Consent and MyHR

'The European Union General Data Protection Regulation (EU 2016/679) and the Australian My Health Record Scheme – A Comparative Study of Consent to Data Processing Provisions' by Danuta Mendelson states

This study compares the concept, elements, and function of consent under the General Data Protection Regulation (EU 2016/679) of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data [GDPR] in the context of European Union [EU] national electronic health records schemes and the Australian national health record scheme called My Health Record [MHR]. The GDPR, which, as the name suggests, governs processing of data in any form, including data contained in the national electronic health systems, is binding on all 27 EU member countries. The analysis concentrates on consent as critical element in protecting individual patients’ rights with respect to the processing of their personal health data under GDPR and under the Australian MHR legislative scheme. The study does not examine individual EU member states’ national electronic health systems because, subject to derogation in limited circumstances, the GDPR governs all of them. Australia is a non-EU jurisdiction, and does not have the European Commission’s certificate of adequate level of data protection (GDPR Art 45 empowers the European Commission to determine whether a country outside the EU offers an adequate level of data protection, either by its domestic legislation or because of the international commitments it has entered into). One of the reasons for the absence of the certificate might be the less than impressive Australian notion of consent under the MHR scheme, and the virtual disregard for consent in its framework of protections for patients’ rights in relation to health and clinical data processing.

Robot Love and AI Personhood

'Robot Love' by Margaret Ryznar in Seton Hall Law Review (Forthcoming) comments

Researchers have been developing a sophisticated humanoid robot that people in the future may want to marry. A human-robot marriage would pose all kinds of challenges for lawmakers—from the question of whether robots could be granted custody of children or access family bank accounts, to the basic question of free will. Any growing relationship between humans and robots, however, may pose challenges to the current understanding of family law. For skeptics of such a future, this remains an interesting thought experiment nonetheless. 

Ryznar argues

Sophia is a Saudi Arabian citizen with a wicked sense of humor. She has a very expressive face and blue eyes. Flaunting her charm, Sophia has made the media rounds, including 60 Minutes and the Tonight Show. She has graced magazine covers and been on a date with Will Smith. She also happens to be a social humanoid 4 robot developed by Hong Kong-based company Hanson Robotics. 

Technology has made inroads in many fields, including family law. Thus far, it has expanded how people may have children in their families. Soon, technology may revolutionize whom people marry. Already, many people marry those they matched in online dating. Dating robots has been increasingly discussed as a possibility in the near future. One computer expert contends that if current technological advances continue, “[R]obots will transform human notions of love and sexuality ... Humans will fall in love with robots, humans will marry robots, and humans will have sex with robots, all as ... normal extensions of our feelings of love and sexual desire for other humans.” Even more surprisingly, he predicts this will happen by 2050. In addition to the technology having advanced by then, people will likely continue to have trouble getting and staying married to other people, making robots more attractive. 

Robots have rapidly developed in recent years to improve people’s quality of life and welfare. They offer companionship and assistance around the house, such as vacuuming. Future robots will be able to cook. There are sex robots and those that offer companionship. If these traits are combined in one robot, it will embody the reason that many people marry in the United States. 

This potential future presents an opportunity to examine the meaning of family law—and its applicability to a changing world. Law often is a step behind the development of technology. The reasons may range from the extent to which family law is rooted in society’s philosophy or the slowness with which families change. The law eventually catches up to reality. This article is thus the first to consider the family law implications of romantic relationships that computer scientists are predicting and working to develop. 

Family law is the story of inclusion and exclusion. Certain relationships are excluded from recognition and others are included. For example, states prohibit polygamous marriages, marriages between some relatives, and marriages before a certain age. “The central dividing line in family law is marriage.” This article looks at how family law can apply to the marriage between humans and robots as predicted by researchers. For skeptics of such a future, it is an interesting thought experiment nonetheless. 

Accordingly, Part II of this article begins by examining the current family law framework, focusing on property division and child-related matters. Part III explores the applicability of the family law framework to potential relationships between humans and robots. This Part concludes that as difficult as it is to determine whether to allow such marriages, dealing with their aftermath is even more difficult, complicating the applicability of the current family law framework to robot marriage.

