Consent and Consumer Profiling

'Consent to Behavioural Targeting in European Law - What are the Policy Implications of Insights from Behavioural Economics?' (Amsterdam Law School Research Paper No. 2013-43) by Frederik J. Zuiderveen Borgesius comments that

Behavioural targeting is the monitoring of people’s online behaviour to target advertisements to specific individuals. European law requires companies to obtain informed consent of the internet user before they use tracking technologies for behavioural targeting. Other jurisdictions also emphasise the importance of choice for internet users. But many people click ‘I agree’ to any statement that is presented to them. This paper discusses insights from behavioural economics to analyse problems with informed consent to behavioural targeting from a regulatory perspective. What are the policy implications of insights from behavioural economics in the context of behavioural targeting? Two approaches to improve regulation are explored. The first focuses on empowering the individual, for example by making informed consent more meaningful. The second approach focuses on protecting the individual. If aiming to empower people is not the right tactic to protect privacy, maybe specific prohibitions should be introduced.

Borgesius concludes

... People’s choices regarding privacy can be analysed using economic theory. Consent to behavioural targeting could be seen as a trade-off: people often consent to a company processing their personal data in exchange for the use of a “free” service. However, information asymmetries hinder meaningful decisions. Many people don’t realise that their online behaviour is tracked. If somebody doesn’t realise releasing personal data in exchange for the use of a “free” service, that “choice” can’t be informed. But even if companies asked people consent for behavioural targeting, information asymmetry problems would remain. First, people often don’t know what a company will do with their personal data. Second, if people knew, it would be hard to predict the consequences of future data usage. Third, people don’t know the value of their personal data, so they don’t know how much they “pay”. In sum, making meaningful decisions about behavioural targeting is hard for people because of a lack of information. Because of transaction costs, like the time it would take to inform oneself, the information asymmetry problem is hard to solve. Reading privacy policies would cost too much time, as they tend to be difficult to read and long. Some suggestions were made to mitigate the information asymmetry problems. 

First, there’s a need for education about behavioural targeting and online privacy in general. People can’t really choose if they don’t understand the question. Second, data protection law must be applied more vigorously. Companies that seek consent must do so in clear and straightforward language. Third, research is needed into better ways of presenting information to people. But even if all these measures were taken, considerable information asymmetries would probably remain. If people are asked to consent to data collection hundreds of times per day, even simple requests are overwhelming. 

Moreover, insights from behavioural economics suggest that even fully informed people face problems making privacy choices in their own best interests. Many biases influence our decisions. For instance, people are myopic and tend to discount disadvantages in the future. If people can only use a service if they “consent” to behavioural targeting, they might ignore the costs of possible future privacy infringements, and choose for immediate gratification. Furthermore, people tend to stick with the default. Many other biases influence privacy decisions. 

 Data protection law has answers to only some of these problems. If consent would be implemented as requiring affirmative action of the data subject (an opt-in system), the status quo bias would nudge people towards privacy friendly choices. But myopia suggests that if the use of a service is made dependent on consenting to behavioural targeting, many people might consent, contrary to their own stated interests. The framing effect suggests that people can be pushed towards decisions that they might later regret. In sum, insights from behavioural economics cast doubt on the effectiveness of informed consent as a privacy protection measure. Many people click ‘I agree’ to any statement that is presented to them. 

So what should the law do? A rather blunt reaction to myopia could be: prohibit companies from making the use of a service dependent on consenting to tracking. But sector-specific rules that prohibit certain behavioural targeting practices are also possible. However, prohibitions to protect people against themselves reek of unwarranted paternalism. On the other hand, it could be argued that some prohibitions would protect society as a whole. Some examples of possible prohibitions were mentioned. For instance, the tracking of children for behavioural targeting could be prohibited. Or it could be prohibited for online news services to engage in behavioural targeting. The examples show that it wouldn’t be easy to agree on prohibitions. 

Lastly, there might be a middle ground. Instead of introducing prohibitions, the lawmaker could use insights from behavioural economics. The law could set defaults, and make them stickier by adding transaction costs. For instance, the law could set formal requirements for consent, like a minimum of five mouse clicks, or a letter by registered mail. Such measures would leave freedom of choice intact, at least formally, but the status quo bias in combination with transaction costs would steer people towards privacy. When new rules are adopted, it can’t be ruled out that some services that rely on income from behavioural targeting couldn’t be offered for “free” anymore. This should be taken into account. 

