Leaks

Two US works on secrecy and leaks ....

'The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information' by David Pozen in (2013, forthcoming) Harvard Law Review argues that

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, fewer than a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This article challenges the standard account of this disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's "leakiness" is often taken to be a sign of institutional failure. The article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret-keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.

Posen comments that 

Ours is a polity saturated with, vexed by, and dependent upon leaks. The Bay of Pigs, the Pentagon Papers, warrantless wiretapping by the National Security Agency at home, targeted killings by the Central Intelligence Agency abroad: The contours of these and countless other government activities have emerged over the years through anonymous disclosures of confidential information to the press. Across the ideological spectrum, many Americans believe both that leaking “is a problem of major proportions” and that “our particular form of government wouldn’t work without it.” Episodically, leaks generate political frenzy. The country is in such a period at this writing. Mass releases of classified defense documents and diplomatic cables through WikiLeaks, followed by a series of news stories about some of the government’s most closely held national security programs, have unleashed a torrent of legislative and media responses, of recriminations and justifications. This “latest outbreak of leak panic” will soon fade; a new iteration will arrive in due course.

Our comprehension of leaking has not kept pace with our fascination. Even accounting for the secrecy that obscures its workings, the ratio of heat to light in commentary on the subject is extreme. Some valuable progress has been made. Journalists and ex-officials have chronicled the role of leaks in their work. Students of government and the press have limned leaks’ different forms and motivations. Legal theorists have considered their First Amendment implications. Yet for a variety of reasons, the literature reflects only a rudimentary understanding of leaks’ consequences, inside and outside government. More surprising, because the questions are more tractable, scholars have devoted scant attention to the constitutive elements of the leak, as a legal and bureaucratic concept, or to the policies the executive branch has developed to enforce relevant prohibitions. We know something about the phenomenology and constitutionality of leaks but next to nothing about how the government deals with them.

This Article begins to reveal that world. Drawing on a range of theoretical perspectives and original sources - interviews with journalists and executive branch officials, plus records requested through the Freedom of Information Act (FOIA) - it offers the first sustained account of the regulatory regime applicable to leaking. Superficially straightforward, this regime turns out to be an intricate ecosystem. At the most general level, the Article demonstrates that the story behind the U.S. government’s longstanding failure to enforce the laws against leaking is far more complicated, and far more interesting, than has been appreciated. More specifically, the Article argues that the executive branch has never prioritized criminal, civil, or administrative enforcement against leakers; that a nuanced set of informal social controls has come to supplement, and nearly supplant, the formal disciplinary scheme; that much of what we call leaking occurs in a gray area between full authorization and no authorization, so that it is neither “leaks” nor “plants” but what I will term pleaks that dominate this discursive space; that the executive’s toleration of these disclosures is a rational, power-enhancing strategy and not simply a product of prosecutorial limitations, a feature not a bug of the system; and that to appreciate these dynamics is to illuminate important facets of presidential power, bureaucratic governance, and the national security state in America today.

These claims require extensive elaboration. As a way into them, consider two features that mark the United States’ legal approach to unsanctioned disclosures of protected information. First, and most significantly, even though the Espionage Act of 1917 and other statutes broadly criminalize the gathering, receipt, and dissemination of national defense-related information and even though every modern president has decried the practice, an enormous amount of leaking to the press appears to occur and to go unpunished. The federal government has brought fewer than a dozen media leak prosecutions in the 96 years since the Espionage Act was enacted, six of them under the current administration. Available evidence suggests that civil and administrative sanctions are only marginally more common. Let us call this the punitive/permissive divide: The statutes on the books concerning leaks, and the political rhetoric associated with them, are so harsh, and yet the government’s actual treatment of the activity seems to have been so mild. There is a dramatic disconnect between the way our laws and our leaders purport to condemn leaking and the way they condone it - a rampant, pervasive culture of it - in practice.

Second, the courts have indicated that while the government has expansive legal authority to prosecute employees who leak, it has minimal authority to stop reporters who receive leaks from broadcasting what they learn, either through ex post penalties or prior restraints. In all cases, it seems, the government would have to prove a reporter’s actions threatened grave, immediate harm to national security interests. (It is hard to be sure because the government has never indicted one.) Let us call this the source/distributor divide: The First Amendment has been understood to provide so little protection for the leaker and yet so much protection for the journalist who knowingly publishes the fruits of the leaker’s illicit conduct and thereby enables the very harm - revelation of sensitive information to the public and to foreign adversaries - that the leak laws were designed to combat. In other areas of criminal law, downstream users of illegally obtained material are not similarly insulated from liability.

As a descriptive or diagnostic matter, the literature has pointed to several factors to explain the existence of these features. The leak laws are so rarely enforced, it is said, because the Justice Department finds it so difficult, at the investigatory stage, to identify culprits and so difficult, at the adjudicatory stage, to bring successful cases without divulging additional sensitive information. Courts and prosecutors have privileged journalists over leakers, it is said, because of the former’s special First Amendment status and the latter’s consent to nondisclosure as a condition of employment. Throughout these discussions, the comparison is often drawn to the United Kingdom’s notorious Official Secrets Act. Whatever else might be true of our legal and political regime for regulating leaks, virtually everyone agrees the United States would never abide such a sweeping criminal prohibition.

