Materiality

'New materialisms: Foucault and the Government of Things' by Thomas Lemke in (2014) Theory, Culture & Society comments that

Recently, social and political theory has demonstrated a renewed theoretical interest in matter and materiality. The “new materialism”, as it is sometimes called (see e.g. Hird 2004; Ahmed 2008; Coole and Frost 2010a), does not represent a homogeneous style of thought or a single theoretical position but encompass a plurality of different approaches and disciplinary perspectives, ranging from science and technology studies via feminist theory and political philosophy to geography (Latour and Weibel 2005; Alaimo and Hekman 2008; Bennett 2010; Braun and Whatmore 2010a). The new materialist scholarship shares the conviction that the “linguistic turn” or primarily textual accounts are insufficient for an adequate understanding of the complex and dynamic interplay of meaning and matter. New materialists often stress that the focus on discourse, language and culture not only leads to impoverished theoretical accounts and conceptual flaws but also results in serious political problems and ethical quandaries, as it fails to address central challenges facing contemporary societies, especially economic change and the environmental crisis. 

The new materialism is the result of a double historical and theoretical conjuncture. The 1970s and 1980s were marked by the decline of once popular materialist approaches, especially Marxism, and the rise of poststructuralist and cultural theories. While the latter rendered problematic any direct reference to matter as naïvely representational or naturalistic, new materialists are convinced that the epistemological, ontological and political status of materiality has to be reconsidered and a novel concept of matter is needed. In contrast to older forms of materialism, the call for a new materialism refers to the idea that matter itself is to be conceived as active, forceful and plural rather than passive, inactive and unitary (Bennett 2004: 348-349; Alaimo and Hekman 2008; Colebrook 2008; Coole and Frost 2010b: 3-4). 

The “material turn” criticizes the idea of the natural world and technical artifacts as a mere resource or raw material for technological progress, economic production or social construction. It aims at a new understanding of ontology, epistemology, ethics and politics, to be achieved by overcoming anthropocentrism and humanism, the split between nature and culture, linguistic or discursive idealism, social constructivism, positivism, and naturalism. Central to this movement is the extension of the concept of agency and power to non-human nature, thereby also calling into question conventional understandings of life. 

In this strand of thought Foucault’s work plays an ambiguous role. While he is often mentioned as an influential source and inspiration for materialist scholarship, as his  genealogies problematize any stable concept of the “human” or the “subject”, he is also perceived as one of the most important representatives of discourse theory and the “cultural turn”, which is seen as disputing or negating the relevance of matter. In particular, Foucault’s concept of the body and his insistence on the productivity of power relations serve as positive references in the new materialism (see e.g. Coole and Frost 2010b: 32-33; Barad 2008: 127). His work stresses the materiality of the physical body and focuses on the mundane details of bodily existence and the technologies of power that constitute disciplined and docile bodies. Foucault thus helps to undermine “corporeal fetishism” (Haraway 1997: 143), which takes it for granted that bodies are self-identical, fixed and closed entities; his challenge lies in the way he analyzes the interplay of history and biology by demonstrating how the body in its materiality is affected and modified by power relations.

While many new materialists praise Foucault’s writings for the important insights they offer, his account of the body and power is mostly seen as only partly convincing and in the end unsatisfactory. Even though these scholars do not always explicitly engage with his work, there seems to be a general consensus that Foucault has to be subsumed under the category of social constructivism and anthropocentrism (see e.g. Braun 2008: 668). The charge is that Foucault’s work remains within the “traditional humanist orbit” (Barad 2007: 235), restricting agency to human subjects without taking into consideration the agential properties of non-human forces. 

This article offers a reconsideration – or in more ambitious terms a “diffractive reading” (Barad 2007: 71-94) – of this charge. I will show that contrary to this predominant and rather dismissive assessment, elements of a posthumanist approach may be found in Foucault’s idea of a “government of things”, which he briefly outlines in his lectures on governmentality. This theoretical perspective is informed by elements in Foucault’s writings, but it was never systematically developed there. I argue that while Foucault chose not to directly address the  problem of human and non-human relations, the idea of a “government of things“ addresses most of the critical points new materialists put forward in their reading of his work. Furthermore, it makes it possible to arrive at a relational account of agency and ontology that may open up an avenue for a more materialist account of politics and significantly differs from some problematic tendencies in the new materialism. Thus, the purpose of the following discussion is what Brian Massumi once termed “working from Foucault after Foucault” (2009: 158). 

I will start by presenting KarenBarad’s critical account of Foucault’s work on the body and power. Barad is one of the most influential and important representatives of contemporary materialist scholarship, and her appraisal of Foucault is one of the most elaborate. The second part of the article focusses on the idea of a “government of things”. By stressing the “intrication of men and things” (Foucault 2007: 97), this theoretical project makes it possibleto go beyond the anthropocentric limitations of Foucault’s work. As I will show in the third section, this perspective also suggests an altered understanding of biopolitics. While Foucault’s earlier concept of biopolitics was limited to physical and biological existence, the idea of a “government of things” takes into account the interrelatedness and entanglements of men and things, the natural and the artificial, the physical and the moral. Finally, I argue in the last part of the article that this theoretical perspective helps to clarify conceptual ambiguities and unresolved tensions in new materialist scholarship. It also points to weaknesses and limitations in how studies of governmentality and STS conceptualize politics.

