Informationisation

From 'The Information Essay' in the current issue of N+1 -

Just as this is an age of great wealth inequality, it is also an age of great inequality of knowledge or, more exactly, factual information. For all its democratic potential, the fact-filled internet has only heightened the pre-Google asymmetry between those, on one side, loyal to Baconian methods of patient, inductive gathering of facts — the ways of the card catalog and the archive, of the analysis and evaluation of empirical data — and those, on the other side, who didn't need to read Foucault or the Frankfurt School to nurture a suspicion that positivist orders of knowledge mask a hierarchy of power in which they are meant to occupy the lowest rungs.

It’s the Republican Party's deliberate disinformation strategy, more than any properties inherent in so-called information technologies, that has created these two parallel Americas. In one of them, weapons of mass destruction were found in Iraq, climate change is a patent hoax, and the Laffer curve is the most basic truth of economics. As for the inhabitants of the other universe — "the reality-based community” of old-fashioned skeptics and empiricists, frequenters of public and university libraries, readers of the New York Times and of Elizabeth Kolbert in the New Yorker, avid perusers of Harper’s Index and WikiLeaks — we possess ever vaster quantities of mostly accurate facts, and not much sense of what to do with them. Data data everywhere, and not a thought to think! Outside of a hedge fund or the CIA, there aren't too many places where knowledge is power. Much of the time, intellectually and politically, knowledge is powerlessness.

The division between empiricists and fantasists is clearest in politics. But it’s beginning to enter literature. Dickens in Hard Times made fun of Gradgrind — "Now, what I want is, Facts. Teach these girls and boys nothing but Facts. Facts alone are wanted in life" — and there is a way in which, until recently, information and what used to be called "imaginative literature" were usually understood to be addressing themselves to the right and left hemispheres of the brain instead of the political spectrum. Lately, however, there has also come to be a literary expression or embodiment of liberal empiricism, an emergent literary Gradgrindism that deserves analysis.

Apart from glimmerings in early forebears — Flaubert in Bouvard & Pécuchet, Dickens himself in Bleak House, a few chapters of Moby-Dick, and most famously Zola — the informationization of literature became most clearly visible in what we've called "the research novel" of the 1980s and ’90s: the fact-flaunting of writers as diverse as Sebald, Tom Wolfe, and Don DeLillo, whose brilliant but failed Cosmopolis gave us Eric Packer, a portrait of the artist as a hedge-fund tycoon and obsessive gatherer of facts. As James Wood observed in 2001, 'knowing about things' has become one of the qualifications of the contemporary novelist. Still, the research novel mostly subordinated its facts, even as these increased in density, to plot and character. What we begin to glimpse in recent years, especially in "literary nonfiction", is something different: the evolution of a style that resembles "information for information’s sake", in something like the art for art's sake of 19th-century French decadence. What can this new literature of information be saying? The nature of facts is supposed to be that they speak for themselves. The nature of literature of course is the opposite — that it always means more than it says. Maybe the new literature of information can tell us something about our relationship to facts that the facts alone refuse to disclose?

The dossiers of documents, the montages of objects, in magazines like Harper’s or Cabinet, stage first of all a deliberate refusal to use the information they display for any other purpose, like persuasion or synthesis. Information, they suggest, is the very thing itself, self-sufficiently eloquent — no embellishment or commentary required. These fact-heaps feed our appetite for what practitioners in these genres like to call reality, something said — by David Shields for instance — to be in short supply.

The absence in these texts of anything resembling argumentation is itself a tacit kind of advocacy. The assemblage of information (Wikipedia and WikiLeaks being collective examples of the form, and Jonathan Lethem’s famous essay-of-quotations being an individual one) promotes the cause of Roland Barthes’s open form, where meaning-making is fundamentally a readerly rather than writerly activity. It also brings to mind Walter Benjamin’s over-cited proclamation that montage is "useless for the purposes of fascism" — because it doesn’t predigest reality, in the manner of propaganda. The liberal empiricists’ idea is that facts, naked and massed together like the human beings in those Spenser Tunick photographs, serve the cause of political and intellectual freedom, because facts don’t tell you what to think. They report, you decide.

In the best of the empiricists’ works, information for information’s sake becomes information for art’s sake.