As a normative or justificatory matter, few have celebrated this “disorderly situation.” Many believe it to be regrettable if not outrageous. National security hawks and opposition members of Congress routinely call for legislative strengthening of the leak laws and more vigorous executive enforcement, including against members of the media. Civil libertarians have assailed the last two administrations’ “war” on leaking and sought federal shield legislation for journalists and enhanced doctrinal protections for their sources. The most thoughtful and influential defenses of the status quo—by Alexander Bickel, Jack Goldsmith, and Geoffrey Stone—are self-consciously ambivalent. They do not attempt to idealize or even rationalize the punitive/permissive and source/distributor divides, so much as to highlight the factors confounding any effort to strike an optimal balance in this area between national security needs and other democratic and constitutional goods. These analyses are also spare. They rely on discrete case studies and high-level constitutional theory to identify relevant values, precedents, and tradeoffs; they do not make any systematic inquiry into patterns and practices of leaking or enforcement or into the functional and strategic dimensions of the leak-law regime.

This Article aims to show why our “disorderly situation” cannot be understood without such inquiry and to explicate a more satisfying logic, a richer model, that better accounts for the seemingly incoherent law of leaks. The core claim is that the status quo, although ritualistically condemned by those in power, has served a wide variety of governmental ends at the same time as it has efficiently kept most disclosures within tolerable bounds. The leak laws are so rarely enforced not only because it is difficult to punish violators, but also because key institutional players share overlapping interests in vilifying leakers while maintaining a permissive culture of classified information disclosures.

The executive branch is where most of the action takes place. With respect to the punitive/permissive divide, commentators have widely assumed the executive would prefer to bring more cases, and then looked to constraints on realizing that preference. By concentrating on barriers to prosecution, these accounts overlook the ways in which powerful actors benefit from leak-law violations, as well as the ways in which leaking may be punished in the absence of a criminal proceeding, or indeed any formal sanction. The executive’s “leakiness” is often taken to be a sign of institutional failure. It may be better understood as an adaptive response to key external liabilities - such as the mistrust generated by presidential secret-keeping and media manipulation - and internal pathologies - uch as overclassification and fragmentation across a sprawling bureaucracy - of the modern administrative state. Once these affirmative interests in leaking are identified, the source/distributor divide also begins to look a little less puzzling. To criminalize leaking at the publication stage, as well as the transmission stage, would not only raise difficult First Amendment concerns but also risk compromising the government’s instrumental use of the press.

Part I of the Article reviews the legal landscape and the available evidence on how leaks are used and punished. Part II first details the shortcomings of constraint-based rationales for the government’s permissiveness, and then advances an alternative explanatory theory grounded in the executive branch interests served by leakiness. These interests include preserving ambiguity as to the origins of unattributed disclosures and therefore the communicative flexibility of top officials, signaling trustworthiness, facilitating richer internal information flows, pacifying constituencies for transparency in Congress, the media, and civil society, and mitigating the classification system’s political and deliberative costs. Part III further fleshes out this account by uncovering and assessing the informal enforcement model that the executive appears, behind closed doors, to have applied to leaking. Part IV returns to the source/distributor divide and to the recent uptick in prosecutions and draws out additional evaluative and descriptive implications—including the surprising insight that the U.S. and U.K. legal regimes on leaks have, at least in their observable aspects, substantially converged.

Before proceeding further, several notes are in order. Throughout the pages that follow, the focus is on the U.S. federal executive branch and its information control practices relating to national security, broadly defined to include many matters of foreign policy. Some of the Article’s arguments may well carry over to other types of leaks, to other types of institutions, to subnational levels of government, maybe also to other mature democracies. At points, I will briefly discuss possible extrapolations. But national security leaks raise a number of distinct concerns and have always driven the legal conversation. Their treatment by the world’s dominant military power will, I trust, be of sufficient interest to many.

The heart of the Article is the positive analysis in Parts II and III and the window it provides into the regulation of leaking. While I hope in Part IV to draw some fruitful linkages to broader

questions in democratic, constitutional, and security theory, and while I hope more generally to facilitate normative projects of varied stripes, the Article is principally concerned with demonstrating how leaking works. The overriding aim is to provide an explanation (not a justification) for this regulatory regime in terms of the intersecting desires, beliefs, and constraints of presidents, political appointees, civil servants, legislators, journalists, and the institutions they populate. Although I cannot directly establish the intentions of many of these actors or rule out evolutionary factors—for instance, a natural tendency for the leakier components of government to gain in relative political power and thereby to propagate their disclosure norms—the Article tries to the extent possible to provide microfoundations for its theory, to specify mechanisms that reduce leakiness to the individual level.