'Heidegger without Man? The Ontological Basis of Lyotard’s Later Antihumanism' by Matthew R. McLennan in (2013) XXI(2) Journal of French and Francophone Philosophy 118-130 argues that

Jean-François Lyotard’s later antihumanism may be plausibly read as a radicalization of Heidegger’s, on the grounds that a) the philosophy of Being as Event or Ereignis forms the ontological basis of Lyotard’s antihumanism, and b) Lyotard reconfigures the place of the human being vis-à-vis the revelation of Being – specifically, denying that humankind is the clearing in which Being reveals itself, and therefore a privileged zone of dispensation. Rather, Being as Ereignis – linguistically cashed out for Lyotard, as phrases – structures the human being completely, denying human mastery of language and thereby decentring human beings as subjects of ethics.

McLennan comments that

In the following, “antihumanism” denotes a rejection of any and alla rejection of any and all systems of thought and discourse wherein a universal concept of the human, i.e. the human as such, forms the conceptual and ethical center of the universe and/or history. It is widely known that Jean-François Lyotard’s “pagan,” “postmodern” and later works are antihumanistic in this sense; less often discussed is the ontological grounding of this antihumanism in something very close to Heidegger’s philosophy of the event, or Ereignis. In what follows, I will reconstruct the mature Lyotard’s antihumanism as a radicalization of Heidegger’s, on the grounds that a) a version of the philosophy of Being as Ereignis forms the ontological basis of Lyotard’s antihumanism, and b) he reconfigures the place of the human being with respect to the revelation of Being. 

An overview of my argument runs as follows. The Heidegger of the “Letter on ‘Humanism’” speaks of Being as Ereignis. The term is usually rendered in English as “event,” but in Heidegger’s particular usage it is an event which gathers Being to itself while clearing it to itself. Put differently, Ereignis would be Being as the revelation of Being to itself qua the thinking of Being by human beings (i.e. the region of itself which is clear to itself). Heidegger’s rendering of Being as Ereignis is antihumanistic inasmuch as it configures human beings as the place of Being qua event, but not as the conceptual/ethical centre of the universe and/or history. Simply put, Being in itself transcends human beings. But Heidegger’s antihumanism cannot be said to be radical or thoroughgoing, inasmuch as it accords human beings an essential role in the thinking of Being and thereby a special kind of destiny and dignity. Lyotard for his part, from at least the pagan writings onwards, writes in terms favourable to Heidegger’s rendering of Being as event. However he radicalizes Heidegger’s antihumanism in denying that human beings have any essential role to play with respect to Being. They are entirely contingent effects of the event, possessing no special destiny or dignity. 

Though Lyotard did not often cite Heidegger directly as a source or inspiration, at least prior to Heidegger et “les juifs,” I believe my interpretation to be highly plausible for three reasons. First, what primary textual evidence there is, most notably in Le Différend, is highly favourable to the argument I will construct. Secondly, Lyotard’s intellectual context was awash in Heideggerian influence, and he undoubtedly imbibed a certain amount of Heideggerianism indirectly, for example via Levinas and Derrida, whose earlier post-Heideggerian philosophy I will briefly discuss. Indeed, as Luc Ferry and Alain Renaut have argued persuasively (if polemically), Lyotard’s generation of radical French philosophers – those whose thought they lump under the label “la pensée 68” – can be broadly characterized by their radicalization of the antihumanisms of several German thinkers (among which Heidegger is certainly counted). Finally, and most importantly, there is a striking structural homology between the antihumanisms of Lyotard and Heidegger, as well as between the ontological-linguistic presuppositions that generate them. In what follows I will favour a reconstruction of the homology in question, noting where, why and to what extent Lyotard and Heidegger differ. By way of support I will bolster my argument with textual and historical-philosophical evidence.

Elder Abuse

'Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia' by Wendy Lacey in (2014) 36(1) Sydney Law Review [PDF] comments

Australia's ageing population is growing and so too is the number of older persons who experience abuse. Divorce, ill-health, disability, the death of a partner, dependency, poverty, social isolation, gender, and even the accumulation of assets, can heighten a person's vulnerability to abuse - physical, social, sexual, psychological, financial or neglect. Addressing elder abuse from a legal and policy perspective is not, however, simple. Perceived Commonwealth dominance in the ageing portfolio, despite the lack of a comprehensive legislative mandate to safeguard older Australians; a lack of innovative legal reform at the state level; ageism; the invisibility of our older people; a lack of awareness within the community of both the prevalence, nature and the signs of elder abuse; together with the absence of an international normative framework for protecting the rights of older persons, have together created a situation where elder abuse is simply not widely acknowledged as a serious issue in Australia and is inadequately addressed under existing laws. This article examines the current legal situation in Australia and calls for a collaborative national strategy for preventing and responding to elder abuse, incorporating a rights-based approach to the review and reform of state and territory laws. Recognising that elder abuse involves the denial of a person's basic human rights, including the right to live free from abuse, exploitation or neglect, this article calls for a national inquiry into elder abuse by the Australian Human Rights Commission.

