Predictive Surveillance

'Predictive Surveillance and the Threat to Fourth Amendment Jurisprudence' by Shaun B. Spencer in (2018) 14 I/S: A Journal of Law and Policy for the Information Society comments 

 This Article explores how the use of predictive surveillance to prevent terrorist and criminal activity may shape Fourth Amendment law. Predictive surveillance refers to a potential model of surveillance in which government collects data in bulk and then uses predictive analytics to detect patterns indicating terrorist or criminal activity. The existing model of surveillance regulation presumes that the government’s first step is to target a specific person. Therefore, the first analytical step in evaluating the constitutionality of a given surveillance practice is to determine whether the government had sufficient particularized suspicion about the target. Predictive surveillance, however, confounds the existing model because it requires collection of massive amounts of data with no particularized suspicion. Despite that disconnect, judges will face great pressure to twist existing doctrine rather than ban the data collection that the government claims is necessary to fight terrorism or crime. Assuming that courts will be predisposed to find predictive surveillance constitutional, this Article explores the various doctrinal approaches that courts could take to approve predictive surveillance and assesses the risk that each approach poses to Fourth Amendment doctrine. 

Part I introduces the concept of predictive analytics and describes predictive surveillance as a potential application of predictive analytics. Part II first identifies the technical and political challenges that the government will face if it tries to implement predictive surveillance and then discusses the reasons to believe that researchers and political actors will overcome these challenges. Part III describes why predictive surveillance threatens Fourth Amendment doctrine itself and offers a cautionary tale of how courts evaluating a prior mass surveillance program twisted the statutory language to authorize the program. Part IV discusses the different ways that courts could apply the Fourth Amendment’s third-party and public-exposure doctrines to predictive surveillance and then assesses how each approach could affect the development of those doctrines. Finally, Part V discusses the different ways that courts could apply the Fourth Amendment reasonableness standard to predictive surveillance and assesses how each approach could affect the reasonableness standard.

Cryptocurrencies and Credit Cards

Funny money or smart contracts? 'Cryptocurrencies are (smart) contracts' by Simon Geiregat in (2018) Computer Law and Security Review comments

The functioning of cryptocurrencies like Bitcoin ultimately depends on participants’ agreements to selectively disclose or conceal information. Various arguments suggest that those agreements amount to a large multilateral contract to which all participants are parties. That multilateral agreement is automatically enforced through smart contract technology. Therefore, cryptocurrency “wallet holders” are simultaneously creditors and debtors of smart contract claims vis-à-vis their cryptocurrency community. 

Geiregat argues

Smart contracts are not unanimously defined. Many scholars, however, agree that the concept does not refer to contracts in the proper legal sense.  Instead, smart contracts can be described as (hardware and/or) software that initiates, controls and/or documents legally relevant acts, depending on predetermined and digitally proven events, and by means of which legally binding contracts may be concluded, depending on the circumstances. Hence, a smart contract, quite deceptively, is a technical means that can be used in the contractual sphere e.g. to execute contracts rather than simply being a legal concept. It is therefore more accurate to refer to it as smart contract technology. 

Smart contracts and blockchain 

Vending machines are an old-school example of an application of smart contract technology.  Hence, smart contracts do not necessarily make use of blockchain technology. When they do, however, trust is put in computer power and the public availability of certain information. As a result, blockchain-enhanced smart contracts are more efficient and trustworthy. Hence, although blockchain technology is not a requirement for smart contracts, its application is likely to lead to an increase in use of smart contract technologies. 

Cryptocurrency agreements use smart contract technology

From a private-law perspective, cryptocurrency systems give rise to a multilateral agreement to which all wallet-holders (aka the community) are parties (supra). When two of those parties agree to transfer coins from one party to another, both only need to push some virtual buttons. When they do, ultimately the whole cryptocurrency community automatically undergoes the effects: software automatically verifies whether the transaction is legitimate and registers the transaction if that is so. Through the architecture of the system, each wallet-holder who wishes to continue using the system, must accept that (cryptocurrency) wealth has shifted from one participant to another. This holds true, even if not all legal conditions for validity of the contract are fulfilled. In other words, cryptocurrency participants use software that initiates, controls and documents legally relevant acts, depending on predetermined and digitally proven events. In sum, they use smart contract technology.

He concludes

Cryptocurrency community members (wallet-holders or participants) are all parties to one multilateral agreement. The use of smart contract technology is part of that agreement. These findings only relate to the legal position of a cryptocurrency participant vis-à-vis his or her fellow-participants [Fig. 1]. They do not permit conclusions to be drawn as to the nature of the agreement concluded between two users who exchange “cryptocoins” for goods, services, a sum of money or anything else [Fig. 2]. Nonetheless, as a “payment” in cryptocurrency coins essentially amounts to the creation of a claim on the cryptocurrency community, the smart contract classification may indirectly alter the classification of that two-party contract. For instance, trading goods for cryptocurrency coins amounts to a trade in goods for claims rather than for money, which implies such exchange can never qualify as a proper sales agreement. In other words, lawyers who use their “(smart) contract lenses” may see a clearer picture when analysing cryptocurrency transfers.

ASIC Report 580 Credit card lending in Australia discusses the findings from ASIC’s review of credit card lending in Australia between 2012 and 2017.

ASIC comments

We sought to understand the credit card market in Australia more generally. Based on the data we collected, at June 2017: (a) there were over 14 million open credit card accounts (an increase of over 300,000 since July 2012); (b) outstanding balances totalled almost $45 billion (an increase since 2012, although balances showed signs of seasonal variation); (c) outstanding balances on cards where interest was being charged totalled $31.7 billion (a decline from over $33 billion in 2012); and (d) consumers were charged approximately $1.5 billion in fees over the previous year, including annual fees, late payment fees and other amounts for credit card use. 

Our data linking exercise indicated that 12.3 million people owned the 21.4 million cards in the dataset. There is a difference between the number of people and the number of credit cards because the linking exercise identified those consumers who were highly likely to have more than one card. 

Most consumers had only one credit card between 2012 and 2017: 62.1% of cards were not linked to any other card. Consumers with multiple cards generally had two cards. The linking exercise indicated that less than 5% of consumers had five or more credit cards between 2012 and 2017. 

