Offspring and Cryonics

More on frozen gametes, with 'A Chip Off the Old Iceblock: How Cryopreservation Has Changed Estate Law, Why Attempts to Address the Issue Have Fallen Short, and How to Fix It' by Benjamin Carpenter in 21 Cornell Journal of Law & Public Policy (2012) 1-80 arguing that

For thousands of years, the process for determining one’s heirs remained unchanged. For a woman, her heirs were fixed at her death; for a man, his heirs were fixed no later than nine months after his death. Then came cryopreservation and, with it, the ability for individuals to conceive children years after their death. This development has created many — largely unanswered — questions. While posthumous conception implicates numerous moral, ethical, and legal issues, this Article focuses on the legal status of posthumously conceived children in the estate law context.

Despite pleas from both courts and commentators, few legislatures have been willing to tackle this sensitive topic. Most judges and scholars who have addressed it agree the three primary goals of any response should be to ensure the efficient administration of estates, carry out the decedent’s intent, and protect the children’s best interests. However, no consensus has emerged regarding which of these goals should receive priority. These goals need not be mutually exclusive, though, but can each be achieved with appropriate legislation. In this Article, I take a critical look at the statutory and judicial approaches proposed to date, break down the strengths and weaknesses of each, and introduce two new concepts that bridge the gaps in the prior approaches. Specifically, statutes should (1) separate the question of whether a posthumously conceived child is an heir from whether the child will in fact inherit assets, and (2) provide fiduciaries discretion to distribute or retain assets when cryopreserved genetic material exists, based on certain conditions. These improvements will provide flexibility not found in prior approaches and, as a result, advance each of the three key goals. This Article provides legislatures, judges, and commentators who tackle this issue with both a comprehensive historical perspective on the issue and a blueprint to follow going forward.

Carpenter concludes -

Almost ten years ago, Chief Justice Margaret Marshall of the Massachusetts Supreme Judicial Court recognized:

As these [artificial reproduction] technologies advance, the number of children they produce will continue to multiply. So, too, will the complex moral, legal, social, and ethical questions that surround their birth. The questions present in this case cry out for lengthy, careful examination outside the adversary process, which can only address the specific circumstances of each controversy that presents itself. They demand a comprehensive response reflecting the considered will of the people.

To date, Massachusetts‘s legislature has ignored this appeal — as have the majority of legislatures around the country. Instead, they have passed the cost and burden of sorting out these issues to their citizens and courts.

The use of both assisted reproduction and cryopreservation will only continue to increase, however, and the issues they create require the attention of legislatures. Specifically, legislatures should recognize posthumously conceived children as a child of the deceased parent for probate purposes and for class-gift purposes if the decedent consented to the posthumous use of his or her genetic material for reproduction. Denying status in these contexts would neither regulate their parent‘s behavior nor, in most cases, create more efficient estate administrations. Recognizing these children, however, would carry out the decedent‘s intent, a hallmark of probate law, and protect the best interests of the innocent children by allowing them to qualify, at a minimum, for benefits unrelated to the decedent‘s estate (such as Social Security survivor benefits and inheritance through the deceased parent). However, courts should allow fiduciaries or custodians to distribute assets, without liability to themselves or the recipients, if the surviving spouse or partner does not notify them within four months after the decedent‘s death of his or her intent to use the decedent‘s genetic material. Further, the fiduciary or custodian should be free (but not required) to distribute the assets to the presumptive beneficiaries if the child is not born within a certain period of time after the deceased parent‘s death, such as three years. Importantly, though, the failure of the survivor to provide notice or to have the child within this period of time should not affect the child‘s status as an heir. Rather, it should just protect the fiduciary, custodian, and existing beneficiaries. A later-born child would still be eligible to receive other benefits as an "heir" (such as Social Security survivor benefits), to inherit through the decedent, to be a member of a class that remains open after the decedent‘s death, and to share in any assets that remain undistributed when the child is born.

