more straightforward as the aliens power provides wide scope for action. However, there already appears to be sufficient coverage under current arrangements for the Commonwealth to cancel the visa of an international student found to have cheated, if their higher education enrolment is terminated.
The Department of Immigration and Border Protection (DIBP) confirmed that if a student visa holder fails to maintain enrolment, does not achieve satisfactory course progress or does not achieve satisfactory course attendance, there are grounds for considering visa cancellation under section 116(1)(b) of the Migration Act 1958 for breach of visa condition 8202. Considering cancellation under this ground relies on the education provider reporting the conduct to DIBP. Essentially, if a student’s enrolment is terminated by their higher education provider, the student’s visa would be cancelled. If the offence was not serious enough to warrant termination of enrolment, there would be no impact in relation to the student visa.
The Panel does not consider additional legislative authority is required to enable action to be taken against an international student found to have cheated or acted outside of their academic integrity obligations.
2. Support for prosecutions
TEQSA noted concerns raised by Macquarie University about the lack of interest from police in pursuing criminal charges against those operating contract cheating websites. These types of concerns have been expressed by others in the sector also. In the Panel’s view such reluctance is understandable, given the complex array of criminal and civil provisions that could potentially apply and the lack of clarity about jurisdiction and constitutional authority created by the mix of Commonwealth policy and funding but largely state and territory-enacted university establishing Acts.
This reluctance is a two-way street, though. As noted above, where individual student activity is concerned, the most appropriate action in the first instance may be to take an educative approach – to encourage the student towards good practices and correct their behaviour, rather than seek to punish. Providers – rightly in many cases – are also reluctant to take too swift action. Where they do so, in some cases the lack of jurisdictional clarity has led students to challenge punitive actions. The requirement under tort law for the aggrieved party establish a financial impact from the wrongdoing, can severely limit the chance of success.
In the Panel’s view, such reluctance and lack of confidence in legal authority would best be addressed by creating a clear legal framework for future action, as proposed at Recommendation 2.
3. Intelligence gathering
TEQSA noted suggestions from Deakin University and Queensland University of Technology that a national register of contract cheating providers may be beneficial. While the Panel has no formal understanding of the cost or challenges involved in developing such a tool, the dynamic nature of the processes, technologies and participants involved in such activity would seem to present significant challenges. Simply maintaining the currency of information would be a significant task. As would be the challenge of gathering relevant information, given the variety of languages, social media and localised information platforms that can and have been exploited to promote and facilitate this activity.
The Panel considers that provider awareness, proactive monitoring and generalised good practice approaches to promoting academic integrity and discouraging cheating activity are likely to be as effective. Indeed, the existence of such a platform could lead some to believe the risks are being managed when, in fact, perpetrators have simply changed their practices to adapt to its presence.
If the Government wishes to consider such an approach, advice from the department and appropriate technology experts should be sought.
'Contract cheating and assessment design: exploring the relationship' by Tracey Bretag, Rowena Harper, Michael Burton, Cath Ellis, Philip Newton, Karen van Haeringen, Sonia Saddiqui and Pearl Rozenberg in (2019) 44(5) Contract cheating and assessment design: exploring the relationship, Assessment and Evaluation in Higher Education 676-691 comments
 This paper reports on findings from a large Australian research project that explored the relationship between contract cheating and assessment design. Using survey responses from 14,086 students and 1147 educators at eight universities, a multivariate analysis examined the influence of a range of factors on the likelihood that different assessment types would prompt considerations of contract cheating in students. Perceptions of likelihood were highest among students who speak a language other than English at home. Perceptions of likelihood were also higher among students who reported there to be lots of opportunities to cheat, and amongst students who were dissatisfied with the teaching and learning environment. Perceptions of likelihood for certain assessment types were also higher in commerce and engineering than in any other discipline. Overall, four assessment types were perceived by students to be the least likely to be outsourced, however these are also the least likely to be set by educators. The analysis indicates that educators are more likely to use these assessment tasks when they report positively on organisational support for teaching and learning.
