Huff n puff and blow your liability down?

There's much to be said for the Australian Consumer Law and its use by a consumer.

In Selby v Expedia Australia Pty Ltd and Anor (Civil Dispute) [2018] ACAT 124 travel service Expedia (Expedia Pty Ltd and Expedia Inc) has been ordered to pay Hugh Selby $709.34 (inc damages) over misleading and deceptive conduct under the ACL.

Selby had booked accommodation at Rocky Point Beachfront/Paradise in Hawaii for three days in April this year through the Wotif website (owned and operated by Expedia). He paid Wotif for the accommodation by credit card transaction. In January 2018 he received an email from Wotif that stated “Thanks! Your reservation is confirmed. No need to call to reconfirm.” The email included a link to the accommodation and noted that the total amount of $628.34 had been “collected by Wotif”. Fast forward to disappointment!

On arrival in April Selby found that the "outlook and facilities were not what was expected", in particular the allocated room was in basement without a view of the beach. Selby was unable to contact the owner of the accommodation to resolve the issues. He complained to Wotif that day, seeking a refund. Wotif responded that the owner had refused a refund. Wotif subsequently offered a $150 credit coupon and then a 15% or $95 refund “for the inconvenience”, later increased to $125.67 “for the inconvenience”.

Selby was offered no joy when he visited Expedia's office in Sydney, reportedly being fobbed off with a referral to an international number.

Many consumers would probably have gritted their teeth, damned Wotif and walked away. Others might have been disheartened by Mallet v Expedia Australia Pty Ltd (Civil Claims) [2017] VCAT 1911.

Selby - as a legal practitioner and law academic - persevered. Mid-May he filed an application with ACAT claiming a refund of the $628.34, including written submissions, photographs of the accommodation and copies of pages from the Wotif site. Importantly, the money had been paid to Wotif, not direct to the accommodation provider.

Selby argued that Expedia, by the content and management of its Wotif site, engaged in misleading or deceptive conduct in breach of the ACL. Saliently, his submission was that Wotif is more than a mere purveyor of advertising on behalf of third parties, thus - in the words of the Tribunal -

not analogous to newspaper advertisements or advertisements available on the Google website where the reader would understand that the information contained in the paid advertisements was provided by the third-party customer of the advertising platform and that the advertising platform makes no promises or warranties as to the truth or accuracy of the information contained in the advertising material. ... 

Wotif is not analogous to the classified section of the newspaper where it is obvious to any reasonable reader that the newspaper is not endorsing or guaranteeing the information contained in those advertisements.

Selby contended that he relied upon the assurances and statements made on the Wotif site in making a booking, arguing that when taken together the statements convey the message that Wotif is a specialist travel company website, that Wotif seeks out good deals for travellers and these good deals are based on local knowledge.

The opening page of the Wotif site states, next to a red tick:

Book with confidence. Stay with peace of mind. With access to millions of reviews by Aussie and Kiwi travellers it’s easy to find the right hotel for you. Australia's First Online Booking Site For Travel What (or wot) is Wotif? The universe is full of questions. What is the meaning of life? Where do socks go when they disappear from the dryer? But the most important question right now is: What in the world is Wotif? Well, we’re not a bird, we’re not a plane, and we’re fairly certain we’re not Superman. Instead, we’re an online travel company dedicated to getting you from here to there without throwing your wallet to the wolves. And we’re pretty good at it, too! That’s why 1 in 2 Aussies have travelled with us since 2000. That’s a lot of happy campers! And jetsetters... and honeymooners... and road trippers... and gap year-ers... 

The Wotif story is different to those of other hotel booking sites. We were founded in a Brisbane garage (seriously) and have heaps of local knowledge. We use it to track down fantastic travel deals so you can find awesome deals every day. And we’re not just talking about accommodation. With Wotif, you can book everything in one place: flights, hotels, packages, and activities. Talk about a time saver! ...

Expedia argued that it was not liable for either the nature of the advertisement of the accommodation displayed on the site or the quality of the accommodation. It submitted that the contract was the one that had been reduced to writing. That  contract was between Selby as a user of the Wotif site and Expedia. Expedia also submitted that the written contract is wholly contained in the terms of use available on that site, including

(a) that customers agreed that the Terms of Use apply; and

(b) The information displayed on this Website concerning specific travel products and services is provided to us by the relevant travel suppliers (such as airlines or hotels) or their agents (“Third Party Suppliers”). This includes, but it is not limited to, information about airfare and hotel prices, rules and availability in the description of hotels and their amenities. The Expedia Companies are not responsible for such information and we rely on the accuracy of the information supplied by the relevant Third Party Suppliers. ... The Expedia Companies do not operate or control the travel-related products and services displayed on the Website. Nor do the Expedia Companies act as co-vendors with the Third Party Suppliers with whom our customers book travel products or services.

Expedia relied on those exclusion clauses in seeking to avoid liability, responding to the claim of misleading and deceptive conduct by stating that “book with confidence” is puffery.

ACAT states

The Tribunal put the following question to the respondents: So what you essentially say is there's no contractual liability because of the exclusion clauses and that the phrase "Book with confidence" and all the other stuff there about we're pretty good at all of this and we're different from all the other websites ... and we've got lots of happy campers and honeymooners and end of year, gap yearers, all of that is mere puff, you say. It's a marketing ploy. We don't actually expect people to believe the promises that we put there. And they need to accept that they're hyperbole?