And from 'A Global Panopticon? The Changing Role of International Organizations in the Information Age' by Jennifer Shkabatur in 33(2) Michigan Journal of International Law (2011) 1-57 -

Achieving compliance is one of the most challenging aspects of international law. International organizations are entrusted with the responsibility to monitor state compliance with international obligations, but often fail to do so. International regulation therefore becomes ineffective. The Article argues that the introduction of information technologies transforms this reality.

The Article explores the powerful potential of online compliance monitoring in three major fields of international regulation: health, environment, and human rights. It demonstrates that information technologies allow international organizations to actively search for and unearth otherwise unavailable information on state compliance. As part of this, the Article provides the first legal account of how information technologies enabled the World Health Organization to overcome state resistance and detect the early signs of the recent global pandemics - SARS and Swine Flu. Further, the Article suggests how comparable measures can be adopted by other international regulatory regimes.

Discussing the normative implications of this phenomenon, the Article posits that it can generate an unprecedented "global panopticon": a situation in which states lose control over sensitive information and can always be watched by non-governmental bodies. The Article discusses the repercussions of this new reality, and offers a legal framework that mitigates the adverse effects of this “panopticon” while bolstering its benefits.

All in all unpersuasive.

'Much Ado About Data Ownership' by Barbara Evans in 25 Harvard Journal of Law and Technology (2011) suggests that -

Recently there have been calls to clarify ownership of data held in large health information networks. This article explores the realities of what patient data ownership would imply to explain why a clearer allocation of entitlements to raw health data would neither enhance patient privacy nor promote access to valuable data resources for public health and research. It updates the debate to account for the 2009 HITECH Act, which correctly recognized that raw patient data are not the valuable resource; these data acquire value only through the application of infrastructure services. The HITECH Act drew on a long tradition of American infrastructure regulation that offers real promise in resolving the infrastructure bottlenecks which (rather than the unresolved status of data ownership) have been the key impediment to data access. Despite this progress there are two unresolved problems, both heretofore neglected in the literature: First, the existing federal regulatory framework governing data access conceives the state’s police power to use data to promote public health much more narrowly than the police power is conceived in all other legal contexts. Second, existing regulatory provisions allowing nonconsensual access to data for research fail to incorporate any “public use” requirement to ensure that unconsented research uses of data are justified by a publicly beneficial purpose. As things stand, persons whose health data are used in research have no assurance that the use will serve any socially beneficial purpose at all. This article reframes the debate. The right question is not who owns health data. Instead, the debate should be about appropriate public uses of private data and how best to facilitate them while adequately protecting individuals’ interests.

Evans concludes that -

Many Americans share "a common belief that, today, people must be asked for permission for each and every release of their health information". They are mistaken. At all times in our nation’s history, there have been pathways for nonconsensual use of health data. The Institute of Medicine recently recommended moving away from a consent-based model altogether for certain types of health informational research and replacing it with two alternatives: one would rely on certified entities, operating under strict privacy and information security requirements, to manage data uses; the other would rely on "waiver of informed consent by an ethics oversight board". The waiver provisions of current regulations were never designed to serve as the gateway for nonconsensual use of data and they have multiple flaws. Data propertization will not solve these problems.

Psychologists have observed that feelings of ownership "are so basic to the human psyche that communities will create rudimentary property rights even in the absence of formal legal structures". Modern utilitarian property theory has not fully eradicated the popular conception of property “as an extension of the human person". This personhood-based account of property is implicit in the tendency to link property and privacy and may account for the strong urge people feel to consider ownership as a way to address data privacy and access issues. This urge must be resisted. It distracts from the more important questions, "What is an appropriate public use of private data?" and "How shall we make that decision?"

The Ellsberg Model

'What if Daniel Ellsberg Hadn't Bothered?'(University of Minnesota Law School Legal Studies Research Paper Series Research Paper No. 11-23) by Heidi Kitrosser uses “constitutional counterfactuals” in asking what difference, if any, did the leak and subsequent publication of the Pentagon Papers make?

Despite this author’s vast enjoyment of several classic movies and television episodes featuring parallel worlds, this essay does not build a counterfactual universe in which Daniel Ellsberg never leaked the Pentagon Papers. It hints at such a world indirectly, however, by considering the difference that Ellsberg’s leak made in the universe that we do occupy.

