Warrants

One of the rationales advanced by Australian law enforcement bodies in calling for warrantless access to telecommunication and other personal information has been that judges and magistrates are too restrictive in approving warrants.

In submissions to law reform inquiries and testimony to parliamentary committees I have questioned such assertions, commenting that independent supervision is necessary and appropriate and that there is no evidence that the courts are being obstructive or dilatory. Put simply, we should be aware of confusing bureaucratic convenience with the accountability that is foundational in a liberal democratic society.

Today's SMH features an article that goes some way to substantiating my criticism. (There's been no comprehensive study of the number of surveillance warrants sought across the Australian jurisdictions, the time taken to process applications and percentage of refusals.)

The SMH states

NSW courts have refused less than 2 per cent of police applications for secret recordings, reigniting claims judges are "rubber stamping" privacy intrusion, new data shows. 

Only six out of 363 applications for surveillance device warrants were rejected in the first half of 2014. This was an increase from no refusals, out of 878 applications, in the prior 12 months. 

"The very low rate of refusals suggests either that applications for surveillance device warrants by NSW police are consistently of an almost perfect standard, or that the process of approval lacks rigour," said shadow NSW attorney-general Paul Lynch. "In light of evidence recently in the Legislative Council, this is of great concern. There needs to be a proper review of this process." 

An upper house inquiry into Ombudsman Bruce Barbour's handling of the police bugging police scandal found at least one application for a listening device warrant didn't fulfill the grounds to justify recording the private conversations of 46 people. 

The Inspector of the Police Integrity Commission, David Levine, told the inquiry that as a judge he never refused a warrant, and instead "looked to see if there is someone named in this warrant who is named as 'M.Mouse ' or 'D.Duck' ''. 

The inquiry urged the Baird government to review the system for granting warrants, and consider establishing an independent office to test the veracity of surveillance device applications by police. 

Queensland has a Public Interest Monitor who can appear in court to test the validity of police applications. 

The Ombudsman's latest report on the use of the Surveillance Devices Act found police were systemically failing to destroy recordings that weren't needed for criminal investigations, in breach of the Act. Instead, they were being archived. 

Autonomy

'Constructing Autonomy' by Bailey H. Kuklin in (2015) 9 NYU Journal of Law & Liberty 375 argues

Legal and moral norms have strengthened their protection of individual autonomy over the centuries. The emphasis and impressions by most scholars regarding this progress have, nonetheless, often been misleading. It is not that we have developed better standards by which to protect a pre-existing notion of autonomy. This puts the endeavor backwards. It is, to the contrary, that our evolving rules and standards of rights and duties create and delineate what we mean by autonomy. Autonomy, in a nutshell, is that which is protected by adopted norms. This article unpacks the principles supporting this conclusion and offers guidance for further progress.

Kuklin comments

This article examines the meaning and reach of autonomy. More particularly, it analyzes the means by which personal autonomy boundaries are established and, relatedly, the notion of crossing an autonomy boundary, which gives rise to an autonomy invasion. Plausible autonomy boundaries between persons are looked at mainly from an individualistic, deontic viewpoint. I take the perspective of persons making personal claims against one another, typically in light of existing legal, moral, and social norms. The autonomy claims of entities other than individuals, such as collectives (e.g., the state, corporations), are set aside because they are not natural persons with independent moral status. 

The currently preponderant strain of legal analysis generally embraces an internal point of view. The dominant internal orientation of modern tort scholarship is especially noteworthy. Tort scholars who base their theories on corrective justice, such as Ernest Weinrib, Jules Coleman, and Arthur Ripstein, identify and mainly support the corrective justice principles that they see as immanent in existing tort doctrine, and typically reject inconsistent tort doctrine or principles as incoherent. Tort scholars with an economic orientation who look to the Hand formula as signaling the central organizing principle of tort law negligence, such as Richard Posner, suggest that the formula implies that the goal of efficiency is recognized as immanent in existing tort law, and commonly dismiss inconsistent authority as counterproductive. Criminal law and contracts scholars, other than those with a strong law and economics commitment, do not seem to emphasize a single, identified immanent principle of their legal subjects as much as do most torts scholars. They often acknowledge the existence or acceptability of polycentric values. 