'Extreme Life Extension: Investing in Cryonics for the Long, Long Term' by Tiffany Romain in (2010) 29(2) Medical Anthropology: Cross-cultural Studies in Health and Illness 194-215 comments

This article explores American conceptualizations of finance, the future, the limits of biological time, and the possibilities of biotechnoscience through an investigation of the social world of cryonics—the freezing of the dead with the hope of future revival. I describe some of the cosmologies of life, death, time, and the management of the future that circulate within cryonics communities, and I draw out relationships between cryonics practices and discourses and more common forms of personal future management prevalent within American neoliberal capitalism. I also illustrate similarities and differences between cryonics and more mainstream biomedical technologies. In doing so, I argue that cryonics is one American manifestation of anxieties about aging, time, and the future. I investigate the impact of biotechnologies on self-making and biosociality, and argue that crafting of selves can be deeply entwined with practices of investment or hope in the future of biomedicine and technology.

Broadcast guidelines

As a Christmas present to industry ACMA has released new non-enforceable Privacy Guidelines for Broadcasters [PDF], resulting from the first review of the co-regulatory guidelines introduced in 2005.

ACMA states that -

The new guidelines are principles-based and include case studies based on ACMA investigations into privacy complaints. Further guidance has been developed on invasions of privacy where a person’s seclusion has been intruded upon—whether or not in a public place.

Provisions on consent, children and vulnerable people, public figures, material in the public domain and public interest have also been revised.

The review featured 14 submissions - which identified weaknesses in the wording and basis of the Guidelines - and drew on two thin research reports: Community research into broadcasting and media privacy [PDF] and Australians’ views on privacy in broadcast news and current affairs [PDF] noted earlier this year.

ACMA indicates that -

A breach of these code privacy provisions will be investigated by the ACMA when:
• a code privacy complaint has been made to a broadcaster in accordance with the applicable code
• the broadcaster has not responded within 60 days or the complainant considers the broadcaster’s response inadequate
• a complaint is then made to the ACMA.

These guidelines are intended to
• increase general awareness of the privacy obligations under the various broadcasting codes
• assist broadcasters to better understand their privacy obligations under these codes.

The guidelines deal only with the codes. They do not deal generally with unlawful, unethical or distasteful journalistic practices.

Nor do they deal with privacy and privacy-related laws generally.

Some codes offer express privacy protections only in the context of news and current affairs broadcasts. Other codes offer privacy protections in respect of all broadcast content. Moreover, the privacy protections offered differ.

The precise privacy obligations to which each broadcaster is subject will depend on the terms of the applicable code.

The outcome of any investigation will depend on the facts of the case.

Release of the new Guidelines comes shortly after ACMA's unduly permissive stance regarding a Seven Local News report broadcast that featured photographs of a woman and her family and friends accessed from a Facebook RIP tribute page and a post entered by a 14 year old boy that included his name and Facebook profile photograph. Not a problem, said ACMA.

Open wide?

Data breach déjà vu, yet again, with a breathless report in the Canberra Times that "A website containing credit card details of hundreds of thousands of Canberra motorists has been left exposed to attack by cyber criminals because of lax procedures in the territory's public service".

The article appears to relate to the ACT Auditor-General's annual financial report [PDF].

The CT states that -

An investigation by the ACT Auditor-General's office found delays in the installation of critical security upgrades to the Rego ACT site were not undertaken in a timely manner, creating the risk of ''unauthorised access'', although the Government has not disclosed any security breaches.

The system, used by many of the city's 200,000 motorists to pay their registration fees by credit card, was left vulnerable many times over several years, the auditor's report found. The delays in installing security ''patches'', provided by the system's manufacturer, was part of a litany of weaknesses and gaps in government computer security systems, uncovered during the Auditor-General's annual financial audit process. The report found that password controls on government systems were weak and that security patches not being installed on time was a problem across the ACT Public Service

... the auditors were critical of the performance of both departments in managing the vital system after finding that the problem with the patches had existed for years.