This essay considers the impact of the Pentagon Papers leak on public and judicial attitudes toward secrecy-based assertions by the executive branch. I use the term secrecy-based assertions to cover two types of claims: claims that information must be kept secret to protect national security, and claims that the public would understand and bless the government’s actions if only the public could see the information that they are not permitted to see. This essay argues that the Pentagon Papers leak and its aftermath helped set in motion a process of social learning – albeit a non-linear one with plenty of limits and setbacks - that continues to this day on the dangers of excessive deference to secrecy-based assertions by the government.

With respect to assertions that the public would bless the government’s actions if only it knew what they know, the Pentagon Papers were widely viewed as giving lie to such claims as they related to the Vietnam War. The Papers’ revelations impacted Americans’ willingness to take on faith the honesty and competence of their government. Nor was this impact lost on the Nixon Administration, whose paranoia skyrocketed in the wake of the leak, contributing to a chain of nefarious activities that led to Nixon’s resignation and further catalyzed public distrust in government. This state of affairs led among other things to an influx of newly elected congresspersons championing restraints on the executive branch. Yet these events also gave rise to an influential and continuing backlash against restraints on presidential power, one that became most evident during the administration of George W. Bush and continues in the Obama Administration. As the backlash and the ongoing influence of its attendant constitutional claims illustrate, the impact of the Pentagon Papers leak on public, political, and judicial deference to executive power is hardly straightforward. Nonetheless, a key impact of the leak – indeed, the reason that it gave rise to so strong and continuing a backlash– is that it serves as a permanent, high-profile reminder that lies, mistakes, and incompetence may well lurk behind a government admonishment to “‘trust the President because only he [He?] knows the facts.’”

Closely related to wariness toward government claims of expertise based on secret knowledge is another type of skepticism fostered by the Papers’ leak: that toward government claims that information must be kept secret in the name of national security in the first place.

The impact of the latter, like that of the former, is hardly unmitigated. For example, the case law is littered with instances before, after, and even during the period of the leaks and ensuing scandals in which courts defer heavily to national-security based pleas to keep information secret. Furthermore, even as the Supreme Court refused to grant a prior injunction to prevent the Papers’ publication, a number of Justices suggested, in concurring and dissenting opinions, that post-publication punishment might be constitutional if authorized by statute.

Nonetheless, the leak of the Papers constitutes a moment of social learning embedded in our national psyche, counseling us to suspect overreaching when the government invokes national security to justify secret-keeping. Indeed, there is good reason, on which I elaborate below, to believe that the federal government would be less restrained than it currently is in punishing leaks of classified information were it not for the Pentagon Papers experience.

Pragmatism, Populism and Copyright

Thomas Cotter in 'Legal Pragmatism and Intellectual Property Law' (University of Minnesota Law School Legal Studies Research Paper Series Research Paper No. 11-22) advocates rejection of 'foundationalism' in favour of 'legal pragmatism'.

That foundationalism is -

the idea that any one body of law can be adequately explained by some grand theory, united by a single goal or value, or logically deduced from certain foundational principles.

Legal pragmatism instead is based on the idea that knowledge is instrumental and that, in turn, legal rules as well should be evaluated more by their practical consequences - consequences that may, it seems, be assessed from an economic perspective with a Chicago school flavour - than by their formal consistency or conformity to some abstract grand theory. Cotter emphasises the importance of "practical reason, the practice of making rational decisions in light of uncertainty" before going on to suggest that

that a legal pragmatist approach to IP law has both strengths and weaknesses. Among the strengths of such an approach are its recognition of the competing values that animate IP policy and doctrine; its understanding of the limits of both instrumental and natural rights theories in explaining and shaping the contours of IP rights; and its appreciation for the common law method of incrementally adapting doctrine to changing circumstances — in the present case, to changing technological environments. At the same time, however, some versions of a legal pragmatist approach risk exacerbating certain negative trends in the evolution of IP law and policy. An approach that naively embraces totality-of-the-circumstances tests, for example, may induce IP users to overcomply with their legal obligations and thus raise social costs without a commensurate public benefit. Similarly, an approach that overemphasizes the unquantifiable and the incommensurable may inhibit the use of economic analysis as a tool (albeit an imperfect one) for precisely stating one’s assumptions, predicting consequences, and testing results; and, more generally, may blunt the critical edge necessary to counter the ever-expanding scope of some IP rights. Policymakers, in short, should avoid the temptation to turn legal pragmatism’s antifoundationalist stance into a rigidly foundational principle of IP law and policy.

There is a more grounded approach in Stuart Banner's crisp American Property: A History of How, Why and What We Own (Cambridge: Harvard University Press 2011), which explores the history of spectrum licencing, patents, personality rights, real property and other rights in the US.