In sum, the lawmaker has a range of options. There will probably always be a large category of cases where relying on informed consent, in combination with data protection law’s other safeguards, is the appropriate approach. For those cases, transparency and consent should be taken seriously. More effective ways of presenting information are needed. But this isn’t enough. Merely relying on data protection law to protect people’s privacy in the context of behavioural targeting doesn’t seem sufficient. If we decide, after debate, that it’s better for our society if certain practices don’t happen, prohibitions may be the best answer.

Deportability

 'Deporting the Citizens within the European Union: A Counter-Intuitive Trend' by Dimitry Kochenov and Benedikt Pirker in Columbia Journal of European Law considers 'deportability'

The paper provides a detailed analysis of EU law on the deportations of EU citizens between the Member States taking the case of P.I. as a starting point. We approach deportations from a social science perspective, focusing on the notion of 'deportability' as an essential element of what citizenship is. Deportability and non-deportability is one of the last critical legally meaningful oppositions between citizens and non-citizen residents. Analysing the regulations on the potential deportatability of citizens provides a sketch of the core of what a particular citizenship status, including EU one, is about. What the latest developments in the case law unquestionably demonstrate is that the ECJ is working towards the elimination of the non-deportability guarantees in the Citizenship Free Movement Directive, de facto erasing the status of permanent resident EU citizens as a legally meaningful construct. This is in strong opposition to the strict prohibition of requiring EU citizens to leave the Union -- the core of Ruiz Zambrano and its progeny. The claim that 'internal' deportations within the EU are potentially less harmful than the deportations requiring citizens to leave the Union is baseless, as both can be equally disruptive in the context of concrete human lives. Deploying judicial means to remove protections against internal deportations is thus a totally counter-intuitive trend.

The authors comment that

The general vector in the development of citizenship of all the liberal democratic polities around the world during the last decades is clearly decipherable. As Joppke has demonstrated, this development is marked by the thinning out of the essential elements of the legal status as well as the opening up of a number of rights of citizenship to those who do not possess the formal legal status of citizenship.The majority of the rights classically associated with this status are not limited to the citizens anymore and have been opened up to resident non-nationals and others. As a result, only a very limited amount of rights—and at times duties - remains uniquely associated with the status of citizenship as such. The rights not granted to those who do not have the formal legal status, are the essential determinants of the citizenship’s contemporary content, approached as a legal status. A simple survey of such rights would result in a list, which is not long at all. It is usually limited to political rights, rights to occupy high offices (which presumably follows the same rationale in excluding non-citizens), and the unconditional right to enter and stay in the territory of the polity, which granted the status of citizenship its legal substance in the first place. Consequently, political rights coupled with the right to enter and stay are the key determinants of what the legal aspect of citizenship of a modern democratic polity is about. 

Having outlined the two, it is possible to establish a hierarchy between them from the point of view of an ordinary citizen. Political participation is limited by age and interest and has been falling gradually in all the democracies. In fact, democracy functions on the essential assumption that citizens are not actively involved, even if the contrary is the essence of its ideological component.Residence security, on the contrary, concerns all the citizens of all ages interested in residing in the territory of the polity whose citizenship they possess, which is usually the majority of citizens, should we speak about moderately successful polities and exclude the extreme cases. Approaching exclusive citizenship rights in such a way, it becomes clear that residence security is at the core of what the essential legal essence of the citizenship status is now about. It is the most important of the “few remaining privileges which separate citizens from settled non-citizens in contemporary liberal states.” 

... To put it differently, a sound argument can be made in favour of placing deportability and non-deportability among the essential paradigms guiding the contemporary understanding of citizenship as a legal status. Citizenship developed through the last century alongside the growing toleration of deportation of aliens, which, though initially viewed as an exceptional measure applied usually in times of war, managed to enter the mainstream of contemporary migration regulation. Start deporting citizens and citizenship largely evaporates as a meaningful legal category, which is why the absolute majority of states take the ban on the deportations of citizens very seriously: it is being non-deportable and not pushed to leave the territory of the state that makes you a citizen in this view,reaffirming citizenship’s normative qualities. 