''As in previous years, this system was not being promptly updated for security 'patches' that are regularly provided by the supplier of the system,'' the auditors wrote.

''This presents a higher risk that unauthorised users may exploit any known weaknesses in the system.''

The auditor's office identified security weaknesses across the Government's systems with password management emerging as a problem. ''These control weaknesses result in a higher risk of undetected unauthorised and possibly fraudulent access to the ACT Government network, firewalls, applications and data,'' the report says.

''The ACT Government's password complexity requirements were not fully enforced, some passwords were not 'forced' to be regularly changed, user access levels were not regularly monitored, and some critical 'patches' were not applied.

''This increases the risk of unauthorised, inappropriate and undetected access to the ACT Government network, firewalls, applications and data.''

After the usual flannel a spokesperson for the ACT government is reported as conceding that there was a need to improve confidence in the system and that 'documentation "has now been improved".

The ACT Government's password complexity requirements were not fully enforced, some passwords were not 'forced' to be regularly changed, user access levels were not regularly monitored, and some critical 'patches' were not applied.

This increases the risk of unauthorised, inappropriate and undetected access to the ACT Government network, firewalls, applications and data.

Murderabilia

'Celebrity Contagion and the Value of Objects' [PDF] by George Newman, Gil Diesendruck & Paul Bloom in 38 Journal of Consumer Research (2011) asks "why do people purchase objects that were once owned by celebrities, such as film stars or politicians, and also by despised individuals, such as serial killers and notorious dictators?". The authors examine three potential explanations - mere associations, market demands, and contagion (the belief that these objects contain some remnants of their previous owners) before concluding that although market demands play a role, contagion appears to be the critical factor affecting the valuation of celebrity possessions.

Manipulating the degree of physical contact that a celebrity has with an object dramatically influences consumers’ willingness to purchase it, and individual differences in sensitivity to contagion moderate this effect. Additionally, the valuation of celebrity possessions is principally explained by measures of contagion, and subliminally activating the concept of contagion changes consumers’ willingness to purchase celebrity objects.

They note that -

In 1996, Sotheby’s auctioned roughly 1,300 items from the estate of the late Jacqueline Kennedy Onassis. Before the auction began, Sotheby’s optimistically estimated the value of the entire lot at around $4.6 million. The total yield after 4 days was a staggering $34.5 million (USA Today, April 24, 1996). Some notable items included iconic pieces such as President Kennedy’s rocking chair, which sold for $453,500; his set of golf clubs ($772,500); and the desk on which the president signed the 1963 Nuclear Test Ban Treaty ($1.43 million). Many of the items, however, had little his- torical relevance, yet they still fetched remarkable sums of money, such as a tape measure ($48,875) and a set of books on Cape Cod ($21,850). Clearly, these items generated large prices because of where they had been and whom they had come into contact with, not their tangible properties or func- tional utility. For example, if the buyer of the tape measure discovered that it was actually not from the Kennedy household, he would presumably be outraged and want his $48,875 back, though nothing perceptible or tangible about the object would have changed.

The valuation of celebrity items, however, is not restricted to positively regarded figures, such as JFK. Curiously, there is also a market for items once belonging to hated and despised individuals. For example, items such as Charles Manson’s hair, paintings by John Wayne Gacy, and the personal effects of Saddam Hussein have been sold at specialty auctions, sometimes fetching tens of thousands of dollars per item (Stone 2007). And, recently, the U.S. government auctioned several items that belonged to the notorious fraudulent investor Bernard Madoff, including a footstool, originally listed at $360, which sold for $3,300, and a nondescript bar set, originally listed at $680, which sold for $2,200 (New York Times, November 15, 2010). Why are these objects valued? Do people value objects that belonged to despised individuals for the same reasons they value objects that belonged to well-regarded individuals?