'Copyright and Social Movements in Late Nineteenth-Century America' [PDF] by Steven Wilf in 12(1) Theoretical Inquiries in Law (2011) argues that -

The cultural turn in copyright law identified authorship as a rhetorical construct employed by economic interests to strengthen claims to property rights. Grassroots intellectual property political movements have been seen as both a means of countering these interests’ everexpanding proprietary control of knowledge and establishing a more public regarding copyright system. This Article examines one of the most notable intellectual property political movements, the emergence of late nineteenth-century agitation to provide copyright protection for foreign authors as a social movement. It places this political and legal activism within the larger framework of Progressive Era reform. During this period, activists promoted the idea of the public — and not simply the author — as primary to the workings of American copyright. The framing of the purposes of copyright, the appeal to a broader public, and the complex negotiations surrounding the passage of an international copyright act after a long period of gestation was formative to the creation of modern United States copyright law. Ironically, the movement for international copyright also sharpened the identification of interest groups. The first modern American comprehensive copyright legislation, the 1909 Copyright Act, was drafted by gathering together these groups for negotiations remarkably similar in style to those which led to the protection of the rights of foreign authors — but which would strongly embrace a proprietary model.

Wilf's article is complemented by 'The Origins of American Design Protection' from Jason Du Mont & Mark Janis. Those authors comment that -

Design patent protection is the oldest American form of intellectual property protection for ornamental designs, but still the most enigmatic. Congress passed the first design patent legislation in 1842, operating on the assumption that existing rules for utility patents could be incorporated en masse to protect designs. This Article questions that assumption. Drawing on new archival research and historical analysis, this Article demonstrates for the first time how the design patent system originated. We analyze the international trade aspects of the first design patent legislation, linking the legislation with a brief burst of protectionist measures associated with the Whig party. We also examine technological innovations that ushered in the first major era of American industrial design in key antebellum industries, and we analyze lobbying efforts on behalf of those industries that led to proposals for early design protection, proposals that did not assume the incorporation of patent rules. We also prove for the first time how the American design patent system originated as a knock-off of British copyright and registered design legislation, and why the American system was likely forced into a patent rubric. Finally, we conclude by offering concrete suggestions for the courts and Congress to ease the design patent system back to its original roots.

Summary Justice

Reading the 38 page Exercising Discretion: The Gateway to Justice report [PDF] from Her Majesty's Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate.

The report looks at cautions, penalty notices for disorder and restorative justice in England and Wales. It has been read by the UK mass media as indicating that "100,000 criminal offences wrongly result in an 'out of court disposal' every year" and more persuasively that "there is a need for a new approach, with greater consistency and transparency in the use of out-of-court disposals".

The authors kick off the executive summary by noting that -

In 1951, Sir Hartley Shawcross, who was then Attorney General, stated that 'It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution'. He continued with what is regarded as a classic statement on public interest: that there should be a prosecution 'wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest' ...

Offenders should never be allowed to think that they are immune from the law and from the consequences of committing crimes. However, this does not mean that every offender caught by police must be prosecuted in a criminal court in order to administer a just outcome. Effective justice that fits the circumstances of the crime can be achieved for victims and offenders – particularly young people – outside the formal court system by adopting different methods of dealing with crime. As a rule of thumb, where there is sufficient evidence, serious offences and perpetrators who carry on offending despite being given appropriate chances to stop need to be dealt with in court. Less serious cases can be dealt with using approaches known as ‘out-of-court disposals’, always provided that these are a proportionate response to the offence or offender. Such methods have often been called ‘diversions’ from the criminal justice system; but in recent years they have been applied widely to an increasing number of cases, with the result that they are now a substantial area of practice in their own right.

The most commonly used out-of-court disposals are cannabis warnings, cautions (simple or conditional) and penalty notices for disorder. In addition, ‘Restorative justice’ is now often included in this category, although it can also be used after a conviction at court.

These forms of justice are designed to simplify and speed up dealing with less serious offending. They were introduced as a proportionate response to so-called low-level crime. They do not require as much paperwork as a court case and when used effectively in neighbourhoods and communities can be a very efficient way of dealing with offending ‘on the spot’, particularly when police officers are able to check the identity and history of offenders using mobile technology. They are also generally less expensive.

