SSN

A million here, a million there ... they soon add up.

The NY Times reports that "theft of tax information from a South Carolina computer system appears to have been the largest cyberattack ever on a state government and has put other states on high alert". 

The state announced late last month that an international hacker had stolen 3.6 million Social Security numbers and 387,000 credit and debit card numbers. Now tax departments across the country are inspecting their own security systems. “When one employee’s laptop gets stolen, it’s a big deal,” said Verenda Smith, the deputy director of the National Federation of Tax Administrators. “So you can imagine the reverberations when this news came out.” Since 2005, at least 11 state tax agencies have faced security breaches, according to the Privacy Rights Clearinghouse, a consumer rights group. But most were caused by internal accidents, not attacks, and none were on this scale. ...

The hacking has raised questions about whether South Carolina was unprotected or simply unlucky. Most of the stolen credit cards were encrypted, but the Social Security numbers were not. The computer system that was hacked did not have a free layer of security monitoring offered to all South Carolina agencies, according to the State Budget and Control Board.

In a lawsuit filed last Wednesday, a former state senator, John Hawkins, said the state had failed to protect taxpayers and had not reported the attack promptly. The tax agency detected the attack on Oct. 10 and, after notifying federal authorities, alerted the public on Oct. 26.

“Obviously these hackers picked South Carolina because it was vulnerable,” Mr. Hawkins said. “I equate it to a burglar going into a neighborhood. He’s going to break into the house with no alarms and the door open.”

The Times notes that Social Security records for 3.5 million people were inadvertently disclosed on a Texas state government computer server. In Georgia in 2007 a disk containing personal information on 2.9 million people went AWOL. I've elsewhere noted the exposure by  the federal Veterans Affairs Department in 2006 of records regarding 26.5 million people.

 Gov. Nikki R. Haley said that South Carolina had a state-of-the-art security system but that the hacker nevertheless found a way around it. Her office said on Friday that it was encrypting all tax files to reduce the harm if any were stolen, and that the process would be completed within 90 days. The state is paying up to $12 million to provide a free year of credit monitoring and identity theft prevention to anyone affected. Last Wednesday, the state disclosed that tax records for 657,000 businesses had also been hacked. Anyone who has filed a tax return since 1998 has been urged to contact state law enforcement officials. By last Thursday, 653,000 people had called the state’s emergency hot line, and 521,000 had signed up for identity protection.

In Australia the latest revelation of a data breach has been more prosaic, with the SMH reporting that  a security flaw - one that's readily forseeable - exposed up to 500 Dodo Power & Gas customer statements (inc customer names, addresses, power usage details and account numbers) on Dodo's website on Friday.

The flaw was revealed when a Dodo customer contacted Fairfax to say she was able to change the randomly generated eight-digit number of her statement's URL on the Dodo Power & Gas website to another, similar one to see other customers' statements. 

Dodo chief Larry Kestelman says the company will investigate the security breach. 

News Limited has reported similar flaws at Australia Post, which allowed customers of the postal service to see the names, addresses, businesses, email addresses, landline and mobile numbers of Australia Post recipients by manipulating an Australia Post web portal's URL. 

Dodo chief executive Larry Kestelman said Dodo regretted there was an "IT issue" that had caused a "small number of customer statements to be exposed". He said the problem had been fixed and Dodo would conduct an investigation to understand what caused the problem and how to stop it from happening again.

Libel Tourism

'The Problem of Trans-National Libel' by Lili Levi in LX(2) American Journal of Comparative Law (2012) comments that

 Forum shopping in trans-national libel cases "libel tourism"­ has a chilling effect on journalism, academic scholarship and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legisla­tively. In 2010 the United States passed the SPEECH Act which prohibits recognition and enforcement of libel judgments from juris­ dictions applying law less speech-protective than the First Amendment. In Britain consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. 

