Pray the gay away

Now that we are moving away from 'pray the gay away' pseudotherapies it is worth considering law regarding other problematical 'treatment' of sexual affinity.

'Regulating Sexual Orientation Change Efforts: The California Approach, Its Limitations, and Potential Alternatives' by Jacob M. Victor in (2013) Yale Law Journal explores "a recent and unprecedented piece of legislation enacted in California, which forbids licensed psychotherapists from engaging in "sexual orientation change efforts" (SOCE) with a minor".

The author argues that California's regulatory strategy is problematic on normative grounds and from the strategic perspective of those who seek to effectively curtail SOCE therapists’ influence; a better approach would undermine SOCE practitioners by regulating deceptive promises about the efficacy of therapeutic techniques more generally.

Victor comments that

In September 2012, the California legislature passed Senate Bill 1172 (SB 1172), an unprecedented piece of legislation that prohibits licensed psychotherapists from engaging in “sexual orientation change efforts” (SOCE) with minor patients. The legislation establishes that the state may revoke the license of any therapist who attempts to change a minor patient’s sexual orientation.

As many scholars have pointed out, the vast majority of psychiatrists and psychologists once believed that same-sex attraction could be “cured” through psychotherapy. However, since homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders in 1973, the mainstream mental health establishment has gradually begun to understand homosexuality and bisexuality as benign, encouraging therapists to engage in practices that “affirm” a patient’s sexual orientation. At the same time, several groups – including NARTH, Exodus International, and JONAH – have continued to insist that sexual orientation can be changed through psychotherapeutic intervention. These organizations, and therapists affiliated with them, continue to provide SOCE therapy – also know as “conversion therapy” or “reparative therapy” – and often market these services to minors from religious communities In the last several years the mental health establishment has become increasingly concerned with these practices and issued reports concluding that SOCE is ineffective and potentially harmful. Lesbian, gay, and bisexual (LGB) rights organizations have also begun publicly documenting the stories of individual patients subjected to SOCE practices, many of whom describe their treatments as emotionally or sexually abusive.

The California legislature adopted SB 1172 in response to these new reports of SOCE’s potential harmfulness, pointing to the state’s “compelling interest in protecting the physical and psychological well-being of minors…and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” Mainstream LGB rights groups, especially Equality California, were instrumental in galvanizing the state to act, and also framed the legislation as being part of broader efforts to “protect and empower” LGB youth. Though the new statute has faced significant legal challenges – it has already been enjoined on First Amendment grounds and may be struck down by the Ninth Circuit13 – this strategy of seeking legislation that bans the use of SOCE therapy on minors has become appealing to LGB rights groups nationwide. In response to lobbying efforts, legislators in New Jersey, New York, Pennsylvania, and Massachusetts recently proposed legislation modeled after SB 1172.

This strategy, however, is not without its costs. This paper argues that even those opposed to SOCE – a position this paper takes for granted – should still question the SB 1172 approach of using targeted legislation to ban the use of any SOCE practice on minors. While California’s willingness to intervene on behalf of LGB youth is commendable, the regulatory strategy employed in SB 1172 is problematic from both a normative perspective and from the more strategic perspective of those who seek to curtail SOCE therapists’ influence in the most politically expedient manner possible. This paper also proposes an alternative strategy that might bring about the same goals of SB 1172 – namely, preventing SOCE practitioners’ access to LGB youth – but with fewer normative or strategic problems.

The paper proceeds in three Parts. Part I provides background on SB 1172 and explores the understandings of SOCE’s harmfulness that seems to underlie the legislation. This Part also argues that this conception of SOCE’s harmfulness is partially grounded in the mental health establishment’s conclusions, derived from clinical studies, but also stems from a more ideological understanding of LGB identity. Part II raises three separate but interrelated problems with the legislation’s broad view of the state’s interest in regulating SOCE. First, SB 1172 uses the power of the state to impose an essentializing conception of LGB identity that risks marginalizing and stifling the experiences of those who fall outside mainstream conceptions of sexual orientation. Second, the legislation falls within an ill-defined and controversial area of First Amendment doctrine – the line between “professional” and “ideological” speech – and thus carries a pronounced risk of being struck down on First Amendment grounds. And third, SB 1172 risks fostering political backlash by playing into a politically appealing anti-LGB narrative that frames LGB rights in opposition to “parental rights.” Part III examines a potential alternative strategy for limiting SOCE practitioners’ access to patients that focuses on the “deceptive” promises made by most SOCE practitioners regarding the effectiveness of psychotherapeutic intervention in changing sexual orientation. Most SOCE practices could fall into a broader – and possibly already existent – regime that defines deceptive promises made by therapists as unprofessional conduct. Regulating SOCE through such a regime carries fewer normative or political-strategic concerns and could potentially bring about results similar to those of a targeted ban like SB 1172.