'Contract cheating: a survey of Australian university staff' by Rowena Harper, T. Bretag, C. Ellis, P. Newton, P. Rozenberg, S. Saddiqui & K. van Haeringen in (2018) Studies in Higher Education comments
If media reports are to be believed, Australian universities are facing a significant and growing problem of students outsourcing their assessment to third parties, a behaviour commonly known as ‘contract cheating’. Teaching staff are integral to preventing and managing this emerging form of cheating, yet there has been little evidence-based research to inform changes to their practice. This paper reports on the findings of a large-scale survey of teaching staff in Australian universities on the topic of contract cheating. It investigated staff experiences with and attitudes towards student cheating, and their views on the individual, contextual and organisational factors that inhibit or support efforts to minimise it. Findings indicate that contract cheating could be addressed by improving key aspects of the teaching and learning environment, including the relationships between students and staff. Such improvements are likely to minimise cheating, and also improve detection when cheating occurs.
The authors state
Contract cheating occurs when a student submits work that has been completed for them by a third party, irrespective of the third party’s relationship with the student, and whether they are paid or unpaid. The term was coined by Lancaster and Clarke in 2006 to describe computing students’ use of professional agency sites (such as www.rent-acoder.com) to hire third parties to complete their assessment. Since then the meaning of the term has expanded, recognising that this kind of ‘outsourcing’ of assessment spans all discipline areas and involves a variety of both paid and unpaid sources, including custom assignment services, friends, family and personal tutors (for a recent overview, see Lancaster and Clarke 2016). Numerous media scandals in Australia and internationally have exposed examples of contract cheating (Visentin 2015; Doherty 2016; Yorke 2017), prompting concerns that the problem may be growing and threatening the integrity of higher education provision (Thomas and Scott 2016). Student outsourcing of assessment is not a new phenomenon and public panic is common each time a new form of student cheating emerges (Bertram Gallant 2008; Sutherland-Smith 2010). However, numerous social, economic and technological changes are converging in higher education, lending a particular sense of urgency to the problem of contract cheating. Increasing commercialisation and marketisation is repositioning education as ‘a commodity to be acquired’ (Page 2004), which has in turn led to a logical outgrowth of a cheating ‘service’ industry in which academic work becomes a commodity rather than an artefact representing a process of thinking and learning (Walker and Townley 2012; Rigby et al. 2015). This problem is compounded by increasingly precarious job markets, which encourage an employability focus for institutions and their students. This kind of ‘credentialism’ (Brown 2001) risks repositioning learning as an instrumental transaction in which students are only minimally engaged. Added to this is a booming ‘sharing economy’ (Richardson 2015) supported by online platforms that facilitate new modes of exchange of goods and services. Anything can now be easily bought or sold online – including academic labour – leading to a diminishing regard for traditional ideas about information ownership and intellectual property. Until the late 1990s, the outsourcing of assessment was necessarily a localised and hidden activity, limited to students’ own social circles. The use of online platforms such as Airtasker and Freelancer, however, make contract cheating both public and global in its reach. The visibility and potential scale of the problem is perhaps creating the impression that it is on the rise, despite no empirical evidence to suggest that this is the case. Current anxieties about contract cheating might therefore reflect a recognition that the contemporary higher education environment provides a set of ideal conditions in which contract cheating could proliferate. A significant body of research exists on why students cheat. This has largely been generated by surveys of students (a method with recognised limitations), but common findings are that students cheat for a range of individual, contextual and situational reasons. In a recent review of the literature, Brimble (2016) identifies seven motivators for cheating. These include demographic factors (e.g. age, gender and language background, with those who speak a language other than English [LOTE] particularly vulnerable), a growing cultural acceptance of cheating, a lack of knowledge and skills among students and staff, issues with curriculum design and delivery, and situational factors such as peer culture, likelihood of detection and consequences. In addition, Brimble identifies the effect of ‘modern life’ on both students and staff, which for both involves managing competing priorities, increased performance pressure, and less time and inclination to prioritise teaching and learning. Surveys of staff have also identified a range of factors that may influence student cheating. In Walker and White’s Australian study (2014), respondents cited class sizes and the ‘impersonal nature’ of contemporary teaching models as reasons why student cheating might go undetected. They reported that better trained and more experienced lecturers often remain distant from students, while those close to them are often casual staff who are more likely to have less experience and training, be less connected to institutional culture, and not paid enough to devote time to following academic integrity procedures. This environment of anonymity is potentially compounded by the practice of ‘anonymous’ marking, ostensibly established in many educational environments to reduce bias and ensure fairness. Staff also reported a tendency for appeals against breach investigations to be overturned, which undermines staff members’ faith in their institutional processes (Walker and White 2014). Findings from Sattler, Wiegel and van Veen’s German study (2017) also suggested that large class sizes were problematic, along with staff awareness of detection methods and management processes. 