This Article questions the extent to which the SPEECH Act and the Draft Defama­tion Bill will accomplish their stated aims. The SPEECH Act provides little protection for hard-hitting investigative and accountability jour­nalism by professional news organizations with global assets. The proposed British bill has important substantive limits. Moreover even if Parliament approves reform legislation discouraging libel tourism such actions may shift to other claimant-friendly jurisdictions. Global harmonization of libel law is neither realistic nor desirable. Instead this Article proposes a two-fold approach. On the legal front, it supports the liberalizations of Britain's proposed libel reform legislation and calls for foreign courts when assessing the significance of contacts to the forum in cases affecting the United States to consider seriously the importance of extensive First Amendment protections for political speech to the American concept of democracy. In addition the Article calls for voluntary initiatives such as: 1) new approaches to help defend trans-national defamation claims when they are brought; and 2) measures to reduce the number of trans-national libel cases by improving the way in which the press does its job. The defense measures explored include the development of community-funded (rather than media-supported) libel defense funds; the formation of pro bono libel review consortia; and alternative approaches to increasing the availability of libel insurance. The recommended press-improvement measures include expanded access to documents, as well as the enhancement of accountability measures such as best-practices education, journalistic self-criticism, and updated codes of conduct.

Constructions

'Disability Trouble' by Bradley Areheart in 29 Yale Law & Policy Review (2011) comments that

In the 1960s, the term “gender” emerged in the academic literature to indicate the socially constructed nature of being a man or woman. The gender/sex binary soon became standard academic fare, with sex representing biology and gender representing sex’s social construct. However, in the 1980s feminists became concerned the gender/sex binary – by effectively designating sex as non-social – left room for biological determinism. These feminists made “gender trouble” in part by arguing biological sex was a social concept. The resulting scholarship on sex and gender enriched feminist thought and catalyzed civil rights through an expansion of legal protections. 

An almost identical binary exists for disability, the disablement/impairment binary, in which writers characterize disablement as the social construct, and impairment as the disabled person’s body. This disability binary has received sparse critical attention; while few legal scholars have provided ringing endorsements, none have provided a systematic critique of the binary or examined the legal implications attendant to such a critique. Yet, just as with legal scholarship on gender and sex, there are important legal implications to making further sense of the meaning of disability. 

In this Article, I make disability trouble by arguing disability is more socially constructed than acknowledged. In particular, and contrary to most literature, I argue that biological impairment is itself a social concept. Initially, I explain how impairment, according to those who coined the disability binary, appears to be little more than diagnosis. From there, I argue, using concrete examples, that both the creation of diagnoses and acts of diagnosis are social processes. Finally, I examine the legal implications of disability trouble.

Carriage Circuses

From Lilian Edward's discussion in the INFORRM blog of the 'Robin Hood Airport Case', Chambers v Director of Public Prosecutions [2012] EWHC 2157 (Admin) in relation to the UK Communications Act 2003 s 127 -

... s 127 prosecutions continue or are urged on by a public increasingly fed up with an increasing variety of online racist bullies, trolls, stalkers etc. For example, in early 2012 racially motivated tweets posted relating to the footballer Stan Collymore were also prosecuted under this legislation. In late September 2012, Neil Swinburne, 29, was also prosecuted under s 127 for putting up a page apparently glorifying an alleged murderer of a policeman. Meanwhile on the very same day, the DPP, Keir Starmer, was driven by the rise of s 127 prosecutions and apparent mounting calls for its catch-all use in any case of disturbing content on social media, to declare that he would be issuing guidance on social media prosecutions. Asked to consider whether to prosecute Daniel Thomas, who had made trollish and homophobic tweets about the Olympic diver Tom Daley, the DPP indicated that s 127 should not be seen as a carte blanche for prosecuting content which, however upsetting to some, would normally fall with guarantees of freedom of expression in a democratic society. In particular he quoted the seminal ECHR case of Handyside v UK which says that freedom of expression includes the right to say things that ‘offend, shock or disturb the state or any sector of the population’ before concluding that prosecution in the Daley case would not be appropriate.