Trolls

'Predatory Patent Litigation' by Erik N. Hovenkamp comments that

Despite their extensive experience in patent litigation, the most litigious patent assertion entities (PAEs) fair relatively poorly in court. These firms commonly file dubious infringement claims on which they are ostensibly very likely to lose money if litigated to judgment. It is therefore tempting to conjecture that these PAEs are mistaken to pursue such litigation. However, we argue that this is in fact part of a calculated strategy of predatory patent litigation used to monetize low quality, excessively broad patents. In effect, the PAE aggressively litigates when its licensing demands are rejected -- despite expecting to lose money on the suit -- in order to injure the defendant and develop a litigious reputation that intimidates future defendants into more lucrative settlements. Like predatory pricing, this involves a short run loss that is recouped in the long run through supra-competitive pricing. T

he welfare impact of predatory patent litigation is unambiguously negative: it creates a market for low quality patents, exacerbates the patent thicket problem and inflates social costs -- and it does so without improving on the ability of non-predatory PAEs to encourage innovation. The welfare impact of non-predatory PAE activity, by contrast, is prima facie ambiguous. Rather than fee shifting remedies like the SHIELD Act, we propose that potential defendants form a litigation cost-sharing agreement: a contractual agreement that divides a member's defense costs among the group when the plaintiff is a PAE, and which requires members to litigate predatory claims to judgment. This deters predatory litigation without deterring meritorious infringement claims.

Cuts and Cultures

'Limits of Enlightenment and the Law - On the Legality of Ritual Male Circumcision in Europe Today' by Mark Swatek-Evenstein in (2013) 29(77) Merkourios 42 comments that

The legality of ritual circumcision of male infants is a subject not regularly discussed under European or international Human Rights Law, let alone national law. In Germany, this changed dramatically in 2012, when a regional court declared ritual circumcision of a male infant illegal, even if performed at the parents' request and according to current medical standards. After a fierce public discussion, the German parliament voted towards the end of the year in favour of a bill that explicitly permits male infant circumcision. The discussion on whether this new law is in line with European human rights law and international law is expected to continue. 

This paper takes no position on whether infant male circumcision should be legal and takes no position on the medical questions attached to the subject. It argues for the legality of infant male circumcision in Western democracies like Germany for historic reasons: Jewish emancipation in the 18th and 19th century throughout Europe meant an incorporation of Jewish laws and customs into the legal fabric of European countries. Taking into account the relatively wide acceptance of the practice of infant male circumcision in communities worldwide, the paper suggests that arguments from international human rights law make simple equations difficult to sustain. Gender and children's rights-based approaches may be utilized to develop a deeper sensibility for the issues related to circumcision, but must not obscure the fact that minority rights sometimes rightfully allow a minority to do things the majority does not understand.