The respondents’ answer is reproduced below:

Yes, with the one addition to that, I agree with the tribunal on that, with the addition that you know, being puff, it's what does the reasonable consumer take from that. A reasonable consumer does think that the website is great, does think that they'll get value for money, does think that the properties will be as described. I think that's what a reasonable consumer would take from it, and I think that's what most consumers do get. And as is the reality with anything, there will be a bad experience here and there. There will be a better than expected experience and at the end of the day, you know Wotif has provided their services. ...

The Tribunal in referring to Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 went on to state

The ACL at section 18 provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Each of the following must be established: (a) a person has engaged in conduct - a company is a legal person; (b) the conduct is in trade or commerce; (c) the conduct must be misleading or deceptive or likely to mislead to deceive. The parties did not disagree with the proposition that Wotif was engaged in conduct that took place in trade and commerce. The issue to be determined by the Tribunal is whether the making of the statements and representations on the website was misleading or deceptive or was likely to mislead or deceive. Conduct is misleading and deceptive if any reasonable member of the class of persons at whom the conduct is directed would be led into error. If conduct seeks to attract public attention by the use of unqualified assertion as to fact, such assertion should be true as a matter of fact.

Accordingly

... The statements contained on the Wotif website – “We’re an online travel company – we have heaps of local knowledge. We use it to track down fantastic travel deals so you can find awesome deals every day. – Book with confidence. Stay with peace of mind.”– must be assessed by their effect on the reasonable member of the subject audience. The implication is that Wotif have local knowledge and use it to ensure fantastic travel deals. It is not unreasonable for the applicant to feel confident that the accommodation would meet the statements set out in relation to it and that if the accommodation should for any reason fall short then Wotif would be liable for any loss. 

The respondents submitted that it was reasonable for a consumer, reading their webpage, to form the view that Wotif’s experience and expertise would result in a good deal and that the consumer could be confident in Wotif’s statements. However, the respondents also submitted that those statements giving rise to that view were puff.

The Tribunal sensibly commented that it did  not accept the exclusions.

One might ask, what is the point of the statements if it is not to encourage visitors to the Wotif webpage to book with confidence? Could these statements and representations be properly characterised as ‘mere puff’? Mere puff may be defined as statements or representations which are exaggerated, ‘over the top’ or fanciful and not intended to be taken seriously to be taken seriously by any reasonable person. For example, that a detergent would clean like a white tornado. The classification of any representation as mere puff does not automatically exclude it from being misleading and deceptive or likely to mislead and deceive. ....

Wotif seeks to rely on the exclusion clauses contained in their terms of use: those exclusion clauses are in conflict with the representations made clearly and boldly on the website. Businesses cannot rely on small print and disclaimers as an excuse for a misleading overall message. Again one might ask, why make a statement designed to assure customers, and then elsewhere on the webpage, in the fine print, seek to prevent the customer from relying on the promises conveyed? 

In the circumstances of this particular case, it was not unreasonable for the applicant to form the view, based on the representations that the respondents had ‘heaps of local knowledge’ and that you could ‘book with confidence’, that Wotif was promising that the applicant could rely on the information provided about Rocky Point Beachfront in Haleiwa, Hawaii and that the applicant could enter into the contract with Rocky Point Beachfront with confidence. This has not proved to be true. The accommodation was, as a matter of fact, not as described on the website but in a dilapidated and rundown condition, and with no sea views. As a consequence, the applicant paid to Wotif the accommodation costs of $628.34.

ACAT was accordingly persuaded by Selby. We may look forward to more agency by consumers, more care by travel/other services alongside a statement by the ACCC alerting both consumers and those services.

Privacy Ethics and Mandatory Testing

'Privacy from an Ethical Perspective' by Marijn Sax in B. Van der Sloot and A. De Groot (eds) The Handbook of Privacy Studies: An Interdisciplinary Introduction  (Amsterdam University Press, 2018) 143-173 comments 

 This chapter focuses on the most important and influential ethical theories of privacy. First, some of the important conceptual distinctions that figure prominently in the ethical literature on privacy will be discussed. Here, the definition and function of privacy are discussed. Second, the classical text that laid the foundation for all contemporary analyses of both the legal and moral right to privacy is discussed. Third, the most important and influential perspectives on privacy’s value, and what that implies for the norms that should regulate our behavior and policies, are discussed. In this section, perspectives that are critical of (particular aspects of) privacy are discussed as well. Fourth, some of the important contemporary ethical challenges to privacy and how they are addressed in the literature are discussed. In this section will mostly focus on technological developments and what they imply for privacy.

The NSW Justice Department has released an Options Paper on Mandatory Disease Testing, following the 2017 NSW Parliamentary Committee inquiry into violence against emergency services personnel. The Committee's report recommended that the NSW Government consider introducing legislation to allow mandatory disease testing of people whose bodily fluids come into contact with police and emergency services personnel. 

The Options Paper states 

In February 2018, the NSW Government Response committed to consider the issues involved in establishing a legislative scheme and agreed to release an options paper for stakeholder consultation. 

 

This options paper delivers on the NSW Government’s commitment to canvass the legal, ethical, operational and financial issues involved in considering whether, and how, a mandatory disease testing scheme could be implemented in NSW. 