We therefore now await the promised guidance. But as the editor of the Society for Computers and Law journal has cogently pointed out, guidance on its own is simply not good enough. The law itself must have a quality of predictability and certainty, otherwise the rule of law is in jeopardy. This is especially true of a criminal provision which restricts freedom of expression. Why then, we might ask, is s 127 drafted so widely? Partly because, although it appears to be a modern post-Internet provision, its direct and very close antecedents actually date from long before the Internet era and even before Handyside. These antecedents include the Post Office (Amendment) Act 1935 (and two subsequent PO Acts) – which dealt with messages sent by post and telephone – the British Telecoms Act 1981 and the Telecommunications Act 1984, s 43. Section 127 of the 2003 Act basically repeats the 1984 Act provision wholesale, itself almost a word for word repetition of these earlier Acts. The 1984 Act was notable for changing the scope to apply to any ‘public telecommunication system’ (a necessity following the deregulation of the state monopoly telephone network in 1981). This phrase itself was taken, it seems, from EC telecoms law, and causes problems of its own, debated in Chambers (see further below).

The legislative history of s 127 is usefully narrated in DPP v Collins (at [6]), a case involving a man who made repeated telephone calls to his local MP’s office asking for him to do something about the ‘black bastards’ – and similar even more unpleasant terms. He was charged with sending ‘grossly offensive’ messages under s 127. On appeal to the House of Lords, the charge against Collins was upheld but what is particularly interesting for present purposes lies in Bingham LJ’s analysis at [7] of what the purpose of s 127 is.

It is crucial here, parenthetically, to note that s 127 is hardly a lone legislative bulwark against Internet trolls and harassers. There is an abundance of law to deal with what the CPS calls ‘communication offences’ or alternately ‘public order offences’. Indeed so much law is available to charge social media content that appears to offend the (or a) public that it is often hard to find out from journalistic coverage exactly what legislation is being used, though the majority of cases involving Twitter do seem to use s 127. For example, in another recent controversial case, 19-year-old Azhar Ahmed was convicted of ‘racially aggravated public order offences’ after he posted an angry Facebook status update about the reporting of the latest British Army fatalities in Afghanistan. It appears s 127 of the Communications Act 2003 was used to charge in this case, but such cases could however also fall under the Public Order Act 1986 (POA), s 18 . By contrast, when Liam Stacey, a 21-year-old biology undergraduate, made ‘racially aggravated comments‘ (ie tweets) about footballer Fabrice Muamba, he was apparently charged under the Crime and Disorder Act 1998 before being sentenced to 56 days in jail. Other sections of the POA are also potentially relevant to social media comments: notably s 4A which deals inter alia with ‘threatening, abusive or offensive words’ which cause ‘intentional harassment, alarm or distress’.

The Protection from Harassment Act 1997 (PHA), which operates slightly differently in England and Scotland, has also been used successfully on several occasions to charge trolls who send repeated upsetting or vile messages to users on sites like Facebook and Twitter. The PHA prescribes that any two ‘acts’ which form a course of harassing conduct can be charged as a crime. These provisions were recently used by, eg, Nicola Brookes, who, to great publicity, won a Norwich Pharmacal order against Facebook in order to reveal the true names of, and start proceedings against, her online trolls under the 1997 Act. An Adjournment Debate in Parliament on 17 September 2012 noted not only these but also the possibilities of using the Public Order Acts and the Computer Misuse Act. Private civil damages can also be obtained both under the PHA and by common laws like libel.

Finally there also exists (albeit in England and Wales only), the Malicious Communications Act 1988 which, though little mentioned in recent social media cases, still exists and is of significance as a contrast to s 127. Again a pre-Internet statute, its original target seems to have been poison pen letters, although it was updated in 2001 to apply to ‘electronic communications’ – ‘oral or otherwise’ But the speciality of the 1988 Act is that it is intended to apply only to one-to-one exchanges and not to one-to-many broadcasting. It explicitly prescribes that the communication must be ‘sent to another person’.

Drones

The Australian Privacy Commissioner has written to the Attorney-General regarding the use of drones.

The one-page letter - perhaps five minutes of time out of the Commissioner's no doubt very very busy schedule - centres on the comment that

The Privacy Act does not however cover the actions of individuals in their private capacity, including any use of drones by individuals.