Its  key findings were summarised thus

Consumer outcomes 

In our review, we identified four situations where credit card debt is potentially problematic and developed indicators for each category:

(a) Severe delinquency—The account has been written off or is in the worst state of delinquency that the relevant credit provider reported to us. 

(b) Serious delinquency—The account has been 60 days (or more) overdue in the previous 12 months. Note: There were differences in how some credit providers reported delinquency information to us. We standardised this information where possible, but there may be minor differences between providers’ cards. We have considered these differences when developing and using the indicators. 

(c) Persistent debt—The average balance of the credit card is 90% of the credit limit over the previous 12 months and interest has been charged. 

(d) Repeated low repayments—The consumer has made eight or more repayments on the account at or below 3% of the credit limit and interest has been charged over the previous 12 months. 

At June 2017, 18.5% of consumers with a card satisfied at least one of the problematic debt indicators. We found: (a) over 178,000 people were in severe delinquency; (b) almost 370,000 additional people were in serious delinquency; (c) around an additional 930,000 people had persistent debt; and (d) roughly a further 435,000 people made repeated low repayments. 

Some satisfied more than one indicator, sometimes for multiple cards. For example, at June 2017: (a) 1.7% of consumers were in severe delinquency on at least one card; (b) 5% of consumers were in serious delinquency on at least one card; (c) 10.8% of consumers had persistent debt on at least one card; and (d) 8.5% of consumers made repeated low repayments on at least one card. 

Not all consumers with persistent debt and repeated low repayments may currently be vulnerable or experiencing harm. However, consumers in these situations may be at risk of future problems, potentially driven by changes in life circumstances. These consumers may also be charged more interest compared to other finance options. 

Findings 1–2: Credit card debt is a problem for many consumers, and problems can persist over time 

We found some areas of particular concern: young people were more likely to be in delinquency, and multiple card holders were over-represented in our indicators. Additionally, over 890,000 consumers who were in problematic debt in 2013 also met our indicators in 2017. It was relatively more common for consumers to meet the persistent debt or repeated low repayment indicators in both 2013 and 2017, suggesting that there is scope for further measures to help these consumers. 

Many credit providers have promoted cards with higher interest rates that have additional ‘lifestyle’ benefits such as reward programs and longer interest-free periods. Consumer behavioural biases can mean that consumers select a card based on these promoted benefits rather than on how they are likely to use the credit card in practice. 

We looked for consumers with products that were not suited to their behaviours. Specifically, we looked for consumers who: (a) carried a balance and were repeatedly charged interest on a high-interest rate card; (b) repeatedly exceeded their credit limit; and (c) had a card with relatively high fees that they did not regularly use. 

At June 2017: (a) 19% of consumers (who we had enough information about) were charged interest for three or more months in the previous year on a high-interest rate card; Note: Some consumers were excluded from this analysis due to data issues. (b) 10.7% of consumers had exceeded their credit limit for two or more months in the previous year; but (c) we did not find evidence of consumers having cards with substantial fees that they did not regularly use. 

For consumers that were repeatedly charged interest on high-interest rate cards, we estimate that the amount of interest charged could have been reduced by at least $621.5 million in 2016–17 if interest was charged at 13%. 

Consumers with cards that were not suited to their behaviours were also more likely to satisfy our problematic debt indicators. 

Finding 3: Some consumers have credit cards that are not well suited to their behaviours or needs 

Finding 4: Few credit providers take proactive steps to address persistent debt, low repayments or products that are unsuited 

We asked credit providers whether they proactively take steps to prompt larger repayments, look for potential hardship or products that do not suit consumers’ behaviours. 

In general terms, few take these proactive steps: (a) nine of the 12 providers do not proactively contact consumers that make payments at or near the minimum amount for an extended period to prompt them to repay more of their outstanding balance; and (b) eight of the 12 providers did not proactively look for signs of potential consumer harm (other than through training frontline staff to look for signs of financial difficulty after a consumer initiated a discussion). 

Consumers who are in persistent debt, or repeatedly making low repayments, are profitable for credit providers. However, providers have obligations to conduct themselves efficiently, honestly and fairly. 

Two credit providers have begun pilot programs to proactively identify and engage with consumers that meet their own indicators of potential harm, low repayment behaviour or unsuited products. Others were considering or developing their own initiatives. 

Credit providers should implement these types of initiatives, with indicators of potential harm or problems framed to capture an appropriate pool of consumers. We consider that this is consistent with: (a) their obligations to engage in credit activities efficiently, honestly and fairly; and (b) a culture of prioritising consumers’ interests. 

Balance transfers 

At June 2017, balances had been transferred onto 7.6% of open credit card accounts. Across the five years of our review, consumers transferred $12.4 billion in balances. 

The use of balance transfers varied substantially between providers: some do not promote balance transfers and represent fewer than 1% of the accounts that received a transferred balance. By comparison, some larger credit providers held between 15% and 20% of all accounts open at June 2017 that had received a transferred balance. 

Findings 5–6: Balance transfers are more common with certain types of consumers and credit providers 

Rates during the promotional period also varied between providers, although 79% of balance transfers in our dataset had a promotional rate of 0%. Consumers said that reducing debt was a key motivation to transfer balances, and that the promotional rate was an important consideration when deciding on a particular transfer. 

Almost all balance transfers had a promotional period of 24 months or less. The most common periods were six, 12, 15 and 18 months; 60.9% of balance transfers had a promotional period of between 12 and 18 months. 

Consumers with a higher level of credit card debt across all their cards were more likely to transfer balances. 

To consider the effect of balance transfers on debt levels, we compared the total balance of all the consumer’s cards at the start of the transfer to the total balance shortly after the promotional period ended. 

We found that approximately: (a) 53.1% of consumers reduced their total debt by 10% or more, with almost 8% paying the debt off completely; (b) 15.3% of consumers maintained relatively stable total debt levels; and (c) 31.6% of consumers increased their total debt by more than 10% (with 15.7% increasing their debt by 50% or more). 

Consumers who transferred more than one balance were less likely to reduce and more likely to increase their total credit card debt during the promotional period (but achieved relatively better outcomes on later transfers). 

These findings suggest that the ‘debt trap’ risk for balance transfers noted by the Senate Inquiry exists and affects a substantial proportion of consumers. 