 

In most circumstances, it is likely people whose bodily fluids come into contact with an emergency services worker would consent to a blood sample being taken for testing, provided they are counselled by a health care worker. If the exposure occurred in circumstances where a person has committed an offence against an emergency services worker, that person may be less likely to consent to being tested, despite counselling. The efficacy of testing and the risks and benefits to emergency services personnel exposed to bodily fluids need to be carefully weighed against the impact on individuals who may be required to be mandatorily tested. Both the source person and the emergency services worker need to be assessed, counselled, and managed by a health care professional. Privacy of their health information is an important consideration. Consideration also needs to be given to the economic impact of such a scheme on government. 

 

Considering these issues, this paper identifies the following potential options for reform: 

 

• Option 1 – improvements to agency policy and practice to ensure emergency services personnel are promptly assessed, counselled and managed by a health care professional with access to specialist advice immediately following an exposure to potentially infectious body fluids. 

 

• Option 2 – changes to agency policy to allow the source person to be assessed, counselled and asked to consent to a sample being taken for testing by a heath care professional. 

 

• Option 3 – a consent-based scheme, with an option for a court ordered mandatory disease testing. 

 

• Option 4 – a scheme that would apply where an offence has been committed, with mandatory disease testing ordered by a senior police officer.

The options may be considered as standalone options, or could be combined with one or more of the other options.

Robodebt

'Robo-debt illegality: The seven veils of failed guarantees of the rule of law?' by Terry Carney in (2018) Alternative Law Journal comments

This article asks how rule of law institutions failed to ‘bell the cat’ on the illegality of Centrelink’s robo-debt programme and its unethical character. It identifies serious structural deficiencies in the design of accountability and remedial avenues at seven different levels. It argues for adherence to Administrative Review Council guidelines on machine learning, Parliamentary accounting of Ombudsman and Audit agencies on rule of law foundations and model litigant protocols, attention to ethical administration, redacted publication of selected first tier Administrative Appeals Tribunal rulings, contractual guarantees of independence in legal aid/advocacy funding, building of pro bono advocacy partnerships, and cultural change designed to counter stigmatisation of the vulnerable. 

Carney argues

 The government’s on-line-compliance (robo-debt) initiative unlawfully and unethically seeks to place an onus on supposed debtors to ‘disprove’ a data-match debt or face the prospects of the amount being placed in the hands of debt collectors. It is unlawful because Centrelink, not the supposed debtor, bears the legal onus of ‘proving’ the existence and size of any debt not accepted by the supposed debtor. And it is unethical because the alleged debts are either very greatly inflated or even nonexistent (as found by the Ombudsman), and because the might of government is used to frighten people into paying up – a practice rightly characterised as a form of extortion. How could government, accountability avenues, and civil society have enabled such a state of illegality to go publicly unidentified for almost 18 months and still be unremedied at the date of writing? 

This article suggests the answer to that question lies in serious structural deficiencies and oversights in the design and operation of accountability and remedial avenues at seven different levels:

1. In a lack of standards to prevent rushed government design and introduction of machine learning (‘smart’) systems of decision-making; 

2. In a lack of diligence by accountability agencies such as the Ombudsman or Audit Office; 

3. In a lack of ethical standards of administration or compliance by Centrelink with model litigant protocols; 

4. In a lack of transparency of the first of two possible tiers of Administrative Appeals Tribunal review (AAT1), resulting in a lack of protections against gaming of review by way of agency non-acquiescence or strategic non-contestation; 

5. In a lack of guarantees of independence and funding security to enable first line Legal Aid or community legal centre/ welfare rights bodies (CLC/WRC) to test or call out illegality in the face of thwarting of challenges by Centrelink settling of potential test cases; 

6. In a lack of sufficient pro-bono professional or civil society capacity to mount ‘second line’ test case litigation or other systemic advocacy; and 

7. In tolerance, especially in some media quarters, of a ‘culture’ of political and public devaluing of the significance of breaches of the rule of law and rights of vulnerable welfare clients.

It is argued that a multifaceted set of initiatives are required if such breaches of legal and ethical standards are to be avoided in the future.

Carney goes on to ask 'Why is it clear that robo-debt is unlawful?'

The pivot for this article is not so much that Centrelink lacks legal authority for raising virtually all debts based on a robo-debt ‘reverse onus’ methodology rather than use its own information gathering powers – for this remains essentially uncontested. Rather it is extraordinary that this went unpublicised and uncorrected for over two years. So first a few words about the illegality as it affects working age payments such as Newstart (NSA) and Youth allowance (YA). 

Robo-debt is unlawful because Centrelink is always responsible for ‘establishing’ the existence and size of supposed social security debts. This is because the legislation provides that a debt arises only if another section creates a debt, such as one based on the difference between the amount paid and the amount to which a person is entitled. And because Centrelink bears a ‘practical onus’ to establish this. If Centrelink cannot prove up a debt from its own enquiries or information supplied to it, the status quo (no debt/lawful receipt of payments) applies. This has been the law since 1984 when the full Federal Court decided McDonald.  Unless the alleged debtor is one of the rare employees who had only a single job paid at a constant fortnightly pay rate, Centrelink fails to discharge this onus when its robo-debt software generates a debt by apportioning total earnings reported to the Australian Taxation Office (ATO) from particular jobs to calculate average earnings. Robo-debt treats fluctuating earnings as if that income was earned evenly at the same rate in each and every fortnight. Mathematically this is wrong because an average for a fluctuating variable never speaks to its constituent parts. And it is the actual income for constituent fortnights that as a matter of law is crucial for calculating the rate of a working age payment such as NSA or YA. 