Some pieces of the analysis were informed by roughly two-dozen interviews I conducted with current and former officials who have worked on top secret issues across the executive branch, as well as by my own experiences in government. Most of these officials served in a legal capacity. Almost all of the interviews were “on background,” which is to say the interviewees asked not to be identified and I agreed. The unsettling brand of methodological mimesis that results - this is an Article about anonymous government sources that itself relies on anonymous government sources—is not lost on me. I would have preferred to conduct interviews on the record and yet, like so many journalists and several scholars before me, I soon learned that few were willing to discuss anything interesting under those ground rules. Minimizing validity concerns, however, all points drawn from the interviews are consistent with the publicly available evidence, including the returns from my own FOIA requests, which I cite throughout. The interviews proved more confirmatory than revelatory. They deepened but did not transform my understanding of this evidence.

A final caveat: While I try in this Article to shine light on an opaque corner of the law, I certainly do not mean to suggest that I have fully uncovered, much less “solved,” the inner workings of the leak regime. The phenomenon of leaking is sufficiently heterogeneous and complex as to resist monolithic characterization. Perhaps the most generalizable contribution the Article aims to make is to point the way to new conceptual, theoretical, and empirical approaches to studying the subject.

'The Implausibility of Secrecy' by Mark Fenster comments that

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events - among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters - undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources - each of these constitutes a path out of the government’s informational clutches. As a result, permanent, long-lasting secrecy of any sort and to any degree is costly and difficult to accomplish.

This article argues that information control is an implausible goal. It critiques some of the foundational assumptions of constitutional and statutory laws that seek to regulate information flows, in the process countering and complicating the extensive literature on secrecy, transparency, and leaks that rest on those assumptions. By focusing on the functional issues relating to government information and broadening its study beyond the much-examined phenomenon of leaks, the article catalogs and then illustrates in a series of case studies the formal and informal means by which information flows out of the state. These informal means play an especially important role in limiting both the ability of state actors to keep secrets and the extent to which formal legal doctrines can control the flow of government information. The same bureaucracy and legal regime that keep open government laws from creating a transparent state also keep the executive branch from creating a perfect informational dam. The article draws several implications from this descriptive, functional argument for legal reform and for the study of administrative and constitutional law.

Fenster concludes that

Deep, long-lasting secrecy proves quite difficult to accomplish in practice. The formal legal limits on secrecy, as well as the informal means by which information flows out of the state, perform the crucial service of making the state more visible. We should not, however, mistake this movement of information for “transparency,” or even for a step towards a gloriously transparent state. As I have argued elsewhere, we can never achieve a perfectly visible government—and, in fact, we would not even want one if it were achievable. The concept of “transparency,” like the concept of “secrecy,” assumes the law’s ability to control information, an assumption belied by decades of frustrating experience with open government laws.  Both concepts are implausible.

This is no reason to despair. Here, I note three implications of this implausibility for understanding and responding to government secrecy— recognizing it as a political practice subject to political accountability, conceding law’s limits as a means to control information, and developing legal reforms that can hasten official disclosure.

First, secrecy is, paradoxically, a very public issue, and one for which excessively secretive officials can be held politically accountable. As Vice President Cheney has himself noted, secrecy can both fail, revealing the information it sought to hide, and be exposed and criticized as an undemocratic practice. In the “leaky city” of the nation’s capitol, Cheney wrote in an essay published three years after Iran-Contra, no secret stays buried too long, and no president’s failed cover-ups go unpunished. Indeed, the Minority Report itself conceded that President Reagan was forced “to pay a stiff political price” not only for his appointees’ illegal actions in Iran-Contra, but also for their secrecy and attempted concealment of the program. The more secrets, and the deeper they are kept, the greater the risk that the President takes in keeping them—a risk that can prove effective as an alternative to formal laws and legal proceedings in disciplining the executive branch. Such political costs cannot replace the formal legal limitations on secrecy that open government laws (not to mention, for criminal conspiracies and perjury, criminal laws) provide, but they serve as a mechanism by which the informal limits on secrecy can punish wrongdoers.

This understanding of secrecy as a tool whose use has potential political costs suggests a more foundational informal check on information control. If “the cover up is worse than the crime,” as the conventional wisdom teaches about Watergate, then secrecy appears to have an ethical dimension based upon a widely-shared, intuitive distinction between legitimate and illegitimate secrecy. Although it lacks precise meaning, the concept of “transparency” functions as a nearly universal liberal democratic value, as is the notion that some secrets are too dangerous to a nation and society to warrant disclosure. Partisans might disagree about whether an individual instance of secrecy is excessive, but in doing so they must frame their arguments in widely-acknowledged and –used terms. The NEPDG episode illustrates this well: NEPDG’s policy development process appeared absurdly secretive, as opponents and even members of the administration noted, and its secrecy provided the administration no political benefit and likely exacted political costs.  The more significant and pervasive secrecy that followed in the Bush administration’s post-9/11 anti-terrorism campaign, which the NEPDG episode launched and rehearsed, proved more temporarily effective at controlling information. But information about many of the administration’s programs, from the torture of prisoners and detainees to the warrantless wiretaps of domestic communications, ultimately leaked to the public over the course of the administration’s second term. By the end of the Bush presidency, the administration - and especially Vice President Cheney - had become quite politically unpopular, at least partially because of the seemingly unethical nature of its excessive secrecy. Barack Obama explicitly included open government as a platform in his 2008 campaign, in part to contrast himself with the Bush-Cheney White House. The first implication of secrecy’s implausibility, then, is that it reveals the political nature of information control, and it demonstrates how politics serves both as a key motivation to use secrecy and as a crucial check on its overuse. It also reveals the necessity of these informal means of secrecy, and the importance of avoiding draconian leak laws  and excessive prosecution of those who do leak.