In contrast to this current strain of legal thought, my approach looks outside existing law to the overarching principles of individual rights however they may align with today’s law. These principles stem from Immanuel Kant’s categorical imperative. This inspiration from Kant reflects the predominant thinking of modern legal, moral, and political commentators. Writers as diverse as John Rawls and Robert Nozick ground their fundamental conceptions on Kant’s works. In seeking a rounded understanding of personal autonomy, reliance on the lessons of existing law is of limited usefulness. There is little reason to believe that the body of private common law would reflect a coherence that is ascribed to it by some commentators. It is still largely influenced by the old writ system. This system emerged as a means to obtain the jurisdiction of the courts of the English sovereign. As some commentators have made so clear, it was not designed for, nor did it ever achieve, a comprehensive, logical ordering of the private law. The common law is complete in the sense that every issue brought before the courts can be resolved one way or another. But in light of its quirky and historically contingent origins, it would be amazing if the substantive principles and doctrines of the common law entirely harmonised. At best, the common law would take a very long time to evolve towards and achieve harmony because of the braking constraints of the doctrine of stare decisis and the ebb and flow of the moral and political inclinations of the law’s agents. Even with an overall trend towards coherence in the common law, which I do not deny, path dependence would point toward a limited orbit of likely end points short of a radical reorientation of the common law process. Akin to Pareto optimality, the common law could reach a state of completeness and coherence without satisfying any ideal body of substantive principles. One should be very doubtful about finding a fully justifiable moral “ought” in the “is” of the common law. 

A somewhat comparable tale can be told about the origins and development of criminal law doctrine. Here, however, we should expect greater, though perhaps not complete, order. The body of criminal law has historically been subject to comprehensive adjustments through legislation. Subject to constitutional limitations, the legislative process allows for giant steps, backwards and forwards, and the opening of entirely new avenues, such as those needed to cope with abuses relating to the emerging forms of power being generated by the computer revolution. None of these cautions regarding the origin and growth of the law goes to reject the claim that conceptions of corrective justice and retribution are, at least partially, immanent in the private and criminal law. Bypassing the powerful arguments by legal economists and other commentators that additional principles are, and should be, immanent in the law, the problem remains that corrective justice and retribution are formal concepts only. They instruct us on limitations to what we may properly do, but they do not tell us exactly what we should do. 

The central orientation of my search for the meaning of autonomy is Kantian, with needed and enlightening help from Aristotle. In considering the range of an individual’s plausible deontic claims, I will identify points at which normative choices may or must be made when adopting substantive principles and, when they are violated, requital principles for the autonomy invasions. Atop a strictly formal, Kantian foundation, just law allows for a considerably broader range of acceptable doctrine and precepts than is generally acknowledged. Under this orientation, political obligation (the duty to obey the law) must be grounded on individualistic principles alone, such as consent. For instance, to the claim for requital since “you broke the law,” the claimee may properly respond, “but I am not obligated to obey that particular law. I did not consent to it.” Although Kant insisted that one has a moral duty to obey universalized laws, his position involves a nonconsensual social contract imposed by the state. For purposes of the strongly individualistic analysis here, a nonconsensual grounding for a social contract is deemed inadequate. 