One explanation is that celebrity possessions are valued because of their associations. Objects that were once owned or touched by specific people remind us of those people. This captures the fact that objects associated with admired individuals are positively valued. However, it also predicts that objects belonging to individuals who are explicitly disliked should carry no value at all. A second explanation has to do with intuitions about how these objects are valued by others (their market value). For instance, we might value objects that belonged to celebrities because we believe that there are other people who would later purchase them from us at higher prices or because others would be impressed that we own such things. A third account is rooted in the concept of contagion (Belk 1988; Rozin, Millman, and Nemeroff 1986). This is the belief that a person’s immaterial qualities or “essence” can be transferred to an object through physical contact.

The present studies demonstrate that the mere association of an object with a well-liked individual does not appear to be a significant driver of value. Moreover, while market forces do play a role, contagion appears to be the critical factor affecting the valuation of celebrity possessions. Specifically, we find that manipulating the degree of physical contact that a celebrity has with an object dramatically influences consumers’ willingness to purchase it, and individual differences in sensitivity to contagion moderate this effect. Additionally, the valuation of celebrity possessions is principally explained by measures of contagion, and subliminally activating the concept of contagion changes people’s willingness to purchase celebrity objects. In the remainder of this article we review the previous work on contagion and celebrity possessions and report the results of three experiments that use converging methodologies to test the role of contagion in the valuation of celebrity possessions.

Memory

'Forgetting Footprints, Shunning Shadows. A Critical Analysis Of The “Right To Be Forgotten” In Big Data Practice' by Bert-Jaap Koops in (2011) 8(3) SCRIPTed 229-256 [PDF] argues that -

The so-called “right to be forgotten” has been put firmly on the agenda, both of academia and of policy. Although the idea is intuitive and appealing, the legal form and practical implications of a right to be forgotten have hardly been analysed so far. This contribution aims to critically assess what a right to be forgotten could or should entail in practice. It outlines the current socio-technical context as one of Big Data, in which massive data collections are created and mined for many purposes. Big Data involves not only individuals’ digital footprints (data they themselves leave behind) but, perhaps more importantly, also individuals’ data shadows (information about them generated by others). And contrary to physical footprints and shadows, their digital counterparts are not ephemeral but persistent. This presents particular challenges for the right to be forgotten, which are discussed in the form of three key questions. Against whom can the right be invoked? When and why can the right be invoked? And how can the right be effected? Advocates of a right to be forgotten must clarify which conceptualisation of such a right they favour – a comprehensive, user-control-based right to have data deleted in due time, or a narrower, context-specific right to a “clean slate” – and how they think the considerable obstacles presented in this paper can be overcome, if people are really to be enabled to have their digital footprints forgotten and to shun their data shadows

Koops comments that -

Looking at the world of Big Data we live in, I tend to believe that the data-deluge genie is out of the bottle. No matter how important the ideal of informational self-determination may be, users will not be able to put it back again. I doubt whether there is sufficient policy urgency in Europe to substantially change data-protection law to give data subjects a full-blown right to have data deleted, and to simultaneously mandate the forgetfulness-by-design that is required to make a right to be forgotten in any way meaningful. However, scholars and policy-makers with a different outlook may feel differently, and aim for devising legal and technical solutions that can address the challenges I outlined for a user-controlled right to be forgotten.

In any case, it is clear that a generic right to be forgotten does not currently exist. There are flavours of such a right in current data protection and sectoral “clean-slate” laws, but the first are limited in strength, the second are limited in scope. Given the different possible conceptualisations and their different foci, anyone who advocates the establishment of a full-blown right to be forgotten must clarify what this right means and how it can be effected. As argued in this paper, considerable obstacles need to be overcome if people are really to be able to have their digital footprints forgotten and to shun their data shadows.

The same issue of SCRIPTed features 'India’s New Data Protection Legislation: Do The Government’s Clarifications Suffice?' [PDF] by Raghunath Ananthapur, who criticises the Data Privacy Rules of 24 August 2011 issued by the Department of Information Technology. The Rules apply to 'sensitive data' of any individual collected, processed, or stored in India via a "computer resource" by a body corporate located in India.