A second implication of secrecy’s implausibility is the shift it suggests for the study of secrecy and transparency away from a binary, black-and-white conception of the state as either open and transparent or closed and opaque. As Part V illustrated in its description of historic covert operations, events that are kept in deep secrecy become known as their details leak out over time, whether through formal or informal channels. Most events exist in a gray world of partial secrecy and partial disclosure, where even information about events whose existence the government denies is available from open sources, and where even events about which the government has made broad disclosures remain somewhat secret and mysterious. Government information is not subject to control via an on-off switch; instead, it appears incrementally over time, both around and in spite of the literal and figurative black marks of government efforts to control its spread.

Third, and as a consequence of the shift from a binary understanding of secrecy and disclosure, legal reform should focus on temporal commitments to disclosure that force the state to recognize the decreasing value of once secret information and require the state, as a default duty, to release documents after a certain interval. This would formalize and hasten a process that is likely to occur in any event. Laws and regulations have moved in this direction, albeit with varying degrees of success. These include the mandatory declassification of most documents after a certain time period under the current Executive Order establishing the classification system,  and the staged release of presidential documents under the Presidential Records Act.

The fact that neither commitment has proven entirely successful suggests (as ever) the stubborn tendency of the administrative state and the constitutional privilege granted to the executive to resist the disclosure of information. Recall, however, the formal and informal means that enable a President and executive branch to control information in certain circumstances for a period of time. This authority, whose logic is entrenched in the Constitution, will not disappear. If they are properly implemented and enforced, time-based reforms can help compel the regular release of records and force the executive branch to recognize disclosure’s inevitability. Law can neither perfect secrecy nor cure its excesses, but - working in a manner consistent with secrecy’s implausibility and the difficulty of information control - it might ameliorate some of its ill effects.

Suing Public Authorities

‘The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law’ by Dan Priel in (2013) 47(1) Law & Society Review 169–198 argues that

The scope of negligence liability of public authorities in English law has undergone significant changes in the Post-World War II period, first expanding and then, from the mid-1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal “tests,” but rather by tying it to changes in the background political ideology. My main contention is that political change has brought about a change in the law, but that it did so by affecting the scope of the political domain, and by implication, also the scope of the legal one. More specifically, I argue that Britain’s Post-War consensus on the welfare state has enabled the courts to expand state liability in accordance with emerging notions of the welfare state without seeming to take the law into controversial territory. When Thatcher came to power, the welfare state was no longer in consensus, thus making further development of legal doctrines on welfarist lines appear politically contentious. The courts therefore reverted back to older doctrines that seemed less politically charged in the new political atmosphere of the 1980s .

Mehr Licht

The UK Law Reform Commission has released a 142 page consultation paper [PDF] regarding British law governing 'rights to light', ie a property right that "entitles a landowner to receive, usually through a window, enough of the natural light passing over a neighbour's land to enable the ordinary use of the building". It's of interest for Australian scholars of property and tort law.

The paper builds on the Commission's 2011 report as part of its 'Easements, Covenants and Profits à Prendre project' and reflects the High Court decision in HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch), [2010] 3 EGLR 15.

The Commission comments that rights to light raise issues that are more pronounced, in comparison with other easements and appear to have a disproportionately negative impact upon the potential for land development the development of land.

The Commission indicates that it has three key objectives -

• to introduce greater certainty and transparency into the law as it relates to rights to light, making disputes simpler, easier and quicker to resolve. 
•  to ensure that rights to light do not act as an unnecessary constraint on development. The availability of modern, good quality residential, office and commercial space is important to the success of increasingly dense, modern town and city centres, and to the economy more generally.
• to make sure that the important amenity value of rights to light remains protected under the law. 

The consultation paper has eight chapter, with an overview of the current law in Chapter 2.  In Chapter 3 the Commission discusses how rights to light can be created through the doctrine of prescription, where a building or room has benefited from light passing over a neighbour's land for a long period. It provisionally proposes that rights to light should in  future no longer be capable of acquisition by prescription. Chapter 4 considers the test for when a person who benefits from a right to light can bring a legal claim on the basis that his or her light has been obstructed, ie at what point an obstruction becomes actionable in the law of nuisance. Chapter 5 addresses remedies for the infringement of a right to light – principally injunctions (for example, an order that the construction of a building cease, or that it be demolished) and damages.  Chapter 6 discusses the availability of injunctions and their role  in negotiations as a powerful bargaining tool. The Commission provisionally proposes introduction of a notice procedure designed to introduce greater clarity into rights to light disputes. Chapter 7 focuses upon how rights to light can be brought to an end, particularly the extinguishment of rights to light by abandonment.