Despite prompts from the Senate Inquiry for credit providers to remind consumers with an outstanding debt from a balance transfer that the promotional period is about to end, many consumers do not receive any warning. The interest rate on outstanding debt after this period is usually significantly higher than the promotional rate. 

Of the 10 credit providers that offer promotional rates on balance transfers, five do not take proactive steps to remind customers who have not repaid the transferred amount that the promotional period is about to end. 

Findings 7–8: While many consumers reduce their credit card debt after a balance transfer, the ‘debt trap’ risk is real for one-third of consumers 

Finding 9: Consistent repayments may help consumers who transfer balances to reduce their debt, but credit providers can do more 

Findings 10–11: Most consumers do not cancel cards after transferring balances and continue to use them, resulting in interest charges 

Over 63% of consumers who transferred balances did not cancel any of their other credit cards. Older consumers were slightly less likely to cancel other cards after transferring a balance. 

If a consumer did cancel a credit card, this most commonly occurred soon after the balance was transferred. Consumers were progressively less likely to cancel cards during the six months after the balance was transferred. 

Most consumers (53.8%) used the card with the transferred balance. This included 21.7% of consumers with interest charges exceeding $5 in fewer than six months of the promotional period, and 32.1% with interest charges in six or more months. Consumers who used the card were less likely to reduce their debt during the promotional period. Note: We analysed card use on cards opened with a balance transfer with a promotional rate of 0%. 

Some consumers appeared to use both their old cards and their new card(s) with the transferred balance. Consumers who did not cancel a card, and who used both their old and new cards, were more likely to increase their total debt during the promotional period. 

Effectiveness of key reforms 

The Key Facts Sheet is a standardised one-page document intended to help consumers compare credit cards and choose one that suits their needs. However, the data available for accounts opened online suggests that many consumers are unlikely to have engaged with the Key Facts Sheet when applying for their credit card. 

Most credit providers offer tools to help consumers choose cards. Some provide interactive tools that prompt consumers to think about what features are important to them or how they use their credit cards. 

Under the additional requirements implemented in 2012, credit card repayments must be allocated to balances with higher interest rates before those with lower interest rates (unless the consumer requests otherwise). This reform was intended to standardise practices and prevent terms that maximised the time and money needed to repay credit card debt. 

Findings 12–14: Many consumers are not using the Key Facts Sheet when choosing a credit card 

Findings 15–17: The requirement to first allocate repayments to balances with higher interest rates saves consumers money 

This requirement has saved consumers money; prevailing practices before 2012 were inconsistent across credit providers, but generally less favourable for consumers. Eight of the 12 credit providers have applied this requirement to all their consumer credit cards. 

However, four providers (American Express, Citi, Macquarie and Latitude) continue to apply previous practices for some or all credit cards contracts entered before July 2012. We estimate that 525,000 consumers may have been charged extra interest as a result, including on more than one card. While these four credit providers are not breaking the law, they are charging their longstanding customers more interest than they should, and their conduct is out of step with the rest of industry. 

In anticipation of a new Banking Code of Practice, from 2019 Citi and Macquarie will no longer use the previous method of allocating repayments for grandfathered credit cards. American Express has also indicated it will make this change in 2019. Latitude is considering its position. 

The minimum repayment warning is a disclosure on the credit card account statement that compares the total cost and time to pay off the balance through minimum repayments with an alternate repayment which would repay the balance over two years. The warning aims to highlight the effect of making minimum repayments and encourage higher repayments. 

Based on a sample of credit cards from some credit providers in our review, we did not find evidence of a ‘spike’ in repayments at the level included on account statements.

Recreational Genomics

'Watch out for spit parties: privacy questions about recreational genomics' by Bruce Baer Arnold in (2018) 15(5) Privacy Law Bulletin 7 comments

on privacy aspects of recreational genomics, an emerging industry in which consumers gift or sell genomic data to find an association with ancestors or identify supposed susceptibility to genetic disorders. Salient privacy concerns include gifting of data that encompasses biological relatives and the use by law enforcement agencies of large-scale private sector genomic databases. 

The article reflects past work by Associate Professor Wendy Bonython and the author, for example 'Privacy, personhood, and property in the age of genomics' (2015) 4(3) Laws 377, 'Sharing the book of life: privacy, the new genomics and health sector managers' in (2015) 12(4) Privacy Law Bulletin 103, 'Australian reforms enabling disclosure of genetic information to genetic relatives by health practitioners' in (2014) 21(4) Journal of Law and Medicine 810, and 'Direct to consumer genetic testing and the libertarian right to test' in (2017) Journal of Medical Ethics.

It notes -

May 2018 saw practitioner and media coverage of the Australian Health Department’s belated announcement regarding arrangements for people to opt out of aspects of the national My Health Record (MyHR) medical data scheme. Outside of the tabloids, there was less coverage of an incident in the US involving what has been variously dubbed recreational genomics or direct-to-consumer genetic testing. In that incident, law enforcement personnel accessed a large-scale private sector genomic database in order to target the identity of a serial killer. This article offers an introduction to recreational genomics and highlights privacy issues for Australian legal practitioners and consumers. ... 

The article concludes

From a privacy perspective, the salience of recreational genomics lies in biological relationships. There is some commonality between biological relatives; your genetic profile for example has much of the same genomic data as that of your biological parents, siblings and offspring. You might accordingly be identified with varying degrees of precision using data that relates to those relatives. That identification might allow inferences about your appearance or your susceptibility to particular disorders, irrespective of whether those disorders have become manifest and irrespective of whether you wish to privately acknowledge or publicly disclose them. 

Research over the past decade has accordingly highlighted a range of questions for legal practitioners, ethicists and policymakers. One question is the accuracy of the testing, with for example claims that the quality of processing in some Eastern European facilities is egregiously low and that some services verge on being fraudulent. There has not been significant action by consumer protection agencies at the national level or by disgruntled customers, perhaps because there wasn’t major reliance on the tests or because consumers were unaware that consumer law offered a meaningful remedy. 