Lacey notes that

While most states and territories have demonstrated a clear desire to address the issue of elder abuse, there remain significant weaknesses in existing policy frameworks throughout Australia, including the following:

• all strategies, where they exist, are embedded in policy instruments rather than binding laws; 

• beyond serious cases where the criminal law is engaged (where the police can intervene), and cases where the victim suffers from mental illness or mental capacity (where mental health and guardianship legislation can be engaged), there is a lack of clear statutory mandates for the investigation of abuse by existing agencies; 

• because of the lack of a central, coordinating agency, there is no capacity for early (and statutorily mandated) interventions in suspected and actual abuse cases; 

• there is no statutory provision compelling agencies to work collaboratively and to share information in appropriate cases, which would facilitate early intervention and prevention strategies and overcome the restrictions of privacy law; 

• criminal provisions have not been reviewed to ensure that elder abuse is legally prohibited and susceptible to criminal prosecution; 

• different definitions of elder abuse used throughout the country could inhibit the benefits gained through data collection and the capacity to identify accurate incidence rates across Australia; and, 

• some state policies, in focusing very distinctly on elder abuse as abuse within a relationship of trust may be too narrowly framed to operate as comprehensive strategies for safeguarding older persons against all types of abuse (including, for example, scamming, abuse by a stranger), particularly with respect to the framing of criminal provisions and education programs.

With the exception of Queensland and the Northern Territory, every Australian state or territory has some policy framework for addressing elder abuse. Queensland does, however, have a dedicated seniors’ legal service and an information and referral service with arguably the most sophisticated approach to data collection. Most, but not all, Australian jurisdictions have a non-government agency with responsibility for handling phone enquiries and referrals in cases of elder abuse, but only three states currently have publicly funded legal services for seniors. The majority of helpline and referral services within Australia have only been established in the last five years, although both South Australia and Queensland have had services in place since 1997. The relevant policy instruments include the following:

• ACT’s ‘Elder Abuse Prevention Program Policy 2012’; 

• NSW’s ‘Interagency Protocol for Responding to Abuse of Older People 2007’; 

• Tasmania’s ‘Responding to Elder Abuse: Tasmanian Government Practice Guidelines for Government and Non-Government Employees 2012’; 

• Victoria’s Elder Abuse Prevention and Response Guideline for Action 2012–2014 and With Respect to Age — Victorian Government Practice Guidelines for Health Services and Community Agencies for the Prevention of Elder Abuse 2009; 

• South Australia’s Draft Strategy for Safeguarding Older South Australians 2014–2021. 

• Western Australia does not have a government policy, but the Alliance for the Prevention of Elder Abuse (‘APEA’) has developed a resource: Elder Abuse Protocol: Guidelines for Action.

In no jurisdiction is there a dedicated agency or unit with the mandate to investigate reported cases of abuse, compel another agency to provide information or cooperate in an investigation, convene multi- agency meetings or to seek specific orders to safeguard a vulnerable older person. Privacy laws around the country pose potentially significant hurdles to the sharing of information between agencies, given the lack of legislative provisions to modify their effect.  In all frameworks, the centrality of human rights to the policy is generally embedded in principles underpinning the document. However, South Australia’s Draft Strategy, released for public consultation in June 2013, and containing a new ‘Charter of Rights and Freedoms of Older Persons’, is the most human rights-focused document of the existing or proposed policies. The report that triggered both the review of the previous South Australian framework and the development of the new Draft Strategy — the Closing the Gaps Report — highlighted the systemic weaknesses in the existing framework within South Australia:

The present legal framework therefore provides protective frameworks for serious cases of abuse and for those who are particularly vulnerable due to mental illness or incapacity, but it does not provide a framework for less intrusive methods of intervention, or early intervention, and at a time when serious abuse or neglect could be avoided. In these respects, the current legal system is not preventative in nature and fails to provide an incremental approach to intervention that recognises degrees of vulnerability falling short of complete incapacity. In addition, there is presently a vacuum within which agencies and organisations operate, for the purposes of providing complementary and coordinated services to older persons. The lack of a legal or policy framework which requires or promotes inter-agency collaboration, together with information sharing guidelines, creates a vacuum within which providers must operate. The result is that any collaboration and coordination between agencies is largely left to the goodwill of individuals working within those agencies and can involve instances where an agency’s legal mandate is being creatively stretched beyond its actual limits. In such cases, workers can expose themselves and their employers to considerable risk, but in these instances such action can also reflect the only possible option for supporting an older person who is vulnerable to abuse. The potential can also arise for guardianship orders to be used, as an option of last resort, where less intrusive measures would have been more appropriate and more respectful of an older person’s rights and freedoms. 

None of these systemic issues — which apply equally to other jurisdictions where policy frameworks are in place — have been addressed in the new South Australian Draft Strategy. Closing the Gaps presents a compelling argument for the enactment of adult protection legislation at state level in Australia. However, the Draft Strategy is positive in that human rights are incorporated into the document, and it has the potential to encourage further innovation in the policies and protocols that are intended to be developed on the basis of it. Nonetheless, Closing the Gaps suggests that a policy framework is merely an interim option for South Australia and that only legislation in the form of adult protection legislation would effectively ‘close the gaps’ in elder abuse prevention and response protocols. Until then, any elder abuse strategy will suffer from major limitations in the capacity to intervene early in preventing — or at least preventing the escalation of — elder abuse, and in the capacity to respond effectively in reported or known cases of abuse. In Victoria, the recent Chesterman Report, while not going so far as the recommendations made in the Closing the Gaps Report, also made recommendations that would ultimately require expanding the role of the Public Advocate via legislative amendment. 