Four provisional proposals are as follows

• in the future it should no longer be possible to acquire rights to light by prescription
•  introduction of a new statutory test to clarify the current law on when courts may order a person to pay damages instead of ordering that person to demolish or stop constructing a building that interferes with a right to light. 
• introduction of a new statutory notice procedure, which requires those with the benefit of rights to light to make clear whether they intend to apply to the court for an injunction (ordering a neighbouring landowner not to build in a way that infringes their right to light), with the aim of introducing greater certainty into rights to light disputes. 
•  the Lands Chamber of the Upper Tribunal should be able to extinguish rights to light that are obsolete or have no practical benefit, with payment of compensation in appropriate cases, as it can do under the present law in respect of restrictive covenants. 

The proposal for prospective abolition (ie future acquisition of rights to light by long use) would have no impact on rights to light already acquired by prescription.

The Commission notes three other areas of the law for comment. The first is the test for when an obstruction of light constitutes a nuisance and is therefore actionable. The current test is based on an early twentieth-century case and depends upon the use to which the property benefiting from the right to light is put, and the effect of the obstruction of light upon that use and on potential future uses. The second area is damages. Under the current law the damages that may be awarded instead of an injunction are calculated on the basis of the amount for which the owner of the right to light would have released the right, thereby allowing a development that would otherwise constitute an actionable interference to proceed. This "negotiation basis" of assessing damages can take into account the profits that the proposed development will make.  The paper considers arguments regarding retention of the "negotiation basis" of calculating damages and  alternative options, commenting that it is not clear whether the current law is causing practical problems. The third area is the law of abandonment. A right to light is abandoned where there is an intention on the part of the owner of the right to give it up permanently. In some instances this intention may be clear (eg shutting up a window with bricks and mortar) but in other scenarios the law may be more difficult to apply.

Questions

'The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation' by Lisa Burton, Nicola McGarrity and George Williams in (2013) 36 Melbourne University Law Review 415-469 comments that

The Australian Security Intelligence Organisation Legislation (Terrorism) Amendment Act 2003 (Cth) is the most controversial piece of anti-terrorism legislation passed by the Commonwealth Parliament. The Act created a system of warrants that permit the Australian Security Intelligence Organisation to question and detain non-suspects for the purposes of gathering intelligence about terrorism offences. This regime is subject to a sunset clause and will expire in July 2016, unless renewed by Parliament. This article provides a comprehensive overview of the process by which warrants are issued and the powers conferred by them. It finds that the regime is insufficiently tailored to its purpose of protecting Australians against terrorism. In light of this, and evidence about how the powers have been used, the article concludes that these extraordinary questioning and detention powers should not be renewed without significant amendment.

The authors conclude -

The coercive questioning and detention powers conferred on ASIO by the Special Powers Regime are extraordinary. There is no precedent for such powers either in Australia or in other like nations. In 2003, after protracted debate, the Commonwealth Parliament concluded that these powers were necessary to protect Australia against the threat of terrorism. The Regime was accepted as an exceptional measure, and the inclusion of a sunset clause demonstrates that parliamentarians believed that it would be temporary. Ten years on, the Special Powers Regime can no longer fall back on these justifications. Today, a different question must be asked — whether there is a basis for the Special Powers Regime becoming a permanent feature of Australia’s legal landscape. This article has sought to answer this question by examining the legislative framework, in particular, the issuing criteria and the nature of the powers, as well as the actual use made of the powers.

The most extraordinary aspect of the Special Powers Regime is the power of detention. By this, we mean both the power to issue a Detention Warrant and also the power for a Prescribed Authority to direct the detention of a person subject to a Questioning Warrant. This power challenges the general rule that Australians should only be detained as a result of a finding of criminal guilt by a judicial officer. For this reason, the power should not be accepted unless there is clear evidence that it is necessary to protect the community from terrorism. It is not enough to say that ASIO will exercise restraint and only request a Detention Warrant if it believes that the circumstances necessitate it. The rule of law requires that legislation tightly constrain executive discretion. However, nowhere in the ASIO Act does it require the Issuing Authority to be satisfied that issuing a Detention Warrant is necessary to protect the community. At the very least, the issuing criteria should be amended to include such a requirement. This, together with the existing additional detention criterion, should be exposed to the scrutiny of the Issuing Authority, rather than left to the judgement of the Attorney-General alone.

However, practical considerations suggest that the detention power should be repealed rather than merely amended. Since 2002, 16 Questioning Warrants have been issued. In none of these cases was it regarded as necessary for a person to be detained. This suggests that other provisions of the ASIO Act, such as the secrecy offences, are sufficient to prevent a person from, for example, alerting another person involved in a terrorist act to an ongoing investigation. Further, 37 people have been charged with terrorism offences since 2003. The fact that no Detention Warrant has been issued in respect of any of these people suggests that the detention power is not necessary for terrorism investigations or prosecutions. If this is the case, then there is no need to renew the detention power again in 2016.