It is important to recognise that dominant service providers offer different tests and may well provide a specific consumer with somewhat different results. Regulators have expressed concern about what might be considered to be diagnostic services outside a conventional regulatory framework that encompass registration and supervision of health service providers alongside certification of clinicians and adherence to formal research codes. There is no global Genomic Data Right, unsurprising for example given the late establishment in the finance/utilities sector of the Consumer Data Right announced in Australia in May 2018. There is disagreement about genetic discrimination frameworks. Calls for a global Genomic Privacy Convention (akin to the European General Data Protection Regulation discussed in recent issues of this Bulletin) have gained little traction and are often opposed as contrary to the achievement of social goods through advancement of health research. 

A convention is of interest because the Australian Constitution is silent about privacy and makes no mention of the genome. The Commonwealth under its external affairs, posts and customs heads of power has scope to shape consumption of recreational genomic services. Its emphasis for the moment appears to be investment in genomics research (notably the $500 million Australian Genomics Health Futures Mission announced in May this year, similar to larger initiatives in the UK and the US) and public education campaigns. The effectiveness of education is uncertain, given the respect we owe to life science researchers and the willingness of leading geneticists to share their genomic samples. 

Education is significant because unconsidered sharing of genomic data is not caring but is not actionable. Put simply, there is no restriction on a relative gifting or selling a sample — a skin scraping, blood or saliva — from their own body to a genomic service provider. It is their property, not yours, even though it might offer a view of you, potentially a view contrary to your values about disclosure. It can be converted into data that is an asset of a corporation and over which neither the consumer nor you have much control outside the typically expansive terms and conditions used by the service provider to limit corporate liability and assert corporate rights. 

Such unilateral sharing without your authorisation and indeed without your knowledge, given that there is no requirement to alert you that a biological relative has participated in a recreational genomic program, is potentially significant because recreational genomic services are currently based overseas. Australian consumers are perforce reliant on an understanding of contractual provisions regarding the sale/gifting of samples (inef- fective if your client was not the individual providing that sample), trust that the service will meet contractual obligations and remain in a position to meet obligations (are all bets off if the service is liquidated or its trove of data is acquired?), and hope that overseas regulators such as the US Food and Drug Administration or Federal Trade Commission have both the power and interest in policing inadequate practice. The increasing body of knowledge about the feasibility of re-identification of what was claimed to be adequately anonymised health data should pose cautions, as should controversy over initiatives such as the UK care.data program. 

Locally it’s unclear whether the Office of the Australian Information Commissioner has the technical skills and the willingness to look beyond traditional stakeholders, in essence its regulatory capture by medical research- ers that is sufficient to offset indifference on the part of the Therapeutic Goods Administration and the impera- tives that drive the National Health and Medical Research Council. 

There is value in the emergence of an Australian direct-to-consumer genomic service sector, one that is globally competitive on the basis that it both embodies technical best practice (in contrast for example to past services in the former Soviet bloc) and recognises concerns regarding genomic privacy. There is no simple solution that will effectively address tensions regarding access to bulk/individual data, meaningful consent by those people who sell/gift samples, and respect for the dignity in terms of autonomy of those people who will be tacitly mapped through the action of their relatives. It is difficult for example to conceptualise a right to genomic obscurity outside action by governments to require both de-identification of genomic data about yourself and family members and enforcement of stronger standards to significantly inhibit data breach. 

A starting point for engagement by leading law firms with such questions and shaping of practice frameworks for the coming biotech century is a recognition that genomic data is special: the book of life is more valuable and less tractable than the book of telephone numbers or the electronic folders of bank account details that were apparently misplaced by the Commonwealth Bank two years ago.

'False-positive results released by direct-to-consumer genetic tests highlight the importance of clinical confirmation testing for appropriate patient care' by Stephany Tandy-Connor, Jenna Guiltinan, Kate Krempely, Holly LaDuca, Patrick Reineke, Stephanie Gutierrez, Phillip Gray and Brigette Tippin Davis in (2018) 22 Genetics in Medicine 1515–1521 comments

There is increasing demand from the public for direct-to-consumer (DTC) genetic tests, and the US Food and Drug Administration limits the type of health-related claims DTC tests can market. Some DTC companies provide raw genotyping data to customers if requested, and these raw data may include variants occurring in genes recommended by the American College of Medical Genetics and Genomics to be reported as incidental/secondary findings. The purpose of this study was to review the outcome of requests for clinical confirmation of DTC results that were received by our laboratory and to analyze variant classification concordance. 

We identified 49 patient samples received for further testing that had previously identified genetic variants reported in DTC raw data. For each case identified, information pertaining to the outcome of clinical confirmation testing as well as classification of the DTC variant was collected and analyzed. 

Our analyses indicated that 40% of variants in a variety of genes reported in DTC raw data were false positives. In addition, some variants designated with the “increased risk” classification in DTC raw data or by a third-party interpretation service were classified as benign at Ambry Genetics as well as several other clinical laboratories, and are noted to be common variants in publicly available population frequency databases. 

Our results demonstrate the importance of confirming DTC raw data variants in a clinical laboratory that is well versed in both complex variant detection and classification.

Loot Boxes

The Australian Senate has referred 'loot boxes' to the Environment and Communications References Committee for inquiry and report by 17 September 2018.

The referral states

•  The extent to which gaming micro-transactions for chance-based items, sometimes referred to as 'loot boxes', may be harmful, with particular reference to:  
• whether the purchase of chance-based items, combined with the ability to monetise these items on third-party platforms, constitutes a form of gambling; and 
• the adequacy of the current consumer protection and regulatory framework for in-game micro transactions for chance-based items, including international comparisons, age requirements and disclosure of odds.

Fake Health Qualifications

A former Navy officer has pleaded guilty in the Brisbane District Court to two charges  of fraud, after posing as a paramedic for more than five years. He initially faced 133 charges regarding administration of a restricted drugs, three charges regarding unlawful possession of controlled drugs and two charges of obtaining restricted drugs.

Calvin Jordan Wahlberg is reported as  having collected over $550,000 in wages on the basis that he was a qualified paramedic.  He was initially hired for a role for which he was qualified. He subsequently  worked in a position for which he lacked (but invented paperwork indicating that he had) the required qualifications.

His legal representative reportedly stated that Wahlberg would not have secured the job without the qualification: he accordingly falsified his certification (at least some of which was found during a search of his residence).

During the period he served as a supervisor for correctly qualified medical staff and administered over 130 influenza shots (restricted drugs). In 2009 Wahlberg had faked certificates about qualifications and thus authority.  That fraud was uncovered in 2015. Wahlberg appears to have unsuccessfully sought to apply as a member of the Australian and New Zealand College of Paramedics when inconsistencies were identified.