I understand that there are laws governing unlawful surveillance, stalking and harassment that may apply to the use of drones by individuals. It is unclear however whether those laws provide sufficient regulatory protection, including appropriate restrictions on unreasonable uses.

In particular, individuals who may be subject to surveillance via drone technology may not currently be able to seek appropriate or consistent redress across the Commonwealth. The statutory cause of action for privacy that is currently being considered by Government could be useful in this type of situation.

I suggest that it may be timely to review the current regulatory framework to ascertain whether it is sufficient to deal with any misuse of drone technology. It may also be appropriate to raise this issue with the Standing Council on Law and Justice.

To adapt E M Forster, 1.5 cheers for the valiant Commissioner, whose initiative so contrasts with more substantive analysis from his peers in Victoria and NSW.

Confidentiality

In Oswal v Burrup Holdings Ltd (No 2) [2012] FCA 1187 the Federal Court of Australia has found that company director Pankaj Oswal, who allegedly disclosed company information to a newspaper after being granted orders for inspection, is not guilty of contempt. The orders for inspection under Oswal v Burrup Holdings Limited [2011] FCA 609;(2011) 281 ALR 432 were granted subject to a condition which required the director to sign a confidentiality undertaking.

Barker J found that a confidentiality undertaking signed by the director had no effect as it had not been filed in court. The Court further found that there could not be a breach of implied undertaking where the director was merely vindicating his rights as a director by the orders in question.

The finding accompanies a cluster of judgments such as Commonwealth Bank of Australia v Oswal [2012] FCA 772 and Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal (No 6) [2012] FCA 590.

One party in the latter judgment is Comical Ali Militant Vegetarian Pty Ltd. So much for Chemical Ali!

Property and Philosophy

Three perspectives on power and theory ....

'Why Philosophers, Social Scientists, and Lawyers Think Differently about Property Rights' by Amnon Lehavi (2012) comments that

Property is a powerful concept. It features prominently in academic and public discourse. But it is also a source of ongoing confusion. While some of this disarray may be attributed to the success of “disintegrative” normative agendas, much of it is the result of a methodological and conceptual disconnect both within and among different fields of study. Aimed at narrowing this gap, this Article analyzes the transformation of property from a moral and social concept into a legal construct. It seeks not to develop a historical or intellectual account of such an evolution, but to analyze the institutional and structural features of property once it is incorporated into the legal realm.

The Article identifies the unique jurisprudential ingredients of a system of rules by which society allocates, governs, and enforces rights and duties among persons in relation to resources. It examines the work of decision-making institutions entrusted with the task of designing property norms over time. Clarifying the institutional and structural attributes of property does not require, however, adhering to a uniform body of substantive norms or to a single set of underlying values. Illuminating the construction of property allows rather for a better informed debate about the socially-desirable content of property rights.

Among excursions into theoretical cul de sacs see 'Post Race Posthaste: Towards an Analytical Convergence of Critical Race Theory and Marxism' by Donna Young in 1 Columbia Journal of Race and Law (2012) 499-510, which comments  -

Viewing United States antidiscrimination law through a Marxist lens helps to reveal weaknesses in the American approach to combating racism. Although Marxist theory is salient to the perpetual problem of American racism, it has been essentially ignored in the American approach. Consequently, Title VII jurisprudence has floundered in its lack of attention to some basic Marxist principles that would require an examination of capital from the perspective of those whose bodies and labor are owned and consumed through the process of capital accumulation.

As Marxism reminds us, looking at discrimination from the perspective of the worker reveals that the myriad forms of discrimination experienced in and beyond the workplace are part of a system of subordination that is: (i) supported by faith in free markets, and (ii) not amenable to the narrowly-drawn parameters of the American anti-discrimination framework. The framework, however, does fit nicely into a view of discrimination from the perspective of those put in the position of defending their conduct (the employer, the capitalist, etc.) because it treats discrimination as an uncommon, solitary, or purposeful act done by someone to someone else, not as a regular, systemic and necessary element of a capitalist system.