The averaging material relied on by Centrelink is simply not relevant to the legal question at hand; it therefore is no evidence at all. And, in any event, the moral and practical gravity of alleging a debt imposes a ‘heightened’ degree of satisfaction under the application of the Briginshaw principle. In that High Court case Sir Owen Dixon memorably wrote that ‘[i]n such matters ‘‘reasonable satisfaction’’ should not be produced in inexact proofs, indefinite testimony, or indirect inferences ...’. Yet it is precisely such inexactitude of debt, indefinite character of proof, and indirect inference on which the government relies under robo-debt.

Identity Cards

Two perspectives on identity schemes ...

'Bank Identity: Banks, ID Cards, and the Emergence of a Financial Identification Society in Sweden' by Orsi Husz in (2018) 19(2) Enterprise and Society comments

Today, nearly the entire adult population in Sweden uses a digital BankID for more purposes than only financial ones. Issuing identity documents is commonly perceived as a task for state authorities, but in Swedish society banks have played a dominant role as identificators. The first contribution of this article is that it explains this unique emergence of bank identity and traces the historical roots of a financial identification society to the mid-1960s. Banks started issuing standardized identity cards as a complement to the new system of paying salaries and wages by direct deposit to checking accounts, and these cards eventually became quasi-official identity documents. The Swedish story thus contrasts the scholarship on identification and state control. By treating identity as both a socio-cultural category and a materialization of a technology of control, I argue that the formalization of official identity documents for everyday use was intertwined with the creation of new financial identities. The introduction and general distribution of ID cards were parts of a process whereby wage earners became financial consumers, and the banks transformed themselves into retail companies. My second contribution therefore relates to the scholarly narrative on the financialization of everyday life since the 1980s. While the mass move to financial identification in Sweden, highlighted in this article, certainly fits the content of this narrative, it questions its chronology.

Husz argues

When Swedes log in to the Swedish Social Insurance Agency’s website to request sickness or parental benefits, they have to use a so-called BankID, an electronic identity document issued by banks. How is it possible that the official proof of personal identity in basic civic issues is provided by a commercial bank? Today, seven million people, nearly the entire adult population in Sweden, have digital BankIDs. It is used not only for payments but also for online contact with public authorities such as the Tax Agency, the public healthcare system, and the municipal school system. Acting as parents or patients, why do people use identification granted in their capacity as bank consumers? The BankID was introduced in 2003 by a consortium of the largest banks, and it spread quickly. Electronic identification in Swedish society today is overwhelmingly dominated by the system offered by banks, and very few alternatives exist. It was only as late as 2011 that a governmental authority was created to supervise these systems.

Digital identification is a recent development, but the formalization of what could be called bank identity and the general use of official ID cards validated by banks have their roots back in the early 1960s. This was, as I will show in the article, a consequence of a new system of paying salaries and wages by direct deposit to checking accounts, introduced in the late 1950s and implemented on a large scale in the early 1960s. Workers, office clerks, shop assistants, and others became account holders at commercial banks and had to get used to paying by check, and thus to consuming banking services on a daily basis. The commercial banks—until then serving mainly the business and the very rich—also started selling a wide range of products to a broad public and marketing themselves as “department stores of finances.”3 At the same time, and as a result of this shift to retail banking, Swedish banks came to shoulder the responsibility of managing documented identities in society, which is usually associated with public authorities. Banks issued, validated, and distributed standardized ID cards to the general public.

The article describes, explains, and interprets this process in the twofold context of the history of identification, on the one hand, and the scholarship on the financialization of daily life, on the other. I ask how the validation of official individual identities came to be the specialty of banks in Swedish society, how this relates to conventional histories of identification, and what this says about a process described in recent literature as the creation of new financial subjects.

The article consists of three parts, followed by a conclusion. The first part deals with the above-mentioned research contexts and unpacks the relevance of my argument; the second part is concerned with the Swedish banks’ turn to a mass retailing of financial products and services; and the third and main part explores how this turn implied the banks’ engagement in the management of identification.

The study is based on archival and published sources from the banking sector, governmental and parliamentary committees, and the company AB ID-kort (ID Card Ltd.), established in 1968. While the official documents, as well as the material from banks and the Bankers’ Association helped me to track the institutional and legal changes and the creation of new financial and identificatory technologies, I also used general newspapers and house magazines from banks to access everyday practices and attitudes.

A Financial Identification Society

Commercial bodies and their role in identity management are absent from the historical literature on documented identity. Instead, this scholarship has been concerned almost exclusively with the activities of the state, as Edward Higgs points out in a recent essay.5 The history of identity documents is traced back to colonial and wartime administrations and crime control (for example, the use of fingerprints). John Torpey argues that the validation and production of legitimate identities, especially the passport (controlling people’s movement), have historically been a state monopoly. In his account on the history of the passport in the United States, Robertson connects the state’s predominance in documenting and controlling individual identities to a “documentary regime of verification,” which he claims emerged between the second half of the nineteenth century and the 1930s. According to him, and others, the modern technologies of identification based on new bureaucratic logics of objectivity and on an idea of a verifiable “official” and individual identity were developed and controlled by state authorities. It is only very recently, in a new digital regime, that Robertson detects “a move from the state as the primary vendor of the verification of individual identity.”