'Turing's People" Personhood, Artificial Intelligence and Popular Culture' by Bruce Baer Arnold and Drew Gough in (2018) Canberra Law Review asks

What is legal personhood? Many people understand personhood – and by extension law – through depictions in popular culture. The contemporary feature film for example provides a lens through which non-specialists (people without a background in information technology, philosophy and law) can make sense of humanoid robots and distributed artificial intelligence (AI), entities that perform as ‘human’. Such an understanding is increasingly salient as AI becomes a pervasive but under-recognised aspect of daily life, and continues to evolve in its sophistication and complexity, provoking questions about rights, responsibilities and regulation regarding artificial entities that are independent rather than autonomous. The article accordingly analyses depictions of personhood in films such as Ex Machina, WarGames, Alien and Alien Covenant, Forbidden Planet, RoboCop and AI. It suggests that popular culture has an uncertain grasp of legal personhood but provokes thought and tells us something useful about the difference between human animals, non-human animals, corporations and new artificial persons. Those differences will be legally and culturally contested in the emerging age of smart machines and governance by algorithm

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ASIC reports on Insurance Selling

The Australian Securities and Investments Commission - which has been notable for regulatory incapacity regarding the finance sector - has released two reports on problems relating to the marketing of life insurance. It concludes

ASIC’s review of direct life insurance sales has found that sales practices and product design are leading to poor consumer outcomes.

ASIC Chair James Shipton states

 Life insurance is a long-term product but cancellation rates and poor claim outcomes show that people are being sold products they don’t want, can’t afford, or don’t perform as they expected

ASIC's Report 587  reveals that:

 Consumers are cancelling their policies in very high numbers:

• one in five of all policies taken out were cancelled in the cooling off period 

• one in four of all policies that remained in force beyond the cooling off period were cancelled within 12 months 

• three in five of all policies sold were cancelled within three years. 

• life insurance sold direct compares poorly with other channels when it comes to claims: 15% of claims are declined, with 27% of claims withdrawn. 

 Report 588  found consumers struggle with the direct life insurance sales experience and the complexity of the products, and consumer understanding of key features is often poor. ASIC  identified a failure by all surveyed firms to provide adequate information about important aspects of the cover, including key exclusions and future premium increases. Four firms were also found to engage in pressure selling techniques, including refusing to send out paperwork unless a consumer committed to buy.

Moreover, over half the firms had incentive schemes which encourage sales staff to prioritise closing a sale ahead of the needs of the customer, including bonus payments heavily focused on value or volume of sales.

Sweatshops

The ACCC has reauthorised Ethical Clothing Australia’s Homeworkers Code of Practice for a further ten years.

That Code, soon to be renamed ‘Ethical Clothing Australia’s Code of Practice, Incorporating Homeworkers’, seeks to reduce the exploitation of textile, clothing and footwear (TCF) workers in Australia. It imposes obligations on participants in the supply chain to demonstrate that they provide award wages and conditions to TCF workers.

The ACCC comments that it regards the Code as being 'an important tool for incentivising businesses to observe their obligations to vulnerable workers in the TCF industry and take steps to manage legal and reputational risks in their outsourced supply chains'.

 “By increasing industry and consumer awareness about working conditions, businesses accredited under the Code are also able to promote their ethical credentials to consumers,” ACCC Deputy Chair Delia Rickard said. 

“The certification trademark for ethical textiles, clothing, and footwear, allows consumers to choose products with confidence that the businesses they are buying from aren’t exploiting workers.” 

“Consumers are becoming increasingly aware of the impact of unethical practices on vulnerable workers and some are changing their buying habits as a result.”

The ACCC examined the possibility that the Code could lead to anti-competitive detriment such as increased costs for businesses seeking accreditation. It concluded that

this risk of detriment is limited because the Code is voluntary. Retail signatories and accredited manufacturers are only able to agree to boycott other businesses that are not compliant with their legal obligations, and the Code contains safeguards against inappropriate accreditation or boycott decisions. 

 Accredited businesses can display the following ethical certification trademark on their signs and products to demonstrate their compliance.

The Homeworker Code Committee Incorporated is a not-for-profit organisation and registered charity. Homeworkers are individuals and employees who perform work in the textile, clothing and footwear industry from home or at other premises that would not commonly be regarded as business premises.

The ACCC notes that the Code Committee has made minor amendments to the Code since 2013, when the Code was last authorised by the ACCC. Further changes are planned.

 In order to gain accreditation under the Code, businesses must submit to audits undertaken by CFMMEU to verify that those businesses are complying with legal obligations to workers. Audits are also conducted along the supply chain of businesses seeking (or renewing) accreditation under the Code, to ensure that the accredited businesses are complying with their legal obligations to the workers involved at each stage of the production of TCF products sold by the accredited business.