Where there is sufficient evidence, police officers and prosecutors are responsible for deciding whether to send offenders to court or deal with them with such disposals. They therefore act as a gateway to criminal courts, and so play a vital part in the management of the criminal justice system, ensuring that the right cases are sent to court and less serious cases are managed effectively, using the appropriate disposal for the offence, offender and victim. The exercise of this discretion is not unfettered and sometimes the decisions are not as straightforward as they initially appear; but since the results have significant consequences for the victims of crime, offenders and communities it is important that there is real transparency and accountability for the decisions made.

Founded on that philosophy, the two agencies "conducted a focussed, indicative study of a small number of cases to look more closely at out-of-court disposals and the contribution they make in the fight against crime", asking is justice being served by making the right decisions in most cases and is there a wider understanding about why some offenders go to court and others do not?

The report notes that in 2009, 38% of the 1.29 million offences 'solved' by police were dealt with outside of the court system. It concludes that use of out-of-court disposals has "evolved in a piecemeal and largely uncontrolled way". Restorative justice may increase victim satisfaction and reduce re-offending but -

substantial growth in the use of out-of-court disposals has created some disquiet among criminal justice professionals over inconsistencies in their use, in particular for persistent and more serious offending. We found wide variations in practice across police force areas in the proportion and types of offences handled out of court.

In response "the time has come to formulate a national strategy to improve consistency in the use of out-of-court disposals", drawing on good practice, promoting understanding, reducing excessive variations, improving victim satisfaction, reducing re-offending and of course providing value for money.

The authors indicate that they are "acutely aware of the challenge that a national strategy may increase the bureaucratic burdens of prosecutors and police officers", commenting that they "do not believe that such increases are an automatic consequence", in contrast to -

more definite consequences to decisions about whether someone enters the formal criminal justice system or receives an out-of-court disposal: an individual’s chance of getting a job or travelling abroad can be affected, for instance, and there may be wider implications for public confidence.

The agencies found that the use of out-of-court disposals varied considerably across all 43 force areas in England and Wales in 2009, from 26% to 49% of all offences brought to justice.

Not all out-of-court disposals carry the same obligations of disclosure to a court or an employer, with the choice of disposal potentially impacting on an individual’s future prospects. The choice may be for bureaucratic reasons -

An offender in one area may be dealt with by way of restorative disposal for a first offence, whereas in another area he or she might have received a caution – which is visible in a Criminal Records Bureau (CRB) check. We did not find any force with an explicit policy to increase their use of out-of-court disposals. Where greater use is evident, this is linked in some places to a strong emphasis on achieving targets associated with improving performance in the level of offences brought to justice. Target chasing has not been conducive to the effective exercise of discretion.

The report goes on to note that -

There are clear time benefits for some disposals: for example, issuing a PND on the street as opposed to at a police station after arrest saves nearly three hours of police time. Charging the offender would take almost five hours more, as well as the time taken to deal with the case in court, where the offender’s first appearance may occur several days or weeks later. Further work is required, however, to assess administrative processes and times spent preparing and presenting the case in court, and to provide a more comprehensive estimate of potential savings and efficiency improvements.
Given the high victim satisfaction rate for conditional cautions, it is clearly a frustration to police that each one takes, on average, an extra hour to complete compared to a simple caution (due to the additional requirements to send it to the Crown Prosecution Service (CPS) for a decision). Police officers regard this as unnecessary bureaucracy that is deterring use of an effective and otherwise popular option, while CPS staff hold mixed views about who ought to be making the decision to issue conditional cautions.

The report concludes that -

Because out-of-court disposals have developed in a piecemeal fashion, they have not been regulated with the same intensity as the more formal criminal justice system. The expression ‘out-of-court disposals’ perpetuates a sense that they are much less important than a disposal in court – in effect a soft option. If there is to be a real change in this perception a greater understanding about what amounts to a proportionate response to offending will be necessary.

We identified wide variations in the application of out-of-court disposals, which go beyond the local differences one would naturally expect. We identified particular concerns about the use of out-of-court disposals for persistent offenders. Recording practices may have contributed to this difficulty.

It is not possible or desirable to strive for consistency at the expense of local discretion – but wide variations in practice may lead to a perception, real or imagined, of unfairness. And there is nothing more likely to diminish public confidence in the criminal justice system in its widest sense than a sense of unfairness. Greater consistency in the choice of out-of-court options in individual cases will influence public confidence in the criminal justice system: and there are now opportunities to achieve this, as traditional targets are swept away. ....

