Cohen on Privacy

 'What Privacy is for' by Julie E. Cohen in 126 Harvard Law Review (2013) comments that

 Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst—anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection for the liberal self. Its function is principally a defensive one; it offers shelter from the pressures of societal and technological change. So characterized, however, privacy is reactive and ultimately inessential.

In fact, the liberal self who is the subject of privacy theory and privacy policymaking does not exist. The self who is the real subject of privacy law- and policy-making is socially constructed, emerging gradually from a preexisting cultural and relational substrate. For this self, the purpose of privacy is quite different. Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable. It protects the situated practices of boundary management through which self-definition and the capacity for self-reflection develop.

So described, privacy is anything but old-fashioned, and trading it away creates two kinds of large systemic risk. First, privacy is an indispensable structural feature of liberal democratic political systems. Freedom from surveillance, whether public or private, is foundational to the capacity for critical self-reflection and informed citizenship. A society that permits the unchecked ascendancy of surveillance infrastructures cannot hope to remain a liberal democracy. Under such conditions, liberal democracy as a form of government is replaced, gradually but surely, by a form of government that I will call modulated democracy because it relies on a form of surveillance that I will call modulation: a set of processes in which the quality and content of surveillant attention is continually modified according to the subject’s own behavior, sometimes in response to inputs from the subject but according to logics that ultimately are outside the subject’s control. Second, privacy is also foundational to the capacity for innovation, and so the perception of privacy as anti-innovation is a non sequitur. A society that values innovation ignores privacy at its peril, for privacy also shelters the processes of play and experimentation from which innovation emerges. Efforts to repackage pervasive surveillance as innovation—under the moniker “Big Data”—are better understood as efforts to enshrine the methods and values of the modulated society at the heart of our system of knowledge production. In short, privacy incursions harm individuals, but not only individuals. Privacy incursions in the name of progress, innovation, and ordered liberty jeopardize the continuing vitality of the political and intellectual culture that we say we value.

Junk Food

'A Constructive Critique of Public Health Arguments for Anti-Obesity Soda Taxes and Food Taxes' by Katherine Pratt in 87(73) Tulane Law Review (2012) looks at fat taxes.

Pratt comments that

This Article constructively critiques the two arguments that public health advocates have made in support of anti-obesity soda taxes or junk food taxes. Part II discusses and critiques the first argument, an economic externalities argument that government should tax soda or junk food to internalize the disproportionately high health care costs of obesity. Part II also explores alternative economic internalities argument for food or soda taxes, with a focus on incomplete information, bounded rationality, and bounded willpower. Part III discusses and critiques the second argument made by public health advocates, that government should adopt anti-obesity measures to improve population-wide health. This Part considers the appropriate scope of public health law interventions with respect to behavioral risk factors (for example, diet), comments on empirical evidence offered by public health advocates to support proposed soda taxes, and cautions public health advocates to consider possible unintended consequences of anti-obesity proposals.

Obesity policy debates present a conflict of fundamental values, such as health, fairness, efficiency, and autonomy. Part IV attempts to reconcile these values and responds to the “personal responsibility” objection to soda taxes and food taxes. Part V considers various factors that would affect behavioral responses to proposed soda taxes and food taxes and addresses concerns that such taxes would be regressive and thus unfair to low-income consumers. This Part also explores the tax design implications of the literature on tax salience and on asymmetric paternalism and libertarian paternalism. Part VI suggests the way forward for public health advocates, including a proposal to enact a tax on nutritionally poor foods and drinks, paired with a salient benefit. In addition, this Part recommends enactment of a federal system of food classification, based on nutrient profiling methods, along with a federal system of front-of-package nutritional labeling.

Sillies

'The toilet as the Zizekian Vase: on the philosophical surplus of psychoanalysis' by Gabriel Tupinambá in 6(2) International Journal of  Žižek Studies (2012)  states that

The present paper investigates what would constitute a strictly Žižekian problem – that is, a problem which is born out of the inclusion of Žižek, who is himself a Lacanian, into the Lacanian field.

This properly Hegelian totality brings to the fore a productive, but profound contradiction in the reception of the Lacanian teaching, best exemplified by the comparison of Žižek and Jean-Claude Milner and their different diagnoses of the political limits of psychoanalysis. Expounding the relation between the two different positions and their respective readings of Lacan’s institutional and conceptual inventions of the late 60’s, the paper argues that Žižek’s conceptual framework is neither reducible to the Lacanian orthodoxy, nor does it constitute an altogether different field - a position we develop through a comparison of Lacan’s famous reference to the (Heideggerian) vase and Žižek’s rather infamous ideological analysis of toilets.