His counsel argued that  Wahlberg was not a 'deranged fantasist' and was unlikely to offend again.

It’s someone who left school, went into the Navy and had to leave in circumstances that were not his choosing, made stupid mistakes still as quite a young person and was working in a field having made false statements and continued on.

Meanwhile The Age reports  that Raffaele di Paolo, having masqueraded as a doctor and fertility specialist for over 10 years, has been belatedly prosecuted and convicted in the County Court, with a prison sentence of nine and a half years. On indictment he pleased not guilty to all charges, claiming he never performed medical procedures or inserted ultrasound probes into women and that he advertised himself as a homeopath rather than a registered doctor.

In his bio for a 2014 'bioregulatory medicine' conference under the auspices of the Australian Society for BioRegulatory Medicine (ASBRM) - a scientific society aimed at promoting and sharing education in the areas of Homotoxicology, Homoeopathy and Naturopathy' and formerly the Australian Association of Homotoxicology (AAOH) - Di Paolo was described as a fertility specialist.

"Raffaele Di Paolo MD, Ph.D [with] experience in achieving better than normal implantation rates for IVF using an integrated approach with Bioregulatory medicines. ... Italian-born Dr Di Paolo completed his undergrad studies in Australia. Post grad studies in philosophy and social sciences at La Sorbonne (Paris) embraced his passion for homeopathy. He returned to Australia in 2000 where he now applies bioregulatory medicine to non-obstructive infertility.

The conviction reflected 51 offences between 2004 and 2014, with charges including obtaining property by deception, sexual penetration by fraud and common assault. Di Paolo had no tertiary qualification but claimed to be a qualified IVF specialist who was 'disillusioned' with the IVF sector and  had worked at Monash IVF or Melbourne IVF. the Court heard that he took blood samples from women, carried out internal ultrasounds and purported inseminations. He injected people with unknown homeopathic substances that he claimed had been imported from Germany.

Stuart J rejected the defence's argument that di Paolo's culpability was reduced by mental illness (including a personality disorder and 'reactive depression'  experienced since 2015) -

You acted with deliberation and thought. You did it without regard for the effects on these women and men.

Di Paolo apparently acquired forged qualifications in the 1990s purporting that he was qualified as a medical practitioner, an obstetrician and a gynaecologist. That documentation was used during an investigation of corruption in Italy's medical system. He was found guilty in a Rome court of passing himself off as a practitioner and fined. He returned to Australia, where he used forged documents purporting he was qualified in Italy. He also claimed a science degree from Monash University.

Di Paolo continued to practice despite coming to the attention of authorities in 2011. He was investigated by the state Health Services Commissioner (HSC)  between 2011 and 2013. The Australian Health Practitioner Regulation Agency (AHPRA) started investigating in 2014. In March 2015 the Medical Board of Australia and AHPRA announced that legal action was being

taken against a man they allege is pretending to be a registered medical practitioner. The Board and AHPRA have filed charges in the Magistrates’ Court at Melbourne, alleging that Mr Raffaele Di Paolo (and/or his company, Artemedica) was ‘holding himself out’ as an obstetrician and /or gynaecologist, with expertise in IVF. 

After receiving a complaint, the Board and AHPRA are taking action against Mr Di Paolo to protect the public.

AHPRA has meanwhile had a victory in the Local Court of New South Wales against Mr David Citer. He  was fined $9,500 after being convicted of claiming to be a registered psychologist and providing information to an inspector that was false or misleading.

AHPRA alleged that Citer contravened the Health Practitioner Regulation National Law by ‘knowingly or recklessly’ using a title or word in an email that indicated he was authorised or qualified to practise as a psychologist. Citer has never held registration as a registered health practitioner or student under the National Law with any National Board.

 The charge followed complaints referred to AHPRA by the NSW Heath Care Complaints Commission, alleging that Citer had been holding himself out as a registered psychologist. Citer used the title ‘Specialist Child, Adolescent and Family Psychologist’ in emails to a registered psychologist regarding a mutual client. Citer allegedly provided an AHPRA inspector with a document containing information that he knew was false or misleading in a material detail, ie copies of emails altered so that the title ‘psychologist’ no longer appeared in his signature block.

 In February this year Citer entered guilty. He  was convicted in May, with a fine of $8000 on the first charge and $1500 on the second in addition to paying AHPRA's  legal costs of $5000.

National Data Commissioner

The Department of Prime Minister and Cabinet has released a consultation paper on New Australian Government Data Sharing and Release Legislation.

The paper states

The Australian Government recognises that the data it holds is a strategic national resource that holds considerable value for growing the economy, improving service delivery and transforming policy outcomes for all Australians. Greater use and sharing of public data facilitates increased economic activity and improves productivity. Without improving data accessibility within government, the opportunity for enhanced productivity, increased competition, improved service delivery and research outcomes will be missed. The Australian Government holds a large range of data about the environment, individuals and businesses, all with different attributes and different levels of sensitivity. When this data is used and combined, it provides government with new insights into important and complex policy questions and allows for improved service delivery. 

Existing data sharing arrangements across the public service are complex and hinder the use of data. Barriers to greater sharing of data within government include:

• a dense web of legislative requirements which lack consistency 

• a culture of risk aversion, leading to overly cautious legislative interpretation and approval process complexity, and 

• lack of a whole-of-government approach.

New data sharing and release arrangements will benefit Australians by streamlining the way public data is shared and released within government and with trusted users. New arrangements will provide efficient, scalable and risk based trusted data access to datasets that have substantial and community-wide benefits for research, innovation and policy. The new arrangements will increase the authorised sharing and release of data and improve data safeguards to ensure risks are managed consistently and appropriately. This paper outlines key concepts and principles which may guide development of the new data sharing and release arrangements. While the paper includes scenarios involving more sensitive data in an effort to demonstrate how new arrangements could work, data about individuals and businesses is only one part of the data system. The concepts and principles in the paper cover all data held by the Australian Government and the proposed data sharing and release arrangements will provide a consistent and scalable framework applicable to data of all attributes and sensitivities.