Ananthapur comments that the Department has "sent positive signals by reacting quickly to the Indian outsourcing industry’s concerns by publishing clarifications to the Data Privacy Rules". The clarifications, "while they will certainly benefit the Indian outsourcing industry" are :half baked, and appear to have had, as the objective, exempting third party Indian outsource providers from the compliance with the most controversial provision – 'consent conditions'". Quite so.

In the UK the background briefing for the Protection of Freedoms Bill, which among other matters deals with restraints on biometrics, notes the 'opt in' to disregard convictions for consensual same sex activity (i.e. what has been decriminalised over the past 30 years, albeit might still be addressed under 'public order' and 'offensive behaviour' statutes in the UK and Australia).

The briefing states that -

Chapter 4 of Part 5 contains provisions that will allow individuals with a conviction or caution for an offence under section 12 (buggery) or 13 (gross indecency between men) of the Sexual Offenders Act 1956 (or the corresponding earlier offences or military service offices), involving consensual gay sex with another person aged 16 or over, to apply to the Home Office to have details of that conviction or caution disregarded. 

Consensual sex between men over the age of consent was decriminalised in 1967. Then the age of consent was 21 years, but it was lowered to 18 years in 1994 and to 16 years in 2000. However, details of any historic convictions for consensual gay sex with over 16s continue to be recorded on police records and appear on a CRB criminal record certificates. 

If an application to have a conviction or caution disregarded is granted, the details of that conviction or caution will be removed from the Police National Computer, and any local police or other records, and will no longer be revealed on a CRB certificate. In addition, a person with a disregarded conviction or caution will not have to disclose that conviction or caution to anyone under any circumstances, for example, on a job application or in court proceedings. 

There are estimated to be some 50,000 convictions and cautions recorded on the Police National Computer for section 12 and 13 offences; some 16,000 of these are estimated to relate to behaviour that is now decriminalised.

Nosey Parkers

Three years ago this month the Western Australia state Transport Minister tabled a government review into the release by the Department for Planning & Infrastructure of private vehicle registration details. That information was provided to two non-government bodies: Wilson Parking and Westralia Airports Corporation.

That review followed criticism that the state government had provided Wilson, the dominant Australian carpark operator, with registration details (including home addresses) regarding 25,522 vehicles that had overstayed their welcome at Wilson's private facuilities. The registrants had not expected the state to provide that information to a commercial body.

As the Minister's statement (Legislative Council Hansard of 9 December 2008, p 1042) indicates, Wilson was billed $75,049.15 by the Department for the personal information. The state government subsequently tried to retrieve the information on several occasions and sought legal advice on how to force Wilson to hand back or destroy the data after what was characterised as "an honest mistake" made by "a junior staff member". Wilson "declined to return the information and subsequently made several unsuccessful attempts to pay the account".

The Department's Acting Minister, Ljiljanna Ravlich, said at the time that Wilson Parking should return the records, rather plaintively explaining that -

Now that it is explained to them that this has arisen due to a very junior person making this mistake then I think that morally they should give that information back.

I am very disappointed that this has happened. I can understand the disappointment of the people that have received these notices, but what I can tell you is that I am doing everything in my power to make sure that this does not occur again.

A Wilson representative demurred, commenting that "We're entitled to be able to, in accordance with the road traffic act, receive this information and then use it commercially to follow up on people who aren't complying with our terms and conditions". no enthusiasm there for changing the Act.

The document tabled by Ravlich's colleague noted a finding by the WA Corruption & Crime Commission (alas not online) that "no misconduct" had occurred. It was accompanied by the Minister's announcement that the department had agreed to implement all of the review’s 34 recommendations, including changes to legislation. He stated that "I will now progress this legislation as a matter of priority" and would fully support bringing about cultural change within the licensing area.