David Lyon, in his work on contemporary identification practices, also claims that the identity card is the manifestation of national governance by identification (and necessarily also by social sorting and exclusion). However, Lyon also points out the importance of corporate interests (for example, software companies) in the development of national ID card schemes, and introduces the idea of “card cartels” for identification systems in today’s digitalized world. He argues that while states “may still validate identity,” they are unable to act on their own but must “depend on the high-tech corporations [such as IBM] for the know-how, on softwares for the means of ‘managing’ identities and on international standards bodies […] for achieving interoperability.”

Edward Higgs, one of the few historians of identification interested in the role of commercial bodies, stresses the importance of historical changes in identity management, from state dominance to more dispersed and commercial identification systems in the last two decades of the twentieth century. This commercialization of identification was, however, parallel with a movement back to increased state interest in the management of identity control in the new millennium, as a part of counterterrorism and migration policies. In his comprehensive history of personal identification in England, Higgs includes the emergence of tokens of identification in the new mass consumer economy. He refers here to credit and debit cards backed up by signatures, and later by PIN codes, as new “tokens of identity.” He also highlights the role of new identification technologies introduced by commercial organizations in the recent past, for example, how digitalization made detailed consumer profiling possible.

The role of Swedish banks in managing not only strictly commercial but also official (or at least quasi-official) identities from as far back as the 1960s is important because similar examples are lacking in the history of identification. Also, the story of twentieth-century identification practices in Sweden—by either state authorities or commercial institutions—is yet untold. There are a few studies on identity documents in older historical periods (from the eighteenth and early nineteenth centuries) and historical work on the politics of privacy in the data age. However, these bodies of research and the historical studies of the early and well-developed Swedish system of national registration also stress the role of state authorities, along with that of the church in the early period. Moreover, a strong “state embrace” of the individual is generally seen as typical of Swedish twentieth-century history. This makes my findings even more intriguing.

So how can we understand the connection between banks and identification, and why is it important? Here, we have to consider the distinction, as also made by, for example, Lyon and Robertson, between identity and identification; or, in other words, between embedded (personal and collective) identity and documented official identity. Scholars of identification generally agree that embedded identity (related to family, community, commitment to a place) and documented identity (passport, ID cards) are intricately connected to each other; they not only depend on but also shape each other. Just like the passport has been interpreted in terms of the formation of national identities, it is possible to explore other identity devices in relation to social, cultural, or financial identities.

Now, personal identity literally certified by banks is easily interpreted as a powerful materialization of the birth of new financial subjects and the financialization of everyday life. Although the scope of my study does not allow me to access the self-perceptions of the new ID card holders or their sense of identity, I can highlight the historical connection between the bank identity cards and the creation of a large group of new financial consumers. The sources also reveal that the new identification practices were not unproblematic, as they collided with traditional perceptions of identity and with the cultural stigma of having to prove one’s identity. I will show how the banks attempted to eliminate the shame of identification and naturalized the everyday use of identity cards with reference to money.

The concept of financial identities or financial subjects is recurrently used within social studies of finance, especially in Foucauldian interpretations of the financialized world of the recent past. It highlights the fact that individuals are increasingly categorized in legal, political, and media discourses in terms of financially defined subject positions—and, as a consequence, also see themselves and act accordingly. Typical examples of such financially defined subject positions are the investor, for example, by means of the pension system or the educational system, the borrower on the housing market, or the consumer of banking products and services such as current accounts, bank cards, or insurance.

The financialization of everyday life, according to the growing literature on the concept, includes a predominance of such financial identities and their intrusion into all areas of life; in short, a new relationship between the self and finance. The narrative of financialization runs parallel to and is intertwined with that of neoliberalization and globalization, and is commonly dated to the past three decades.

In fact, several studies of identification and surveillance refer to Nikolas Rose’s concept of “control society,” which belongs to the same theoretical tradition as the works on financialized identity positions. Drawing on Gilles Deleuze and Michel Foucault, Rose describes a historical transition from societies of discipline—in which dominant institutions such as the school or the factory directly molded the conduct of large groups of people—to societies of control—in which the “conduct of the conduct” is done at a distance, not centralized but “dispersed and disorganized.” In a society of control, Rose argues in accordance with the theory of governmentality, individuals are identified and governed by means of their different activities of working and consuming. Rose (writing in the 1990s) emphasized that commercial forces often exercise this dispersed control in contemporary society.

In his study of credit markets, Gilles Laferté proposes two ideal typical concepts to characterize two fundamentally different types of economic exchanges: the older face-to-face economy, built on small-scale, shared economic affiliations and social networks, and the newer economic identification economy, consisting of “mediated, remote forms of exchange.” The economic identification economy relies on technologically advanced and standardized gathering of information on a very large number of individuals. Laferté’s main example is that of credit reports by credit bureaus having become a prerequisite for contemporary consumer credit.

To summarize, commercial engagement in identification is lacking in the historical research; and in those rare cases when commercial identification is discussed, it is explained with reference to the financialization of recent decades. Building on the insights from these scholars but also in important respects differing from their views, I argue that the history of the development of the Swedish bank identity is best described in terms a financial identification society. In this society, the banks developed a central position not only in everyday identity management for financial purposes but also in validating “official” identities in society. This happened with support from authorities (and not least with use of the national registration number), but not under state control. The process started as early as the 1960s. This contradicts conventional historical studies of identification and, in fact, also the work on financialization, as it reveals that a modern concept of financial identity materialized before the era of digitalization and financialization.

