Five finger discounts

'Cleaning House: The Impact of Information Technology Monitoring on Employee Theft and Productivity' [PDF] by Lamar Pierce, Daniel Snow and Andrew McAfee examines how US "firm investments in technology-based employee monitoring impact both misconduct and productivity".

We use unique and detailed theft and sales data from 392 restaurant locations from five different firms that adopt a theft monitoring information technology (IT) product. Since the specific timing of individual locations’ technology adoption is plausibly exogenous, we can use difference-in-differences models to estimate the treatment effect of IT monitoring on theft and productivity within each location for all employees. We find significant treatment effects in reduced theft and improved productivity that appear to be driven by changing the behavior of individual workers rather than selection effects. Although workers with past patterns of theft appear more likely to leave treated locations than others, individual behavioral changes by existing workers drive restaurant-level improvements. These findings suggest multi-tasking by employees under a pay-for-performance system, as they increase effort toward sales following monitoring implementation in order to compensate for lost theft income. This suggests that employee misconduct is primarily a result of managerial policies rather than individual differences in ethics or morality.

The authors conclude -

In this paper, we show evidence that the adoption of information technology can substantially impact both the productive and corrupt behaviors of employees. Our results suggest that when management implements increased monitoring under a pay for performance scheme, employees will redirect effort toward productivity because their incentives have been realigned. Furthermore, our results suggest that the majority of improvement in organizational performance and productivity stems from the improved behavior of existing employees, not from the firing of those engaged in theft. The treatment of individual workers, not worker selection, appears to drive most productivity improvements and theft reductions. This does not mean that worker selection is unimportant in our story. In fact, those workers who stole under the weaker monitoring regime appear to self-select out of the more highly-monitored restaurants, perhaps to other more easily pilfered establishments.

Each of these results is highly consistent with a multi-tasking story where workers (agents) seek to trade off costly effort for income from either productivity under a pay-for-performance scheme or theft. Increased monitoring by management (principal) reduced the net gains from theft, necessarily increasing the equilibrium effort allocation toward productive behavior. In such a model, where workers are free to select out of the firm, increased monitoring also makes outside options more attractive, thereby increasing the likelihood of attrition for all workers who previously derived any income from theft. We note, however, that other cost-based worker activities remain unobservable in our data. We cannot, for example, observe whether reducing one type of theft (stealing revenue) through monitoring increases other forms of theft or misconduct such as inventory shrinkage. Given Olken’s (2007) results on substitution across types of corruption, such costs may very well exist and thereby reduce the profit gains from monitoring.

Another possible explanation for our results is that Restaurant Guard, by reducing the effort or attention required of managers toward theft monitoring, frees them to focus on managing service and food quality. Such a reallocation of managerial effort across dimensions could also result in the productivity and service quality improvements observed in our data. Although we are unable to separate these two mechanisms, both are based in the fundament multitasking tradeoff between misconduct and productivity. A technology tool that improves monitoring of employee misconduct has the potential to improve productivity both by providing financial incentives for employees to redirect effort and through freeing managerial attention toward improving production efficiency.

The results in this paper are important for at least three reasons. First, they represent the measurement of an important economic activity, employee theft, that has largely been observed only indirectly or anecdotally in firms. Although there is a considerable literature on corruption (e.g. Olken and Barron 2009), direct evidence on illegal behavior by firm employees is rare in the economics literature. Nagin et al. (2002) is an exception, demonstrating employee reductions in fraud following audit increases. We are able to show not only the direct effect of monitoring on theft, as they do, but also the secondary employee adjustments to other productive tasks to account for lost income. Second, our results illustrate the value of information technology when it complements human resource practices that motivate productive effort. Similar to arguments made by Bloom and colleagues (2012), the pay for performance system in American restaurants is likely important in how the IT monitoring system in our setting redirects effort from theft toward productivity. Finally, our results suggest a counterintuitive and hopeful pattern in human behavior: employee theft is a remediable problem at the individual employee level. While individual differences in moral preferences may indeed exist, realigning incentives through organizational design can have a powerful effect in reducing corrupt behaviors. This runs counter to the common view in the human resource management literature that productivity and integrity is largely about selection rather than managerial practice or technology (e.g. Ones et al. 1993). We show that firms can use information about employee theft not simply to fire the culprits, but rather to alter their behavior in ways that improve productivity.

Mandarins, Marxists and their discontents

'Universities, Law, Jurisprudence, and Sociology: A History', a paper presented to the American Sociological Association this month by Eric Royal Lybeck, comments that

Recently scholars promoting a ‘new sociology of ideas’ (NSI) have drawn our attention to the local practices of academics to explain the outcome of ideas. Though, in theory, NSI accepts the inclusion of micro-, meso-, and macro-sociological factors, and rejects the distinction between internal and external causes of the development of ideas, inpractice, NSI is narrowly focused on the local interactions of academics within the context of the modern university. NSI therefore neglects the external influences on the context itself. This paper takes a much broader view of the academic context during the period in which early sociology was established as a discipline, and traces a number of concurrent developments in politics, law, and academia, including the institutionalization of the university and the emergence of the legal sciences in early nineteenth century Germany, the elite political culture of New England ‘mugwumps,’ which inspired the institutionalization of the university and social sciences in America, while at the same time prefiguring developments in the legal sciences and legal profession similar to those of Germany. The paper concludes by recommending the ‘old sociology of knowledge,’ particularly that of Max Weber and Alvin Gouldner, in order to better understand such processes and academic practices.

On a more emo note 'Marxism and "Subaltern Studies"' by Adaner Usmani frets that

Several years ago in a seminar on social theory packed with left-wing graduate students from around NYU, I had the misfortune of being assigned Dipesh Chakrabarty’s Provincializing Europe. The book, which impugns not only Marxism’s incorrigible European-ness, but also the very possibility of making arguments that traverse the East-West divide, struck me immediately as antithetical to the ‘universalizing’ project that is radical social science. 

Yet, to my horror, it hit a chord with much of my cohort. One friend, who was later very active in Occupy NYU, met my criticisms of the argument by asking, in all seriousness, whether I could name even one thing that people across borders had in common. That they have to eat, I had answered. 

As an undergraduate, Marxism won my mind because it had given clarity to exactly this intuition: that societies everywhere were rent by class divisions, that these schisms structured the production and appropriation of the social product, that they bred similar antagonisms and patterns of struggle, and that this shared architecture was the basis for a common politics — for me, the analytical accompaniment to the moral universalism that animates any radical. 