Given that at the essence of citizenship is the borderline between those who “belong” and those who do not, deportability plays an essential role, providing a readily available marker of “otherness.” In order to function and be effective in this context, deportability should not necessarily be rigorously acted upon—far from that: “deportation is, from the state’s point of view, both ineffectual and essential.” Its presence as a mere possibility is already enough in order to shape the boundaries of belonging in contemporary societies, as well as intrude into human lives akin to the sword of Damocles. Numerous difficulties that necessarily arise in the context of acting on deportability have been outlined in the literature: Deporting people is surrounded by fundamental conflicts inherent in the very nature of liberal democratic states respecting human rights obligations. Either acted upon, or not, the symbolic importance of the prospect of deportation, its mere possibility, play an essential role in outlining with clarity the scope of those who are citizens of a polity, as opposed to merely residents. Deportation is thus “constitutive of citizenship” — i.e., construction of a citizen and the construction of a deportable subject go hand in hand and are indeed two parts of the same coin.

ANPR and theatrics

The federal Coalition's Crime policy statement calls for rollout of Austomated Number Plate Recognition (ANPR) at major air and shipping hubs, presumably followed by extension to other locations.

It is important that police and criminal intelligence agencies are told when vehicles associated with suspected or known criminals and gangs approach our ports or airports. 

This knowledge can help them monitor suspicious activity or deploy additional resources if necessary. 

Automatic numberplate recognition systems (ANPR) are one such way to effectively monitor vehicle approaches to airports and ports. If elected, the Coalition will commission an urgent scoping study for the roll out of ANPR to be operated by CrimTrac, for the approaches to airsides and waterfronts. This will enable law enforcement and criminal intelligence agencies to identify people and organisations whose attendance at these locations may be unauthorised or suspicious.

Given that there's nothing like function creep we will no doubt see the cameras used for other purposes.

CrimTrac is probably dusting off its expensive ANPR consultancy report already. A perspective is provided by 'ANPR: Code and Rhetorics of Compliance' by Christopher Parsons, Joseph Savirimuthu, Rob Wipond and Kevin McArthur in (2012) 3(3) European Journal of Law and Technology.

The authors comment that

 ANPR systems are gradually entering service in Canada's western province of British Columbia and are prolifically deployed in the UK. In this paper, we compare and analyze some of the politics and practices underscoring the technology in these jurisdictions. Drawing from existing and emerging research we identify key actors and examine how authorities marginalize access to information about the systems' operation. Such marginalization is accompanied by the rhetoric of privacy and security that are used to justify novel mass surveillance practices. Authorities justify the public's lack of access to information about ANPR practices and technical characteristics as a key to securing environments and making citizens 'safe'. After analyzing incongruences between authorities' conceptions of privacy and security, we articulate a means of resisting intrusive surveillance practices by reshaping agendas surrounding ANPR.

In 'war on organised crime' mode the Coalition indicates that

2. Fighting Organised Crime 

Organised crime and outlaw bikie gangs are a massive cost to our community in many different ways. 

Tackling organised crime requires significant commitment due to the sophisticated and extensive nature of these criminals’ operations. 

a. Local anti-gang squads 

The Coalition will establish Local Anti-Gang Squads to fight organised crime at the local level with the support and backing of national tools, resources and intelligence. 

Labor’s recent announcement of an anti-gangs taskforce is an inefficient way to deal with the national problem of organised crime. While organised crime does not recognise State and Territory borders, it manifests itself in different ways across Australia and involves a multiplicity of groups with diverse criminal interests. 

We will redirect $64 million to the Coalition’s Local Anti-Gang Squads initiative that will build a series of smaller, better targeted and regionally based anti-gang taskforces. They will work in partnership and consultation with State and Territory law enforcement agencies, while reporting to the Commonwealth’s central criminal intelligence and law enforcement agencies. 

Australia already has national law enforcement and criminal intelligence bodies deeply invested in fighting organised crime. However, dealing with organised crime is not necessarily amenable to a ‘one size fits all’ model. 