The article will show how something that started as a complementary tool for administering consumer finances eventually transformed older identification practices based on class/community/status/personal acquaintance into a general and nationally valid management of formalized individual identity. Swedish banks, already in the 1960s—thus prior to the digital age—became the main identificators in society, which, of course, reinforced the connection between personal identity and finance.

'‘Disaster citizenship’: an emerging framework for understanding the depth of digital citizenship in Pakistan' by  Ayesha Siddiqi in (2018) 26(2) Contemporary South Asia  157-174 comments

In recent years, the Pakistani state has made significant advances in formalising and universalising citizenship through the digitisation of citizenship numbers. The National Database and Registration Authority (NADRA) is at the forefront of this initiative, which has now covered 96% of Pakistan’s 180 million citizens. The state successfully used this digitisation of citizenship to reach out to its citizens in the aftermath of a large-scale flooding disaster in 2010 and 2011. The universal cash transfer programme instituted for disaster-affected households used citizenship numbers to identify and then provide ATM cards to those domiciled in the worst-affected regions.

 Siddiqi  states

This paper draws upon my fieldwork done in 2012–2013 in Lower Sindh and argues that while still in its infancy, a new form of ‘disaster citizenship’ is visible in southern Pakistan, which is driven partially by this digitisation of citizenship in the country. It explores the post-disaster political space where state actors and citizens came to interact with each other, and argues that these informal and unplanned interactions overlapped with formal policy to result in a new and emerging form of ‘disaster citizenship’ in the region.

This paper offers intimate insight into the state–citizen relationship, and how it evolves, in the aftermath of large-scale disasters. Using the case of Pakistan, and based on empirical evidence from the province of Sindh in the south of the country, it argues that contrary to received wisdom, a large-scale flooding disaster in the region did not result in a damaged ‘social contract’ between the state and the citizen (Pelling and Dill 2010). Rather, it demonstrates that the political space that opened in the aftermath of the disaster enabled a more progressive ‘disaster citizenship’ to emerge. The role of Pakistan’s social registry system and a formalised identity (ID) regime played a critical role in pushing this relationship along.

The ‘social contract’ in this paper refers to a tangible relationship between the state and its people consisting of two basic conditions: (i) a state that sees its citizens as its responsibility; (ii) citizens that demand state action not as passive recipients looking for favours but as an active right of citizenship. Citizenship is increasingly being understood as constitutive of both formal-legal rights and also of informal claims. Jayal’s work tells us that the former, legal-official recognition of citizenship, has been interpreted as an ‘affective notion’ of belonging and ID, or as entirely ‘instrumental’ to enable access to social goods, or even something completely different depending on the subject position of those seeking the formal recognition (Jayal 2013). Hence if even the thinnest description of citizenship holds such diverse meaning in different social groups and contexts, identifying and constructing informal citizenship is especially complex. Substantiated through social relations and a range of demands on state authorities, using intermediaries and a variety of moral positions, these ‘substantive’ conditions of citizenship create new kinds of rights. They are based on ‘exigencies of lived experience, outside of the normative and institutional definitions of the state and its legal codes’ (Holston 1998 ). The ways in which an unfolding climatic disaster impacts this substantive citizenship is the unique contribution of this paper. 

In the summer of 2010 and 2011, Pakistan was devastated by large-scale flooding of the Indus River. The floods of 2010 affected the entire country and in August of that year the UN declared that one-fifth of Pakistan’s entire landmass was under water (Masood and Drew 2010). In terms of people affected, the UN also estimated that it was the ‘greatest humanitarian crisis in recent history’. At over 20 million affected, the number of victims of this disaster was more than the Asian tsunami (2004), Kashmir earthquake (2005) and Haiti earthquake (2010) put together (Tweedie 2010 ). The floods the following year were limited in their geographical scope and primarily affected the province of Sindh. The scale of the disaster was still enormous and it affected over 5 million people. Based on empirical evidence from the ground, in the two years following these floods, this research demonstrates that the formal and informal processes implemented after a large-scale disaster resulted in a new and unique experience of citizenship in Pakistan. 

The flooding disaster in 2010 and 2011 was considerably more serious than previous climatic disasters, it was however not just the number of people affected by the devastation that made this a particularly interesting moment to study state–citizen relations. Rather, in a significant departure from previous ad hoc and sporadic state interventions, the Pakistani state provided universal disaster relief to its citizens through a cash transfer made out to all households domiciled in the disaster-affected region. This was made possible in large part due to an up-to-date social registry maintained by the National Database and Registration Authority (NADRA) in Pakistan. This relatively new intervention implemented through new processes made this an exciting time to study the changing social contract and evolving citizenship and how people in a country like Pakistan were interpreting it. 

Geographers working on natural disasters highlight the ‘transformative political space’ opened in the aftermath of a disaster. They illustrate that a disaster is able to serve as a ‘tipping point’, creating a moment for political change (Pelling and Dill 2010 ). Others argue that in politically turbulent parts of the world, disasters are ‘more frequently followed by political unrest than peace’ (LeBillion and Waizenegger 2007). While writing after Hurricane Katrina, an American scholar analyses the disaster as a moment when the state failed its citizens in the US. He argues that ‘when the levees broke, the contract of American citizenship failed’ and hundreds of thousands suffered in New Orleans (Ignatieff 2005). Disasters are therefore typically seen to be disruptive of the social contract (Warner 2013). After the large-scale flooding disaster that affected Pakistan in 2010 and 2011, international media outlets were reporting a similar story. They stated that the state had failed its citizens – not once but twice – in the aftermath of the disaster (BBC online 2011) ‘damaging’ the country’s ‘fragile democracy’ (The Guardian online 2010 ). 