Your views are sought on the issues outlined in this paper. The Public Data Policy Statement seeks to ensure the value of public data is maximised

In late 2015, the Prime Minister released the Australian Government Public Data Policy Statement. This statement provides a mandate for Australian Government entities to optimise the use and reuse of public data to drive innovation across the economy. This includes mandating the release of data as open by default when it is safe to do so. Since this Statement was released there has been a dramatic increase in the number of datasets publicly available. Data.gov.au now hosts over 29,000 data records. The Productivity Commission’s Data Availability and Use Inquiry recommended national reforms

In early 2016, Treasurer Scott Morrison asked the Productivity Commission to undertake an inquiry into the benefits and costs of options for increasing the availability and improving the use of public and private sector data by individuals and organisations.

The Commission was required to: • look at the benefits and costs of making public and private datasets more available • examine options for collection, sharing and release of data • identify ways consumers can use and benefit from access to data, particularly data about themselves, and • consider how to preserve individual privacy and control over data use. ...

The PC identified a “lack of trust by both data custodians and users in existing data access processes and protections and numerous hurdles to sharing and releasing data are choking the use and value of Australia's data”, and recommended “the creation of a data sharing and release structure that indicates to all data custodians a strong and clear cultural shift towards better data use that can be dialled up for the sharing or release of higher-risk datasets”. 

On 8 May 2017 the Australian Government tabled the Productivity Commission’s Data Availability and Use Inquiry (PC Inquiry). The Inquiry made 41 recommendations aimed at overcoming barriers and issues with Australia's current data system to move from one based on risk avoidance, to one based on value, choice, transparency and confidence. The PC Inquiry recommendations balance the need for greater data access and use arrangements with proactive management of risks.

The Australian Government has committed to reforming data governance

On 1 May 2018, the Australian Government released its response to the PC Inquiry. The Government committed to reforming data governance within government to better realise the benefits of increased data use, while maintaining trust and confidence in the system.

To prepare its response, the Department of the Prime Minister and Cabinet consulted with: • 78 peak industry bodies and businesses • 15 community, consumer and civil society representatives • 16 research sector bodies • 43 Commonwealth public sector bodies, and • 9 state and territory public sector bodies.

Better use of public sector data can help us improve government services for Australians and ensure our programs and policies are informed by evidence. Greater access to public sector data with a consistent approach to managing risk can improve research solutions to current and emerging social, environmental and economic issues. 

To unlock these benefits, the Australian Government committed to:

• Establishing a National Data Commissioner to implement and oversee a simpler, more efficient data sharing and release framework. 

• Introducing legislation to improve the sharing, use and reuse of public sector data while maintaining the strong security and privacy protections the community expects. 

• Introducing a Consumer Data Right (CDR) to allow consumers to share their transaction, usage and product data with service competitors and comparison services.

Based on the wide consultation underpinning the PC Inquiry recommendations, these reforms will increase data access and use within government and with trusted users outside government, while improving data privacy and security with strengthened and consistent safeguards.

This paper explores issues related to the implementation of data governance reforms, including the National Data Commissioner and the Data Sharing and Release legislation. The Consumer Data Right is being developed concurrently and being led by the Treasurer – see https://treasury.gov.au/consumer-data-right/. 

A new Data Sharing and Release Bill

This paper outlines the key principles proposed to guide the development of legislation to realise the value of public sector data and modernise the Australian Government data system. These principles build on the investment and commitments to date by the Australian Government (including those outlined in the Australian Government Public Data Policy Statement and previously published by the Australian Information Commissioner (OAIC) on open public sector information) to realise the immense value of public sector data to improve government services and policies.

The purpose of the DSandR Bill will be to streamline the process for sharing public sector data and improve data safeguards across the public service. The Bill will aim to increase authorised sharing and release of the range of data held by the Australian Government while improving data safeguards and risk management tools to create a more transparent environment for data sharing.

This paper focuses and seeks views on the development and design of a new Data Sharing and Release Bill (the DSandR Bill). The issues outlined in this paper and the proposed arrangements are based on the extensive consultation of the PC Inquiry and engagement with stakeholders. This paper is the first step in designing and drafting new legislation. The paper does not represent official government policy but instead outlines an approach for consideration. 

The DSandR Bill will be principles-based 

The DSandR Bill will be based on key principles designed to move the paradigm from one which restricts access to data to one which authorises sharing and release when appropriate data safeguards are in place. The DSandR Bill will aim to promote better sharing of public sector data whilst ensuring appropriate safeguards to build trust in use of public data and maintain the integrity of the data system. These principles recognise the different types of data held by government and the many benefits of increased data sharing for citizens. 

Greater sharing of the data the public sector holds can lead to: • more efficient and effective government services for citizens • better informed government programs and policies • greater transparency around government activities and spending • economic growth from innovative data use, and • cross-sectoral research solutions to current and emerging social, environmental and economic issues. 

The Bill will apply to Commonwealth entities and Commonwealth companies and include most data collected by these entities, with appropriate exceptions (see Section 3). It will provide a legislative approach to share, access and release data that is otherwise prohibited, when appropriate conditions and safeguards are met.

The DS&R Bill will introduce new data sharing and release arrangements

For data sharing and use to be authorised under the Bill, a purpose test and data safeguards need to be met (see Section 4). The Bill will authorise data sharing and release for particular purposes only, which could include:

•  informing government policy making 

• supporting the efficient delivery of government services or government operations 

• assisting in the implementation and assessment of government policy, and 

• research and development with clear and direct public benefits.

The DSandR Bill will apply appropriate and consistent safeguards to data sharing and release for these purposes. Through the internationally recognised Five-Safes disclosure risk management framework, safeguards can be dialled up or down as appropriate depending on the sensitivity of the data and whether privacy needs to be maintained (see Section 4). Consistent risk management will help prevent data misuse or unintentional disclosure and ensure data privacy and security are maintained. The DSandR Bill will create accredited bodies within the data system, each with different roles, skills and expertise: data custodians, Accredited Data Authorities and trusted users (see Section 5). The DSandR Bill will build in accountability for these actors within the system, to ensure all take responsibility for the way data is managed and shared.