The simple facts are that a local approach to dealing with organised crime will be more effective if it can tap into national support, resources and intelligence. 

Commonwealth resources and money should be committed in a way that best supports the entirety of Australian law enforcement and respects the priorities and work of State and Territory agencies. 

The Coalition will fund these taskforces so they have access to the full suite of federal intelligence and operational resources available from the Australian Federal Police, the Australian Crime Commission, Customs, CrimTrac, the ATO and Centrelink. They will also collect and act upon intelligence from local law enforcement. 

The taskforces will share the benefit of new unexplained wealth legislation in order to disrupt criminal organisations and seize their assets. They will set ambitious targets to seize assets and disrupt criminal organisations.

In CCTV territory the statement indicates that

The Coalition’s Plan for Safer Streets will boost the efforts of local communities to address crime and anti-social behaviour by helping them to install CCTV and better lighting, funded from a pool of $50 million to help deliver effective solutions to local crime problems. 

The money will come from proceeds of crime so that the crimes of yesterday will help to prevent tomorrow’s crimes. 

Recent studies indicate that CCTV footage can be extremely helpful in solving crime: in the United Kingdom, a study found that almost 70 per cent of murders are solved using images captured by CCTV. Another study found that in London six crimes a day are solved using CCTV and that detectives consider the technology as valuable as DNA in solving crimes. 

The Coalition will establish a voluntary national register of CCTV locations accessible through law enforcement agencies’ computer mapping services to enable them quickly to identify likely sources of evidence. Those businesses who wish to register their locations will be able to display notices that their CCTV is registered with police, which may have additional deterrent effects. 

The Coalition’s Plan for Safer Streets will help protect communities from crime.

The statement also indicates that

The Coalition will make sure that people with a relevant criminal history can never receive a security clearance to work at port and airport entry points.

Under Labor, people with a relevant criminal history are able to get a security clearance to work on ports and in airports where cargo comes into the country. On some occasions, these people have been found acting corruptly to help criminals and make smuggling operations easier. The Coalition will ensure that the criteria for issuing people with security clearance to work on Australia’s wharves are upgraded and tightened. Tough laws will apply that will make sure applicants with a relevant criminal history are never given a Maritime Security Identification Card or an Australian Security Identification Card.

The Coalition strongly believes that stopping criminals from smuggling guns and drugs at our ports and airports is a vital step toward suppressing organised and violent crime.

CoE Declaration

The Council of Europe (CoE) Committee of Ministers has released a 'Declaration' on 'Risks to Fundamental Rights stemming from Digital Tracking and other Surveillance Technologies'.

The Declaration states that

1. The propensity to interfere with the right to private life has significantly increased as a result of rapid technological development and of legal frameworks which are slow to adapt. 

2. Data processing in the information society which is carried out without the necessary safeguards and security can raise major human rights related concerns. Legislation allowing broad surveillance of citizens can be found contrary to the right to respect of private life. These capabilities and practices can have a chilling effect on citizen participation in social, cultural and political life and, in the longer term, could have damaging effects on democracy. They can also undermine the confidentiality rights associated to certain professions, such as the protection of journalists’ sources, and even threaten the safety of the persons concerned. More generally, they can endanger the exercise of freedom of expression and the right to receive and impart information protected under Article 10 of the European Convention on Human Rights. 

3. In this connection, it is recalled that, in accordance with Article 8 of the European Convention on Human Rights, Council of Europe member States have undertaken to secure to everyone within their jurisdiction the right to respect of private and family life, home and correspondence. Restrictions to this right can only be justified when it is necessary in a democratic society, in accordance with the law and for one of the limited purposes set out in Article 8, paragraph 2, of the Convention.

4. As a corollary to the Convention and relevant case law of the European Court of Human Rights, member States have negative obligations, that is, to refrain from interference with fundamental rights, and positive obligations, that is, to actively protect these rights. This includes the protection of individuals from action by non-state actors. 