Here is a roadmap of what follows. In the private sphere primarily addressed, autonomy boundaries, within which is one’s autonomy space, are established by each person’s adopted deontic maxims (e.g., “do not batter another person”). Under the common, formal interpretation of the categorical imperative, an individual’s chosen, substantive, first-order maxims may vary from person to person. Each individual’s set of maxims must be complete, in that it addresses all possible conflicts with the interests of other persons, for otherwise the autonomy boundaries are not fully drawn and thereby leave gaps. Each set of maxims must also be coherent, that is, all the maxims in the set must be consistent with one another. In adopting maxims to establish autonomy boundaries, two sorts of freedoms are balanced and delineated: first, the liberty to choose and act; and second, the security, essentially, from being acted upon by others. Once a person’s autonomy space is plotted, she may adjust its boundaries by consent, within limits (e.g., no slavery contracts), by granting another party rights and, correlatively, assuming duties. When an autonomy boundary has been impermissibly crossed, that is, there has been an autonomy invasion producing a wrongful harm (e.g., a battery), requital is available to the invadee. This response requires the invocation of adopted, requital, second-order maxims. In the private law the requital standards are conceptions of corrective justice, while in the public (criminal) law, they are conceptions of retribution or distributive justice. For the violation of a first-order maxim against battery, for instance, an invadee may seek damages under a second-order requital maxim based on corrective justice. Because independent claims of the state are here discounted, conceptions of corrective justice and retribution focus entirely on individual rights and duties. 

The conceptions of corrective justice that are adopted, like the substantive maxims that initially mark autonomy boundaries, are matters of individual choice that, again, must simply meet the categorical imperative and establish a complete and coherent set of requitals to cover all the possible invasions of autonomy space determined directly by substantive maxims. For example, there could be one or more remedial conceptions of corrective justice to deal with harmful ultrahazardous activities, and other ones to deal with negligence, as where distinct degrees of wrongful risk are accounted for. Furthermore, the conceptions may vary according to the differences in the ensuing harms, such as physical versus psychic harms. The combination of first- and second-order maxims establishes a person’s overall autonomy space. Because these maxims are matters of personal choice, the maxims adopted by different individuals may conflict. A claimant may charge another person with invading her autonomy space by violating one of her first-order maxims. The claimee may properly respond that he has not adopted this particular maxim and that his conduct fully meets the full set of maxims consistent with the categorical imperative that he has personally adopted. Consequently, as a practical matter, the state cannot be entirely excluded from choosing maxims and imposing them on individuals. The state must act as an arbiter of inconsistent sets of maxims as a second-best solution to an otherwise intractable problem. Similarly, for retribution the state must be the arbiter of conflicting claims and the implementer of apt punishment. But this second-best solution is resorted to only when unavoidable, for it runs contrary to strict individualistic principles. 

In unpacking common conceptions of corrective justice and retribution, there are three key notions that are often, if not always, elements: harm, wrongfulness, and blameworthiness. For example, “when one wrongfully harms another person by blameworthy conduct, she is to compensate that person to the extent of the wrongful harm.” As in this conception of corrective justice, one or more of the key notions may relate to whether requital is called for and, if met, affect the measure of that requital. Furthermore, specification of the notions may vary from context to context, as where, say, a greater degree or type of blameworthiness is required to recover for purely psychic harms than for purely physical harms. Harms are, in short, of four kinds: physical, economic, psychic, and dignitary. This last kind of harm, dignitary, has not received extensive attention in existing law, though dignity is central to Kant’s development of practical reason. It does receive much attention here. Wrongfulness, or wrongful harm, occurs when a substantive, first-order maxim is violated, as, say, when an agent purposely puts another person at an unreasonable risk of harm. Blameworthiness refers to two notions. First, it refers to the extent to which an actor is responsible for the conduct in question. This responsibility turns on her relative freedom from ignorance and coercion when choosing the act or omission. The more she knows about the potential consequences of her considered conduct, the freer she is to make an un-encumbered choice, the more she is responsible and blameworthy for the wrongful harms that ensue. Second, blameworthiness refers to the actor’s mental state and conduct regarding the invadee. This blameworthiness is gauged by the degree of her disrespectfulness of the invadee’s dignity. Fellow moral agents are entitled to equal respect. Depending on the particular adopted maxims, both forms of blameworthiness may affect the delineation of autonomy space. 