Swatek-Evenstein argues that

The legal framework for any opinion on the legality of ritual male circumcision is provided not by a subjective reading of applicable legal provisions, no matter how “objective” such an interpretation may claim to be, but it is the result of a specific legal tradition. In the case of Europe, the recent discussion on whether or not to include a reference to God in the preamble of the Charter of Fundamental Rights of the European Union, shows that the relationship between religious foundations and legal institutions is far from over. While the Charter only makes reference to the “spiritual and moral heritage” of the European Union, it is clear that Europe (and with it, European law) today is based on a predominantly Christian European (religious) experience and development. Guarantees of religious freedom for other denominations therefore always contain aspects of minority protection. As shown for the case of Germany, ritual male circumcision, while never widespread in predominantly Christian Germany, evolved within the state’s legal tradition. The guarantee of religious freedom here returns to its origin in human rights as minority rights: For in the Jewish and Muslim traditions, membership to the respective groups (or religions) is not the result of a faith-based choice, as the Cologne court implied in its reasoning based on a Christian understanding of religion, but of heritage. Born to a Jewish mother, any male infant is considered Jewish and as circumcision is considered a requirement by most readings of Judaism, it may make sense to speak of a “right to be circumcised”, that is, to be welcomed into the Jewish tradition as this tradition requires. The situation in Islam is similar. Claims of an implicit incompatibility of this right with European (human rights) rules construct a dichotomy between the substance of the European legal system and, in particular, Judaism, which given the recent re-affirmation of Europe’s “spiritual and moral heritage” and “the diversity of the cultures and traditions of the peoples of Europe” in the preamble of the Charter of Fundamental Rights of the European Union, hardly represents a step forward. Instead, such claims re-affirm the construction of the Jews (and the Muslims) as Europe’s “Other”.

Statements on the freedom of religion in its legal dimension often come with certain limitations. For example, according to Art. 18 of the International Covenant on Civil and Political Rights (ICCP), the freedom to “manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. In similar fashion, as described above, Article 9 of the Convention contains an almost identical limitation. In this context, the re-evaluation of the (legal) relationship between children and their parents of the recent decades becomes relevant. Children are no longer the “property” of their parents, but individual bearers of rights. The “best interests” of the child, rather than the wishes of the parents, have become the legal focus (see Art. 3 UNCRC and Art. 24 (2) and (3) of the Charter of Fundamental Rights of the European Union). From this perspective, it might make sense to question whether “the excision of healthy tissue from a child unable to express his consent for no demonstrable medical benefit” should be a private matter of parental choice. But the increased emphasis on children’s rights alone does not allow for excluding such a decision from the realm of valid (legal) parental choices. Pretending to interpret children’s rights according to one “objective” definition of the “best interests” of the child and deciding against circumcision for its lack of medical benefit is akin to devaluing traditions which decide in favour of circumcision for other reasons. It also separates children and their rights from their “natural” environment, that is to say, it strengthens children’s rights at the expense of the protection of the family as an organic unit. Thus this arguably runs counter to the aim of the United Nations Convention on the Rights of the Child, which is to provide the best protection for the child that, as the preamble clearly states, “should grow up in a family environment”. In other words, the UNCRC seeks to balance the rights of children and parents to preserve a strong pro-family ethic. While it cannot be denied that there can be situations within the family that require state intervention, it must be asked whether the practice of ritual male circumcision, which has been known in Europe for centuries, can by default be considered such a situation, as critics of the ritual seem to suggest. As long as it can be demonstrated that legal regimes of Europe and international human rights law have developed with the inclusion of such traditions, using these regimes to pass judgement on those traditions decontextualizes the law from its social origins. As Didi Herman has shown, reducing these traditions to “purely religious” traditions – implicitly defining “the hegemonic Christianness” of most of Europe as secular – negates their origin in cultural traditions and their importance for questions of identity, and is informed by an implicit Christian normativity: “In the case of circumcision, a secularised, modern ‘healthcare’ argument can thus be read as racialising, orientalist and Christian, as can the related argument that circumcision is, at root, a barbaric ritual having no place in a civilised society, made by European enlightenment rationalists over 200 years ago.” If chronology is everything and cannot be reversed, then ritual male circumcision is, in principle, legal under current European Human Rights law. That does not mean that the practice needs to remain legal, but it does mean that it is not for the courts to decide whether or not the legal situation should or will change. The Cologne court’s decision may not have violated the European nullum crimen-principle as defined by Art. 7 of the Convention, since no “penalty” was imposed on the defendant, who was acquitted. But the retroactive destruction of a defence violates any principle of legality less narrowly defined, even if no penalty is imposed. Under international criminal law, it is not only the rule of non-retroactivity of crime creation that has reached customary international law status. There is an equally well-established rule of non-retroactivity in eliminating defences to crimes. The latter rule prohibits elimination of defences concerning what acts the law deems as noncriminal (unless the defence – though formally in place – can be considered unjust and where, stripped of the defence, the act in question was squarely criminal at the time.). It cannot be said that parental consent to ritual male circumcision as a defence to the act in question can be considered unjust, or that male circumcision as such is squarely criminal under current criminal law in Europe. As stated before, it is clear that circumcision can be medically beneficial, even if such benefits are not motivating factors in the practice of ritual male circumcision.