I however argue in this paper that the disaster unleashed forces for ‘transformative’ change by opening political space for the post-disaster state and its citizens to interact with one another. I explain how and why the state reached out universally to all its citizens in affected areas, using disaster relief that it provided through a cash transfer distributed to all households using digitised ID cards. The widespread coverage of NADRA-issued ID cards has been an important instrument in this new phase in state–citizen relations. I demonstrate that both actors, the state and its citizens, interacted along official and unofficial lines after the flooding disaster to create an outcome that was able to push a more progressive form of ‘disaster citizenship’ along. In particular, this paper shows how an unprecedented state-led disaster intervention drive, interacted with an enabling political context to induce demands and encouraged citizens to demand more from their social contract. Substantively, this resulted in disaster relief being understood as an aspect of citizenship, or an informal right, in southern Pakistan.

Know It When I See It

'Copyright and Pornography' by Enrico Bonadio and Nicola Lucchi in Bonadio and Lucchi (eds), Non-Conventional Copyright - Do New and Atypical Works Deserve Protection? Elgar, 2018) 418-431 explores 

whether pornographic works – intended as creative works consisting of the depiction of women and/or men as sexual beings - can be protected by copyright. After commenting on cases from various jurisdictions including US, UK and France, the authors discuss the critical arguments made both in support and against copyright protection for this controversial subject matter (which is considered by many as morally unacceptable). The chapter concludes that the overriding need to protect free speech makes the argument supporting the copyrightability of this category of works more persuasive and convincing.

NZ DNA Profiling

The New Zealand Law Commission has released The Use of DNA in Criminal Investigations. Te Whakamahi i te Ira Tangata i ngā Mātai Taihara, an Issues Paper reviewing the Criminal Investigations (Bodily Samples) Act 1995 (NZ) and use of DNA in criminal investigations.

The paper identifies   the following broad issues with current NZ law:

•  The purpose of the CIBS Act is unclear and the structure is confusing; 
• The science is continually developing and these developments raise human rights, Treaty of Waitangi, ethical and tikanga issues, as well as issues around informational privacy that need to be addressed; 
• The CIBS Act is insufficiently comprehensive; and 
• There is no independent oversight. 

The Commission notes

The purpose of the issues paper is to facilitate consultation and foster public debate. Many of the issues and options are relatively technical and so our target audience is primarily those who work in the criminal justice sector or a related scientific, academic or legal field. However, some core issues would benefit from much wider public debate.

The paper states

Our terms of reference ask us to determine whether the CIBS Act is keeping pace with developments in forensic science, international best practice and public attitudes and whether it gives appropriate recognition to law enforcement values and human rights, including the right to privacy. Considering whether the use of DNA in criminal investigations is regulated in a way that is constitutionally sound requires ensuring that the regime is consistent with the principles of the Treaty of Waitangi and New Zealand Bill of Rights Act and that any intrusions upon tikanga and privacy are minimised. In preparing this issues paper, we became aware that there are significant gaps in the CIBS Act. We also became aware of several broader issues that fall outside our terms of reference. These are:

• The use of non-DNA based forensic sciences in criminal investigations (for example fingerprint, ballistic, and bite mark). 

• The presentation of expert scientific evidence in court. There are growing concerns, including whether judges and juries are well-placed to understand and make decisions based on highly complex scientific information and probabilities. 

• The use of DNA in non-criminal investigations, for example, missing persons and disaster victims.

In the issues paper, we put forward some options for reform to address the gaps in the CIBS Act and broader issues that we have identified in relation to the use of DNA in criminal investigations. 

What are the key issues with the current law? 

• The purpose of the CIBS Act is unclear and the structure is confusing. 

• The science is continually developing and these developments raise human rights, Treaty of Waitangi, ethical and tikanga issues as well as issues around informational privacy that need to be addressed. 

• The CIBS Act is not sufficiently comprehensive, for instance it does not regulate the databank of crime scene profiles (the Crime Sample Databank) that is maintained on behalf of Police by ESR. Nor does the Act specifically address issues such as:

o whether Police can analyse an item discarded by a suspect to get a DNA profile (indirect sampling); 

o whether Police can search the DNA databank containing identified profiles (the known person databank) for close matches to DNA left at crime scenes – indicating that it may have been a close relative of the person on the known person databank at the crime scene (familial searching); or 

o whether Police can analyse DNA left at a crime scene in order to predict the person’s appearance or ethnicity (forensic DNA phenotyping). 

• There is no independent oversight. 

WHAT ARE THE KEY PROPOSALS FOR REFORM? 

These are the two main proposals for reform in this issues paper: 

1) The CIBS Act should be repealed and replaced with simpler and more comprehensive legislation. 

2) A public agency that is independent of Police and ESR should be given oversight functions in relation to the use of DNA in criminal investigations. Oversight functions could be an extension of an existing agency’s role (such as the Privacy Commissioner), or a new agency could be created (such as a multi-disciplinary oversight committee, an advisory ethics group and/or a specialist Commissioner). 