5. People nowadays rely on a growing range of both fixed-location and mobile electronic devices which enhance their possibilities to communicate, participate and manage their everyday lives. However, a growing number of these devices are equipped with software that are capable of collecting and storing data, including personal data (e.g. keystrokes that reveal passwords) and private information such as user generated content, websites visited, and geographical locations that potentially allow tracking and surveillance of people. This data can reveal delicate and/or sensitive personal information (such as financial, health, political, religious preferences, sexual habits) which can be aggregated to provide detailed and intimate profiles of them. 

6. Tracking and surveillance technologies can be used in the pursuit of legitimate interests, for example to develop new services, improve user experience or facilitate network management, as well as law enforcement. On the other hand, they may also be used for unlawful purposes that lead to illegal access, data interception or interference, system surveillance, and misuse of devices or other forms of malpractice; for example, geo-location tracking could be used to stalk women and make them more vulnerable to gender-related abuse and violence. 

7. In all cases, the modalities for processing personal data should comply with relevant Council of Europe standards. This implies ensuring that law enforcement’s own tracking and surveillance measures respect the applicable human rights safeguards, which should provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which should incorporate the principle of proportionality. It also concerns strict respect for the limits, requirements and safeguards set out in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and in its Additional Protocol as well as regard for other instruments such as Recommendation CM/Rec(2010)13 on the protection of personal data in the context of profiling. 

The Committee of Ministers accordingly [at 8] -

• alerts member States to the risks of digital tracking and other surveillance technologies for human rights, democracy and the rule of law and recalls the need to guarantee their legitimate use which benefits individuals, the economy, society at large, and the needs of law enforcement;
• encourages member States to bear these risks in mind in their bilateral discussions with third countries, and, where necessary, consider the introduction of suitable export controls to prevent the misuse of technology to undermine those standards;
• welcomes steps taken by data protection authorities in some member States to raise awareness of the implications of tracking and surveillance technologies and to investigate these practices to ensure compliance with the provisions of Convention No. 108 and their national legislations;
• draws attention to the criminal law implications of unlawful surveillance and tracking activities in cyberspace and the relevance of the Budapest Convention in combating cybercrime;
• welcomes measures taken by both State and non-State actors to raise awareness among users, and, a fortiori, within the private sector and among technology developers about the potential impact of the use of such technologies on human rights and the steps which can be taken at the design stage to minimise the risks of interferences with these rights and freedoms (e.g. “privacy by design” and “privacy by default”);
• recalls the Council of Europe Internet Governance Strategy 2012-2015 which includes a number of action lines relevant to the challenges identified in this Declaration and looks forward to the concrete results of the work of the competent Council of Europe bodies.

Affinity and US Citizenship Barriers

'LGBT Identity in Immigration' by Bijal Shah in (2013) 45 Columbia Human Rights Law Review comments that

The partial invalidation of the Defense of Marriage Act (DOMA) and national focus on comprehensive immigration reform has brought lesbian, gay, bisexual, and transgender (LGBT) immigrants to the forefront. This Article is the first to substantiate the historical impact of LGBT identity on access to United States citizenship and to undertake a close examination of its contours and consequences. 

This Article focuses on the interplay of LGBT identity and the two major paths to immigration in the U.S.: asylum and partner-based benefits. Patterns in LGBT access to citizenship have generally been at odds with cornerstone U.S. immigration and domestic civil rights trends. LGBT identity has long benefited those individuals seeking U.S. citizenship via the asylum process, despite a concurrent lack of similar identity-based rights and protections for LGBT people within the U.S. However, LGBT identity has also obstructed individuals seeking even temporary residence on the basis of same-sex relationships with Americans, even though partner-based benefits are a cornerstone of immigration law. This dynamic has been based on two factors. The first factor is the legal reduction of asylees’ LGBT identities to a tolerable, one-dimensional “status,” fully separated from problematic or “deviant” LGBT conduct. The second is the continued national censure of this LGBT conduct, which includes the establishment of romantic partnerships, growth of extended families and development of visible LGBT communities. To substantiate this claim, this Article traces the concepts of status and conduct throughout the Supreme Court’s major LGBT rights decisions, including the recent ruling in United States v. Windsor, and applies this study to the immigration context. 