If children’s rights are indeed seriously impaired by allowing ritual male circumcision, as some judges and academics believe, the way forward is not to claim that the practice is illegal, only that it should be illegal. Such claims will then have to deal with the medical ambiguity related to the subject, just as much as they will have to respond to the claims of religious freedom properly understood. If Europe is to remain a place of diversity, then a dialogue about the desirability/necessity of ritual male circumcision outside the constraints of the discourse about its legality is likely to find more open ears than the accusation that some of the contributors to Europe’s legal status quo are habitually violating this very same status quo.

'An Examination of Legal and Ethical Issues Surrounding Male Circumcision: The Canadian Context' by Suzanne Bouclin in (2005) 4(2) International Journal of Men's Health 205 comments that

Despite shifts in the discourses adopted and reinforced within the Canadian medical community and the international community, routine neo-natal male circumcision remains fairly normalized. Focusing on the Canadian context, this paper outlines the health-based and legal arguments against elective infant male circumcision. Part one provides an overview of routine neo-natal male circumcision and deals with the crucial distinction between therapeutic and non-therapeutic intervention. It locates elective neo-natal male circumcision within the non-therapeutic category. Part two outlines the theoretical underpinnings for medical consent in the Canadian context, and discusses the legal requirements for 'informed consent'. The work of part three is to tease out issues of parental consent and whether parents should be entitled to substitute consent for non-medically necessary, routine, neo-natal circumcision.

The Cost of Watch Lists

'The Hidden Costs of Terrorist Watch Lists' by Anya Bernstein in (2013) 61 Buffalo Law Review 461 comments that

 Courts have started to recognize standing to sue for those on the government’s No Fly List, which bars listed individuals from flying. This salutary step, however, leaves untouched the complex watch list infrastructure on which the No Fly List is built and whose flaws it inherits. Lower-profile watch lists have fewer determinate consequences on listed individuals than the No Fly List does. But, this article argues, they exact substantial costs. 

This article first explains why the incentive structure of terrorist watch lists encourages government agencies to list more people than necessary and not to check their work. It then demonstrates how a misguided understanding of the relationship between false positives and false negatives obscures the effects of these perverse incentives. Those effects, the article shows, extend beyond individuals listed on a watch to include government agents and agencies, public policy, and society at large. Yet, as I explain, neither the current statutory regime nor judicial doctrine can address these broad negative effects; even scholarship largely misses the point. To remedy this situation, this article proposes ways to build self-assessment and improvement — in the form of Bayesian updating — into the watch list process. More broadly, the article contributes to attempts to analyze and constrain the government’s use of big data.

Bernstein notes that

The No Fly List, which is used to block suspected terrorists from flying, has been in use for years. But the government still appears “stymied” by the “relatively straightforward question” of what people who “believe they have been wrongly included on” that list should do. In recent months, courts have haltingly started to provide their own answer, giving some individuals standing to sue to remove their names or receive additional process. This step is particularly important as the No Fly List continues its breathtaking growth. It is unclear, however, how a court will evaluate that additional process when the listing criteria are both secret and untested. This doctrinal development poses a challenge not only to the No Fly List, but also to the complex watch list infrastructure on which it is built. 

The No Fly List draws on a consolidated terrorist watch list that compiles numerous other lists maintained by a number of federal agencies. Agencies compiling their lists receive information not only from their own agents but from state governments, foreign nations, and private individuals. The No Fly List is well known because it has visible effects like impinging on rights to travel. Indeed, it is precisely such effects that have led courts to recognize standing to challenge them. But the No Fly List’s flaws are inherited from the lists it uses. They, in turn, remain largely unregulated, unappealable, and obscured from public attention. 