A recent session at a national conference held to mark World Elder Abuse Awareness Day included a national scan of strategies to prevent elder abuse by state and territory governments. The presentations highlighted a significant level of goodwill, yet vast differences in priority and funding accorded to the issue of elder abuse. The policy frameworks in existence in the majority of states and territories are simply inadequate in setting up a legal framework where the rights of older persons can be effectively protected. It would appear that there exists a lack of political will at the state level to drive legislative reform that would provide a legally effective framework for safeguarding vulnerable older persons, and a framework that would equip agencies effectively and lawfully to respond in cases of elder abuse. This lack of political will is partly, perhaps even principally, explained by the perception that the Commonwealth controls ageing as a portfolio and that the responsibility of the states is limited to implementing federally funded programs. This perception is based on a flawed understanding of the scope of both the Commonwealth and state legislative responsibilities with respect to older Australians. There is no constitutional or legal reason why the states cannot unilaterally develop stronger legal frameworks. As public awareness of elder abuse grows, it is just as likely that the gaps in state elder abuse frameworks will be exposed, as it is likely that the Commonwealth’s Aged Care Act will be criticised for failing to prevent the abuse of vulnerable older Australians. Recent reports from both South Australia and Victoria have demonstrated alternative ways in which legislative reform can achieve significant improvements, but without significant associated costs. Thus, there are clear reform options open to the states that would provide significant improvements in the extent to which vulnerable older persons could be supported in cases of abuse, and which need not require Commonwealth funding. 

One strategy that might assist in generating greater awareness of both the prevalence of elder abuse throughout Australia and options for reform or changes in practice, would be the commencement of an inquiry into elder abuse by the AHRC. The AHRC has the power to ‘inquire into any act or practice that may be inconsistent with or contrary to any human right’ under s 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth), along with the power to conduct research and educational programs that promote human rights. While the Commonwealth could certainly use its financial powers to fund a national scheme that would be implemented by the states and territories, one area where it should assume a leading role is through a concerted focus on the human rights of older persons. This could be effected through the AHRC assuming a lead role in ensuring that all Australians, particularly vulnerable persons, continue to enjoy their fundamental rights — for life, and not only while they can self-advocate and self-protect. The benefits of such an inquiry would lie in providing a more accurate picture of the true prevalence of elder abuse within Australia and a platform for a national education campaign on elder abuse and the signs of elder abuse.

Entitlement fraud

In R v Ogden [2014] QCA 89 the Court has considered an appeal against what was claimed to be a manifestly excessive sentence regarding fraud.

Ogden had pleaded guilty to two counts of defrauding the Commonwealth and three counts of obtaining a financial advantage by deception (i.e. claimed benefits in others' names and his own name over 15 years). Ogden (who was between 59 and 74 at the time of the offending and 76 years old when sentenced) was sentenced to five years imprisonment with a non-parole period of 20 months.

Fraser, Gotterson and Morrison JJA considered whether the sentencing judge properly took into account the applicant's full restitution and gave due weight to the applicant's health problems. Ogden contended that the appropriate sentence is three to four years imprisonment with a recognizance release fixed upon a date no more than six months after the date of sentence. The QCA noted that

His offending spanned 15 years between May 1997 and May 2012. During that period the applicant claimed benefits in the names of two other persons as well as in his own name. To support his claims in the names of those two other persons he produced documents, including birth certificates, which were referable to those persons. The benefits paid to the applicant upon the claims in those two other names were subsequently transferred, on applications made by the applicant, to age pensions. To support those applications the applicant again provided identity documents referable to those other persons. The total amount taken by the applicant was $406,737.35. 

Before the applicant commenced his frauds in May 1997 he owned many separate pieces of land, some of which were improved by a house and all except one of which were unencumbered by any mortgage. He purchased additional real estate after he embarked upon the frauds. A schedule shows that during the whole period of offending the applicant owned a total of 14 different properties. One additional property was purchased by his wife and another additional property was purchased by his son with a mortgage granted to the applicant. 

At the time of sentence the applicant, or family members to whom he had transferred properties, remained the owner of 11 properties and he remained the mortgagee of the property bought by his son. By then the applicant had sold the one property which was subject to a mortgage. He sold that property in May 2004 for $105,000, as against the purchase price in September 1983 of $25,000. In September 2007 and March 2008 the applicant sold another property; there were two sale dates because what the schedule treated as one property, property 13, comprised different lots. The total price for those lots was $172,000, as against valuations in May 1997 of $4,500 and January 2008 of $47,000. The other property which the applicant sold was improved by “small free standing home/shop”. He had purchased that property in May 1977. Its value in May 1997 was $65,000 and its value in January 2012 was $225,000. It was not encumbered. The applicant used the sale price of $345,000 achieved at settlement in September 2012 as the main source of funds to repay the Commonwealth the money defrauded. 

The applicant was married with one adult child and had no criminal history. At the sentence hearing he tendered a medical report by a general practitioner which described many ailments from which the applicant suffered.

AIC Identity Crime Survey

The Australian Institute of Criminology has published Identity crime and misuse in Australia: results of the 2013 online survey (AIC Research in Policy and Practice no.128) [PDF] by Russell G Smith and Alice Hutchings.