Further, the uneven LGBT access to citizenship resulting from these factors has generally contradicted the U.S. government’s international human rights discourse. This contradiction, in turn, has illustrated a complex form of American exceptionalism resulting from the executive branch’s consistent refusal to employ the significant discretion it enjoys in the immigration context to improve LGBT access to immigration benefits. Although Section 3 of DOMA has been overturned, these dynamics will continue, in part because of the great role that states’ rights play in partner-based immigration determinations. Within the context of this analysis, I present a backward-looking critique outlining immigration law and policy strategies that would have mitigated the longstanding conflict between the U.S.’s expression of pro-LGBT human rights principles and implementation of anti-LGBT immigration policy, regardless of DOMA. Then, I look to the post-Section 3 future and articulate the path required to reach equal LGBT access to partner-based immigration benefits.

Bayh-Dole and IP Pluralism

A concise overview of Bayh-Dole and other aspects of US university research commercialisation is provided in 'University Research and Licensing' by Jennifer Carter-Johnson, Jeffrey S. Carter-Johnson and Jorge L. Contreras in Bioinformatics Law: Legal Issues for Computational Biology in the Post-Genome Era ed by Jorge L. Contreras & A. James Cuticchia.

The authors indicate that

 This chapter in an overview of the law of bioinformatics covers the legal issues uniquely facing universities and other research institutions. Among the topics covered are modes of university technology development, the Bayh-Dole Act, the questionable status of the patent research exemption in the U.S., publication and data release, and socially-responsible licensing.

There's a more searching - and for UC intellectual property Honours students more useful - discussion of intellectual property in the 178 page 'Intellectual Property Rights and Institutions: A Pluralist Account' by Michael E. Kenneally

Kenneally comments that

Debates over intellectual property’s justifications tend to treat natural rights and utilitarian accounts as competitors, but they should be seen as complements instead. Lockean and Kantian theories of intellectual property highlight the strong interests that intellectual property creators have in profiting from and exercising some degree of control over their work, but neither theory gives sufficient justification for the full assortment of rights that intellectual property owners have under current law. Utilitarianism’s focus on society’s interests in the production of useful information and creative expression provides an essential supplement to these natural rights theories, but without establishing that intellectual property law should single-mindedly strive only to maximize social welfare. Developing both natural rights-based and utilitarian justifications, this dissertation advances a pluralist account of intellectual property that understands different features of copyright, patent, and trademark law to be serving different normative interests. 

His conclusion states that

It is tempting to look for a possible justification for intellectual property through either the lens of natural rights or the lens of utilitarianism. Either way of focusing on the subject proposes to make it intelligible to us in terms of a single purpose, although of course they each offer competing portraits of that purpose. In the former case, intellectual property is preoccupied with securing what properly belongs to individuals and, in the latter case, with promoting the good of society as a whole. Because of their disagreement of intellectual property’s fundamental purpose, these two accounts are regarded as diametrically opposed. But having scrutinized natural rights and utilitarian accounts of intellectual property in the preceding chapters, I have come to reject the either/or mindset that they pressure us to adopt. Instead of assuming that intellectual property is justified either as a matter of natural rights or on utilitarian grounds, we should consider a pluralist account of intellectual property’s justifications that incorporates what is most appealing in both the natural rights and utilitarian accounts. Intellectual property pluralism avoids the limitations of the natural right and utilitarian perspectives and allows for a richer understanding of the relationship between intellectual property rights and our intellectual property institutions. Natural rights–type justifications of intellectual property ownership do well in highlighting the interests of those individuals who create intellectual goods, but they run the risk of overemphasizing those interests or of underestimating the interests of those whom intellectual property laws place under duties. In particular, natural rights accounts of intellectual property can proceed too quickly from a justification of physical property ownership to a justification of intellectual property ownership, disregarding the differences in the ways that intellectual property and physical property laws affect the relevant normative interests given the differences in the nature of intellectual and physical goods. In Chapter 2, I stressed how Lockean approaches to intellectual property rights are especially susceptible to this danger. A physical property owner’s interests in material gain are greatly imperiled by others’ unauthorized use of her physical property, since such unauthorized use routinely interferes with the owner’s own use of her property. But in focal cases of intellectual property, especially works of creative expression and inventions, others’ unauthorized use of the property generally does not interfere with the owner’s own use of her property. On the other hand, unauthorized use of trademarked symbols that confuses consumers does interfere with the trademark owner’s ability to use the symbol to communicate with the consuming public. And so our discussion of Lockean arguments for intellectual property rights indicated that different intellectual property law doctrines may have different justifications. Locke’s arguments against interference work pretty well in justifying central trademark doctrines but not those of copyright or patent law. The pluralist account of intellectual property that I am defending forsakes a unified theory of intellectual property not only by relying on a plurality of normative considerations, but also by advancing different justifications for different areas of intellectual property law. 