Three years later Wilson, the state government and registrant privacy are again in the news. The SMH reports that -

The confidential details of 10,000 WA drivers have been revealed to a private parking company pursuing customers for unpaid parking fees.

The state government gave the information to Wilson Parking during September and October after the company took action in the Supreme Court to be able to contact a handful of drivers who had parking debts.

The government was ordered by the Supreme Court to make the details available, but rather than only the targeted drivers', 10,031 other drivers' records were sent.

A thousand here, a thousand there ... the numbers soon add up.

Opposition transport spokesman Ken Travers is reported as commenting that the Government had reneged on its 2008 commitment, repeated in 2010, to protect drivers' confidential details.

This is just another example of a government that is quick to grab the headlines but when it comes to action and protecting people it is nowhere to be seen.

It is outrageous for the Barnett Government to not only renege on their promise, but it never informed the public their private details were being released.

If the government intends to release personal information there must be the proper framework in place for managing that information

Travers called for safeguards. He may be waiting some time, given the slow pace of legislative reform, complacency within the government transport/registration agencies and silence on the part of privacy advocates.

Last year Wilson won a WA Supreme Court order for access to the names and addresses of 20 vehicle owners that Wilson argued had not paid its parking breach notices. With that precedent, Wilson was back in court in July this year. The Transport Department was ordered to provide details regarding a further 10,000 motorists, claimed to represent about $600,000 in unpaid breaches.

That action has attracted criticism, given that Wilson does not have the authority to issue fines, instead relying on parking infringement notices under contract law (characterised - delightfully - as not a fine but a "pre-calculation" of Wilson's lost revenue and enforcement costs, ie liquidated damages).

IMS

'Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy' by Ashutosh Avinash Bhagwat in Vermont Law Review (2012) considers the implications of the US Supreme Court’s recent decision in IMS Health v. Sorrell, 131 S. Ct. 2653 (2011).

In IMS Health the Court struck down a Vermont statute that banned the sale or disclosure by pharmacies of information regarding the prescribing habits of physicians, if that information was going to be used for the purposes of marketing by pharmaceutical manufacturers.

Bhagwat indicates that

I consider here an important issue that was raised, discussed, but ultimately avoided in IMS Health: what restrictions does the First Amendment place on the government’s ability to limit or prohibit the disclosure of pure data, in order to protect personal privacy. The issue could be avoided in IMS Health because the specific Vermont statute at issue in that case did not, as it happens, impose a general restriction on data disclosure for privacy reasons, it rather only restricted specific uses of regulated data, in order to advance state interests quite distinct from privacy concerns. The broader question of data regulation, however, is lurking in the wings of this and other litigation, and is likely to pose difficult challenges for courts in coming years, as the spread of the Internet drives legislatures to adopt increasingly stringent privacy laws.

While the IMS Health majority did not decide the data-disclosure issue posed in the case, it did address it in ways that strongly suggest the six justices in the majority would treat such disclosures as fully protected speech. Moreover, the analysis provided in this article demonstrates that the majority’s hints are fully justified by current Supreme Court doctrine. As currently interpreted by the Court, the First Amendment provides full constitutional protection to disclosures of even personal data, and so restrictions on such disclosures must survive strict scrutiny, a standard that has proven almost impossible to satisfy in the First Amendment context. As a consequence, under current law most statutes seeking to protect privacy by prohibiting data disclosure are likely to be invalidated.

In the balance of the article, I suggest that this result reflects a serious weakness in current doctrine, which is the failure to recognize that factual speech is distinct from, and requires different constitutional analysis than, the sorts of political and cultural speech that have traditionally been the mainstay of First Amendment litigation. In particular, drawing on a number of areas of developed law, I argue that speech consisting purely of specific factual data regarding individuals should be considered to be fully protected under the First Amendment only if the speech meaningfully contributes to the process of democratic self-governance. Other data should remain protected, but under a lower standard of scrutiny, perhaps an intermediate standard incorporating an element of balancing. I also briefly explore how different kinds of privacy laws might fare under such an approach.