Five Eyes Encryption Statement

The Five Eyes meeting noted in the preceding post has resulted in a 'Statement of Principles on Access to Evidence and Encryption', of interest given the Australia Government's Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Cth) noted here.

The Statement reads

  Preamble 

The Governments of the United States, the United Kingdom, Canada, Australia and New Zealand are committed to personal rights and privacy, and support the role of encryption in protecting those rights. Encryption is vital to the digital economy and a secure cyberspace, and to the protection of personal, commercial and government information.

However, the increasing use and sophistication of certain encryption designs present challenges for nations in combatting serious crimes and threats to national and global security. Many of the same means of encryption that are being used to protect personal, commercial and government information are also being used by criminals, including child sex offenders, terrorists and organized crime groups to frustrate investigations and avoid detection and prosecution.

Privacy laws must prevent arbitrary or unlawful interference, but privacy is not absolute. It is an established principle that appropriate government authorities should be able to seek access to otherwise private information when a court or independent authority has authorized such access based on established legal standards. The same principles have long permitted government authorities to search homes, vehicles, and personal effects with valid legal authority.

The increasing gap between the ability of law enforcement to lawfully access data and their ability to acquire and use the content of that data is a pressing international concern that requires urgent, sustained attention and informed discussion on the complexity of the issues and interests at stake. Otherwise, court decisions about legitimate access to data are increasingly rendered meaningless, threatening to undermine the systems of justice established in our democratic nations.

Each of the Five Eyes jurisdictions will consider how best to implement the principles of this statement, including with the voluntary cooperation of industry partners. Any response, be it legislative or otherwise, will adhere to requirements for proper authorization and oversight, and to the traditional requirements that access to information is underpinned by warrant or other legal process. We recognize that, in giving effect to these principles, governments may have need to engage with a range of stakeholders, consistent with their domestic environment and legal frameworks. 

Principles 

The Attorneys General and Interior Ministers of the United States, the United Kingdom, Canada, Australia and New Zealand affirm the following principles in relation to encryption. 

1. Mutual Responsibility 

Diminished access to the content of lawfully obtained data is not just an issue for Governments alone, but a mutual responsibility for all stakeholders.

Providers of information and communications technology and services - carriers, device manufacturers or over-the-top service providers -– are subject to the law, which can include requirements to assist authorities to lawfully access data, including the content of communications. Safe and secure communities benefit citizens and the companies that operate within them.

We are always willing to work with technology providers in order to meet our public safety responsibilities and ensure the ability of citizens to protect their sensitive data. Law enforcement agencies in our countries need technology providers to assist with the execution of lawful orders. Currently there are some challenges arising from the increasing use and sophistication of encryption technology in relation to which further assistance is needed.

Governments should recognize that the nature of encryption is such that that there will be situations where access to information is not possible, although such situations should be rare. 

2. Rule of law and due process are paramount 

All governments should ensure that assistance requested from providers is underpinned by the rule of law and due process protections. The principle that access by authorities to the information of private citizens occurs only pursuant to the rule of law and due process is fundamental to maintaining the values of our democratic society in all circumstances – whether in their homes, personal effects, devices, or communications. Access to information, subject to this principle, is critical to the ability of governments to protect our citizens by investigating threats and prosecuting crimes. This lawful access should always be subject to oversight by independent authorities and/or subject to judicial review. 

3. Freedom of choice for lawful access solutions 

The Governments of the Five Eyes encourage information and communications technology service providers to voluntarily establish lawful access solutions to their products and services that they create or operate in our countries. Governments should not favor a particular technology; instead, providers may create customized solutions, tailored to their individual system architectures that are capable of meeting lawful access requirements. Such solutions can be a constructive approach to current challenges.

Should governments continue to encounter impediments to lawful access to information necessary to aid the protection of the citizens of our countries, we may pursue technological, enforcement, legislative or other measures to achieve lawful access solutions.