Chapter 3 considered possible Kantian natural rights–type justifications for intellectual property ownership. This discussion went beyond the preceding chapter on Locke’s labor theory by identifying another type of interest of intellectual property owners that is not reducible to Lockean interests in material gain. These other interests are interests in controlling one’s own actions and, relatedly, in having a public reputation that accurately reflects the actions one has chosen to do. I argued against a recent interpretation of Kant’s account of physical property ownership, according to which any unauthorized use of another’s property wrongfully limits that person’s freedom by conscripting her into the pursuit of ends that she has not chosen for herself. But, drawing on Kant’s own writing about copyright, I argued that there are particular ways of using intellectual property that unjustifiably violate the intellectual property creator’s interest in having control over her actions and/or reputation. In particular, falsely claiming credit for someone else’s work or describing someone else as responsible for choices that she did not in fact make would disregard this sort of interest without promoting the legitimate interests of others. Here, too, however, the arguments really only support core doctrines within trademark law—especially rules against passing off counterfeit goods as the real thing, or some instances of so-called “reverse passing off,” in which a person attempts to sell another’s goods as though they were her own. Although copyright law prohibits some examples of plagiarism, in most situations it does so under very general directives not to reproduce or distribute others’ work that do not explicitly refer to copyright owners’ interests in receiving attribution. Originally, however, copyright ownership included a right to decide when to release a new work for the first time, and this right to release can be understood as furthering Kantian interests in having control over one’s actions. 

But the core of patent and copyright law—the parts that prohibit unauthorized copying and distribution of patented inventions and copyrighted works—are justified not by the natural rights arguments that Locke and Kant supply, but by more functionalist lines of thought. Innovators, artists and others who invest in creative endeavors would be reluctant to devote their resources to developing inventions and expressive works in the absence of special encouragement, because it is too easy for others to copy such goods without compensating the people who invested in their development. On this proposal, the crux of copyright and patent law is ultimately justified by the widely shared interests of the members of a society in the availability of new inventions and creative works, not by the interests of inventors or artists themselves. The fact that copyright and patent rights supply socially beneficial incentives has often been considered the heart of the utilitarian argument for intellectual property. I argued in Chapter 4, however, that we should resist the utilitarian label because utilitarianism characteristically directs us to formulate all normative questions in terms of the expected effects on overall amounts of well-being. If social welfare provides the only proper measure of intellectual property’s justifications, policymakers’ appeal to overtly nonutilitarian considerations will always seem like an aberration or even an inappropriate distraction. This is an unwelcome consequence, in my view, because the effects of intellectual property laws on social welfare are somewhat indeterminate and because other sorts of normative considerations are important enough in their own right even if, on balance, furthering them does not prove to maximize social welfare. Consider, for example, the Kantian argument for attribution rights. In light of an author’s interest in controlling her actions and in having a reputation that accurately reflects what she has chosen to do, intellectual property law is justified, according to the Kantian argument, in prohibiting others from falsely claiming credit for her work. It is conceivable, however, that this attribution right would present significant administrative and enforcement costs, and it is also conceivable that very few people would be seriously unhappy to see it go. Likewise, it is conceivable—though I admit, not terribly likely—that social welfare would be increased if the law expressly empowered authors to sell their exclusive right to claim credit to the highest bidder. Even if it turned out that money would be saved or more books would be produced if the right to attribution were not legally recognized or were made transferable, I am not sure it follows that we ought to give up on recognizing a nontransferable version of it in our law. At the very least, it seems to me that we ought not to commit ourselves to designing our right to attribution in whatever way maximizes overall amounts of well-being solely because we think copyright law is primarily justified because of the socially beneficial incentives it provides. 