Today, societies everywhere exhibit similarly revolting forms of dominance and exploitation; our task, it seemed obvious, is to make sure that tomorrow they all look different, for the same reasons. But we Marxist few in that classroom had been incapable of convincing the majority who had found Chakrabarty’s arguments compelling. 

It is only in light of that challenge that the significance of Vivek Chibber’s Postcolonial Theory and the Specter of Capital can be understood. Ours is a time of welcome political ferment, but among radicals Marxism is far from being considered commonsense. Surely one of our important tasks, today, is to clear away the detritus that years of academic exile have heaped on the flag of radicalism, and to win today’s activists back to our camp. Here Chibber comes to the rescue — and I don’t mean this hyperbolically. In my several years of reading Marx and Marxists, I cannot think of a book that is as clear in its explication of the analytical foundations of our project. 

The stakes are not academic. A movement staffed by people who think that different cultures construct human beings of irreconcilably different constitutions, that power resides in what you and I say just as much as it resides in the State and in Capital, that class is just one of several ways in which society can be sliced, that “rights” and “interests” are swear words and the Enlightenment one long war crime, will be a movement incapable of mounting even the slightest challenge to today’s ruling-classes. After all, even if Marx’s 11th thesis on Feuerbach indicted academics for having only “interpreted the world,” it doesn’t enjoin those of us committed “to change it” to stop understanding it, first.

Chibber sniffs that -

What you could have had once Marxism declined was just liberalism and conservatism, a return to those two doctrines. Why do you get something like postcolonial theory? I think you get it for two reasons. One is the aging lefties from the 1960s, who gave up being anticapitalist, still saw themselves as radicals. And still do. Starting from the late 1980s and early 1990s, they’re radicals, but they don’t want to talk about capitalism. So they turn towards other issues. They’re antiracist, antisexist. They turn to what’s called oppression studies.

Secondly, universities have changed a lot. They’re a lot more heterogeneous, a lot more diverse than they used to be. Students coming into those universities are very keen on having the same chances as students who are more privileged. A lot of the students in these universities face difficulties because of the sexism and racism they encounter. So there’s a supply factor pushing towards oppression studies, but without any attention to capitalism. And there’s a demand factor, from these students who want to understand why they don’t fit in as well with the other kids and why they don’t have the same chances.

What’s left out of this whole equation is the issue of capitalism, precisely because in universities you have people who are either themselves upwardly mobile and comfortable like professors or who aspire to be upwardly mobile, like most of the students. What you get, therefore, is a setting in which you’re going to have people interested in being critical of the dominant order but without being anticapitalist. And that’s what postcolonial theory gives you.

[postcolonial theorists] have kept alive the idea that colonialism was highly destructive and generated a baleful ideology. But when we turn to the culture of the Left, I think postcolonial theory has been very debilitating.

What is the mission of any radical intellectual? By “intellectual” I don’t mean someone who works in a university and has a pointy head. An intellectual is just someone who helps articulate ideas. Professors sometimes do that. They usually don’t. But organizers always do. Without fail. If you can’t do that you’re not an organizer.

How has postcolonial studies affected the culture of intellectual work in the way I’ve just defined it? It’s been pretty negative. Postcolonial studies has imbibed some of the worst aspects of academic culture, because it’s a product of the academy. It is not a product of movements. They say they are a product of movements and are linked up to them, but that is not true. Postcolonial studies comes right out of the academy. What it has internalized and spread across the left is a culture in which valuing a simple and direct and clear presentation of ideas has simply been pushed off the table.

In academia , a simple and clear presentation of ideas oftentimes is the best way to get yourself booted out. It’s easier to criticize you when you’re clear, and concise, and you present your views in a way that makes them amenable to criticism.

Academics oftentimes couch their ideas in impenetrable prose, indecipherable jargon, at a level of complexity that is so dense nobody can penetrate it. This often is a substitute for complexity of thought. What you get with postcolonial studies is complexity of expression substituting for complexity of thought. ....

You could forgive all of its sins, all of its intellectual mistakes. You could forgive all of its grandstanding and its ignorance about what radical theory does. But what you cannot forgive is importing into the culture of the Left the pretentious, empty verbosity that you find in the seminar room. And it’s really in the last twenty years that you’ve seen activist meetings turning into graduate student seminars. I think it’s pretty destructive.

[What is the outcome when activist meetings turn into graduate seminars?] 

It takes confidence away from activists. It allows a few people to dominate meetings. Typically its people who don’t fully understand what they’ve said, but who really enjoy dominating meetings. And of course it drives sensible people out of activism. The people who are left are people who either don’t mind this speaking in tongues or people who care so little about understanding the world they don’t care about what the discourse is that’s being presented to them. Imagine what this does to the culture of the Left.

In his Jacobin interview Chibber comments that -

The lasting contribution of postcolonial theory — what it will be known for, in my view, if it is remembered fifty years from now — will be its revival of cultural essentialism and its acting as an endorsement of orientalism, rather than being an antidote to it. 

JB: All of this begs the question: why has postcolonial theory gained such prominence in the past few decades? Indeed, why has it been able to supersede the sorts of ideas you’re defending in your book? Clearly, postcolonial theory has come to fill a space once occupied by various forms of Marxist and Marxist-influenced thought, and has especially influenced large swathes of the Anglophone intellectual left. 

VC: In my view, the prominence is strictly for social and historical reasons; it doesn’t express the value or worth of the theory, and that’s why I decided to write the book. I think postcolonial theory rose to prominence for a couple of reasons. One is that after the decline of the labor movement and the crushing of the Left in the 1970s, there wasn’t going to be any kind of prominent theory in academia that focused on capitalism, the working class, or class struggle. Many people have pointed this out: in university settings, it’s just unrealistic to imagine that any critique of capitalism from a class perspective is going to have much currency except in periods when there’s massive social turmoil and social upheaval. 

So the interesting question is why there’s any kind of theory calling itself radical at all, since it’s not a classical anticapitalist theory. I think this has to do with two things: first, with changes in universities over the last thirty years or so, in which they’re no longer ivory towers like they used to be. They’re mass institutions, and these institutions have been opened up to groups that, historically, were kept outside: racial minorities, women, immigrants from developing countries. These are all people who experience various kinds of oppression, but not necessarily class exploitation. So there is, as it were, a mass base for what we might call oppression studies, which is a kind of radicalism — and it’s important, and it’s real. However, it’s not a base that’s very interested in questions of class struggle or class formation, the kinds of things that Marxists used to talk about. 