Commentators have argued that such watch lists raise problems for privacy and due process rights. This Article broadens the frame, moving beyond individual rights to the broader effects that watch lists have on the agents and agencies who run them, the government that commissions them, and the society that houses them. It also explains why agencies currently lack the incentives to address these problems themselves. Because current law fails to rein watch lists in, they require external constraint. Focusing on watch lists’ peculiar epistemological and social structure, this Article identifies the key aspects of watch list creation that require regulation. And it draws on developments in regulatory theory to ground its proposals for reform. 

This Article starts with the question of why watch lists require more constraint to begin with. Legal constraints, after all, usually exist to make people do things they would not otherwise do. And at first glance, there seems to be every reason to think that government agencies want to make their watch lists work. If that is the case, we can assume that agencies will try their hardest to create the best and most useful watch lists possible. We would not need to tell them how, or to force them to take some particular route to getting there. 

As I contend in Part I, however, the incentive structures surrounding terrorist watch lists push agents and agencies to exaggerate dangers, putting names on watch lists that do not belong there. These false positives might be more acceptable if they made watch lists more comprehensive, reducing the likelihood that the watch list would miss someone who ought to be on there—a false negative. But, as Part I also shows, watch lists’ perverse incentives lead agents and agencies to misconstrue the relationship between false positives and false negatives. These perverse effects endanger the very national security that watch lists are meant to safeguard by discouraging the kind of self- correction that would make watch lists more effective. 

Part II explains the structure of contemporary terrorist watch lists, showing how information and knowledge are produced in the watch list context. Contemporary watch lists use the techniques of “big data” to collect information and distribute the work of evaluation and prediction over many participants. However, they largely eschew the self-assessment techniques that make the use of big data reliably useful. Their distributed knowledge production can help watch lists smooth over the peculiarities of individual agents. But it can also exacerbate judgment problems by stacking peculiarity upon peculiarity and giving the result a veneer of objective truth. Explaining how judgment is incorporated in watch lists elucidates the errors they are prone to and helps clarify why a conflicted incentive structure leads to a high false positive rate. 

A high rate of false positives might still be acceptable if there were no cost associated with them. And because of their objective veneer, watch lists can seem like a costless, neutral backdrop of impartial information about the world. It seems as though they have no effects on the world themselves. Part III argues that this neutral view is wrong. As scholars concerned with individual rights have recognized, unregulated, error-prone watch lists affect the people listed on them in powerful ways. But watch lists also affect the agents and agencies that maintain them, lowering their efficacy and acumen by failing to provide reality checks for their judgments. Further, watch lists skew public policy by making terrorism appear to be a more imminent and severe threat than it is, which leads resources to be diverted from other programs into terrorism-related ones. And to the broader public, watch lists present a world populated by terrorist threats that can often be recognized with blunt categories like ethnicity and religion. That ffects how people act in their society and what they see as its most urgent problems. Watch lists, in other words, are far from costless. They go beyond affecting individual rights to affect government functioning and social structure. Yet, as Part IV claims, the legal strictures that currently regulate database use miss the point. They focus on informational accuracy, not predictive efficacy. I suggest that this lacuna rests on an outdated understanding of contemporary databases as mere repositories for independently existing information, not the sites of judgment production and prediction they actually are. 

Traditionally, government judgment has been subject to legal constraint that can be reviewed in court. The watch list context, as I show, complicates this approach by introducing secret algorithms of prediction that result in little that is cognizable in court. This limitation, I contend, should not dissuade us from analyzing and constraining watch lists. The absence of judicial review cannot obviate scrutiny and constraint of government action in a democratic society. Rather, as recent scholarship has suggested, we must look to institutional design and internal self-regulation to solve those problems that cannot reach the courts. 

Part V proposes regulating watch lists by focusing on the increased efficacy that comes with increased constraint. My suggestions build on a growing call for government to assess, and not only project, the effects of its actions. And they stake a claim for Bayesian updating at the center of administrative self-regulation — the kind of regulation that increasingly looks to be the main way of controlling the administrative state. 