My endorsement of the functionalist argument and rejection of Lockean and Kantian arguments for copyright and patent rights suggests a noteworthy difference between justifying intellectual property ownership as a matter of natural rights and justifying it as a matter of social convention: the two types of justification do not seem to face the same argumentative burden. Establishing that there are natural rights of intellectual property requires showing that a person or group’s failure to respect the alleged right would warrant disapprobation, unless some sort of special excuse applied. Because failing to respect the particular right in question is presumptively a moral mistake, there must therefore be a decisive reason for respecting it. But for a social institution to have an adequate social convention–type justification, it suffices to establish that the institution serves the common good in an unobjectionable way. The reasons for establishing the particular institution need not be decisive. And yet, as I argued in Chapter 4, once a social institution is justified, even as a matter of social convention, it can have the power to generate new moral rights, respect for which is not completely optional. Our pre-legal or natural rights give shape to our legal institutions, but our legal institutions also give shape to our moral rights. The interplay between intellectual property rights and intellectual property institutions is thus highly complex and, without careful attention to the relevant normative considerations, even a bit mysterious. A pluralist account of intellectual property’s justifications does not eliminate the complexity, but hopefully it unravels some of the mystery.

The Other Offshoring

'Implications for Offshore Processing in Australia: The Case of Plaintiff M70/2011' by Stephanie Constand in (2013) 3 Migration Australia Journal 43-51 comments that

In August 2012, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (‘Migration Amendment Act 2012’) was passed by Parliament to enable the regional processing of the protection claims of offshore entry persons. A significant catalyst for these amendments was the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship, which removed the legal basis for the Malaysian Solution, the government’s former offshore processing arrangement that would have facilitated the transfer of irregular maritime arrivals to Malaysia for the determination of their claims. 

This article analyses the implications of the Migration Amendment Act 2012 for offshore processing and considers possible challenges to this legislation. It also examines the decision of the High Court in Plaintiff M70 to explore why the amendments were considered necessary in order to enable the government to pursue its revised offshore processing regime.

Constand notes that

Although the Migration Act 1958 (Cth) may now provide a legal framework for the implementation of the government’s revised offshore processing scheme, the feasibility of this regime from a practical as well as human rights perspective is questionable. It is estimated that, when fully operational, Nauru will have a capacity of 1500 people, with the combined capacity of the processing centres in both Nauru and Manus Island (PNG) most likely totalling 2100. However, at the time of writing, the number of irregular maritime arrivals that have sought asylum since mid-August 2012 and are currently awaiting transfer to a regional processing centre has already exceeded 4000, a figure that eclipses the combined capacity of Nauru and Manus Island’s asylum seeker processing facilities. This will inevitably lead to overcrowding and significant deterioration in living conditions, a decline in the quality of legal processes and a lack of adequate education and welfare support services. Currently, for example, only two counsellors are provided for in Nauru under the government’s contract with International Health and Medical Services, which is severely inadequate in light of the processing centre’s peak capacity of 1500 people. The United Nations High Commissioner for Refugees has criticised these temporary arrangements as failing to meet international standards for refugee protection. 

The Australian Government, at the time of writing, is also in negotiations with Nauru to amend its legislation to enable a Nauruan Refugee Status Review Tribunal and the Nauruan Supreme Court to hear challenges to refugee status determinations. This would mean that both refugee processing as well as appeals procedures would occur within Nauru. Under the current arrangements, although unsuccessful challenges within the Nauruan legal system may be taken to the High Court of Australia, any claims would still be assessed according to Nauruan, rather than Australian law. These arrangements raise significant concerns due to the continued lack of adequate legal resources and expertise in Nauru to process appeal claims on the scale and complexity that is demanded by the Nauruan offshore processing agreement. It appears that these measures may have been implemented in further pursuit of the Australian government’s policy of actively deterring irregular maritime arrivals through the comprehensive extraterritorialisation of processing arrangements. Although an analysis of the implications of this newly introduced review process is beyond the scope of this article, it can almost certainly be expected that once further details regarding this new system of review are established, it will be subject to significant critical debate and further scrutiny.