Once an agent has worked out a deontically acceptable range of meanings for the three key moral notions, she is ready to consider and adopt a full set of first- and second-order maxims. This article aims to help her get to that point of being ready to work out her own autonomy boundaries. I leave it to future articles to help her further along. The bottom line, it will be seen, is that the deontic constraints on delineating autonomy boundaries are much looser than is commonly supposed. A very wide range of potential rights and duties are consistent with the claims of individualism.

'The Impact of EU Fundamental Rights on Private Relationships: Direct or Indirect Effect?' by Matteo Fornasier in (2015) 23(1) European Review of Private Law 29-46 argues

 Traditionally, the primary goal of fundamental rights has been to limit the power of the state over individuals. However, it is undisputed in most legal orders today that fundamental rights also have an impact on the relationship between private parties. The present paper looks at how the fundamental rights guaranteed at the level of EU law may affect private law relationships. In particular, the paper analyzes whether EU fundamental rights have direct or indirect effect in private relations, that is to say, whether they are, as such, binding on private parties or whether they impose obligations on individuals only through the medium of an implementing act. It will be shown that, contrary to what has been written by a number of authors, this question actually matters in practice, especially in the context of the social rights guaranteed by the Charter of Fundamental Rights of the European Union. Special attention is devoted to the more recent case law of the CJEU, which in the view of some commentators supports the notion of direct horizontal effect.

Anonymity, Authentication and Suppression Orders

'An Unprincipled Mess: Party Anonymity in Legal Proceedings in the United Kingdom' by Merris Amos in A. Koltay (ed.) The Fundamentals of Media Law (CompLex, 2016) argues

Over the last ten years in the United Kingdom (UK) there has been a significant increase in the willingness of courts and tribunals to grant anonymity to the parties to legal proceedings. In 15 percent of the judgments made by the Supreme Court in 2014, at least one of the parties had been granted anonymity. In 2010, the figure was even higher at 24 percent of all judgments for that year. By contrast in 2006, seven percent of the judgments of the highest court were anonymised and in 2002, it was only two percent. The rise in party anonymity has not gone unnoticed and the Supreme Court itself has observed that its docket can “read like alphabet soup”. Many media organisations are dissatisfied and maintain that there should be less anonymity in the courts whilst some campaigners and commentators argue that there should be more, particularly for those accused of a crime but not yet charged. The purpose of this chapter is not to take sides in this debate but to attempt to make sense of the present position and identify the main principles consistently applied by the courts when anonymity is requested by a party. Each principle is assessed to determine if its interpretation and application is sufficiently supported by the relevant jurisprudence. In the light of this assessment, a revised set of principles is suggested and the chapter concludes with a reconsideration, in the light of these revised principles, of a recent anonymity judgment as well as a discussion of how the revised principles might apply to a person accused of a sexual offence, but not yet charged. 

 'Data Security and Multi-Factor Authentication: Analysis of Requirements Under EU Law and in Selected EU Member States' (Queen Mary School of Law Legal Studies Research Paper No. 194/2015) by Elizabeth Kennedy and Christopher Millard considers

certain legal requirements relating to data security in the EU, and specifically the use of multi-factor authentication as a method of meeting the security obligations established by European Directive 95/46 EC on the processing of personal data (the “Directive”). Following this Executive Summary, the Report comprises two sections: a discussion of the requirements of data security under European data protection legislation, and a study of selected national positions.

Clouds

'Cloud Investigations by European Data Protection Authorities: An Empirical Account by Vranaki Asma in John Rothchild (ed) Research Handbook on Electronic Commerce Law (Edward Elgar, 2016) is described as drawing on

 qualitative interviews, documentary analysis and observation data to analyse how European data protection authorities (‘EU DPAs’) exercise one of their statutory enforcement powers, namely, investigations more frequently to determine the compliance of cloud providers with the relevant data protection laws. The empirical analysis presented in this chapter supports two arguments. Firstly, the investigations of cloud providers by EU DPAs ('Cloud Investigations') are complex regulatory processes that often involve different co-operative relationships between various actors, such as DPAs. In reality, manifold interactions and practices, such as facilitative instruments, are deployed to form and perform such collaborations which are vital in ensuring the consistent application and enforcement of common data protection principles in an increasingly globalised context. Secondly, Cloud Investigations are also dynamic as they can involve continually evolving regulatory enforcement styles and compliance attitudes. Cloud Providers can often resist the attempts of the EU DPAs to direct the investigative process in specific ways. How such resistance is resolved is very much context-dependent.