Complementing this has been the trajectory of the intelligentsia. The generation of ’68 didn’t become mainstream as it aged. Some wanted to keep its moral and ethical commitments to radicalism. But like everyone else, it too steered away from class-oriented radicalism. So you had a movement from the bottom, which was a kind of demand for theories focusing on oppression, and a movement on top, which was among professors offering to supply theories focusing on oppression. What made them converge wasn’t just a focus on oppression, but the excision of class oppression and class exploitation from the story. And postcolonial theory, because of its own excision of capitalism and class — because it downplays the dynamics of exploitation — is a very healthy fit. 

JB: What do you think about the prospects for postcolonial theory? Do you expect that it will be eclipsed within the academy and within the Left anytime soon? 

VC: No, I don’t. I don’t think postcolonial theory is in any danger of being displaced, at least not anytime soon. Academic trends come and go, not based on the validity of their claims or the value of their propositions, but because of their relation to the broader social and political environment. The general disorganization of labor and the Left, which created the conditions for postcolonial theory to flourish, is still very much in place. Plus, postcolonial theory now has at least two generations of academics who have staked their entire careers on it; they have half a dozen journals dedicated to it; there’s an army of graduate students pursuing research agendas that come out of it. Their material interests are tied up directly with the theory’s success. 

You can criticize it all you want, but until we get the kind of movements that buoyed Marxism in the early years after World War I, or in the late 1960s and early 1970s, you won’t see a change. In fact, what you’ll see is a pretty swift and vicious response to whatever criticisms might emerge. My sad, but — I think — realistic prognosis is that it’s going to be around for quite a while.

Williams v Commonwealth [2012] HCA 23

Posts in this blog have referred to Williams v Commonwealth [2012] HCA 23. An authoritative analysis is provided in 'Heresy in the High Court? Federalism as a Constraint on Commonwealth Power' by David Paul Hume, Andrew Lynch & George Williams in (2013) 41(1) Federal Law Review.

The authors comment that -

Where the Work Choices Case offered strong confirmation of the principle that each conferral of power is to be read fully on its own terms, Williams may be understood as a case strongly animated by a concern for constitutional coherence. This same spirit was evident in the federalism-reinforcing dissenting judgments of Kirby J and Callinan J in the Work Choices Case, and Heydon J in Pape. It is a spirit that in Williams entered the mainstream of the Court. A majority of judges read down the power in s 61 in light of s 96, with two of them stating that if a construction of s 61 would render s 96 inutile then that was a reason for avoiding that construction. But neither the text nor nature of s 96 renders it equivalent to a 'positive prohibition or restriction'. Section 96 is a surprising candidate for the principle voiced by Dixon CJ in Attorney-General (Cth) v Schmidt that one power may confine the ambit of others where the former is 'subject to a safeguard, restriction or qualification'. In the Work Choices Case, the majority affirmed that principle and its subsequent endorsement in Bourke v State Bank of New South Wales, but rejected the attempt by Kirby J to apply it more expansively in order that the power in s 51(xxxv) was not 'effectively render[ed] … irrelevant'. Yet in Williams, members of the Court abandoned this restraint and were willing to read one power down to ensure another retained some function. Also, some judges were willing to see the positive conferral of the s 96 power as carrying an implication that other powers should be understood not to authorise the same outcome, irrespective of whether any particular 'order or form of things' on which the negative implication would operate was identified.

Above all, the judgments in Williams are pervaded by a sense that the interpretive onus is not on those seeking to show that broadly-expressed Commonwealth power ought be subject to limits. The generally conferred power in s 61 was not taken on its face. The Court did not go so far as to suggest that the onus was on the Commonwealth to show why the positively conferred power should extend as far as was suggested. However, Heydon J's account of the conduct of the case,  conveys a sense that the Commonwealth enjoyed little of the ease that might follow from the more usual insistence that the onus rests on the party seeking to limit a positive power to identify the nature and constitutional source of the limitation.

Is Interpretive Federalism Here to Stay?

How significant is the High Court's retreat from the interpretive principles adopted in the Work Choices Case? Does the interpretive federalism adopted by the Court in Williams signal a broader, pro-federalism shift in constitutional interpretation? 

There is a reasonable argument that s 61 is a special case and so Williams should not be taken to reflect a broader shift, especially when it comes to the construction of federal legislative powers. That argument might be made on a number of bases. First, s 61 is expressed so generally that, paradoxically, it is more readily read down than are the Commonwealth's heads of legislative power. Similar to the greater willingness of courts to read down general words in statutory provisions so as to preserve their constitutional validity: generality begets constriction. However, it is worth observing that this is so only if one abandons the principle that powers should be construed with all the generality that the words used admit. Further, as Isaacs J said in the quote from Le Mesurier v Connor extracted in Part II, it is the very generality of the words in s 61 that necessitates the search for limiting factors from outside that provision. There is less need to search for limiting factors in the case of the heads of power: their limits are disclosed by the text of the powers themselves.

Secondly, executive power is itself a special kind of power, which the High Court has often suggested is in special need of circumscription. In the Communist Party Case, Dixon J famously linked executive power to unconstitutional usurpation of democratic institutions, stating that '[h]istory and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power'. French CJ quoted these words in Pape. He has also spoken extra-curially of the perception that the executive is the 'most dangerous branch' of government because of its 'vast array of powers … and its control of public finances'.

Thirdly, the construction of s 61, unlike that of the s 51 heads of power, is not weighed down by a rich body of jurisprudence. That body of jurisprudence brought about the decision in the Work Choices Case; and it, including now the Work Choices Case itself, will continue to weigh on future jurisprudence charting the limits of the heads of legislative power. In contrast, the Court can, to a significant extent, approach s 61 afresh and as a matter of first impression.

Fourthly, Williams must be understood as a case about both federalism and responsible government. In part, and although this is not a perfect explanation of the way the judges actually reasoned, the case can be understood on the basis that federalism dictated the conclusion that the executive's at large extra-statutory power to spend and contract was constrained by the heads of legislative power; and then, in turn, responsible government dictated the conclusion that the power should be confined to circumstances where that legislative power has actually been exercised to support the executive action. Arguably, Williams was primarily about the latter restriction on power, not the former. To the extent that responsible government and not federalism was the dominant interpretive theme, the federalism-reinforcing aspects of the Williams methodology may be of less significance in the future.