African Americans and other people of color seek redress for their racial injuries. However, if we are living in a post-racial society, one that is blind to race, then widespread redress makes no sense since widespread discrimination allegedly is a thing of the past. Therefore, it is worth asking, “if racial justice is about remembering racial injury, ha[s] our law made that memory impossible, erased by official color-blindness?” This question has been central to the study of law among Critical Race theorists since Critical Race Theory’s (CRT) inception. Therefore, an analytical convergence of CRT and Marxism should help disentangle the morass that is antidiscrimination law. The connection between Marxism and CRT can be appreciated by examining the limitations of civil rights laws in alleviating some of the most pressing social and political stresses on communities of color today. And yet, the connection seems to get lost beneath the din of those who claim that we are experiencing our first post-racial moment in a larger post-Marxist epoch. The aim of this Essay is to examine how a convergence of Marxism and CRT might enhance a critique of the U.S. Supreme Court’s interpretation of race discrimination under Title VII of the 1964 Civil Rights Act.

The answer? Young concludes -

How might Marxist theory contribute to the understanding that antidiscrimination laws are ineffectual in the context of free markets and post-racial dialogue? Marxism tells us that the conflict between the capitalist class and the working class is inherent in a capitalist system. Capitalists control the means of production and endeavor to increase profit by exploiting the working class. The working class sells its labor in return for wages. This working class majority, then, is interested in increasing wages and improving working conditions. Because capitalists have superior bargaining power, especially within the legal framework of at-will employment, they also enjoy more economic, legal, political and social power. Therefore, in order to end exploitation (the devaluation of their labor), the working class must work together to overthrow capitalists. Absent this revolution, however, the working class at least must form unions and other organizations to improve the quality of work (better wages, hours, and working conditions).

Racism has been and continues to be a constant and necessary component of American capitalism. It operates to divide the working class and indeed relegates large minorities to the underclass and thus prevents unified political action. The resulting weakness of bargaining power of the working classes maximizes profits by ensuring a wage system that undervalues the worth of labor. Ownership of capital is therefore equated with Whiteness and being owned or devalued with Blackness. Discrimination is a system not confined to the individual workplace, but one that permeates all workplaces and one that is essential to the structure of the free market itself. Yet because antidiscrimination laws have been incapable of addressing inequities inherent in a presumed race-neutral free market, we cannot rely on existing antidiscrimination laws to address the many ways in which racism is practiced. Due to the embedded nature of racism in American capitalism, concerted, organized resistance may be a promising avenue for meaningful social change.

I'm unpersuaded.

People who are underwhelmed by the dictatorship of the precariat but enthused by the likes of the quantum mysticism questioned here might turn to 'On Holism and The Contextual Character of Natural Qualities' by Vuk Uskokovic in 68(6) World Futures (2012) 406-429

Presented is a discourse on the contextual nature of physical qualities. The realistic and observational contexts in which a system exists are demonstrated as equally involved in defining its qualities. Each quality could be consequently considered as natural and experiential at the same time. The subsequently proposed thesis of the contextual co-definition of natural/experiential qualities in the relationship between the human mind and Nature is shown to possess numerous favorable ethical and aesthetical implications. The contextual nature of experiential qualities is further correlated with the holistic character of natural systems and events, which is illustrated by several real-life examples. A systemic approach to knowledge is shown to naturally emanate from the acceptance of the contextual definition of physical qualities and the holistic nature of experiences. Methodological problems of the standard, reductionist explanatory frameworks are additionally discussed with an emphasis on the major descriptive flaws of quantificational approaches and in respect to cybernetic and autopoietic organization of physical and biological systems. ....