The Five Eyes also released a 'Five Country Ministerial Statement on Countering the Illicit Use of Online Spaces' -

 We, the Homeland Security, Public Safety, and Immigration Ministers of Australia, Canada, New Zealand, the United Kingdom, and the United States, stand united in our commitment to protect our citizens from child predators, terrorists, violent extremists and other illicit actors. We are as determined to counter these threats online as we are to counter them in the physical world. We note with disappointment that senior digital industry leaders did not accept our invitation to engage on critical issues regarding the illicit use of online spaces at the 2018 Five Country Ministerial meeting. Nevertheless, we reiterate our determination to work together constructively to ensure our response is commensurate to the gravity of the threat. Our citizens expect online spaces to be safe, and are gravely concerned about illegal and illicit online content, particularly the online sexual exploitation of children. We stand united in affirming that the rule of law can and must prevail online. 

We are committed to an open, safe and secure internet; one that provides global connectivity, better access to services, and new ways to conduct business and share news and information. But we recognise that the anonymous, instantaneous and networked nature of the online environment has magnified the threats we face, and has opened up new vectors for harm. We are determined to ensure that the technologies that have been developed to enhance prosperity and freedom are not exploited by those who seek to promote terrorism and violent extremism; prey upon and exploit our children; or spread disinformation and discord to undermine our democratic institutions. 

The evolution of digital technology has created new opportunities for widespread transmission of child exploitation material, and for perpetrating the most abhorrent kinds of child sexual exploitation, such as live-streaming of abuse. And it is not only in the recesses of the dark web that such material is accessible. Much is hosted on the most common top‑level domains. Moreover, the growing sophistication of mobile technology has enabled offenders to target children, including through apps that can be used to recruit and coerce children to engage in sexual activity. The low financial cost, and the anonymised nature of this criminal enterprise, is contributing to a growth in the sexual exploitation of children. We must escalate government and industry efforts to stop this. 

We also affirm the need to build upon efforts to counter the use of the internet by terrorists and violent extremists who continue to exploit online spaces to share materials designed to radicalise and mobilise individuals to violence. These materials are used for recruitment, facilitation, training and financing purposes, often with devastating consequences. Governments and industry have made some progress in tackling this issue. However, the task is far from complete. Terrorists and violent extremists remain able to disseminate propaganda promoting violence, and to use online platforms to radicalise and recruit. And, despite concerted efforts, a great deal of terrorist and violent extremist content remains accessible online to anyone inclined to seek it out. We therefore call upon industry to go further in proactively and innovatively addressing the illicit use of their platforms and applications at pace. In this context we welcome and support the Global Internet Forum to Counter Terrorism (GIFCT). But we urge industry leaders to champion more rapid responses, both under the auspices of the GIFCT and beyond. Digital industry must take responsibility to reduce the availability of online terrorist and violent extremist content across all platforms and applications, and to do so comprehensively. Recognizing the G7 Interior Ministers' statement on terrorism and violent extremism, we echo and amplify their call to action, and we affirm that efforts must extend to all types of illegal and illicit online content. 

We are also increasingly seeing the use of online spaces to spread disinformation, sow division, and undermine our democratic institutions. The proliferation of interference activities and disinformation undermines the trust of citizens in online communications and information, delegitimizing the benefits and opportunities that communications and social media platforms create. We call upon industry to meet public expectations regarding online safety by:

• Developing and implementing capabilities to prevent illegal and illicit content from ever being uploaded, and to execute urgent and immediate takedown where there is a failure to prevent upload. 

• Deploying human and automated capabilities to seek out and remove legacy content. 

• Acting on previous commitments to invest in automated capabilities and techniques (including photo DNA tools) to detect, remove and prevent re‑upload of illegal and illicit content, as well as content that violates a company's terms of service. 

• Prioritising the protection of the user by building user safety into the design of all online platforms and services, including new technologies before they are deployed. 

• Building upon successful hash sharing efforts to further assist in proactive removal of illicit content. 

• Setting ambitious industry standards, and increasing assistance to smaller companies in developing and deploying illicit content counter-measures. 

• Building and enhancing capabilities to counter foreign interference and disinformation. 

• Preventing live streaming of child sexual abuse on all platforms.

We recognise that governments also have a major role to play in addressing the spread of illicit content online. We commit to build the capacity of non-'five eyes' countries to protect and defend the most vulnerable. We undertake to enhance information flows from government to industry, and work towards overcoming barriers to cross-sectoral collaboration. We agree to ensure our enforcement capabilities, including technical data such as hashes, can be shared with industry to support the development of scalable, Artificial Intelligence-driven solutions. Through the same innovation and cross-sectoral collaboration that has underpinned so many technological advances, the challenge of countering illicit online content is not insurmountable. 