The current out-of-court disposal regime was found to be a legitimate and time-efficient option for dealing with less serious crimes. We have identified areas of good practice where out-of-court disposals have been used to achieve speedy disposals for minor offending which were both cost effective and proportionate, particularly when that 'disposal' was administered quickly after the event and in consultation with the victim, providing feedback whenever possible. We found that the level of victim satisfaction hinged largely upon the extent to which they have been kept informed and updated.

The application of sound commonsense principles should go a long way in remedying some of the difficulties we have identified. Perhaps the key to making the right decision is for the decision-maker to ask: ‘If all the facts and circumstances of this case were published, what would the public think?’

Photo-tagging

The NY Times reports that the leading European Union data protection regulators will investigate Facebook over privacy aspects of photo-tagging, specifically use of face-recognition software to suggest people's names for tagging in pictures without their permission.

The Article 29 Data Protection Working Party and individual EU privacy watchdogs will study Facebook's practice for possible rule violations, with regulators in Ireland and the UK for example considering the photo-tagging function on Facebook.

Gérard Lommel of the Working Party is reported as commenting that -

Tags of people on pictures should only happen based on people's prior consent and it can't be activated by default.

Facebook, recurrently criticised for volatile privacy policies (and for an apparent willingness to disregard privacy principles through unheralded introduction of new features that are belatedly withdrawn in response to consumer criticism) reportedly explained that -

We launched Tag Suggestions to help people add tags of their friends in photos; something that's currently done more than 100 million times a day. Tag suggestions are only made to people when they add new photos to the site, and only friends are suggested.

We might question that defence: just because a large number of consumers (naive or otherwise) do something does not mean that it is right. In March this year Facebook indicated that it planned to provide user addresses and mobile phone numbers to third-party application developers, and might disclose the home addresses and mobile numbers of minors. Such provision might delight application developers but is not legitimate merely because the cash registers jingle.

The Tag Suggestion feature is the default in the accounts of existing Facebook users. Interested in fixing the default? Facebook charmingly points you to its blog, which explains how users can disable the function if they do not want their names to be automatically suggested for other people’s pictures. A better practice would be to ensure that the photo-tagging feature is not the default and that instructions for disablement were clearly identified in each user's control panel, so that people were not forced to scrabble around in the Facebook blog. A express and proactive commitment by Facebook not to independently use face recognition is desirable.

Unsurprisingly, Lommel comments automatic tagging suggestions "can bear a lot of risks for users" and the European data protection watchdogs will "clarify to Facebook that this can't happen like this". Another Working Party member commented that -

We would expect Facebook to be upfront about how people's personal information is being used. The privacy issues that this new software might raise are obvious.

Facebook's history raises questions about whether it will indeed be "upfront" and whether it will abide by any commitment in the absence of regulation.

In the United States EPIC has indicated it plans to file a complaint with the Federal Trade Commission over the feature.

EU Directive on access to a lawyer

Reading the proposed Directive of the European Parliament and Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest [PDF].

The proposal aims to set common minimum standards on the rights of suspects and accused persons in criminal proceedings throughout the European Union to have access to a lawyer and to communicate upon arrest with a third person, such as a relative, employer or consular authority.

The proposal is the third stage in a series of measures identified in the 30 November 2009 European Council Resolution on a 'Roadmap for strengthening procedural rights of suspects and accused persons in criminal proceedings'. Those measures were tied to the Stockholm Programme approved by the Council in December last year and represent -

a comprehensive package of legislation to be presented over the next few years, which will provide a minimum set of procedural rights in criminal proceedings in the European Union.

The first stage was Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation. The second stage ("currently under negotiation on the basis of a Commission proposal") concerns the right to information regaring criminal proceedings, setting out minimum rules on "the right to receive information on one’s rights, and on the charges, as well as on the right of access to the case file".

The proposed Directive noted here is based on Article 82(2) of the Treaty on the Functioning of the European Union, which provides that -

to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.

The Directive thus "seeks to improve the rights of suspects and accused persons", with the Commission commenting that -

Having common minimum standards governing these rights should boost mutual trust between judicial authorities and thus facilitate the application of the principle of mutual recognition. A certain degree of compatibility between the legislation of Member States is pivotal to improve judicial cooperation in the EU.