Fifthly, Williams can even be understood as a consequence of the Work Choices Case. By this we mean simply that the breadth of the legislative power recognised in the latter has the result that, if the executive did enjoy a general extra-statutory power to spend and contract so long as that conduct could be authorised by a hypothetical law, this would amount to a very broad power to spend and contract. Even relying on the corporations power alone, through appropriately framed contracts with or grants to corporations, there may have been little the executive could not achieve. The breadth of that potential power may have played on the Court's mind in Williams, warranting the narrowing of executive power. If Williams is the consequence of broad Commonwealth legislative power, then it would be the tail wagging the dog for the Williams approach to then be applied to limit that broad legislative power. On the other hand, while one might argue that the Williams methodology extends no further than s 61, there are some signs that it could mark a more general retreat from the high point of Commonwealth power reflected in the Work Choices Case. The most significant feature of Williams was the Court's willingness to rely on considerations of constitutional structure and coherence in determining the ambit of Commonwealth power. This language in particular has the attraction of fitting rhetorically with the High Court's recent general emphasis on 'coherence'. This may be distinguished from the view of the majority in the Work Choices Case that 'to say … that the Constitution is to be read … as the one coherent document … merely occasions further inquiry with respect to the particular issue to be determined'. References to 'coherence', rather than 'structure', may allow the Court to avoid the difficult debates around when a structural implication, as distinct from a textual implication, may be made. The language of coherence also has the attraction of sounding unequivocally like a good thing: of course constitutional law and the Constitution should be coherent, whenever possible. Considerations of structure and coherence cannot be cabined to s 61. They necessarily apply to the construction of each provision of the Constitution. It is conceivable that this spirit of constitutional coherence could have a life outside the context of executive power. Certainly, it is unclear why it should not. In that case, Williams may mark the beginning of a significant retreat from the high water mark of Commonwealth power manifested in the Work Choices Case.

The Qld G20 Bill and the private sphere

The G20 (Safety and Security) Bill 2013 (Qld) [PDF] is starting to attract attention from privacy specialists and civil society advocates.

The proposed legislation is to provide police officers and 'appointed persons' with special powers to -

 1. protect the safety or security of persons attending any part of the Group of Twenty (G20) meeting, which is comprised of the G20 leaders’ summit in Brisbane in 2014, and the G20 Finance Ministers’ and Central Bank Governors’ meeting in Cairns in 2014, any official meeting of sherpas in Queensland in 2014 and any other G20 event; and

2. ensure the safety of members of the public from acts of civil disobedience in relation to any part of the G20 meeting; and

3. protect property from damage from civil disobedience in relation to an part of the G20 meeting; and

4. prevent acts of terrorism directly or indirectly related to the any part of the G20 meeting; and

5. regulate traffic and pedestrian movement to ensure the passage of motorcades related to any part of the G20 meeting is not impeded. 

The two most important of the meetings "under the general G20 umbrella" will be the 15-16 November 2014 Heads of State/Government meeting in Brisbane and the Finance Ministers’ meeting  in Cairns on 20-21 September of that year. The Queensland Police Service is responsible for providing security to G20 delegates and for all meeting and accommodation venues, motorcade routes and any other event associated with a G20 meeting. It is also responsible for "ensuring that members of the public and their property come to no harm as a result of any illegal activities that may be planned by people opposed to the G20 meeting". The Bill seeks to enhance "limited powers" available under the Police Powers and Responsibilities Act 2000 (Qld).

The Bill provides for establishment of 'inner and outer security areas' and 'motorcade security areas', ie 'restricted areas' covering venues for meetings and accommodation, access roads during the time required for the safe movement of the Leaders’ motorcade, and 'an outer security buffer zone' characterised as a declared area. Access to different security areas will be limited or conditional under the Bill.

From a law enforcement and privacy perspective the Bill  provides for

additional powers of search, powers to prohibit or exclude persons from security areas, powers in relation to prohibited items and the creation of specific offences under the Bill. 

It includes -

• establishment of a prohibited persons list by the commissioner of the Queensland Police Service; 
• requiring a person’s personal particulars and reasons for entering or being in a security area; 
• searching persons and vehicles seeking to enter a restricted area or a motorcade area, including specific searches, as required;
• enter and search premises within a restricted area;
• restricting possession of prohibited items; 
• removing obstruction items including a vehicle that might be left abandoned on a potential motorcade route; 
• forfeiture to the State of prohibited items and obstruction items seized during the G20 meeting; 
• discretion to close roads, private accesses and waterways;
• limited right for motorcade drivers to disobey the Transport Operations (Road Use Management) Act 1995; 
• creation of new offences applicable to the G20 meeting and events; 
• presumption against bail for the limited period of the G20 meeting; 
• appointment by the commissioner of non-State police officers to perform duties during the G20 period; 
• appointment by the commissioner of appointed persons to assist with security arrangements for the G20 meeting; 
• provision for confidentiality of information; and 
• authorising limited disclosure of information by the commissioner. 

The Explanatory Memo [PDF] for the Bill notes that "there a number of provisions of the Bill that are not consistent with fundamental legislative principles".

Presumption against bail

Clause 82 provides for a presumption against bail for particular types of offences if committed during the G20 period in a security area or at any G20 meeting. The onus is on the accused to show cause why detention in custody is not justified. The presumption effectively allows for the detention of a person who has not yet been proven guilty of an offence.

The Memo comments that

The presumption against bail relates only to G20 related offences where an element of violence such as assault or damage to property is associated with the offence or the offence results from a person’s efforts to disrupt a G20 event. In these cases the person must show cause to the court or police officer that they will not commit another offence. Additionally, if the person is released on bail they will be required to enter an undertaking not to attempt to enter a security area or commit another offence against the Bill.

The clause is aimed at ensuring the safety and security of G20 delegates and members of the public against needless violence and to ensure that a person intent on committing acts of violence is not automatically granted bail so that he or she can continue to commit these acts. The presumption against bail lasts only for the G20 period, which in the main will be the 3 days before 17 November 2014. Following the expiry of the Act on 17 November 2014, the presumption against bail ends and a person refused bail may again apply for bail. 

Some persons unable to enter security areas

Clause 51 provides that prohibited persons (those who may pose a serious threat to the safety or security of persons or property in a security area; disrupt any part of the G20 or may, by the person’s actions opposing any part of the G20 meeting, cause injury to persons or damage to property outside a security area) must not enter any security area.