To focus our collective efforts, we agree to establish a senior officials group charged with monitoring industry progress on the above actions on a quarterly basis and reporting back to us. We welcome digital industry Chief Executive Officers to future meetings of the Five Country Ministerial to update us on their efforts directly.

Five Eyes Communique

This week's Official Communiqué from the Five Country Ministerial 2018 reads

 We, the Homeland Security, Public Safety, and Immigration Ministers of Australia, Canada, New Zealand, the United Kingdom, and the United States met on the Gold Coast, Australia, on August 28-29 2018, to discuss how we can better collaborate to meet our common security challenges. We reaffirmed that the close and enduring five country partnership, developed following the Second World War, remains fundamental to the security and prosperity of our nations.

The 2018 Five Country Ministerial (FCM), which in previous years has achieved advancements in information and intelligence sharing on border protection and counter-terrorism, has matured to become the pre-eminent forum for collaboration among the five countries on domestic security issues. This year's FCM meeting recalibrated the forum to focus on tangible deliverables and practical collaboration on counter-terrorism, countering violent extremism, cyber security, countering foreign interference, protecting critical infrastructure, border management and law enforcement. 

A free, open, safe and secure internet

The internet and digital technologies are increasingly central to contemporary life and to the social and economic development of our societies. Global connectivity enables faster communication, better access to services, and new ways to conduct business and share news and information. We affirmed our vision for a free, open, safe, and secure internet, which is fundamental to our economic growth and prosperity.

Just as the internet provides many benefits, it also provides opportunities for people to carry out crimes and spread illicit content. Terrorism, child sexual abuse and exploitation, violent extremism, and coercive acts of interference and disinformation are enduring concerns of government. The anonymous, instantaneous, and networked nature of the online environment has magnified these threats and opened up new vectors for harm. Governments have a responsibility to protect those within our borders against both physical and digital threats, and to ensure that the rule of law prevails online, as it does offline. We have a responsibility to tackle these challenges in a coordinated and effective way. While senior digital industry representatives did not accept our invitation to participate in discussions on pressing issues regarding the illicit use of online spaces, we reiterated the need for digital industry to take more responsibility for content promulgated and communicated through their platforms and applications. We agreed to a Joint Statement on Countering the Illicit Use of Online Spaces, outlining our communities' high expectations of digital industry companies, with a focus on countering online child sexual abuse and exploitation, and violent extremist and terrorist material. We called for the further development and expansion of capabilities to prevent upload of illicit content, and to execute urgent and immediate takedowns. We reiterated the importance of industry investment in human and automated detection capabilities, underscoring the need for major companies to set industry standards and to help smaller companies deploy these capabilities to their platforms, including through the Global Internet Forum to Counter Terrorism (GIFCT). And we called for increased efforts to counter foreign interference and disinformation conducted via online platforms.

We also undertook to enhance feedback loops between government and industry on intelligence and information, including trends and sources of illicit content, with the aim of more comprehensively responding to malicious actors online, to facilitate faster identification and removal of illicit content, and increase public awareness of the sources of disinformation and other forms of malicious foreign interference. 

Countering the threat of terrorism 

Globalised terrorist networks and violent extremists pose a real and unabating threat to our communities. Ongoing efforts to bring about the decline and depletion of terrorist networks operating in the Middle East have created new risks as many foreign terrorist fighters return to their countries of origin or move to other regions, disseminating their capabilities. We committed to the expanded sharing of information about known or suspected terrorists between our national security and border protection agencies, reiterating that the detection of international movements of terrorists and their associates relies on the rapid sharing of information between partners. We re-affirmed that alerts and intelligence relating to the movement of known and suspected terrorists will be shared between all five partners quickly and effectively. And we committed to continue our cooperation to support effective whole of government efforts to identify and—where domestic laws allow—prosecute returning foreign terrorist fighters, and share best practices for rehabilitating and reintegrating their family members.

Building on the framework for cooperation in United Nations Security Council Resolution 2396, we committed to work together to build the capability of other States in border security and measures to monitor, screen, track, and share information on returning foreign terrorist fighters and local terrorist networks. The aviation environment continues to be seen as a high-value target by terrorist and criminal networks. We committed to establish a new group, the 'Aviation Security 5', to better share information about emerging threats in the aviation sector and support existing fora to raise global standards for aviation security. 