It is described as

This report was commissioned by the Attorney-General’s Department (AGD), as part of broader work under the National Identity Security Strategy to develop a national identity crime measurement framework, with the analysis by the AIC. Attorney-General, the Hon. Senator George Brandis QC, released the report at CeBit 2014 in Sydney. 

The report is a significant independent survey in 2013 of ID crime and misuse in Australia of 5000 participants. It provides an estimation of the extent of the issue, and describes financial loss of victims of ID crime, as well as examining public perceptions. 

The survey asked about the misuse of various types of personal information such as an individual’s name, address, date of birth, place of birth, gender, driver’s licence information, passport information, Medicare information, biometric information (eg fingerprint), signature, bank account information, credit or debit card information, password, personal identification number (PIN), tax file number (TFN), shareholder identification number (HIN), computer and/or other online usernames and passwords, student number, as well as other types of personal information. 

Among other survey findings, 21 percent of the 5000 respondents reported misuse of their personal information at some time during their life, with nine percent reporting misuse of their personal information in the previous 12 months.

The summary is as follows -

Prior research by the Australian Bureau of Statistics (ABS) (2012) has shown that over 700,000 Australians, or approximately four percent of the population aged 15 years and over, fell victim to identity fraud in 2010–11. Criminal misuse of identity not only impedes consumer activity and confidence in the financial system, but costs business and government substantial sums in responding to and preventing these crimes.

The advent of the internet and online commerce has substantially expanded the opportunities that exist for the commission of identity crime and the Australian Government has responded by developing a National Identity Security Strategy, which was endorsed by the Council of Australian Governments (COAG) in 2007. In May 2013, the Australian Institute of Criminology (AIC) was commissioned by the Australian Government Attorney-General’s Department (AGD) to undertake a large-scale survey to determine the extent and impact of identity crime and misuse in Australia. This report presents the results of the survey—respondents’ experiences of victimisation for the 12 months prior to the survey and their perceptions of the risk of identity crime in the following 12 months. The survey was administered in September 2013.

Definitions

Rather than ask respondents about their experience of identity crime, a concept that can be problematic in terms of precise definition, this survey asked about the misuse of various types of personal information. This was defined as including misuse of an individual’s name, address, date of birth, place of birth, gender, driver’s licence information, passport information, Medicare information, biometric information (eg fingerprint), signature, bank account information, credit or debit card information, password, personal identification number (PIN), tax file number (TFN), shareholder identification number (HIN), computer and/or other online usernames and passwords, student number, as well as other types of personal information.

Misuse of personal information was defined as obtaining or using personal information without permission, to pretend to be the person in question or to carry out a business in that person’s name without their permission, or other types of activities and transactions. The use of personal information for direct marketing, even if this was done without permission, was excluded.

Sample description

In September 2013, a questionnaire comprising 23 main questions (see Appendix 1) was administered online to a research panel of Australians drawn from all states and territories. The sampling frame and survey hosting were undertaken by i-Link Research Solutions, a commercial provider that provided raw de-identified data for the AIC to analyse.

Data were weighted to reflect the distribution of the Australian population based on census data of the ABS (2013). Age and gender were used as qualifying variables, so that the results of respondents were nationally representative. The results have not, however, been weighted to indicate national estimates of prevalence and financial loss that would have been experienced had the entire Australian population aged 15 years and over be surveyed, as the sampling frame was insufficiently robust to permit such estimations to be undertaken.

Sampling was completed once quotas had been satisfied and a sample of 5,000 participants obtained. The results of five respondents were removed from the sample as they did not normally reside in Australia and therefore were not eligible to participate, leaving a final sample of 4,995 for analysis.

Perceptions of misuse of personal information

Participants were asked, in terms of harm to the Australian economy, how serious they thought misuse of personal information was. A high proportion (68.8%) of respondents believed that misuse of personal information was very serious and a further 27.8 percent believed it was somewhat serious.

When asked if they thought the risk of someone misusing their personal information would change over the next 12 months, 19.8 percent believed it would increase greatly and 45.4 percent believed it would increase somewhat. Only one percent believed that the risk would decrease somewhat or greatly.

Both of these levels of perception concerning seriousness and likelihood of change were higher than similar findings reported by Di Marzio Research (2012) and the Office of the Australian Information Commissioner (OAIC) (2013), although the questions asked and sampling frames employed in these two earlier surveys were different from those of the present study. Experience of misuse of personal information The present survey found that 20.8 percent of the 4,995 respondents reported misuse of their personal information at some time during their life, with 9.4 percent reporting misuse of their personal information in the previous 12 months. The number of separate occasions upon which participants believed that their personal information had been misused ranged from one to 20 occasions. Just over half of the participants (53.7%) believed that their personal information had been misused on a single occasion only. This level of victimisation is somewhat lower than the lifetime prevalence rate of 27 percent of respondents to the National Fraud Authority’s (2013) survey of identity fraud in the United Kingdom, but higher than the 8.8 percent of respondents in the United Kingdom who reported experiencing identity fraud in the year 2012. It is also higher than the United States National Crime Victimization Survey (NCVS) lifetime prevalence rate of 14 percent and the 12 month prevalence rate of 6.7 percent (Harrell & Langton 2013). The present survey’s lifetime prevalence rate of 20.8 percent is also much higher than the 13 percent lifetime rate of identity fraud reported by respondents to the OAICs (2013) survey. These variations are most likely due to the different sampling frames used, data collection techniques employed and the focus of questions asked of respondents.