Clause 56 provides that excluded persons (those who by their actions indicate an intention to pose a threat to, or disrupt, the G20 meeting) are excluded from all or part of a security area. That exclusion "may involve a significant impact on a person’s ability to engage in employment, commerce, social activities or other activities". In the case of a prohibited person who is normally resident within a security area, alternative accommodation will be provided at State expense for the period of the G20.

The Memo states that

A person will not be excluded from a security area until their actions come within those described in clause 55 of the Bill. Nevertheless, provision is made in the Bill for an excluded person who may reside, for example, in the outer areas of a declared area to remain living at their residence provided they access their residence by the shortest route from outside the declared area. 

Although the employment and social activities of these persons will be affected if they are normally employed within, or socialise in, a security area, the period during which they will be affected will be minimal and may amount only to the 3 day meeting which occurs on a public holiday and a weekend. 

Warrantless Searches 

Part 4, Division 1 of the Bill provides for extensive searches of the person without warrant, including strip searches.

The Memo states that

A person is not normally searched with the authority [of] a warrant but rather by virtue of a statutory provision. In this case the Bill provides statutory provisions to allow for the search of persons in defined circumstances. Again those circumstances are restricted by precursors in the legislation and appropriate safeguards apply to a search. A basic search of a person will, in effect, be similar to those searches conducted prior to a person being permitted to enter a departure area at an airport. ... A specific search is a search of all
clothing worn by a person, a strip search of a person and/or a medical x-ray of the person.

Basic searches are nonintrusive and do not adversely affect the dignity of a person. They are necessary to ensure that prohibited items are not unlawfully possessed within security areas where they could be used to harm a G20 delegate or a spectator at a G20 event. Due to the large number of persons who could be subject to a basic search when entering a particular area, the imposition of safeguards to non-intrusive searches would create unnecessary delays in the movement of these persons.

A frisk search involves the search of a person conducted by quickly running the hands over the person’s outer clothing and examining anything worn or carried by the person if it is conveniently and voluntarily removed by the person. A frisk search can only be undertaken by a police officer of the same sex as the person searched. If a frisk search is to be conducted in a declared area, a police officer must first have a reasonable suspicion that the person may be in possession of a prohibited item, is a prohibited person or is an excluded person.

A specific search of a person is an intrusive search. However, there are legislative limitations as to when such a search can be made. In the case of a restricted area, the person must be unlawfully in the area and a police officer must reasonably suspect that the person may be unlawfully in possession of a prohibited item.

In a declared area, the police officer must reasonably suspect a person is unlawfully in possession of a prohibited item or is a prohibited person or an excluded person. The police officer must either have first conducted a frisk search and still hold a reasonable suspicion a prohibited item is in the possession of the person or must reasonably believe a frisk search will not locate a prohibited item. In the case of a motorcade area, a specific search may only be conducted if the person is unlawfully in the area or a police officer holds a reasonable suspicion that the person is unlawfully in possession of a prohibited item.

A specific search must be conducted by a police officer of the same sex as the person to be searched and must be conducted at a place where there is reasonable privacy for the person unless there is an immediate serious threat. 

Searches of Premises

The Bill provides for the power to enter and search premises in a restricted area without a warrant, with a police officer being authorised to enter and search any premises in a restricted area. The officer must use only the amount of force that is reasonably necessary in the circumstances.

The Memo notes that

a police officer is only authorised to enter a part of premises being used for residential purposes with the consent of the occupier of the part, under the authority of a search warrant or written law or if the police officer reasonably suspects that an offence may be committed within or from the premises that will endanger the safety of a person. For example, a police officer can enter a restaurant in a restricted area and walk an explosive detection dog through the restaurant. However, if the restaurant had an adjoining residence upstairs, the police officer could only search the residence with the consent of the occupier of the residence, under the authority of a search warrant or written law or if the police officer reasonably suspected that an offence may be committed within or from the residence that will endanger the safety of a person.

.... a police officer or an appointed person may use a dog trained for a weapons or explosives detection purpose to detect weapons or explosives in relation to a security area. The dog can be used in relation to a person, a building or other structure, a place, a vehicle and any other thing. The police officer or appointed person may take the detection dog into any place or onto any premises. For example, a police officer and detection dog may enter the underground car park of a building, whether it is commercial or residential, adjacent to a G20 accommodation venue and walk through that area to enable the dog to detect explosives that may have been placed in the car park.

Declaration without public notice

Under clause 13(2)(b)(i), a declaration may be made urgently because of a threat against the life of a G20 participant. The existence and content of such a declaration may not become  publicly known until the declaration is tabled in the Assembly. The Bill provides that a person can not be convicted of an offence involving the declaration until it is published or made known to the person.  The Memo comments that

the subclause is exceptional in that it can only have effect if a direct threat has been made to the life of a G20 delegate. In this case, alternate accommodation may need to be found for the delegate and the new venue not publically advertised for security purposes. In all other cases notification of additional security areas will be published on the police website and the declaration later tabled in Parliament by the Minister. As stated, the Bill provides that a person can not be convicted of an offence involving the declaration until it is published or made known to the person. 

Restrictions on normal activities

The Bill imposes restrictions on activities in a security area, "including a prohibition on possessing items commonly found in residences (e.g. kitchen utensils, baseballs and children's toys that make a loud noise)".

The Memo states that

There are no express safeguards to prevent an undue restriction on a person's ordinary activities in his or her own home. The person must prove a lawful excuse for the possession of a prohibited item or the carrying out of certain activities. ... Schedule 6 of the Bill provides a list of items which will be prohibited items in security areas. However, enforcement action cannot be taken with respect to a prohibited item unless it is left unattended in a security area or a person has possession of the item without lawful excuse. Clause 63(3) provides a number of examples of what may amount to a lawful excuse to possess a prohibited item.

From the examples it can be clearly seen that a person going about their lawful business will generally not be affected by the provision. For example, a family having a barbeque at South Bank Parkland may still possess and use a knife for the purpose of that barbeque. Likewise, a child playing with a radio controlled toy car in their backyard will not be affected nor will a resident within a security area who has possession of normal household items within their residence. Therefore, everyday activities within a home may continue without concern that an offence is being committed. Conversely, clause 63(3) lists what may not amount to a lawful excuse for possessing a prohibited item.