Cyber security and resilience of critical infrastructure 

The increasingly digitised and networked nature of all aspects of our economies and societies means that cyber security and resilience is of the highest priority. The cyber domain is a vector for threats posed by hostile state actors, criminals, terrorist networks and hacktivists. A cyber attack is an attack on our communities and our sovereignty. We affirmed our collective resolve to deter malicious cyber activity, including improving domestic resilience, and coordinating technical attribution and operational response policies to mitigate significant cyber incidents. We agreed to further strengthen connectivity between our cyber watch offices to enhance shared 24/7 monitoring of hostile cyber activity. We committed to work together to protect critical infrastructure and support the development of secure critical infrastructure supply chains that are advanced, affordable, reliable and trusted. We undertook to share risk assessments and certification practices on supply chains to underpin the continued resilience of our respective cyber networks and prepare for new and emerging technologies. 

Migration and border management 

The interconnection and interdependence of our economies and communities manifests in increasing volumes of people and goods moving across borders. Facilitating the legitimate movement of people and goods is essential to our economic prosperity. The five countries are at the forefront of emerging border technologies, with a history of driving new technologies to simultaneously enhance border security and achieve faster movement of lawful travellers and goods. We committed to work together with industry to build the 'touchless' border at ports of entry for legitimate travellers and trade. We agreed to a strategy to leverage our investments in emerging technologies, including digitalisation and artificial intelligence, to improve facilitation and mitigate risks through real-time intelligence and information sharing, while protecting privacy. Collectively, we are among the most generous countries on earth in terms of humanitarian aid and refugee resettlement. Given the increasing volume of irregular movements, resettlement alone will not solve the problem. We must work with government partners, international organisations, non-government organisations and the private sector to build capacity in countries of origin and their regions. We acknowledged the importance of safe and legal migration and asylum pathways, and migrants' awareness of these pathways, and reaffirmed the positive benefits that managed migration, settlement, and integration bring to our societies. We also reaffirmed our commitment to coordinated, global action to respond to large and irregular movements. We reiterated the sovereign right and responsibility of states to strong border management, consistent with international non‑refoulement obligations, to deter and detect those who seek to evade border controls. And we reaffirmed the responsibility of all states to accept the return of their nationals, agreeing to increase cooperation to support timely and effective removals of non-citizens who have no right to remain in our countries, including consideration of joint consequences.

We committed to strengthen efforts to combat the scourge of modern slavery, forced labour, and human trafficking, which devastate the lives of the most vulnerable across the globe. We undertook to establish a senior officials' taskforce to develop concrete measures to tackle these problems, including promoting transparency in global supply chains, and developing common approaches to engage industry on trafficking facilitated through the internet and other digital technologies. The taskforce will report back to Ministers in the first quarter of 2019. We further agreed to consolidate and strengthen intelligence sharing, investigative, and enforcement efforts, including deploying sophisticated national capabilities to local law enforcement.

We re-affirmed the need to effectively manage migration flows through the utilisation of enhanced screening techniques, sharing intelligence and more effectively reaching into new sources of data, consistent with civil liberty protections, including social media, to ensure foreign nationals who would do us harm cannot cross our borders. We agreed to enhance collaboration on targeting, analysis, and disruption operations to counter organised threats to our border and national security. 

Joint meeting of FCM and Quintet of Attorneys-General 

On 29 August, we were joined by our ministerial colleagues who met as the Quintet of Attorneys-General. Together we discussed emerging issues and collaboration in countering foreign interference, the challenges posed by ubiquitous encryption, criminal information sharing and addressing the financing of transnational crime and terrorism. 

Countering Foreign Interference 

We condemned foreign interference, being the coercive, deceptive and clandestine activities of foreign governments, actors, and their proxies, to sow discord, manipulate public discourse, bias the development of policy, or disrupt markets for the purpose of undermining our nations and our allies. Foreign interference threatens a nation's sovereignty, values and national interests — it can limit or shape the polity's ability to make independent judgements, erode public confidence in our political and government institutions, and interfere with private-sector decision making. We agreed the five countries would work collectively to counter foreign interference, protect our individual sovereignty, and ensure our values and interests are upheld. We agreed to draw upon the strengths of our cohesive societies, our public and private institutions, and our global partnerships to reduce the risk that foreign interference poses to domestic and global prosperity and stability. We committed to establish a mechanism for the five countries to share developments in our respective approaches to confronting the foreign interference challenge. We undertook to share information on foreign interference activities with a view to advancing our collective knowledge of how to counter such threats. In the event of a severe foreign interference incident within our sovereign nations, we agreed the five countries would coordinate on appropriate responses and attribution. 