Losses, costs and consequences resulting from the misuse of personal information

Participants who had experienced misuse of their personal information within the last 12 months were asked about their losses; that is, how much they were left out-of-pocket as a result, excluding any money that they were able to recover from banks and any costs associated with repairing what occurred. Almost half (n=210, 45.7%) were not left out-of-pocket. The remaining 250 participants experienced losses that, when weighted, ranged from $1 to $310,000 (mean=$4,101, median $247, SD=$34,062). It was found that over three-quarters (75%) of participants experienced losses of up to $1,000, with some reporting the much higher amounts. Total losses amounted to $1,025,250. Participants who had been reimbursed by banks or other organisations, or recovered their losses in other ways as the result of the misuse of their personal information in the previous 12 months, had recovered between $2 and $310,000. When the data were weighted, the mean amount reimbursed or recovered was $2,381 and the median amount reimbursed or recovered was $300 (SD=$23,478, n=255). It was found that most participants received reimbursement or recovery of small amounts with few receiving much higher amounts. The total reimbursed or recovered during the last 12 months was $607,164. The remaining 205 participants (44.6%) did not receive any reimbursement or recover any losses.

In addition to suffering out-of-pocket expenses, some participants experienced other consequences, the most frequent of which were having been refused credit (14.1%), experiencing mental or emotional stress requiring counselling or other treatment (10.7%) and having been wrongly accused of a crime (5.5%).

Participants reported having spent between zero and 500 hours dealing with the consequences of having had their personal information misused over the previous 12 months (mean=18.1 hours, SD=49.5 hours), with 95 percent of respondents spending 60 hours or less. In addition, 56.1 percent of respondents indicated that they had incurred costs dealing with the consequences of having had their personal information misused over the previous 12 months ranging from $1 to $60,000. Half (50.4%) of those who had spent money spent $40 or less.

Participants were also asked if they were aware that a person who has had their personal information misused could apply to a court to obtain a victim certificate to prove what had occurred and if they had done so in the past. It was found that 3.4 percent (n=168) of respondents indicated that they were aware of victim certificates and had applied for one. It is possible that this question was misunderstood and participants may instead have believed that they were being asked about other actions they could have taken, such as having fraudulent information removed from their credit information file. To date, statutory victim certificates have rarely been applied for and certainly not to the extent reported in this survey (Personal communication, Attorney-General’s Department, September 2013). Reporting the misuse of personal information Of those who experienced misuse of their personal information, 8.9 percent did not report it in any way, 53.5 percent told a friend or family member, 7.8 percent told a government agency or a business organisation and 29.8 percent told a friend or family member, as well as a government agency or business organisation. Respondents were asked to specify which government agency or business organisation they had reported to and how satisfied they were with the outcome. The majority of reports resulted in a satisfactory or very satisfactory outcome. Participants were most satisfied with the response provided by Medicare Australia (91.7% responded either satisfied or very satisfied), an internet service provider (91.3%) and a bank, credit union, credit/debit card company or e-commerce provider (89.1%).

In terms of the reasons for not reporting, 39.5 percent of respondents did not report the misuse of their personal information because they did not believe anything could be done about it, 23.6 percent were too embarrassed to report it, 23.1 percent did not know how or where to report the matter and 12 percent did not believe it was a crime.

Behavioural changes arising from the misuse of personal information

Participants were asked how their behaviour had changed as a direct result of having had their personal information misused. The top five behavioural changes were changing passwords (48.5%), being more careful when using or sharing personal information (48.1%), changing banking details (42.5%), reviewing financial statements more carefully (39.6%) and not trusting people as much (39.0%). A minority (5.9%) of participants who experienced misuse of their personal information in the previous 12 months indicated that this did not result in any behavioural changes.

These types of behavioural changes are similar to those identified by the ABS (2008) Personal Fraud Survey 2007, which asked comparable questions of a nationally representative sample of Australians (these questions were not included in the ABS 2010–11 survey; ABS 2012).

The most serious occasion of misuse of personal information in the previous 12 months

Participants who experienced misuse of their personal information within the previous 12 months were asked further questions about the most serious occasion on which misuse had occurred during the last 12 months. The most serious occasion was defined as the occasion that resulted in the largest financial or other harm to the participant.

The top three types of personal information that had been misused were credit and debit card information (52.3%), name (40.2%) and bank account information (31.1%).

Participants were asked how they believed that their personal information had been obtained for the most serious occasion of identity crime in the previous 12 months. The top five ways were from theft or hacking of a computer or other computerised device (20.0%), from an online banking transaction (19.5%), by email (18.3%), from information placed on a website other than social media, such as online shopping (15.7%), and from an ATM or EFTPOS transaction (11.0%).

Participants were asked how they believed that their personal information had been misused on the most serious occasion in the previous 12 months. The top three reasons were to obtain money from a bank account (excluding superannuation; 35.4%), to purchase something (32.5%) and to apply for a loan or obtain credit (8.1%).