Finally, the Conclusion examines the limitations of my proposals and explains why any solution to the watch list problem will always be partial. It further discusses how similar concerns, and a similar approach, will be appropriate to other government databases used to make predictions about future human conduct, when their incentive structures are similarly conflicted.

Secrets

In Corruption and Crime Commission v Stokes [2013] WASC 282 the Supreme Court of Western Australia has considered the spent conviction order imposed on a senior public servant for disclosing official secrets.

The WA Corruption and Crime Commission failed in its appeal to set aside the spent conviction order imposed on a former deputy director of the Department of Industry and Resources (DOIR) for disclosing official secrets, in particular correspondence from the DOIR Director-General to the Director-General of the Department of Planning and Infrastructure regarding the rezoning of land suitable for commercial mining.  The Commission's report on its investigation [PDF] was published in 2008.

Stokes was charged with disclosing official secrets contrary to s 81 of the Criminal Code 1913 (WA). The Magistrate imposed a fine of $1500 and granted a spent conviction order. The Commission sought leave to appeal on the basis that the magistrate erred by

• finding that the offence which the respondent was convicted was a minor example of an offence of its type. 
• finding that general deterrence was not a significant factor in the sentencing exercise or in the consideration of whether to make a spent conviction order. 
• imposing a spent conviction order in circumstances where it was not appropriate to do so. 

In rejecting the appeal Heenan J found that in sentencing the respondent the Magistrates Court of Western Australia properly estimated the seriousness of the respondent's offence and comprehensively addressed the statutory criteria in imposing a spent conviction order.

Safe Harbour Restrictions in Germany

Germany's Data Protection Commissioners are counterparts of Australia's national and state privacy commissioners. They have drawn a line in the sand (let's hope that the tide doesn't come in) by announcing that they will not issue new permissions for data transfer to non-EU countries (inc for the use of certain cloud services). That refusal is not retrospective, so data will continue to flow across the German borders.

It is pending "a plausible explanation" by the national government of "how the unlimited access of foreign intelligence services to personal data of persons in Germany is effectively limited" in line with the principles in the German and EU privacy regimes.

Those principles have been reflected in EU criticism of the Australian privacy regime.

The statement also indicates that the commissioners will also "examine whether such data transfers should be suspended on the basis of the Safe Harbour framework and the standard contractual clauses".

In response to reports of extensive surveillance by foreign intelligence services, in particular the U.S. National Security Agency (NSA), in the absence of specific suspicion of wrongdoing, the Conference of Federal and State Data Protection Commissioners calls to mind the powers given by the Federal Data Protection Act and the EU’s Data Protection Directive to the data protection supervisory authorities with regard to international data traffic between companies in Germany and countries that are not members of the European Union.

In a number of decisions, the European Commission has defined “Safe Harbour” principles for data transfer to the U.S. (2000) and standard contractual clauses for data transfer to countries outside the European Union (2004 and 2010). These principles are intended to ensure that appropriate standards of data protection apply to personal data sent to the U.S. or other non-EU countries. However, the Commission has always stressed that the national supervisory authorities may suspend the transfer of data to such countries when there is a “substantial likelihood” that the Safe Harbour principles or standard contractual clauses are being violated.

The Commissioners state that

This is now the case. There is a substantial likelihood that the principles in the Commission’s decisions are being violated: According to current information, the NSA and other foreign intelligence services are accessing personal data sent from companies in Germany to offices in the U.S. and doing so on a large scale, without suspicion of wrongdoing and in disregard of the principles of need, proportionality and purpose limitation. The Safe Harbour agreement does contain a provision limiting adherence to the Safe Harbour principles when required by national security or if laws create such authorizations. In view of the aim of providing effective privacy protection, however, these powers of access are to be used only to the extent actually needed and not excessively. In a democracy, therefore, national security considerations cannot justify comprehensive access to personal data without reasonable suspicion. When transferring data to the U.S. on the basis of the standard contractual clauses, importers of data must state that, to the best of their knowledge, their countries have no laws that would seriously interfere with the guarantees in these clauses. Such a general authorization seems to exist in the U.S., as this is the only way to explain the substantial likelihood that the U.S. intelligence service routinely accesses personal data transferred on the basis of the standard agreements.