The examples indicate the type of activity which could pose a threat to the G20 meeting. For example, a person about to fire arrows into the Brisbane River from a longbow; a person discharging a blood coloured liquid into a restricted area; or a person electronically operates a model plane in a way that it could enter a restricted area. These types of activities could pose a threat to the safety of a delegate in that they could be injured by any of the items described. The examples give a good cross sectional indication of what may be possessed, the manner in which it may be possessed and what amounts to a lawful excuse. However, a lawful excuse could exist in countless other scenarios. A person possessing a prohibited item knows why they have the item and is therefore in the best position to offer a lawful excuse. For example, should a police officer stop a person carrying a knife in a declared area, only that person would be aware of why they are carrying the knife. 

Disclosure of personal details by a person

Under clauses 37 and 38, a person may be required to disclose personal details as a condition of entry to a security area or if a person is in a security area. Failure to comply with the requirement, without lawful excuse, will be an offence and may result in the person’s exclusion from the area. The Memo somewhat drily comments that the "requirement may be perceived as significantly impacting on a person’s privacy" before stating

the provision applies only to security areas. In order to ensure the safety and security of G20 delegates and members of the public, it may be necessary at times to identify a particular person within a security area to establish whether the person may pose a threat to delegates or members of the public. Obtaining the person’s personal details such as name and address is the best method of being able to check against a security database whether a person may pose a threat. The provision will be in operation for a limited period and is restricted to G20 purposes. 

Clause 38 provides that an officer has the power to stop a person and require the person to disclose personal details if the officer reasonably suspects the person has committed, or is about to commit, an offence that is intended to, or may, disrupt a G20 event or is posing or may pose a serious threat to the security of a G20 event. Importantly, this power can be exercised by a police officer outside a security area and the person can be detained for as long as is reasonably necessary for the purposes of the clause. An officer who gives a requirement to a person to disclose the person’s personal details must, if reasonably practicable, warn the person that failure to comply with the requirement is an offence for which the person may be arrested. It further provides that the police officer may also require the person to remove the person’s headwear and if the person refuses to do so, remove any headwear the person is wearing.

Listing 

Clause 50 allows the Police commissioner to compile a prohibited persons list, ie a list of persons who should not be permitted entry into any security area. The list may include identifying details and a photo of a person whose name is on the list. An individual may be listed if the commissioner is reasonably satisfied that the person may pose a serious threat to the safety or security of persons or property in a security area, may by the person’s actions opposing any part of the G20 meeting cause injury to persons or damage to property outside a security area or may disrupt any part of the G20 meeting. If the Commissioner places a person’s name on the prohibited persons list and it is reasonably practicable to do so, the person must be personally served with a notice stating that the person’s name is on the list, that the person must not enter any security area until the end of 17 November 2014 and that, if the person believes the person’s name should not be included on the list, the person may make a written submission to the commissioner by a stated date about the inclusion. If the person makes a written submission to the commissioner by the stated date, the commissioner must consider the written submission and make a decision to either retain the person’s name on the list or to remove the person’s name from the list.

The Memo states that

In circumstances when it is not reasonably practicable to personally serve a person with a notice as mentioned in clause 51(1), the commissioner may publicly publish a notice stating the person is a prohibited person and the person’s photo and description. Public publication is further explained in subclause (3). It is not generally intended that a prohibited person’s details will be publicly released. The clause recognises that while a prohibited person may pose a threat to a G20 event, the person may not have been convicted of a G20 related offence.

As such subclause (4) confirms that the prohibited persons list is not required to be made publicly available by the commissioner. Nevertheless, it is to be noted that subclause (4) would not preclude an application under the RTI Act. However, it is highly unlikely that such a list would be released, for example to the media, if an RTI application was made, as the information would consist of an individual’s personal information, disclosure of which would be contrary to the public interest. [T]he prohibited persons list may be circulated by the commissioner to a police officer, an appointed person, any person or agency providing security for any part of the G20 meeting including providing security for a G20 participant, the Commonwealth G20 Taskforce and the department of the Commonwealth in which the Migration Act 1958 is administered. Subclause (6) further provides that if under clause 51 the commissioner decides to remove a person’s name from the prohibited person’s list, the commissioner must give written notice to any person or agency to whom that list was circulated.

... Clause 57 provides a power for a police officer, who excludes a person from a security area under clause 56, to take a photo of the person and detain the person for a reasonable time for that purpose. A photo taken under subclause (1) may be circulated to a police officer, an appointed person, the department of the Commonwealth in which the Migration Act 1958 is administered or a person or agency involved in providing security or intelligence for any part of the G20 meeting. 

Disclosure of a person’s personal details by the commissioner

Under clause 86, the Commissioner may disclose any information in the possession of the police service to various State, Commonwealth and foreign bodies if the disclosure relates to the safety or security of the G20 meeting. The information may include private information about an individual such as the person’s criminal history.

The Memo indicates that disclosure of information must be for a purpose relating to the safety and security of the G20 meeting, eg disclosure of an intelligence document about a person who intends to commit an act of violence at a G20 event or it may be the disclosure of an intelligence report, criminal history or information relating to the background and associates of a person who is to hold a Commonwealth accreditation or access approval. Disclosure can only be made to a Queensland government agency; the Commonwealth G20 Taskforce; an agency of the Commonwealth, another State or a foreign government; or the police service or police force of the Commonwealth, another State or a foreign government. Each of those agencies have involvement in security of the G20 meeting or employing persons to provide security at the meeting.

It would be ludicrous to suggest that the commissioner could not advise the Commonwealth that a security company it may employ was operated by organised criminals with a history of violence. Equally, the provision of security to G20 participants and members of the public would be seriously impaired if the commissioner could not exchange information with security agencies such as ASIO or with police services or forces regarding persons who may pose a serious threat to a G20 delegate or indirectly to a member of the public.

Tobacco Regulation in Singapore and the TPPA

The concise 'Tobacco Regulation and Its Discontents: A Cautious View from Singapore' (Singapore Management University School of Law Research Paper No.16/2013) by Locknie Hsu  discusses

the implications of the various legal claims being pursued in various fora in relation to plain packaging of tobacco products laws, especially in relation to Singapore and the Association of Southeast Asian Nations (‘ASEAN’). The article proceeds as follows: (1) In Part 1, Hsu examines the current state of Singapore’s regulation of tobacco; (2) part 2 of the article then considers Singapore’s current investment treaty commitments and their likely compatibility with plain packaging legislation, were it to be introduced into Singapore; (3) finally, part 3 considers the lessons which Singapore can take away from the current proceedings in relation to plain packaging legislation.