Participants who indicated that their personal information had been misused to purchase something were asked to specify what was purchased. The most commonly purchased items included airfares and travel, and electronic devices, such as computer equipment and mobile phones. Participants were asked how they became aware of the misuse of their personal information on the most serious occasion in the previous 12 months. The top three ways were receiving a notification from a bank or financial institution and/or credit card company (43.4%), noticing suspicious transactions in a bank statement or account (33.3%) and receiving a bill from a business or company for which they were not responsible (13.5%). Participants were asked how much they were left out-of-pocket due to the misuse of personal information for the most serious occasion in the past 12 months (excluding any money that they were able to recover from banks and any costs associated with repairing what occurred). No financial loss was experienced by 200 participants (43.5%). The remaining 260 participants experienced losses ranging from $1 to $310,000. When these data were weighted, for those who suffered a loss, the mean financial loss was $4,816, the median loss was $200.00 (SD=$30,541.36). It was found that over three-quarters (75%) of participants experienced losses of up to $800, with few reporting the much higher amounts. The total lost in the most serious occasion was $1,252,177.

Participants who had been reimbursed by banks or other organisations, or recovered their losses in other ways, in respect of the most serious occasion recovered between $1 and $310,000. When weighted, the mean amount recovered was $2,209.41, the median recovered was $227.00 (SD=23,944.16, n=246). It was found that most participants received reimbursement or recovery of small amounts with few receiving much higher amounts. The total recovered was $543,514.00. The remaining 214 participants (46.5%) did not receive any reimbursement or recover any losses for the most serious occasion in the past 12 months.

Characteristics of those who experienced misuse of personal information in the previous 12 months

The demographic characteristics of those who experienced misuse of personal information in the previous 12 months were explored in more detail using statistical analysis.

Variables that were found to not have a significant relationship with misuse of personal information in the previous 12 months included place of normal residence, age group, gender, language spoken at home and the number of hours spent on a computer or computerised device.

A statistically significant relationship was found between experiencing misuse of personal information in the previous 12 months and Indigenous status (Indigenous was defined as those who identified as Aboriginal, Torres Strait Islander, or both Aboriginal and Torres Strait Islander). These results indicate that those who identified as Indigenous were more likely to experience misuse of their personal information.

A significant relationship was also found between individual gross income category and experience of misuse of personal information in the previous 12 months. Those in the lowest income category ($18,200 and under) were less likely to experience misuse of their personal information and those earning $37,001 and above were more likely to experience misuse.

A significant relationship was also found between perceptions of the seriousness of misuse of personal information and experiencing misuse of personal information in the previous 12 months, with those who had experienced misuse being more likely to perceive it as being very serious. Similarly, a significant relationship was found between perceptions of the risk of misuse of personal information in the next 12 months and experiencing misuse of personal information in the previous 12 months.

Two significant relationships were found between place of normal residence and the place from which personal information had been obtained in respect of respondents who had experienced misuse of their personal information in the previous 12 months. First, it was found that respondents located outside a capital city were significantly more likely than those who were located in a capital city to have had their personal information lost or stolen from a business or other organisation (ie a data breach). Second, it was found that respondents located outside a capital city were significantly more likely than those who were located in a capital city to have had their personal information obtained from a website other than social media (eg during online shopping).

Further analyses were undertaken to test the relationship between the characteristics of respondents who reported a financial loss and the amount that they reported. No significant relationship was found between the amount of financial loss and age, gender, location, income and Indigenous status.

A significant relationship was found between financial loss and language spoken at home, with those who spoke English having lost significantly more than those who spoke a language other than English at home.

The number of hours spent dealing with the consequences of identity misuse, as well as the amount of money spent, were both found to have a significant medium, positive correlation with amount of financial loss, indicating that the higher the financial loss, the more time and money was spent dealing with the consequences. 

Conclusion 

The results of this survey confirm prior research that misuse of personal information remains a significant form of criminal activity in Australia in 2013. Those individuals who participated in the survey indicated high levels of victimisation, including both financial losses for which they were out-of-pocket and were not compensated by banks and other organisations, and a range of non-financial losses that involved loss of personal time, as well as mental and emotional consequences for which treatment was required, on occasions. Victims also indicated changes in their personal and online behaviour as a result of their experiences, thus detracting from the positive benefits of online consumer activity. Some categories of victims, including Indigenous Australians and those with higher income levels, experienced significantly higher rates of victimisation. 

The results of the survey could be used effectively by those charged with devising fraud prevention initiatives in a number of ways. For example, it would be possible to provide targeted information to those most likely to be victimised outlining how they could better protect themselves against identity crime and misuse. Hopefully, such initiatives may result in future surveys of this kind finding reduced levels of victimisation and lower financial and other consequences for Australians in the years ahead.

4th Amendment and the GII

'The Fourth Amendment and the Global Internet' by Orin S. Kerr in (2015) 65 Stanford Law Review considers

how Fourth Amendment law should adapt to the increasingly worldwide nature of Internet surveillance. It focuses on two types of problems not yet addressed by courts. First, the Supreme Court’s decision in United States v. Verdugo-Urquidez prompts several puzzles about how the Fourth Amendment treats monitoring on a global network where many lack Fourth Amendment rights. For example, can online contacts help create those rights? What if the government mistakenly believes that a target lacks Fourth Amendment rights? How does the law apply to monitoring of communications between those who have and those who lack Fourth Amendment rights? The second category of problems follows from different standards of reasonableness that apply outside the United States and at the international border. Does the border search exception apply to purely electronic transmission? And if reasonableness varies by location, is the relevant location the search, the seizure, or the physical person? 