Meanwhile, as a hoary old sceptic, I'm unimpressed by the latest expression of quantum mysticism, this time in media coverage of Stuart Hameroff's deliciously zany theory of the soul. Yes, it's newspapers and bloggers taking the 'quantum theory of consciousness' for a spin around the block again.

Supposedly 'our souls' are "contained inside structures called microtubules which live within our brain cells", with "our experience of consciousness" being the "result of quantum gravity effects inside these microtubules", aka orchestrated objective reduction (Orch-OR).

In a near-death experience the microtubules lose their quantum state but the information within them is not destroyed. Or in layman's terms, the soul does not die but returns to the universe.

"Let's say the heart stops beating, the blood stops flowing, the microtubules lose their quantum state," Dr Hameroff said.

"The quantum information within the microtubules is not destroyed, it can't be destroyed, it just distributes and dissipates to the universe at large.

"If the patient is resuscitated, revived, this quantum information can go back into the microtubules and the patient says 'I had a near death experience'."

In the event of the patient's death, it was "possible that this quantum information can exist outside the body indefinitely - as a soul".

Uh huh.

Let's ignore arguments by physicists and biologists that the microtubule theory is bunk or the long history of eminent scientists and intellectuals saying awesomely silly things. Forget about people who expended a lot of effort and money in trying to catch the soul (which apparently escaped into the atmosphere with the dying person's very last breath) or the enthusiasts who have claimed to be able to weigh the soul (eg comparing the weight of the dying person and the cadaver).

Let's not even ask whether 'soul' has much meaning other than as a religious artefact and notion that has provided millennia of contention. One response might be that there's no persuasive evidence that the quantum information arrives or departs, communicates with 'memory water', resides in coffee cups and rocks, or accounts for 'phenomena' such as reincarnation and astral travel.

Brains as "quantum wave transceivers" in tune with the infinite? At least the microtubule theory doesn't require thermionic valves, hardware that is increasingly difficult to source but apparently necessary if you are using a valve radio to contact the dead.

Codewars

'Conceptions in the Code: What 'the Copyright Wars' Tell Us About Creativity, Social Change and Normative Conflicts in the Digital Society' by Stefan Larsson in 4(3) Societal Studies (2012) 1009-1030

theoretically via scholarly literature the consequences of how the networked technology, the Internet is conceptualized. The Internet, as argued here, can be understood in many ways, in the sense that the digital environment is very much dependent on metaphors and conceptual loans to be spoken and thought of. This affects our behaviour and social norms and forms a number of legal challenges emerging in the transition from pre-digitalization to digitalization. The objective of the article is to understand digitalization and social change better, including legal dilemmas, from a conceptual metaphor perspective; hence the article is looking for conceptions 'in the code'. In order to do this, three main topics around which the analysis circles, are chosen: conceptions of the Internet and how metaphors control what we think of it; the role of digital technology in creating a gap between law and social norms: the example of copyright; and, legal conceptions of creativity challenged in a digital context. This means that the article opens a multidisciplinary dialogue between the cognitive theory and the sociology of law, which here, for example, relates to studies in culture and technology, in order to speak of legal and social issues related to digitalization.

Larsson  comments that -

This article is a theoretical, an explorative and an interdisciplinary piece, and it analyses via scholarly literature the consequences of how the networked technology that is the Internet is conceptualised. The Internet, as argued, is a combination of its infrastructure and protocol, and the social organisations forming upon the technology that sets up the constraints and possibilities by its structure and protocol. For example, the digital environment is very much dependant on metaphors and conceptual loans to be spoken and thought of. This is a way to exemplify how technology often plays an important role in processes of social and normative change, which may affect behaviour and social norms, in this case forming the legal challenges emerging in the transition between pre-digitalisation and digitalisation. Seen from the perspective of social change, indicated by the title, the 'law lag' stimulates a viable and relevant discussion. This analysis is made regarding the very concepts themselves that are used for describing the new organisation and societal challenges that have merged in and around the digital technologies and their artefacts. The awareness of how concepts are renegotiated is of relevance for this analysis ... This highlights the importance of metaphors and the cognitive structures they relate to, not the least important for law, including copyright law in a digital society.

Organ Registries and Embryos

The Health Records and Information Privacy Amendment (Information Transfer) Regulation 2012 in NSW amends the Health Records and Information Privacy Regulation 2012 to allow an organisation that holds health information from the organ donor register maintained by Roads and Maritime Services - ie the NSW state government public transport and licensing authority - to use and disclose that information for the purpose of providing that information to the Australian Organ Donor Register or the NSW Organ & Tissue Donation Service.

The regulations are under the Health Records and Information Privacy Act 2002 (NSW).