Encryption 

Encryption is vital to the digital economy, a secure cyberspace and the protection of personal, commercial and government information. The five countries have no interest or intention to weaken encryption mechanisms. We recognise, however, that encryption, including end-to-end encryption, is also used in the conduct of terrorist and criminal activities. The inability of intelligence and law enforcement agencies to lawfully access encrypted data and communications poses challenges to law enforcement agencies' efforts to protect our communities. Therefore, we agreed to the urgent need for law enforcement to gain targeted access to data, subject to strict safeguards, legal limitations, and respective domestic consultations. We have agreed to a Statement of Principles on Access to Evidence and Encryption [featured here] that sets out a framework for discussion with industry on resolving the challenges to lawful access posed by encryption, while respecting human rights and fundamental freedoms. 

Criminal information sharing 

Increasing interconnection between serious and organised crime networks have globalised threats such as drugs, cybercrime, child exploitation, and financial crimes. Reaffirming our commitment to sharing criminal and law enforcement information, we tasked our senior officials to convene an extraordinary meeting of operational and policy agencies with responsibility for law enforcement, border protection, and criminal justice. Drawing on the work of the Five Eyes Law Enforcement Group, the Border Five, and the Migration Five, the meeting will advise Ministers on the necessary enhancements to information sharing and collaboration to support more effective responses to serious criminal threats.

Beneficial ownership and illicit finance

We agreed to support G20 and Financial Action Task Force (FATF) efforts to combat illicit finance by increasing the transparency of legal persons and arrangements, and enabling timely access to beneficial ownership information by law enforcement agencies. We also agreed to encourage collaboration between 'five eyes' financial intelligence units to enhance the sharing of intelligence and experience. And we agreed to work closely with the private sector to promote the adequate and accurate collection of beneficial ownership information. 

Conclusion 

We affirmed today the importance of the five country partnership in addressing complex homeland and national security challenges. Our history of cooperation, our shared values, and our enduring friendship provide solid foundations to face the challenges and opportunities of the 21st century together. We are committed to building on this past cooperation and together pledge the commitments made today.

Comparative Law Reform

'Paths to Social Change: Analyses of Decriminalization of Sodomy' by Udi Sommer and Victor Asal comments

 What variables lead judicial and non-judicial decision-making bodies to introduce policy change? In the theoretical framework proposed, the path dependent nature of law has a differential effect on courts and legislatures. Further, political institutions such as elections and accountability lead those bodies to introduce policy change under dissimilar circumstances. Global trends, however, affect both institutional paths equally. We test this theory with data for the repeal of sodomy laws in all countries from 1972-2002. Results from two disparate multivariate models overwhelmingly confirm our predictions. Uniquely positioned institutionally, courts of last resort are less constrained than legislatures by either legal path dependence or political accountability. Globalization, on the other hand, has an equal effect on both. This work is the first to offer a theoretical framework explaining policy change via different institutional paths, systematically test it comparatively and with respect to a policy issue still on the agenda in many countries.

The authors conclude

The goal of this study was to analyze policy change via different institutional paths. This question, which has been crucially important in the study of public policy, judicial politics and social movements, was examined here for the first time systematically in a cross-national framework over a period of several decades and with respect to a question still on the agenda in the majority of countries, namely the decriminalization of same-sex sex. While the debate in the literature is still unsettled (Dahl 1957; Funston 1975; Rosenberg 1991), the theory developed here suggests that policy change emanates from judicial as well as non-judicial bodies. 

The key message of this study, however, is not limited to this notion. Rather, we explain theoretically and then substantiate empirically that different sets of variables systematically explain policy change via disparate institutional venues. As such, this article makes significant contributions to our understanding of a range of topics from law, legal development and accountability to the effects of religiosity on policy change. 

The legalization of sodomy is only one piece of the puzzle. It is important to recognize that countries where same-sex sexual relations are legal are not necessarily places where members of the LGBT community are treated equally (Waaldijk 2000). Legalization of sodomy, hence, is not the ultimate measure of discrimination against sexual minorities. With that in mind, however, an examination of the repeal of sodomy laws is key to developing a better understanding of the rights of gays and lesbians crossnationally. Although legal change may not always precipitate change on the ground (Epp 1996), the repeal of sodomy prohibitions is still a meaningful policy choice that warrants explanation. While a court decision or a legal measure may fail to translate into full equality for the minority they aim to protect, such legal change has a declaratory value, is educational, and provides members of the minority group with venues to claim redress (Scheingold 2004; Waaldijk 2000; McCann 1994; Zemans 1983). 