The National Data Commissioner will oversee the data system and provide guidance on the new arrangements

The DSandR Bill will outline the National Data Commissioner’s (NDC) role in implementing and overseeing a simpler, more efficient data sharing and release framework (see Section 6) including accrediting parts of the data system. The NDC’s role is to monitor and enforce the provisions of the DSandR Bill (and associated legislative instruments). The NDC will work closely with other entities, including the Office of the Australian Information Commissioner (OAIC), and be advised by a new National Data Advisory Council (NDAC). We want to hear your views This paper outlines an approach to the DSandR Bill which aims to balance sharing data held by government with appropriate risk management. The principles underpinning the DSandR Bill are relevant across all aspects of the possible approach outlined above.

Australian Copyright Exceptions

'Calculating the consequences of narrow Australian copyright exceptions: Measurable, hidden and incalculable costs to creators' by Patricia Aufderheide, Kylie Pappalardo, Nicolas Suzor and JessicaStevens in (2018) Poetics comments

The kind and extent of exceptions and limitations to copyright monopolies are a major focus of copyright reform discussion worldwide. The debate is often portrayed as pitting the interests of creators against users. Australian copyright law features narrow and limited exceptions. Australian creators benefit from copyright monopolies; but do they suffer any costs for lack of flexible exceptions? A national survey of creators showed that they experience significant costs in time and money in making work; avoid or abandon projects because of copyright problems; and avoid developing ideas for projects that involve use of third-party copyrighted materials. These costs have previously been uncalculated and not included in national policy debate. The results provide information not only for the Australian context but for policy discussion internationally. 

 The authors state

This study analyzes how Australian creators negotiate a highly restrictive copyright regime, in which they cannot use copyrighted material without licensing it in many situations where international colleagues, particularly those in fair use jurisdictions, can. 

The question is relevant to international scholars concerned with the relation of creative practice generally to the regulatory contexts that variously stimulate and inhibit it. This concern has been raised with rising frequency since the passage of U.S. copyright legislation in 1976, which vastly extended and expanded copyright monopoly, while also codifying 135-year-old judge-made law in fair use. From the early 1990s, U.S. international treaty negotiations routinely have included clauses that harmonize national practice on the monopoly side, without harmonizing it on the exceptions side (Burrell and Weatherall, 2008; Drahos and Braithwaite, 2003). 

With this broad and international expansion of copyright monopoly, legal and communication studies scholars have postulated a cost to cultural circulation, to creative expression, and innovation. Some have described this as an encroachment on a metaphorical cultural commons (Benkler, 2006; Bollier, 2001; Boyle, 2008; Cunningham, 2015; Greenleaf and Bond, 2013; McLeod, 2007). Others have described copyright law as unbalanced, or as tight, or strong (Aufderheide and Jaszi, 2011; Fisher, 2004; Fitzgerald, 2008; Flew, Suzor, and  Liu, 2013; Flew, 2015; Geiger, 2017; Giblin and Weatherall, 2016; Patterson and Lindberg, 1991). Recent empirical research with creative communities in the U.S. has documented costs of copyright confusion or uncertainty around employing fair use, among documentary filmmakers, media literacy teachers, librarians, musicians and visual arts professionals among others (Aufderheide & Jaszi, 2004; Aufderheide, Hobbs, & Jaszi, 2007; Franzen et al., 2010). It has also documented expansion and innovation in creative practice with fair use knowledge and with institutional acceptance of fair use claims (Aufderheide and Jaszi, 2011; Aufderheide and Sinnreich, 2015; Sinnreich and Aufderheide, 2015). Interviews conducted with a small pool of creators who recycle copyrighted material into new work in Australia has also demonstrated that confusion over exceptions and limited exceptions have creative costs (Pappalardo, Aufderheide, Stewart, and Suzor, 2017). Other empirical research, including experimental research, demonstrates an uncertain and contingent relationship between copyright incentives and actual production, thus challenging the notion that copyright is inevitably a driver of creative production (Sprigman, 2017). As well, scholars have charted creative expression that moves beyond or outside copyright law, in areas as diverse as tattoos, vidding, fan fiction and cooking (Coppa, 2011; Darling and Perzanowski, 2017; Suzor, 2014; Tushnet, 2010). 

Copyright policy is thus directly implicated as a governmental and institutional policy affecting freedom of expression (Sunder, 2000; Tushnet, 2011). How it is administered, debated and changed is inevitably a battle not only between economic stakeholders but also about who can speak and create. The current Australian debate is a political conflict in which creator agency has been invoked by publishers and licensing interests, which have also assisted in directing positions for creator organizations. However, creator practices in using current Australian exceptions to make new work, employing licensed copyrighted materials in making new work, and in shaping projects around the exigencies of accessing copyrighted material have not been documented or presented to policymakers. 

The question of how creators in particular cope with this regime is of urgent and practical significance in the Australian context, where a 20-year-long debate over reform of the outdated and inflexible law has recently been renewed. As recent research has shown, Australian copyright debates have typically opposed the benefits of flexible exceptions for technology (e.g. online search, protections for hosts of user-generated content, non-consumptive uses for artificial intelligence) and for consumers, educators and libraries against the interests of creators in protecting their copyright monopolies (Aufderheide & Davis, 2017). Some researchers have explored how copyright works within the creative process in specific areas, e.g. (Bowrey & Handler, 2014). But until this study, there has been no systematic, detailed inquiry into how Australian cultural creators experience exceptions in this regime during the creative process itself. 

Australian copyright law is ‘TRIPS+’ (Frankel, 2008) following the implementation of the Australia – United States Free Trade Agreement in 2004. Copyright in original works lasts for 70 years after the death of the Author; there are extensive criminal offences for commercial and commercial-scale infringement; and there are criminal and civil prohibitions on circumvention of Digital Rights Management technologies. Australia has a moral rights regime, introduced in 2000 (Adeney, 2006), and a (limited) performers’ rights regime, introduced in 2005 (Weatherall, 2005). The moral rights regime confers on individual authors and performers three non-economic rights: a right of attribution, a right against false attribution, and a right of integrity, being the right not to have a work or performance subject to derogatory treatment (Copyright Act 1968 (Cth), Part IX). Derogatory treatment is defined as treatment resulting in a material distortion of, mutilation of, or material alteration of the work/performance that is prejudicial to the author or performer’s honor or reputation (ss. 195AI – 195ALB). The rights of attribution and integrity are subject to a reasonableness requirement, such that there is no infringement if the person’s conduct was reasonable in all of the circumstances (Copyright Act 1968 (Cth), Part IX, Div. 6). Thus, moral rights generally are congruent with a decision to employ third-party unlicensed material, if credit is given and use is not derogatory.