Anonymous and impersonal learning environments are potentially problematic, given that numerous studies have found staff–student relationships to be significant for deterring cheating. MacGregor and Stuebs (2012) found that students were more likely to engage in cheating if they perceived their educator did not care about them, concluding that students’ ethical decision-making may be influenced by the extent to which they have a personal relationship with their educator. Similarly, Beasley (2014) found that students were more likely to cheat if they perceived staff had a lack of care for individual students, their learning and their success. Simkin and McLeod (2010, 450) also found cheating was deterred by student and staff connections, particularly ‘the presence of a moral anchor in a faculty member whose opinion mattered’ to the student. 
Multi-pronged and holistic approaches have been widely recommended to address academic integrity, whereby responsibilities are explicit and shared by students and staff across an institution (Bretag 2013; Morris and Carroll 2016). Responsibilities include establishing principles, policies and processes (Bretag et al. 2011; Walker and White 2014), mapping programme curricula to develop a sequential schedule of assessment that scaffolds skills (Walker and White 2014), designing assessment and course curricula to minimise opportunities and reasons to take shortcuts (Walker and Townley 2012; Morris 2016; Newton and Lang 2016), teaching academic integrity and academic practice (Sutherland-Smith 2010; Henderson and Whitelaw 2013; Cheung et al. 2016; Morris 2016), and managing breaches (e.g. enforcing rules, detecting and referring suspected cases) (Walker and White 2014). However, many of the recommendations for improving teaching practice in order to minimise cheating are based on experience and educational ‘common sense’ rather than empirical evidence which clearly demonstrates efficacy. 
In any approach to academic integrity, the fundamental role of teaching staff is evident. While holistic approaches may be overseen and supported by a range of university staff, most rely on teaching staff for their implementation. Although teaching staff consider contract cheating to be a very serious ethical and moral matter (Sattler, Wiegel, and van Veen 2017), a range of factors influence the extent to which they actually implement their institution’s strategies for preventing and managing breaches of integrity. Staff may perceive that responsibility ultimately lies elsewhere (e.g. with the student) (Walker and White 2014), or they may be generally uninformed about academic integrity matters, lacking awareness or knowledge about what role they can play (Ransome and Newton 2017). A large German study of over 1400 staff at four institutions found that staff practices were primarily based on three factors: the time and workload involved, compared to the likelihood of reward; the perceived efficacy of suggested methods, and behavioural expectations of other staff and students in their context (Sattler, Wiegel, and van Veen 2017). 
In this context, contract cheating presents new challenges because it is not clear how ‘detectable’ it is to teaching and marking staff. Research by Dawson and Sutherland-Smith (2017) found that markers identified 62% of contract cheating cases when they were advised to specifically look for it; however, Lines (2016) found that when markers were unaware of the possible presence of contract cheating, none was detected. Even when cases are detected, teaching staff are concerned that it may be difficult to ‘prove’ (Walker and Townley 2012). The complexity of the problem, combined with a variety of perceived barriers or disincentives to tackle it mean that many staff may simply ignore it altogether (McCabe 2005; Coren 2011). 
This paper supports ongoing discussion about the role of teaching staff in responding to the problem of contract cheating, and the role of institutions in supporting them. It reports on findings from a survey of teaching staff (n = 1147) conducted at eight Australian universities. The staff survey formed part of a nationally funded research project (www.cheatingandassessment. edu.au), which also included a parallel student survey (n = 14,086). Together, the surveys were designed to explore staff and student experiences with and attitudes towards a range of outsourcing behaviours, and the individual, contextual and institutional factors that may contribute to these behaviours. Specifically, this paper addresses the following four research questions:
(1) What are the experiences of university teachers with identifying and managing contract cheating? 
(2) What are university teachers’ attitudes towards contract cheating and other forms of outsourcing? 
(3) To what extent do organisational factors (including policies and processes) contribute to minimising contract cheating? 
(4) To what extent do university teachers implement teaching and learning practices associated with minimising contract cheating?