The statistics also indicate problems with the Questioning Warrants regime. A statistical breakdown of the 16 Questioning Warrants indicates that there is no correlation between the issue of such warrants and terrorism prosecutions. If Questioning Warrants are not intended to aid prosecutions, what function are they intended to serve? The answer to this is, ostensibly, to enable ASIO to gather intelligence necessary to protect Australia against the threat of terrorism. However, at no point are either the Attorney-General or the Issuing Authority asked to consider whether the questioning of an individual is actually necessary to achieve this end. We do not argue in this article that Questioning Warrants should be repealed, though certainly there is a good case that can be put to that effect. At the very least, the criteria for issuing a Questioning Warrant should be amended to require that questioning a person will substantially assist with the collection of intelligence that is reasonably believed capable of preventing a terrorism offence or enabling the prosecution of an offence. This, and the existing criterion that a Questioning Warrant may only be issued if other methods of intelligence gathering would be inadequate, should also be exposed to the scrutiny of the Issuing Authority.

The issue of repeat Questioning Warrants also poses a very real problem, albeit one that has seldom materialised. In our opinion, the criteria for such a warrant should be modified such that they establish a significantly higher threshold than for the issue of a Questioning Warrant in the first place. This would go some way towards reducing the possibility of ASIO using repeat warrants as means of harassment.

The punitive impact of the coercive questioning regime is exacerbated by restrictions on the procedural safeguards provided to a person subject to a warrant. First, the ASIO Act empowers a Prescribed Authority to restrict a person’s access to a lawyer of his or her choice. Other provisions, such as that allowing ASIO to monitor communications between a lawyer and his or her client, undermine the efficacy of legal representation and advice. Secondly, there is a blanket prohibition on disclosure of information about a warrant — including even the fact that a warrant has been issued. The presumption underlying these restrictions is that any communications by a person subject to a warrant — whether to a lawyer or someone else — are potentially dangerous. At times, this means the onus is effectively shifted to the person subject to the warrant to prove that communications do not pose a risk to national security; at other times, the presumption is not rebuttable.

There may well be situations in which such restrictions are appropriate. However, these are likely to be the exception rather than the norm and the restrictions should be narrowed to reflect this. Otherwise, the restrictions are disproportionate and unnecessarily hinder access to legal representation and advice. There should, for example, be a requirement of exceptional circumstances before the right to a lawyer of one’s choice is restricted. The same rule should apply to the monitoring of communications between the subject of the warrant and his or her lawyer. The secrecy provisions which restrict disclosure of information about a warrant should be amended for similar reasons. Communications between the subject of a warrant and his or her family, friends, employers or medical professionals should only be restricted where there is evidence to conclude that disclosure may pose a risk to national security. As they stand, these restrictions are disproportionate to the Regime’s purposes and mean that the use of the powers is shrouded in an undue degree of secrecy.

The question of whether — and to what extent — individual rights and freedoms can be restricted in times of emergency is one of the most challenging to have faced Western democracies. An even more difficult question faces us today. A decade on from the September 11 terrorist attacks, this state of emergency has become the norm; there is no end in sight for the ‘war on terror’. Therefore, Australia must start considering and answering the question of what its anti-terrorism laws should look like for the long term. Is it prepared to accept the ASIO Special Powers Regime as an ‘ordinary’ part of the legal framework? The Regime makes substantial inroads into fundamental human rights. Intelligence agencies are given unprecedented powers to detain non-suspects. These powers might be acceptable if they were required to protect Australia from a terrorist act. However, as this article has demonstrated, they have rarely been used and the need for them over the longer term has not been made out.

Against Agamben

'How I learned to stop worrying and use the legal argument: A critique of Giorgio Agamben’s conception of law' by Leila Brännström in (2008) 5 No Foundations: An Interdisciplinary Journal of Law & Justice 22-49 comments that

Giorgio Agamben’s Homo Sacer. Sovereign Power and Bare Life (1998 [1995]), and State of Exception (2005 [2003]) are, among other things, efforts to explore the deep structures shaping contemporary tendencies in the development of law and politics.1 Agamben offers us the diagnosis that we live in a ‘permanent state of exception’ – a situation in which law cannot be distinguished from lawlessness. He also suggests a prescription; we ought to look beyond law and reach for a realm of human activity ‘uncontaminated’ by law. He warns us that if we do not overcome law, we risk the ‘juridico-political’ system transforming itself into ‘a killing machine’, thus causing an ‘unprecedented biopolitical catastrophe’ (Agamben 1998, 188; Agamben 2005, 86).

In this article, I will argue against both Agamben’s diagnosis and his prescription. One of the troubles with his line of reasoning, the one that I will focus on, is its deadlocked and overly formalistic understanding of how law operates and of how it might be used and transformed. Surely Agamben insightfully points out certain dangerous trajectories in contemporary law and politics, but I believe that the rigid way in which he analyses law and politics forecloses the most promising ways of responding to and acting upon the problems that he outlines.