The article explores and answers each of these questions through the lens of equilibrium-adjustment. Today’s Fourth Amendment doctrine is heavily territorial. The article aims to adapt existing principles for the transition from a domestic physical environment to a global networked world in ways that maintain the preexisting balance of Fourth Amendment protection. On the first question, it rejects online contacts as a basis for Fourth Amendment protection; allows monitoring when the government wrongly but reasonably believes that a target lacks Fourth Amendment rights; and limits monitoring between those who have and those who lack Fourth Amendment rights. On the second question, it contends that the border search exception should not apply to electronic transmission and that reasonableness should follow the location of data seizure. The Internet requires search and seizure law to account for the new facts of international investigations. The solutions offered in this article offer a set of Fourth Amendment rules tailored to the reality of global computer networks.

Opacity Rights

'Through the looking GLASS: Google GlassTM, privacy, and opacity, with an Israeli law twist' by Arye Schreiber in (2014) 4(1) International Data Privacy Law comments that

 Google GlassTM and other wearable computers pose considerable challenges to existing privacy paradigms and laws. This article examines Glass and its implications for privacy from an Israeli law perspective. The article focuses on privacy of third parties vis-à-vis the Glass user, rather than on the privacy of the user vis-à-vis others or the state. 

Privacy law concerning visual privacy — taking and publishing pictures of others — needs to meet the wearable computing challenge. As wearable computers become ubiquitous, ‘reasonable expectations of privacy’ will change. The law will likewise need to accommodate a new reality in which an inconsequential passing glance becomes a recording saved for posterity, and possibly shared with the world in real-time. The author suggests that there are good grounds for recognizing a Right to Opacity — a right not to be subjected to constant surveillance and photography. 

Eavesdropping law will need to evolve in order to contend with new paradigms of intercepting conversation, including lip-reading and speech-to-text technology. These and other technologies that Glass will feature do not currently fall neatly within eavesdropping and privacy law definitions. 

Regulators and lawmakers around the world have responded inconsistently to Glass, apparently reflecting some fear, confusion, and suspicion. To the extent that regulators and legislators want some sort of consultative or veto rights over new products with privacy implications, that needs to be debated and legislated.

'Privacy in Public: “Google Glass” and “Creepshots”' by Subhajit Basu at BILETA last month considers -

two interrelated issues that we will be confronting since the invention of “Google Glass”. First, the development of a particular technology that is inevitable and sometimes autonomous and, second, potential victims of that innovation. I argue that the expansion of a technology like “Google Glass”, in particular the use of this technology for taking “creepshots”, blurs the line between what is considered public and private. “Creepshots” are covertly taken sexually indicative photographs, mostly of women, which are posted online without consent. In fact, it is the lack of consent that is the crucial component for a photograph to be classified as a “creep shot”. 

Vint Cerf argues that “Google Glass” provides ‘an opportunity to experiment with what happens when you allow a computer to become part of your sensory environment. It sees and hears what you see and hear and it can apply its power and the power of the Internet to make use of information in context.’ In any case a simple act of taking photographs of an individual in a public street (which can be done with a wink while using “Google Glass”) will not by itself engage Article 8(1) of ECHR unless there are aggravating factors. 

It is a trite law to state that the conception of “privacy in public” is amorphous and it is based on a traditional understanding of “reasonable expectation” of privacy. However, the nature of the exposure due to “Google Glass” not only invades an individual’s expectation of privacy, but it also calls into question the traditional definition of privacy and interpretation of that definition. Nevertheless, question also arises as to whether the law protects the “sexualisation” of a female body or part of a body taken out of context. This article further analyses the various challenges for protecting “privacy in public” because of innovations like “Google Glass” and will map out future theoretical directions.

Big Privacy?

In conjunction with the PCAST 'Big Data' report noted earlier today the White House has released a report [PDF] titled Big Data: Seizing Opportunities, Preserving Values.

The report features recommendations of particular interest in relation to Australian law reform -

• Advance the Consumer Privacy Bill of Rights. The Department of Commerce should take appropriate consultative steps to seek stakeholder and public comment on big data developments and how they impact the Consumer Privacy Bill of Rights and then devise draft legislative text for consideration by stakeholders and submission by the President to Congress. 
• Pass National Data Breach Legislation. Congress should pass legislation that provides for a single national data breach standard along the lines of the Administration’s May 2011 Cybersecurity legislative proposal. 
• Extend Privacy Protections to non-U.S. Persons. The Office of Management and Budget should work with departments and agencies to apply the Privacy Act of 1974 to non-U.S. persons where practicable, or to establish alternative privacy policies that apply appropriate and meaningful protections to personal information regardless of a person’s nationality. 
• Ensure Data Collected on Students in School is Used for Educational Purposes. The federal government must ensure that privacy regulations protect students against having their data being shared or used inappropriately, especially when the data is gathered in an educational context. 
• Expand Technical Expertise to Stop Discrimination. The federal government’s lead civil rights and consumer protection agencies should expand their technical expertise to be able to identify practices and outcomes facilitated by big data analytics that have a discriminatory impact on protected classes, and develop a plan for investigating and resolving violations of law. 
• Amend the Electronic Communications Privacy Act. Congress should amend ECPA to ensure the standard of protection for online, digital content is consistent with that afforded in the physical world—including by removing archaic distinctions between email left unread or over a certain age.