Australian copyright exceptions fall into six general categories. The fair dealing exceptions permit uses of copyright material for the purposes of news reporting, criticism and review, research and study, parody and satire, for disability access, and for professional legal advice (Copyright Act 1968 (Cth), ss. 40–43; 103 A – 104; 113E). These are supplemented by a narrow set of personal use exceptions (e.g. time-shifting in limited circumstances), specific exceptions for computer programs, a ‘flexible dealing’ exception for libraries, educational institutions, and the disabled, and a set of statutory licences for educational copying, re-transmission of broadcasts, and the recording of musical works (Copyright Act 1968 (Cth), Part III, Div. 3–7; Part IV, ss. 104 A – 112 A; Part A; Pa rt )

Unlike many European and Commonwealth countries, Australia has no right of quotation (Adeney, 2013). The six categories of permitted ‘fair dealing’ purposes are exclusive, and unlike in Canada, courts have interpreted them narrowly. People who would legally reuse copyright material must be able to show that their use is genuinely for one of the permitted purposes and that they used no more than necessary for that purpose (Suzor, 2008). There is no exception for informational work outside of the business of immediate news. There is no exception that permits search or machine learning (artificial intelligence); thus, all companies operating Internet search functions serving Australia operate offshore. Unlike the U.S., Israel and some Asian nations, which have fair use, Australia must redesign its exceptions after innovation in communication, expression and technology occurs. For instance, the VCR, which was first made available commercially in 1971, was not legally useable to record free-to-air television for personal use in Australia until 2006, when a specific exception precisely for that purpose was created (Copyright Act 1968 (Cth) s 111). At the same time, digital production and distribution are only accelerating the pressures for change. As far back as 2010, 38% of Australian artists made their art directly using the Internet (Throsby and Zednick, 2010). As of 2015, 14% of Australian creators were turning to Internet-based collaboration, building new platforms and projects on the Internet, reaching audiences and networking in their fields (Australia. Australia Council for the Arts, 2015). 

The lack of a quotation exception or an open-ended fair use exception in Australian law has been the subject of policy debate over the last two decades. In 1998, the Copyright Law Review Committee’s ‘simplification review’ recommended the introduction of an ‘open-ended’ fair use style exception (Copyright Law Review Committee, 1998). In 2000, the Ergas Committee reported that the costs of introducing fair use would likely outweigh the benefits (Australia. Intellectual Property & Competition Review Committee, 2000). In 2005, following the conclusion of the Australia – United States Free Trade Agreement, the Attorney-General’s Department conducted a review of whether a Fair Use provision should also be introduced into Australian law, following criticisms that while Australia imported the extra enforcement strength of US law, it did not import the counter-balancing limitations (Weatherall, 2007). The most comprehensive review was completed in 2014 by the Australian Law Reform Commission, which recommended that Australia should introduce an open-ended fair use style exception (Australia. Australian Law Reform Commission, 2014). Rather than implement its recommendations, the Government then referred the issue to the Productivity Commission, which also recommended that Australia should introduce a fair use style exception (Australia. Productivity Commission, 2016). The Government’s response to the most recent Productivity Commission report notes that it will conduct further consultations on whether or not to introduce a fair use style exception in 2018 (Department of Industry, Innovation & Science, 2017). These policy debates took place in the context also of high profile and controversial litigation, including the ‘Kookaburra’ case, where Men At Work’s iconic anthem ‘Down Under’ was found to infringe copyright in a 1932 folk song by copying the folk song’s melody in an eight second flute riff – in a form changed so much that it went undiscovered for nearly twenty years (Collins, 2010; Rimmer, 2012). These debates have been heated and protracted, and the issue remains deeply politically contested. There has also been a tendency by copyright interests to conflate focused recommendations for more flexible copyright exceptions with broader and far more complex concerns about how creators can earn a living from their work in the digital age, how existing production models can adapt to changes in online media markets, and how Australia’s IP system can better respond to the needs of Indigenous Australians to protect their traditional culture (Aufderheide & Davis, 2017 #1620). The Australian Government implemented some of the recommendations of the Australian Law Reform Commission in 2017, when it simplified the statutory licenses and introduced new exceptions for disability access and for libraries and cultural institutions, but it has recently announced yet another round of consultations on fair use, orphan works, and the ability to override exceptions through contract (Australia. Department of Communications and the Arts, 2018). 

The Australian creative industries have a small but significant role in the Australian economy and a larger one in the expression of Australian national identity and culture. The Australia Council for the Arts estimates that the economic and cultural benefits of the arts account for $66 billion AUD annually (Australia. Australia Council for the Arts, 2015). Australian creators strive not only to serve the national market but to orient their work toward international markets as well. In those markets, they face competition from creators who work under conditions where they pay less to create their work, and take less time, because of the ability to use unlicensed material. 

Nonetheless, there has been virtual silence on the topic of the cost to creators during their production process of such narrow exceptions, perhaps because of the political context of the policy debate. In that debate, creators’ interests have been largely represented by collecting societies, whose interests lie predominantly in licensing, and publishers, including newspaper publishers concerned to recoup or stem losses to a disrupted business model. Collecting societies, and particularly the Copyright Agency, have taken the lead in developing arguments and materials for the creators’ guilds, unions, and associations, many of which are, compared with the collecting societies, under-resourced. Their core argument, made without evidence or with evidence that has been repeatedly debunked (Australia. Australian Government Productivity Commission, 2016, pp. 178–179), has been that the cost to creators of losing license fees from uses that might be made under exceptions (as opposed to other licensing) would be devastating. The Copyright Agency’s main response to the Productivity Commission’s inquiry was to equate the limited right of fair use with unfettered free use, and many arts organizations and creators adopted the ‘free is not fair’ slogan in their submissions (Aufderheide and Davis, 2017 #1620). Individual creators and leaders of their guilds have largely seen copyright reform, therefore, as threatening. Thus, the question of what today’s system costs them as creators rather than copyright holders has gone unasked, although it is immediately relevant to policymaking. This study was designed to address that lack.