Despite the fact that the beginnings of the Western tradition of wisdom are marked with the image of Socrates who allegedly (Plato 1984a). used to suddenly stop during his leisured walks and stand still for hours, deeply engaged in meditative thoughts, it seems as if humans nowadays neglect to look over their shoulders and occasionally revisit and revise the guidelines that steer the patterns of their abstractions and actions. Moreover, raising one's glances upward and looking for heavenly signs to fall upon one seems to have ceded place with an acceptance of worldviews that dictate that all that exists are no “Heavens” above, but particles yielding purely accidental phenomena while moving in random, Brownian way. This work challenges the latter worldview by exploring the steps that may reestablish faith in “the signs that fall from the Heavens above,” although through the perspective of scientific and philosophical reasoning. In the end, we might realize that the immanent divinity of the natural co-creation could be discerned by both observing the experiential foundations of one's being and raising views toward Heavens. So far, Socrates’ bright statuary posture that reflects his deep engagement in contemplation while carefully observing the patterns of the sky, or the vision of eternal Platonic beauty with Her eyes oriented toward the inner core of spiritual values and yet seeking signs of immanent divinity obscured in every detail and aspect of the world, may serve as a picturesque guidance on our way.

The concept of perceptual, reflective, and social co-creation of experiential phenomena has been in more details discussed in the author's previous works (Uskoković 2009a, 2009b, 2009c, 2011). To put it briefly, whereas objectivistic standpoints see individual experiences as resulting from passively detected physical outlines of an external world and their projections in terms of directly corresponding images on the cognitive screen of one's mind, constructivist stances claim that the world of one's experience is the product of autonomous construction of experiential wholes out of vaguely related pieces of the puzzle of raw environmental impulses. The concept of co-creation of experiential qualities adopts a middle ground with respect to these two ideas. The objectivistic proposition of perceptive observation and reflective discovery of ideas, and the constructivist proposition of perceptive construction and reflective invention of ideas are thus merged into the concept of perceptive and reflective co-creation of experiential qualities. Accordingly, all the products of one's perception and reflection can be seen as arising in the course of co-creational communication between mind and Nature, which implies creative involvement of both the subject and environmental stimuli in defining features of the subject's experiential reality. To what extent do these basic forms of human perception come from cognitive predispositions and the biological makeup of human organisms and to what degree are they influenced by natural processes around us is an unanswerable question since we are unable to untangle these two sides; as the co-creational thesis tells us, all the products of our perception and, consequently, reflections, reasoning and hands-on creations arise from the dialogue between mind and Nature. With the concept of co-creation defined, we can proceed to analyze the contextual and holistic character of natural phenomena. ... Interpretational contexts within which a being encompasses experiential features are continually co-created through interaction between the subject's sphere of questioning relationships directed towards an observed system and a realistic sphere of ontological relationships that connect the observed system with the rest of the world. Each co-created experiential detail could be, therefore, considered as a way that relates the observer with infinity of natural relationships, providing indirect encounters with the entire physical reality. In the opposite direction, all subtle thoughts and intentions may be similarly relatable to the entire existence and depicted thereupon as “messenger doves” that incessantly emit “waves,” inspiring and harmonious or disruptive and turbulent, that reach even the most desolate corners of the world.

And on and on it goes.

Uskokovic concludes

Approaching the final destinations and turning back to where the walk of this discourse has started from, we come to realization that there is indeed a necessity for occasional redirection of our cognitive views toward contextual skies of both realistic and idealistic ambiances in the course of their co-creational meetings from which all experiential qualities emanate. This may eventually transform one's cognitive stances into a spiral progression through constant balletic twirls wherein prudent and ponderous swirling backward so as to reach the epistemological foundations of one's reasoning and looking up towards contexts that endow experiential features with the shades of meaning and a sense of timeless beauty ceaselessly alternate with each other. Continuous interplay between the ontological, “heavenly sky” of Nature and the epistemological “sky of the soul” has been shown to co-create the features of all experiential/natural systems. While facing the realistic aspects of experiential horizons has the chance to overwhelm one with astonishing wonder, facing its subjective aspects corresponds to explorations of epistemological foundations of one's experience and their eventual enrichment with sacred treasures of life in terms of precious values, emotions, and aspirations. Wonder and Love can be, therefore, after all, glimpsed as a couple of mutually potentiating aspects of sublime acting in the world. And in the long and sacred quest for eternal beautification of the world, one may realize that this pair of aspects presents two poles of a single whole, wherein their endless interplay makes experiential worlds as the emanations of the divine to arise and evolve.