Persaud and Canadian Witchcraft Law

'Modern Law, Modern Hammers: Canada's Witchcraft Provision as an Image of Persecution' by Natasha Bakht and Jordan Palmer in (2015) 35 Windsor Review of Legal and Social Issues 123 examines

Canada’s retention and application of the archaic offence of pretending to practise witchcraft in the Criminal Code. The disproportionate effect that the offence has on women and certain religious and racialized groups is highlighted. The historic persecution of women accused of practising witchcraft is discussed in order to provide some background to the history and ideology of the witchcraft offence in Canada. The gendered nature of the offence is considered along with the imperial role of the dominant Judeo-Christian belief structures in curtailing religious deviance and suppressing women’s powerful positions in the community. An analysis of the confused judicial interpretation of the offence and consideration of the social goals achieved in criminalizing such activity when several fraud offences already exist in Canada follows. Finally, the constitutionality of section 365 is examined using a feminist and religious freedom lens. The recent case of R v Persaud provides the modern day backdrop to examine Canada’s witchcraft offence and propose the repeal of section 365.

The authors comment

In 2009, Vishwantee Persaud, a woman of South Asian descent, was charged under section 365 of Canada’s Criminal Code for “pretending to practise” witchcraft. Persaud was accused of posing as a witch to gain the trust of a Toronto lawyer and subsequently defrauding him of more than $27,000. Persaud claimed to be the embodiment of lawyer Noel Daley’s deceased sister, whose spirit would guide him to financial success. Persaud told Daley that she had come from a history of “good witches” with occult powers and that she could do a tarot reading for him. This tarot reading appears to be the primary reason for the charge of witchcraft, which was eventually dropped when Persaud pled guilty to other more serious and verifiable fraud offences. Another recent example of the charge of witchcraft in Ontario, also involving a person of colour, was dropped when the accused made full restitution of monies received. 

The charges against Persaud highlight the persistence of the facially-neutral but deeply patriarchal offense of “pretending to practise witchcraft” and its continued use as a method of social control for minority groups and women. The phenomenon of targeting women for witchcraft, with attendant negative consequences, is a practice that has a long history and wide application globally. For example, in May 2011, after having been accused of practicing witchcraft, forty-one-year-old Gauri Devi Saha of Bara, Nepal was severely beaten, stripped publicly, and forced to eat human waste by her neighbours. Women accused of witchcraft in Nepal are severely traumatized and suffer extreme physical and mental torture. They are ostracized by society, they lose self-respect, some are even rejected by their families, and many turn to suicide. It is primarily vulnerable women who are accused of witchcraft including widows, elderly women, women with low economic status, and those who belong to the so-called lower castes. In Northern Ghana, Oxfam Canada spokesperson Karen Palmer described “witch camps” populated by “old, emaciated, quite pathetic-looking women who are too old and too vulnerable to be living on their own...They were older women who had sort of outlived their usefulness and ended up being accused of witchcraft [and driven away].” It is unsurprising that this practice, fed by belief in witchcraft, “makes people distrustful and fearful of their own neighbors and family members.” The violence associated with this communal fear is concerning: “[h]ardly a week passes in South Africa without press reports of witches being killed.” 