There is a more general rationale for scrutinizing Agamben’s analysis of law and of the state of exception and the implications of his analysis. Agamben’s understanding of law as a mechanism that puts limitations to our political potential and imagination and his conviction that law cannot be used for emancipatory purposes, is shared by many engaged in the field of critical legal and social studies who assume that exposing the repressive character of law and legal practices is the only possible way of conducting critical studies of law. Such an assumption is problematic as it overlooks the possibility to raise legal arguments and to engage in legal practices for pursuing emancipatory politics, a possibility that in many cases would be both forceful and productive. Sometimes, as in Agamben’s case, these assumptions are built on a perception of law as a machine whose workings, effects and possibilities are given beforehand – once and for all. The objectification of law, in turn, induces fear and aversion which often leads to political, social and legal analyses that suffer, like Agamben’s analysis does, from an overemphasis on, and an overestimation of, the legally authorized power of the state which nourishes the persisting, but misleading, idea that the major threats to our freedom and to a better future are to be found in repressive state-practices.

Since Agamben argues that Guantánamo Bay Naval Base (hereinafter ‘Guantánamo’) – where men and boys who were captured in Afghanistan and elsewhere have been imprisoned since January 2002 – is the locus par excellence of the new state of exception, I will take his characterization of the situation of the detainees at the Naval Base – abandoned by law and dwelling in a state of exception – as the point of departure for fleshing out what Agamben means when he talks about law and the permanent state of exception. The choice of Guantánamo as the starting, and the focal, point is also motivated by the fact that the raising of legal arguments, which is dismissed by Agamben as a constructive form of political action, seems to be one of the best ways of opposing the state of affairs at Guantánamo.

While many have described Guantánamo as a place where law is absent, ‘a legal black hole’ (Steyn 2004), ‘a lawless enclave’ (Hafetz 2006), ‘a prison beyond the law’ (Margulies 2004), et cetera, it has also been accurately pointed out that the situation at the the naval base has been created and sustained through legal regulations and measures. In the following, I will first sketch the coinciding lawlessness and legal rule that govern the life of the detainees at the Naval Base, which make Agamben’s portrayal of Guantánamo as a place where law and lawlessness are simultaneously present and indistinguishable from one another, seem plausible. Next, however, I will argue that when looked at closer Agamben’s characterization of the state of law at Guantánamo turns out to be based on an ahistorical and reductive understanding of law which leads to fatalistic conclusions about the fate of law at Guantánamo and elsewhere. After that I will discuss the possibilities of contesting the situation of the detainees at Guantánamo, and of engaging in political struggles in general by way of asserting legal rights and using legal arguments and strategies.

Twitterdata

'The Politics of Twitter Data' (Alexander von Humboldt Institut fur Internet & Gesellschaft Discussion Paper No. 2013-01) by Cornelius Puschmann and Jean Burgess [PDF]

approaches Twitter through the lens of “platform politics” (Gillespie, 2010), focusing in particular on controversies around user data access, ownership, and control. We characterise different actors in the Twitter data ecosystem: private and institutional end users of Twitter, commercial data resellers such as Gnip and DataSift, data scientists, and finally Twitter, Inc. itself; and describe their conflicting interests. We furthermore study Twitter’s Terms of Service and application programming interface (API) as material instantiations of regulatory instruments used by the platform provider and argue for a more promotion of data rights and literacy to strengthen the position of end users.

In discussing 'Data Rights and Data Literacy' the authors comment that

Contemporary discussions of end user data rights have focused mainly on technology’s disruptive influence on established copyright regimes, and industry’s attempts to counter this disruption. Vocal participants in the digital rights movement are primarily concerned with copyright enforcement and Digital Rights Management (DRM), which, so the argument goes, hinder democratic cultural participation by preventing the free use, embellishment, and re-use of cultural resources (Postigo, 2012a, 2012b). The lack of control that most users can exercise over data they have themselves created in platforms such as Twitter seems a in some respects a much more pronounced issue. Gnip’s CEO Jud Valeski frames the “owners” of social media data to be the platform providers, rather than end users, a significant conceptual step forward from Twitter’s own characterization, which endows the platform with the licence to reuse information, but frames end users as its owners (in Steele, 2011). Valeski’s logic is based on the need to legitimise the data trade - only if data is a commodity, and if it is owned by the platform provider rather than the individual users producing the content, can it be traded. It furthermore privileges the party controlling the platform technology as morally entitled to ownership of the data flowing through it.

Driscoll (2012) notes the ethical uncertainties surrounding the issues of data ownership, access, and control, and points to the promotion of literacy as the only plausible solution:

Resolving the conflict between users and institutions like Twitter is difficult because the ethical stakes remain unclear. Is Twitter ethically bound to explain its internal algorithms and data structures in a language that its users can understand? Conversely, are users ethically bound to learn to speak the language of algorithms and data structures already at work within Twitter? Although social network sites seem unlikely to reveal the details of their internal mechanics, recent ‘code literacy’ projects indicate that some otherwise non-technical users are pursuing the core competencies necessary to critically engage with systems like Twitter at the level of algorithm and database. (p. 4)

In the current state, the ability of individual users to effectively interact with “their” Twitter data hinges on their ability to use the API, and on their understanding of its technical constraints. Beyond the technical know-how that is required to interact with the API, issues of scale arise: the Streaming API’s approach to broadcasting data as it is posted to Twitter requires a very robust infrastructure as an endpoint for capturing information (see Gaffney & Puschmann, to appear). It follows that only corporate actors and regulators -  who possess both the intellectual and financial resources to succeed in this race - can afford to participate, and that the emerging data market will be shaped according to their interests. End-users (both private individuals and non-profit institutions) are without a place in it, except in the role of passive producers of data. The situation is likely to stay in flux, as Twitter must at once satisfy the interests of data traders and end-users, especially with regards to privacy regulation. However, as neither the contractual nor the technical regulatory instruments used by Twitter currently work in favour of end users, it is likely that they will continue to be confined to a passive role.