Hsu concludes that

While Singapore has not proceeded to introduce plain packaging as Australia has, there are important litigation issues from Australia’s – and Uruguay’s – experience that will offer valuable guidance and insight to Singapore. Three key aspects that are unclear at the moment are: (1) whether tobacco regulation which impinges on IPRs may be considered an unconstitutional ‘taking’ at the national level, or a breach of treaty obligations on takings or expropriations; (2) whether such regulation may violate other general treaty obligations, such as that of fair and equitable treatment; and (3) the extent to which tobacco regulation in the name of health may trump IPRs, where a health exception clearly exists in a bilateral treaty. A number of variables make any general rule difficult. Such variables include the nature and effect of the legislation or regulation in question, the relevant treaty’s terms, the existence (or non-existence) and applicability of a treaty health exception. Even the arbitrations against Uruguay and Australia can be expected to yield differences given these variables. The tribunal’s stance on interpretation and the relative weight of policy considerations will be other pertinent factors in determining the reasoning and outcomes of the disputes. In the WTO cases, the challenges have so far largely revolved around compliance under the TRIPS and TBT Agreements. Two likely arguments in these cases will be the insufficiency of scientific evidence linking tobacco packaging to a reduction in smoking and the right of WTO members to impose health regulations vis-à-vis tobacco products.44 The Doha Declaration on the TRIPS and Public Health is also likely to be material evidence to be considered in this regard.

From a risk-reduction point of view, it is in Singapore’s immediate interest to support the inclusion of a health exception explicitly applicable to tobacco regulatory measures in the TPP. Such inclusion will ensure a measure of protection in the TPP itself, as well as ensuring that the precedential value of the TPP – which many believe it will have – will work in favour of future FTA negotiators (including those of Singapore) arguing in favour of such an exception. A second-best option would be to support a more general health exception applicable to, inter alia, investment commitments, even if it makes no explicit mention of tobacco. This is so even if Singapore does not presently propose additional labeling or packaging measures for tobacco products, whether in the nature of ‘plain packaging’ under the FCTC Guidelines, or otherwise. This is to preserve regulatory space in favour of health protection objectives as tobacco product manufacturers seek to increase sales and to circumvent existing rules by developing new products or ways of product promotion.

As Singapore and other ASEAN neighbors continue in efforts to control the sale and marketing of tobacco products, law-makers will no doubt have to do so with a cautious eye on the unfolding litigation developments elsewhere in order to draw whatever lessons are available from decisions arising from them. At the same time, Singapore stands poised at the threshold of a new set of commitments being formulated under the TPP and the treatment of tobacco there, once finalized, will no doubt be fruit for further study and comment.

Disadvantage

The Australian Institute of Health & Welfare has released a sobering report on Expenditure on health for Aboriginal and Torres Strait Islander people 2010–11: An analysis by remoteness and disease.

In summary,the report complements Expenditure on health for Aboriginal and Torres Strait Islander people 2010–11 by providing a more detailed analysis of health expenditure estimates for Indigenous and non-Indigenous Australians in 2010–11.

Estimates are disaggregated at the regional level, as well as for specific disease and injury groups.

Health expenditure by remoteness

Expenditure was analysed for selected health services (i.e. admitted patients, Aboriginal Community Controlled Health Services, Medicare Benefits Schedule and Pharmaceutical Benefits Scheme). For these services, for every dollar spent per non-Indigenous Australian, $1.52 was spent per Indigenous Australian and expenditure increased with remoteness for both Indigenous and non-Indigenous Australians.

The difference was greatest in Remote/Very remote areas where, for every dollar spent per non-Indigenous Australian, $2.22 was spent per Indigenous Australian. The higher expenditure on Aboriginal and Torres Strait Islander people in remote areas is mainly due to higher expenditure on admitted patient services.

Health expenditure by disease group

The disease groups that accounted for the highest proportion of admitted patient expenditure for Aboriginal and Torres Strait Islander people were genitourinary diseases ($195 million, or 11% of Indigenous admitted patient expenditure), which includes the cost of dialysis treatment, followed by mental and behavioural disorders ($191 million or 11%), unintentional injuries ($149 million or 8%) and maternal conditions ($144 million or 8%). The largest disease group of admitted patient expenditure for non-Indigenous Australians was cardiovascular disease ($5,171 million, or 12% of non-Indigenous admitted patient expenditure).

Potentially preventable hospitalisations

Overall, for every dollar spent on potentially preventable hospitalisations (PPH) per non- Indigenous Australian, $2.22 was spent per Indigenous Australian.

The highest expenditure on PPH for Indigenous Australians was for chronic obstructive pulmonary disease ($36 million, or 16% of Indigenous PPH expenditure), followed by diabetes complications ($35 million or 16%) and cellulitis ($20 million or 9%). Expenditure on vaccine-preventable conditions was $21 per Indigenous Australian and $5 per non- Indigenous Australian.

The authors comment that

Indigenous under-identification in hospital data

Hospital records should indicate whether an admitted patient is Aboriginal and/or Torres Strait Islander or non-Indigenous based on a question on the forms completed on admission. However, the question is not always asked or answered, and there is therefore a degree of under-identification of Aboriginal and Torres Strait Islander people in hospital records.

In 2013, the Institute released revised under-identification factors based on a study conducted in 2011 and 2012. These studies are undertaken on a five-yearly basis to monitor identification levels over time. The level of under-identification is assessed through a dataquality study that compares the results of face-to-face interviews where Indigenous status is ascertained with the information recorded in the patients’ administrative records. The results of this study represent the best information currently available on Indigenous underidentification in Australian hospitals.

Estimates of the level of Indigenous under-identification from Indigenous identification in hospital separation data (AIHW 2013b) have been used to adjust admitted patient expenditure in public hospitals. Under-identification factors can be used to estimate the ‘true’ number of records for Indigenous people by multiplying the number of Indigenous people in the hospital record by the weighted correction factor. In 2010–11, underidentification of Aboriginal and Torres Strait Islander people at the national level was estimated at 1.09% (AIHW 2013a). This suggests that the ‘true’ number of Indigenous people should be about 9% higher than indicated in the hospital record. The underidentification factor used in 2010–11 is a lower adjustment than used in 2008, 2007 (AIHW 2009) and 2005 (AIHW 2005b), which means that fewer hospital episodes have been reclassified as Indigenous. This has resulted in a slight decrease in Indigenous expenditure and a corresponding increase in non-Indigenous expenditure compared with the 2008–09 report. These changes represent an improvement in the methodology and a higher degree of accuracy in the estimates.