The Commissioners call on the national government

to provide a plausible explanation of how the unlimited access of foreign intelligence services to personal data of persons in Germany is effectively limited in line with the principles referred to. Until this is guaranteed, the data protection supervisory authorities will not issue any new permission for data transfer to non-EU countries (for example also for the use of certain cloud services) and will examine whether such data transfers should be suspended on the basis of the Safe Harbour framework and the standard contractual clauses.

Lastly, the [commissioners] calls on the European Commission to suspend its decisions on Safe Harbour and on the standard agreements until further notice in view of the excessive surveillance by foreign intelligence services.

The statement quotes the chair of the Conference of Federal and State Data Protection Commissioners as commenting

Companies that send personal data to the U.S. bear the responsibility for these data. Like everyone in Germany, they must therefore have an interest in ensuring that personal data flows are not subject to large-scale surveillance by intelligence services.

Robot Ethics

Academics say the strangest things. I'm struck by the 'Enhanced punishment: can technology make life sentences longer?' post in the Oxford Practical Ethics blog by a UK academic who - as a parody or otherwise - highlights the scope for technology to increase the severity of punishment "without making drastic changes to the current UK legal system".

Incarceration, it seems, is about retribution (rather than for example containment) and apparently a fit subject for Oxbridge philosophy postdocs to demonstrate their cleverness in giving the Hammurabi 'eye for an eye' ethic a posthuman flavour.

'Lifespan enhancement' for example could

be harnessed to increase the severity of punishments. In cases where a thirty-year life sentence is judged too lenient, convicted criminals could be sentenced to receive a life sentence in conjunction with lifespan enhancement. As a result, life imprisonment could mean several hundred years rather than a few decades. It would, of course, be more expensive for society to support such sentences. However, if lifespan enhancement were widely available, this cost could be offset by the increased contributions of a longer-lived workforce.

But wait, as they say, it just gets better.

'Mind uploading' (the sort of thing that will - ahem - allow you to "read a book in a few seconds and write a PhD thesis in an afternoon") could be used to punish bad people -

uploading the mind of a convicted criminal and running it a million times faster than normal would enable the uploaded criminal to serve a 1,000 year sentence in eight-and-a-half hours. This would, obviously, be much cheaper for the taxpayer than extending criminals’ lifespans to enable them to serve 1,000 years in real time. Further, the eight-and-a-half hour 1,000-year sentence could be followed by a few hours (or, from the point of view of the criminal, several hundred years) of treatment and rehabilitation. Between sunrise and sunset, then, the vilest criminals could serve a millennium of hard labour and return fully rehabilitated either to the real world (if technology facilitates transferring them back to a biological substrate) or, perhaps, to exile in a computer simulated world. For this to be a realistic punishment option, however, some important issues in the philosophy of mind and personal identity would need to be addressed.

Quite!

[R]esearch on subjective experience of duration could inform the design and management of prisons, with the worst criminals being sent to special institutions designed to ensure their sentences pass as slowly and monotonously as possible.

Alternately we could lock the prisoners up with a couple of ethicists and the collected works of Slavoj Zizek in a perpetual postdoc seminar.

I was particularly struck by the para on "Robot prison officers" -

The extent to which prison can be made unpleasant for prisoners is limited by considerations of the welfare of the prison staff who must deal with prisoners on a day-to-day basis. It is in the interests of these staff to keep prisoners relatively content to ensure that they can be managed safely and calmly. If human staff could one day be replaced by robots, this limiting factor would be removed. Robotics technology has already produced self-driving cars and various other impressive machines, which places robot prison officers within the bounds of possibility. Technology, then, offers (or will one day offer) untapped possibilities to make punishment for the worst criminals more severe without resorting to inhumane methods or substantially overhauling the current UK legal system.

Let's forget about the Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, apparently, and make the baddies thoroughly miserable. Why not sandpaper the crims' eyeballs, force them to listen to Cliff Richard 24/7, set fire to their hair or introduce scarification a la Dr Kafka [PDF]?

The ethicist's concern for the well-being of the prison staff is commendable - oh so commendable - but I wonder whether we can skip the robots and simply employ a couple of enthusiastic academics with cattle prods.