 In Grant v YYH Holdings Pty Ltd [2012] NSWCA the New South Wales Court of Appeal has dismissed an appeal in relation to proceedings where a tortfeasor had bred progeny from 16 Awassi sheep owned by two farmers.

A cause of action in conversion and detinue in the initial 16 sheep was found to have been extinguished by operation of the Limitations Act 1969 (NSW). However, the Court found that title in any progeny continued to exist. It accordingly held that the farmers were entitled to the return of all progeny and any embryos and semen from the original 16 sheep.

The judgment includes reference to historic case law regarding swans, beavers, racehorses and other creatures, such as Jones v De Marchant (1916) 28 DLR 561, the Case of Swans [1572] EngR 403; (1572) 7 Co Rep 15b and Borg v Howlett [1996] NSWSC 153.

Genome sequencing

Last week I co-authored a submission to Australia's National Health & Medical Research Council regarding that organisation's increasingly permissive and privacy-erosive stance on genetic testing.

It is interesting to note 'Currents in Contemporary Bioethics: The Case against Precipitous, Population-Wide, Whole-Genome Sequencing' by Mark Rothstein in 40(3) Journal of Law, Medicine and Ethics (2012) 682-689.

Rothstein comments that

Whole-genome sequencing has demonstrable value in elucidating the genetic etiology of rare disorders, in identifying atypical variants in common diseases, in determining pharmacogenomically appropriate drugs and dosages, in performing tumor genome sequencing, and in aiding other clinical applications for the diagnosis and treatment of individuals who are symptomatic or whose family health history places them at substantial risk. Undoubtedly, the clinical applications of wholegenome sequencing will increase in the future.

Whole-genome sequencing raises important ethical and policy issues, but there is little evidence that societal considerations will slow the pace of development, promotion, or use of new sequencing technology. For a variety of scientific, medical, and commercial reasons, scientists and entrepreneurs are determined to begin population-wide, wholegenome sequencing as soon as it is technically feasible and financially viable. 

This article critically evaluates the headlong rush to perform population-wide, whole-genome sequencing. After considering the context and implications of whole-genome sequencing, the article concludes that, at the present time, the likely harms from population-wide, wholegenome sequencing greatly exceed the likely benefits.

He highlights ten concerns about population-wide, whole-genome sequencing:

• 1. Lack of Clinical Utility
• 2. Lack of Test Regulation
• 3. Lack of Data Storage and Usage Protocols
• 4. Lack of Standards for Interpretation
• 5. Lack of Genetics Professionals
• 6. Lack of Population Health Literacy and Numeracy
• 7. Lack of Equitable Access to Genetic Services
• 8. Lack of Return on Investment
• 9. Lack of Health Privacy and Nondiscrimination Protections
• 10. Lack of Attention to Psycho-Social Harms and Long-Term Implications

Rothstein concludes -

The medical case for selective introduction of whole-genome sequencing into clinical settings is unassailable. For an expanding number of health conditions and clinical scenarios, whole-genome sequencing is appropriate and holds great promise for significantly improved health outcomes. Nevertheless, at the present time these factors do not militate in favor of population-wide, wholegenome sequencing for asymptomatic individuals. There is insufficient clinical utility and too many ethical, legal, and psycho-social risks.

Population-wide, whole-genome sequencing is not a scientific “manifest destiny.” Merely because it can be done does not mean that it ought to be done – or at least that it ought to be done now. Unconstrained scientific excitement and unabashed commercial exuberance notwithstanding, the heedless and premature wholegenome sequencing of asymptomatic individuals would be foolhardy and dangerous social policy. Moreover, unjustified genome sequencing would contravene medicine’s prime directive of primum non nocere, first do no harm.

'Associational Privacy, the Presumption of Innocence, and 'Corruption of Blood' as Constitutional Metaphors in the Debate on 'Familial Searching'' (Penn State Law Research Paper No. 14-2013) by David H. Kaye 

analyzes three constitutional claims about the emerging practice of trawling DNA databases for “near misses” to crime-scene samples that might reflect the fact that the DNA came from a first-degree relative of the nearly matching (but excluded) individual. These claims are that this type of “outer-directed” trawling (which casts suspicion on individual outside the database) is an infringement of constitutionally protected familial privacy, an affront to the presumption of innocence, and an unconstitutional “corruption of blood.” Upon inspection, the relevant constitutional provisions lend no more than metaphorical support to these objections to “familial searching.”

Death and taxes

With recent US brouhaha about the 1% (or 0.1%) in mind it is interesting to look at 'The Swedish Inheritance and Gift Taxation, 1885–2004' (Research Institute of Industrial Economics Working Paper No. 936, 2012) by Gunnar Du Rietz, Magnus Henrekson & Daniel Waldenström which follows the money in a study of the evolution of the modern Swedish inheritance taxation from introduction in 1885 to abolition in 2004.