The under-identification of Indigenous Australians in public hospitals varies substantially between states and territories, as well as remoteness categories. In some states and territories, an average state-wide under-identification factor was applied to all hospital separations. In others, differential under-identification factors were used depending on the region in which particular service(s) were located.

As the AIHW studies on Indigenous identification in hospital data did not include private hospitals, an adjustment factor of 54% for private hospitals was derived from the analysis of linked hospital morbidity data from New South Wales (AIHW: Deeble et al. 1998). A loading of 5% is added to the Aboriginal and Torres Strait Islander patient costs to take into account known differences in comorbidity for similar Diagnosis Related Groups in Aboriginal and Torres Strait Islander patients. This has been done in each of the Expenditure on health for Aboriginal and Torres Strait Islander people reports since the one for the 1998–99 year (AIHW 2001, 2005a, 2009, 2013a; AIHW: Deeble et al. 2008).

Overexposed

'Exposed' by Derek Bambauer in (2014) 98 Minnesota Law Review argues

The production of intimate media – amateur, sexually explicit photos and videos – by consenting partners creates social value that warrants increased copyright protection. The unauthorized distribution of these media, such as via revenge porn, threatens to chill their output. To date, scholarly attention to this problem has focused overwhelmingly on privacy and criminal law as responses, neglecting the power of intellectual property doctrine to curtail harms and spur beneficial uses. Copyright law leverages an established, carefully limited system of intermediary liability that addresses the true risks of abuses, such as revenge porn. Importantly, copyright is also consonant with key statutory protections, such as Section 230 of the Communications Decency Act, that protect the thriving Internet ecosystem.

This Article proposes creating within the Copyright Act a right for identifiable people captured in intimate media to block unauthorized distribution and display of those images or video. It then uses the proposal, and issues for intimate media more broadly, as a window into contentious scholarly debates over the nature of authorship and the balance between copyright and free speech. The Article closes by identifying the rise of intimate media and its concomitant challenges as part of the ongoing revolution in information production.

Bambauer comments that -

Privacy law dominates discussions around the production and misuse of intimate media. Intuitively, privacy doctrine has considerable appeal: there is something sordid and voyeuristic about the unauthorized viewing of people captured in intimate, vulnerable moments. However, privacy-based approaches share common failings, one theoretical and two practical.

The theoretical failing of privacy law’s framework is that it does not take seriously the benefits of intimate media. Privacy, on this issue, is entirely about preventing harm to victims of unauthorized sharing. That impulse is admirable, but it ignores another valuable consideration: structuring a legal regime to encourage the production and sharing of intimate media among consenting partners. The virtue of this Article’s approach is that it addresses both: it creates a generative regime for intimate media, while reducing harm by punishing it as copyright infringement. And, copyright law operates in practice like a privacy regime more often than either privacy or IP scholars might like to admit. Howard Hughes bought the copyright of a critical biography so that he might suppress it. J.D. Salinger used copyright to quash quotations from his papers. Hulk Hogan sued to stifle his sex tape. In some contexts, copyright law can replace privacy law. It should do so here, since it addresses both the virtues and demerits of intimate media.

The first practical hurdle for privacy doctrine is the immunity conferred by Section 230 on intermediaries. While the initial revelation of intimate media likely causes some harm, the greater harm comes from the public availability and ongoing sharing of these media. Privacy laws, with the important exception of federal criminal ones, do not apply secondarily to Web sites, search engines, or other intermediaries. Privacy scholars typically respond by seeking to circumvent Section 230, or by seeking to change it. Circumvention exists, but is rare. While there are cases successfully bypassing immunity based on privacy claims – typically, on the theory developed by the Ninth Circuit that the Web site has contributed to the development of the content – they are the exceptions that prove the rule. Alteration or repeal of Section 230 is a hardy perennial of privacy scholars and of state legislators. Thus far, efforts to alter the 230 safe harbor have proved politically non-viable, and if successful, would clearly come at some costs to intermediaries and innovation. Section 230 is a barrier, but it is one worth keeping.

The second practical failing is that, even if Section 230 were modified, privacy law may not be able to hold intermediaries liable for nonconsensual distribution of intimate media without running afoul of the First Amendment. The First Amendment generally protects expression against government efforts to ban re-distribution of it, unless that expression falls outside the category of “speech.” For example, a radio station that broadcasts an illegally wiretapped conversation may not be held liable, even though the person who initially taped the content could be prosecuted, and even when the radio station knew the taping was unlawful. A newspaper that publishes the name of a minor who was raped cannot be subject to damages under a shield law forbidding publication of the identities of victims of sexual offenses. A media outlet that identifies, in contravention of the law, a minor charged with murder cannot be prosecuted. The trend line is clear: those who disclose initially can be held liable, but intermediaries who re-publish cannot. This is a significant – if not insurmountable – hurdle for privacy law to overcome. While appealing at first blush, privacy law not only faces doctrinal challenges to achieving its ends, but those ends are insufficient: they fail to take account of the benefits of consensual sharing of intimate media.

Bambauer concludes 

Blame smartphones.

Whether Apple, Android, or Windows, smartphones today share two key traits: they have cameras, and they are networked. These characteristics explain the rise of amateur-generated intimate media, and of its non-consensual distribution. The costs of production and distribution of this type of information – as with everything digital – have plummeted. Creating an explicit photo can be done easily, impulsively. And the device that snaps the photo can share it as well. The cost of distributing analog photos was an effective barrier to most non-consensual sharing; it was simply too much work. Even digital cameras required a USB cable, a computer, and a separate Internet connection before media could be distributed via the Internet. But, as sexting proves, the smartphone has made intimate media ubiquitous.

Yet this Article comes to praise this change, not to bury it. Intimate media generate significant, important benefits for partners who use such images and video consensually. Recognizing that value is the key insight into why intellectual property law is best suited to tackle the challenges raised by non-consensual distribution. Creating a right for identifiable subjects of intimate media to block unconsented sharing and display effectively curbs infringement, empowers people, creates incentives for production, and avoids disturbing both the First Amendment and settled Internet law. Ultimately, this Article’s reform to copyright law enhances autonomy and generativity – it enables us to meaningfully choose to whom we are exposed.