The Commission notes that -

Article 47 of the Charter of Fundamental Rights of the European Union stipulates the right to a fair trial. Article 48 guarantees the rights of the defence and has the same meaning and scope as the rights guaranteed by Article 6(3) of the European Convention of Human Rights & Fundamental Freedoms (ECHR). Article 6(3)(b) ECHR stipulates that everyone charged with a criminal offence has the right ‘to have adequate time and facilities for the preparation of his defence’ while Article 6(3)(c) enshrines the right ‘to defend [one]self in person or through legal assistance of [one’s] own choosing’. Article 14(3) of the International Covenant on Civil & Political Rights contains very similar provisions. Both the right of access to a lawyer and the right to communicate upon arrest provide formal safeguards against ill treatment and thus protect against a potential breach of Article 3 ECHR (prohibition of ill treatment). The right to communicate upon arrest promotes the right to respect for private and family life in Article 8 ECHR. The 1963 Vienna Convention on Consular Relations provides that, on arrest or on detention, a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.

The European Court of Human Rights has repeatedly held that Article 6 of the ECHR applies to the pre-trial stage of criminal proceedings and that a suspect must be offered the assistance of a lawyer at the initial stages of police questioning and as soon as deprived of liberty, irrespective of any questioning1. The Court has also ruled that these guarantees must apply to witnesses whenever they are in reality suspected of a criminal offence, as the formal qualification of the person is immaterial.

The proposed Directive indicates that

A suspected or accused person deprived of his liberty should be entitled to communicate upon arrest with at least one person named by him, such as a family member or employer. Member States should also make sure that the legal representatives of a child suspected or accused of crime are informed as soon as possible that the child has been taken into custody and the reasons why the child has been taken into custody, unless it is contrary to the best interests of the child. This right should only be subject to derogation in very limited circumstances.

Where the detained person is a non-national, it is appropriate for the consular authorities of the person’s home state to be informed. Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the 1963 Vienna Convention on Consular Relations, which provides that on arrest or on detention, a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.

Apotheosis

From James Lundberg's review in Slate of Ken Burns' The Civil War -

The Civil War is a deeply misleading and reductive film that often loses historical reality in the mists of Burns' sentimental vision and the romance of [Shelby] Foote's anecdotes. Watching the film, you might easily forget that one side was not fighting for, but against the very things that Burns claims the war so gloriously achieved. Confederates, you might need reminding after seeing it, were fighting not for the unification of the nation, but for its dissolution. Moreover, they were fighting for their independence from the United States in the name of slavery and the racial hierarchy that underlay it. Perhaps most disingenuously, the film's cursory treatment of Reconstruction obscures the fact that the Civil War did not exactly end in April of 1865 with a few handshakes and a mutual appreciation for a war well fought. Instead, the war's most important outcome—emancipation—produced a terrible and violent reckoning with the legacy of slavery that continued well into the 20th century.

These are important realities to grasp about the Civil War, but addressing them head on would muddy Burns' neat story of heroism, fraternity, reunion, and freedom. It would also mean a dramatically reduced role for Foote, the film's de facto star. Foote's wonderful stories and synopses of the war's meaning, which manage to be at once pithy and vague, cast a spell on the viewer. When Foote tells us that "the Civil War defined us as what we are and … opened us to being what we became, good and bad things," we may not be quite sure what he means. But his accent, his beard, and his hint of sadness incline us to think there must be profound depths in his tortured language.

Too often, Foote's grand pronouncements and anecdotes become substitutes for more serious consideration of difficult historical dynamics. In the first episode, 'The Cause', Foote nearly negates Burns' careful 15-minute portrait of slavery's role in the coming of the war with a 15-second story of a "single, ragged Confederate who obviously didn't own any slaves." When asked by a group of Yankee soldiers why he was fighting, the Rebel replied, "I'm fighting because you're down here," which, according to a smirking Foote, "was a pretty satisfactory answer." In similar fashion throughout, Foote asks us to put aside the very troubled political meanings of the Confederate Lost Cause and join him in an appreciation of both its courtly leaders and its defiant rank-and-file soldiers.

Foote's powerful and affecting presence in the film would be less problematic if he shared airtime more equally with other talking heads. However, as he gets the starring role and the literal last word of the film, Foote creates an irresolvable tension at its center. As much as we want to remember the Civil War as a war for freedom, emancipation, and the full realization of American ideals, there is Foote calling us into the mythical world of the Confederacy and the Old South in spite of all they stood for.