A thorough description is offered of the basic principles of the tax, including underlying ideas and ambitions, tax schedules, and rules concerning valuation of assets, liability matters and deduction opportunities. Using these rules, we calculate inheritance tax rates for the whole period for a number of differently endowed family firms and individuals. The overall trend in inheritance tax burden exhibits an inverse-U shape for all firms and individuals. Up until World War II, inheritance tax rates were very low (never above six percent), but in the postwar era tax rates increased rapidly for both inherited firms and individual fortunes. Effective tax rates peaked in the mid-1970s. Valuation reliefs were introduced in the 1970s, which sharply reduced tax rates for inherited family businesses. Tax rates for deceased individuals were first cut in 1987 and then significantly reduced in 1991–1992. Finally, inheritance and gift tax revenues were relatively small, around a quarter of a percent of GDP. 

The authors conclude

In this paper we have analyzed gift, inheritance and estate taxes in Sweden. The analysis begins in 1885 when (a modern form of) inheritance taxation was first introduced in Sweden. In the 1910s, a formal gift tax was launched and during the period 1948–1958 there was also an estate tax in addition to the inheritance and gift taxes. The analysis stops in 2004 when the Swedish inheritance and gift taxation is abolished.

The inheritance tax was introduced in 1885 as a single tax – the 1884 stamp ordinance – with the estate report as the tax base. The first modern inheritance tax was introduced in the form of the 1894 stamp ordinance. It increased the maximum tax rate for spouses and children to 1.5 percent of taxable lots and to 6 percent for other heirs. The 1914 inheritance and gift tax ordinance – introduced in 1915 – integrated the two taxes and was also the first modern gift tax. It had a maximum marginal tax rate of 4.5 percent for spouses and descendants, and 18 percent for other non-legal heirs. After 1911, sizeable tax increases were implemented on two occasions.

The first substantial tax hike took place in 1934. In 1933, the government proposed a new high state tax on inheritances and gifts. This bill was, however, rejected by Parliament. After having failed to introduce an estate tax, the new Social-Democratic minority government instead substantially raised the taxes on gifts and on inheritance lots (arvslottsskatten). The maximum rate for children and spouses was raised from 4 to 20 percent and the maximum rate for others (Tax Class IV) from 18 to 35 percent.

The second drastic tax increase occurred in 1948 when a new and more successful attempt was made to introduce an estate tax – the 1947 estate tax ordinance. The new, high estate tax was imposed side by side with the earlier taxes on gifts and inheritance lots, but the estate tax was made deductible before the inheritance tax was calculated. The maximum marginal tax rate (the net sum of inheritance and estate taxes) for descendants and spouses was raised in 1948 from 20 to 60 percent and for others from 35 to 67.5 percent.

The marginal inheritance tax rate peaked in 1971–1973 at 65 percent for descendants and 72 percent for other family members. During the period 1948–1973, the average inheritance tax for wealthy persons and owners of large closely held corporations exceeded 48 percent.

Owing to the introduction of a tax relief for small firms in 1971, and a reduced valuation of business capital in 1974, the inheritance tax burden already peaked in 1973 for smaller family firms. In 1978, the valuation of business capital (defined as company net worth) was reduced to 30 percent of book value. Even though this caused the tax burden for family firms to drop, the high and progressive inheritance tax continued to make it difficult to transfer firms to family successors, and even for larger family firms to continue as independent entities. For large individual estates, the inheritance tax continued to be around 40–50 percent of the estate through 1991. A substantial reduction of tax rates was implemented in 1992, and then the tax on bequests to spouses was removed in 2003 followed by the final abolishment of the entire inheritance and gift tax in December 2004.

Inheritance and gift tax revenues were never particularly important as a source of revenue for the central government; with few exceptions less than two percent of total tax revenue was raised this way, and in the last forty years before abolishment the share was around one tenth of that level. Instead, these taxes were primarily motivated by distributional concerns, relating to an urge to even out large inequalities of opportunity arising from inherited wealth at the top of the wealth distribution. Society apparently accepted paying a price in terms of excess burden to secure a more even distribution of opportunity, but the low revenue from this source in the postwar period casts doubt on the effectiveness of the inheritance and gift tax in this regard.

Exactly what factors that can explain the removal of the inheritance tax in 2004 have not been analyzed systematically by researchers. According to Lodin (2009), the tax was abolished as part of a logrolling scheme between the Social Democrats and the Left Party, but whether there were other, more structural, determinants related to taxpayers’ avoidance or to the public opinion remains to be established by future research.