Canada’s retention and application of the archaic offense of pretending to practice witchcraft is problematic, both in its purpose and the disproportionate effect it has on women and certain religious and racialized groups. This article examines the historical persecution of women accused of practicing witchcraft in order to provide background to the history and ideology of the witchcraft offense in Canada. The gendered nature of the offense is considered along with the imperial role of the dominant Judeo-Christian belief structures in curtailing religious deviance and suppressing women’s powerful positions in the community as healers, midwives, and holders of holistic herbal and agricultural knowledge. An analysis of the witchcraft offense in Canada follows, including an examination of the confused judicial interpretation of the offense, and consideration of the social goals achieved by criminalizing such activity when overarching fraud offenses already exist in Canada. Finally, the constitutionality of section 365 is examined using a feminist and religious freedom lens. The recent case of Vishwantee Persaud provides the modern day backdrop to examine Canada’s witchcraft offense and propose the repeal of section 365.

They go on to argue

Some have suggested that the offense of pretending to practice witchcraft has little to do with the occult and is principally concerned with protecting vulnerable people from con artists posing as fortune-tellers who fabricate mystical powers. Arguably, such a purpose for section 365 is a shift from its original enactment, and shifting purposes are prohibited. However, the court may accept such a purpose with the 1950s amendment of section 365 that added the word “fraudulently” to the offence. Even if a rational link between the objective and the offense is found, the offense is not minimally impairing, given fraud offenses already exist to better protect the vulnerable from being misled. Finally, when the deleterious effects are balanced against the salutary effects of the impugned legislation, the impact of the limit on religious practice is disproportionate. The public benefit gained by the criminalization of witchcraft is minimal given that section 380 of the Code exists and offers more flexibility to prosecutors as a hybrid offense that addresses the loss of property or money through deceit, falsehood, or other fraudulent means. By contrast, the effect of the provision on minority religious groups is stark, harkening back to the days of overt religious and gendered persecution by threatening criminal prosecution for legitimate activity.  …

When viewed in combination with the historic disadvantage of women created by law, the disproportionate targeting of women in enforcement of witchcraft laws makes section 365 ripe for reform. The general trend is and should be clear:

Over the past twenty years [in Britain]...case law and legislation have emerged to provide liberty to practise witchcraft, within the limits prescribed by the general criminal law, giving its practitioners a freedom of thought, conscience and belief.

Canada has followed the trend to greater freedom; it now needs to take the next step and repeal section 365. Other jurisdictions are not as resistant to reform. For example, the 1961 reform of New Zealand criminal law deleted the provision “pretending to practise witchcraft,” and “many offenses, of whimsical historical interest only, were swept away.” Between 1984 and 1993, there were six British prosecutions under the Fraudulent Mediums Act, with five convictions. The Act was repealed in 1993. Neither jurisdiction has, to date, collapsed into chaos. 

Australia, another Anglo-centric common law legal system has also moved away from criminalizing witchcraft, albeit in a patchwork way since criminal jurisdiction is not centralized. The Australian state of Victoria decriminalized witchcraft in 2005, and the Northern Territory of Australia recently promised to delete a provision against witchcraft and fortune telling. The penalty for that offense was “a mandatory one-year imprisonment and every quarter, [one was] brought to the market and pilloried for the purpose of people throwing vegetables and such things at you.”  The decision was supported by a policy review paper in 2010 by the Northern Territory’s Legal Policy Division, which described the witchcraft provision as “irrelevant and silly” and concluded that “[i]f fraud is found to be involved then fraud or criminal deception can be charged...[the witchcraft provision] should be repealed.” A news article on the change reported that criminalization of witchcraft “has since [1735] been repealed in most other parts of the Western world.” Canada is an outlier in this respect. 

Until full decriminalization is achieved, courts should adopt a contemporary approach to the provision in keeping with common sense and the requirements of the Charter, as was done in R v Markovitch. In this case, the accused was convicted

after, she deliberately inveigled two of the three people into a long-term relationship with her. That was the basis of the fraud. She told all of those people that she was capable of rectifying certain personal problems that each had...With a good deal of pre-planning and with a number of direct and veiled threats, Mrs. Markovitch, when she had placed her victims within her web, continued to suck money from them on the threat to them that if they did not keep on paying the money, certain unfortunate things would happen to them... In the result, the total loss of all three was $17,000. 