This work sheds new light on the nature of legal and policy change as well as on decision making within judicial and non-judicial institutions. More specifically, the path dependent nature of legal development means that law is constituted within the political system. Accordingly, we argue and then demonstrate, legal precedent in a Common Law system limits the introduction of policy change via the political branches more than via courts of last resort, and particularly when such change proves contentious. On the other hand, legal path dependence in civil law countries makes it easier for policy change to emanate from the legislature. Indeed, whereas legislative repeal constitutes 97% of the cases where sodomy laws were revoked in Civil Law countries, 6 in every 10 repeals in Common Law countries between 1972-2002 were judicial. 

This finding lends support to the notion that political actors are more constrained by precedent than their judicial counterparts and that the effects of path dependence on decision making in supreme courts are commensurably weaker. More broadly, this finding also addresses a major criticism leveled against path dependence scholars concerning their inability to explain policy change. We contend that the judicial hierarchical structure enables courts of last resort to make policy changes. Indeed, courts of last resort may serve as important mechanisms of change, a relief valve of sorts, in theories of path dependence (Kahn 2006). 

Furthermore, political institutions such as accountability entail closer proximity between constituency will and decision making in the political branches. In contrast, we find courts are less affected by majoritarian elements, as demonstrated by the effect of religious groups, which is apparent on legislatures, but not on courts. Some forces on the domestic (e.g., democratic conditions) and global (e.g., globalization) levels affect repeal, notwithstanding its institutional venue. In a sub-sample of democracies, the effect of democratic conditions is diminished, but the effects of the other predictors remain largely unaffected. 

This work offers some important observations. While contested later (e.g., Funston 1975), Dahl (1957) posits that courts do not operate in a counter-majoritarian fashion. Consequently, Dahl questions the extent to which courts protect the rights of minority groups. Along the same lines, Rosenberg (1991) contends that the Supreme Court is a Hollow Hope for those who seek social change. Dependent on the political branches for implementation, save for in particular circumstances, courts are not likely venues for policy innovation. The theory proposed in this study (and its empirical support presented thereafter) directly engages this scholarship. As far as the protection of sexual minorities is concerned, the findings in this study indicate that judicial institutions may well be the ones to extend legal protection. We identify the variables that predict policy making in each institutional venue, explain their effects, and empirically confirm their systematic influences. The empirical confirmation is established on data for all the nations in the world for a period of three decades. It is based on two disparate sets of models (multinomial logit and GEE time-series cross-sectional regression) estimated separately for all countries and for democratic countries only. The results of all models are robust and the support they lend to our hypotheses unyielding. 

Under the right circumstances, policy change may originate from courts of last resort. The political stars align differently in dissimilar jurisdictions; when Common Law and strong religious constituencies are present in a polity, courts may be the venue of choice for those seeking social change. Indeed, the Canadian and South African cases described earlier are but two examples illustrating these dynamics. 

As far as predictors of social change are concerned, and in particular in the context of the rights afforded sexual minorities, the analytical advantage of examining disparate institutional paths is clear. For instance, despite failures to find effects for religiosity in past work (e.g., Frank and McEneaney 1999), our theory and empirical tests illustrate the critical importance of analytically treating disparate institutional paths in order to accurately assess the effects of independent variables such as religious constituencies. Further, the emphasis put on institutions (as opposed, for instance, to social movements) is not unique to this work (e.g., Wald et al. 1996; Cole 2005). 

Lastly, this work also offers some empirical predictions to be further developed and tested in future work. With respect to institutional paths to policy change, future work may wish to examine the introduction of other policies (related to sexual minorities or otherwise) via disparate institutional paths. The set of predictors offered in this paper may account, for instance, for the introduction of anti-discrimination policies in different countries. While some accounts in the literature claim that, in Europe for instance, the mere decriminalization of same-sex sex inexorably led to the introduction of antidiscrimination measures (e.g., Waaldijk 2000), the theory proposed here offers an alternative analysis. Considering institutional paths of policy change and their respective predictors including type of legal system, special constituencies, democratic conditions and globalization, our theory offers a rich framework for scholars studying those processes. Moving beyond sexual minorities, the findings here may serve future examinations of policy change relevant to additional minority groups and policy domains.