Patents

Pending digestion of today's judgment in Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 ( gene patenting) and this week's decision in Research Affiliates LLC v Commissioner of Patents [2013] FCA 71 (business methods) I'm reading 'The Case against Patents' by Michele Boldrin and David Levine in (2013) 27(1) Journal of Economic Perspectives 3-22 [PDF] which argues

The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless productivity is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity. Both theory and evidence suggest that while patents can have a partial equilibrium effect of improving incentives to invent, the general equilibrium effect on innovation can be negative. A properly designed patent system might serve to increase innovation at a certain time and place. Unfortunately, the political economy of government-operated patent systems indicates that such systems are susceptible to pressures that cause the ill effects of patents to grow over time. Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it. However, if that policy change seems too large to swallow, we discuss in the conclusion a set of partial reforms that could be implemented.

Business as usual from those authors (a previous version is noted here), who conclude -

In 1958, the distinguished economist Fritz Machlup in testimony before Congress famously said: “If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.” A proposal to abolish patents may seem “pie in the sky.” Certainly, many interim measures could be taken to mitigate the damage caused by the current system: for example, properly enforcing the standard that patents should only be granted for non-obvious insights; requiring genuine disclosure of working methods in patents (the opposite of certain recent “protectionist” proposals to institute secret patents); and allowing an “independent invention” defense against claims of patent infringement. But why use band-aids to staunch a major wound? Economists fought for decades - ultimately with considerable success - to reduce restrictions on international trade. A similar approach, albeit less slow, should be adopted to phase out patents. Because policy proposals are often better digested and metabolized in small bites, here is our list of small reforms that could be easily implemented.

1) Patents are time limited, which makes it relatively easy to phase them out by phasing in ever shorter patent durations. This conservative approach also has the advantage that if reducing patent terms indeed has a measurable effect on innovation, the process can be reversed.

2) Stop the rising tide that, since the early 1980s, has extended the set of what can be patented and has shifted the legal and judicial balance substantially in favor of patent holders.

3) Because competition fosters productivity growth, antitrust and competition policies should seek to limit patents when they are hindering innovation. This policy may be of particular relevance for high-tech sectors, from software to bioengineering, to medical products and pharmaceuticals.

4) Current international trade negotiations that affect patents often occur as part of either the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was signed in 1995 as part of the World Trade Organization negotiations, or as part of the World Intellectual Property Organization, an agency of the United Nations. The nature of these agreements and organizations is well indicated by the use of the propaganda term “intellectual property” in their titles. In both cases, these talks are often focused on how to prevent ideas from high-income countries from being used in low-income countries - what we would characterize as essentially a neo-mercantilist approach toward free trade in goods and ideas. We should be highly cautious about this agenda. Within a couple of decades, the “balance of trade in ideas” between the US and European economies and emerging economies in Asia might easily equalize or reverse. Engaging in “mercantilism of ideas” may seem favorable to certain large US firms now, but such rules may become costly to the US economy if they are applied to protect patents held in the future by producers in the now-developing Asian economies.

5) If the US economy is to have patents, we may want to start tailoring their length and breadth to different sectoral needs. Substantial empirical work needs to be done to implement this properly, although a vast legal literature is already pointing in this direction.

6) Patents should not be granted based only on technological insights, but should also take economic evidence into account. For example, if an invention is easy to copy or has a high fixed cost, then patent protection to provide an incentive for the inventor may be more suitable. Ultimately, patents should be awarded only when strictly needed on economic grounds, as spelled out earlier.

7) We advocate returning to the rule prior to the Bayh–Dole Act of 1980 according to which the results of federally subsidized research cannot lead to patents, but should be available to all market participants. This reform would be particularly useful for encouraging the dissemination of innovation and heightening competition in the pharmaceutical industry.

8) In several industries, notably pharmaceuticals, it would be useful to rethink all of the government policies that bear on incentives for invention. The broad point is that there are a number of ways to reduce the risks and cost of developing new drugs, rather than just trying to ratchet up patent protection.

In general, public policy should aim to decrease patent monopolies gradually but surely, and the ultimate goal should be the abolition of patents. After six decades of further study since Machlup’s testimony in 1958 has failed to find evidence that patents promote the common good, it is surely time to reassess his conclusion that it would be irresponsible to abolish the patent system. The patent system arose as a way to limit the power of royalty to award monopolies to favored individuals; but now its primary effect is to encourage large but stagnant incumbent firms to block innovation and inhibit competition.