What is the impact for defendants such as Persaud? First, the provision provides a sensational charge that shifts the discourse from alleged fraud to an archaic charge reflecting patriarchal suspicion of independent, strong, dissenting women. Secondly, it exposes the defendant to a traditionally unbalanced legal framework, where their true beliefs may be used against them. Though the evidence did not suggest that Persaud sincerely believed she was practicing witchcraft, had she been a sincere Wiccan, it is unclear which line of reasoning would be relied upon. 

Third, an accused in the position of Persaud could be subject to religious analysis and criticism as per Labrosse about the validity of her beliefs. Such a disturbing trend was articulated in the case of NS, where the majority judgment advocated a searching analysis of whether a sexual assault complainant truly believed she must wear her niqab to testify in court. While NS may technically comply with Amselem, the decision, together with the wording of section 365 and conflicting jurisprudence, may force a court to delve into the nature of Persaud’s belief. When combined with the absence of a requirement for those observing the witchcraft to believe the power of the accused, the law has created the potential for a crime based on genuine religious belief, historically used to subjugate women and vulnerable communities. 

Finally, the charging of any defendant under such an antiquated section robs the Crown and the trier-of-fact of much needed flexibility. The claims against Persaud were serious, and a charge under section 365 carries only the weight of a summary conviction. A prosecution under the generic fraud section would allow for the offense to be treated as an indictable offense, arguably better representing the seriousness of the alleged crime.

Trust

'Constellations of Trust and Distrust in Internet Governance' by Jeanette Hofmann in the European Commission Report of the Expert Group 'Risks of Eroding Trust - Foresight on the Medium-Term Implications for European Research and Innovation Policies argues

Trust typically becomes an issue when we find it wanting. In Internet governance, it was the disclosure of mass surveillance that has drawn new attention to trust as a crucial resource of engagement and collaboration. But what exactly is trust? Public discourse tends to create a binary understanding that portrays trust as a positive and distrust as a negative thing. This article challenges this view by suggesting that trust and distrust co-occur and that distrust can be a productive source of institution-building. It will be argued that modern constitutions are examples of how distrust towards the abuse of power has been transformed into generalized trust. Democracies are able to generate basic cultures of trust by institutionalizing the fear of its abuse. Normative certainty, reliable mechanisms of accountability and the enforcement of rights, duties and responsibilities are among the conditions conducive to the development of general trust in governance arrangements. Internet governance, characterized by a constitutional framework still in its infancy, faces the challenge to generate the specific conditions itself.for creating generalized trust in its institutions. 

The first section of this paper discusses concepts of trust with implications for the political sphere. The second section illuminates the sphere of Internet governance from a trust perspective. The third section briefly describes the crisis of confidence in Internet governance caused by Edward Snowden's revelations about mass surveillance on the Internet. This crisis of confidence serves as the empirical background for two scenarios sketching out potential trajectories in Internet governance. Referring to Albert Hirschman's concept of voice and exit, the first scenario assumes that a significant loss of trust facilitates a process of constitutionalization of Internet governance while the second suggests that the decline of trust accelerates a gradual fragmentation of the Internet.

Energy Regulation

'European Energy Regulators: An Empirical Analysis of Legal Competences' (University of Groningen Faculty of Law Research Paper No. 2015/24) by Thijs Jong and Edwin Woerdman offers an empirical examination of

whether differences in legal competences of National Regulatory Authorities (NRAs) of European gas and electricity markets are rationally aligned to the corresponding countries’ divergent levels of 1) security, 2) competitiveness, and 3) carbon-neutrality of energy supply. Scores are derived (a) on the extent to which these energy supply characteristics are realized and (b) on how many competences NRAs have regarding these policy objectives. Although higher energy scores should reduce the need for regulatory intervention and thus legal competences, it appears that this does not hold for most policy objectives. In fact, gas and electricity market unbundling and/or liberalization imply higher degrees of regulatory intervention. Finally, the legal competences do not completely follow the 'optimal' competence arrangement for regulatory authorities; compared to a theoretical benchmark there are relatively more 't