An important feature of any oversight regime in New Zealand will be to provide a central role for Māori. That is because Māori are currently over-represented in the criminal justice system and are more likely to be adversely affected by use of discretionary powers, forensic DNA phenotyping, familial searching, research utilising the DNA databanks, and retention of DNA samples and DNA profiles. In those circumstances, the Treaty principles of active protection, equity, rangatiratanga and partnership indicate that Māori should have an active role in all governance decisions. 

What does the Law Commission say about -

1. Police requesting people to consent to giving a DNA sample 

Informed consent is a central concept in Part 2 of the CIBS Act. A police officer must attempt to obtain a suspect sample by consent prior to applying for an order to compel a suspect to give a sample. Further, there are very detailed rules around the information that must be given to a suspect, both verbally and in writing. There are additional protections in the Act if the suspect is a child or young person. Police may also seek a sample by consent under Part 3 so that the profile can be uploaded to the known person databank. Nonetheless we are concerned that suspects may not always be in a position to provide “free and informed consent”. The three main reasons for this are:

(a) the inherent power imbalance between the suspect and the requesting officer; 

(b) the complexity and volume of information that needs to be provided to the suspect; and 

(c) the difficulty of obtaining appropriate legal advice.

2. Who Police should be obtaining DNA samples from: 

should Police have a universal databank of everyone in New Zealand? Establishing a universal databank containing the DNA profiles of everyone in New Zealand could address the risks inherent in broad discretionary powers and negate the need to use controversial forensic analysis techniques such as forensic DNA phenotyping, mass screening, indirect suspect sampling and familial searching. Therefore a universal databank may minimise the impact of the DNA regime on minority groups, including Māori.

However, some commentators argue that while a universal databank may appear fairer it simply masks existing bias. As one commentator says “it is unrealistic to expect that a “neutral” database policy, layered over an unequal criminal justice system, will eliminate the systemic bias.” In addition, a universal databank increases the risk of a false positive match, and potentially breaches individual and collective privacy rights, as well as being practically difficult to establish.

No country anywhere in the world has a universal databank. 

3. Indirect DNA sampling 

The CIBS Act does not address indirect suspect sampling. This is when a DNA sample relating to a suspect is obtained by police officers through a secondary source, for example, from a personal item belonging to the suspect, such as a toothbrush. The relationship between indirect suspect sampling and the suspect regime in the CIBS Act is not clear. Furthermore, there is some doubt as to whether a police officer can currently obtain a search warrant to seize a suspect’s personal belongings for the purpose of DNA profiling. Additional doubt arises where a police officer may wish to seize a DNA sample that has been collected for a medical purpose (such as a suspect’s newborn blood spot card). There is also legal uncertainty around collecting and analysing items found in public places (such as a cup thrown in a rubbish bin by a suspect). We propose that this is one of the areas where the courts and/or an oversight body could have an active role. 

4. How much genetic information Police should be able to analyse: should Police use full genome sequencing? 

The CIBS Act does not limit how crime scene samples can be analysed for genetic information, or the type of research that can be conducted using the DNA profile databank in an anonymised form.

At present, DNA samples are only analysed to the extent needed to generate a DNA profile containing a limited amount of personal identity information. That profile does not consist of the person’s entire genome (that is, the complete set of genetic information contained in DNA). In humans, this consists of all three billion base pairs, written out in sequence.

However, a person’s DNA sample, containing their entire genome, is still collected and retained by the State, albeit briefly. How the samples are dealt with is therefore very important for maintaining public trust. Further, the current international trend is towards including more and more information in DNA profiles. There are sound scientific reasons for this trend, but there are also significant privacy implications. No other biometric data can reveal anywhere near the amount of personal information that is contained in a DNA molecule. This means that, while DNA can be a powerful tool in criminal investigations, its use raises significant privacy concerns far beyond those associated with the use of other biometric data, such as fingerprinting. 

5. Forensic DNA phenotyping, including ethnic inferencing 

Forensic DNA phenotyping is when DNA found at a crime scene is analysed to predict aspects of the physical appearance of the person who left the sample, such as hair or eye colour. This may include inferring the person’s ethnicity. In our view, ethnic inferencing may amount to discrimination under the New Zealand Bill of Rights Act 1990. It also raises practical and ethical concerns, Treaty of Waitangi and tikanga issues, and issues around informational privacy.

Ethnic inferencing is the only form of forensic DNA phenotyping that has been used by Police in New Zealand. It has been used 11 times in cases where there were no other leads.

We propose a permissive but conservative approach to forensic DNA phenotyping. We also explore a variety of options involving the courts and/or an oversight body having a statutory role in considering whether forensic DNA phenotyping, including ethnic inferencing, is appropriate in any given case. 

6. What crimes Police should use DNA to solve 

The original objective of the CIBS Act was to identify and prosecute serious sexual and violent offenders. In the issues paper we question whether this narrow focus remains appropriate. It is a common misconception is that DNA is central to almost all sexual assault investigations. This is not the case. Research suggests that, in the vast majority of rape cases, the alleged offender was previously known to the complainant. Where there is a clear suspect from the start, there is no need to search the known person databank for an investigative lead. There may also be little point in obtaining a DNA sample from the suspect unless the complainant underwent a medical examination shortly after the incident. If there was no medical examination, DNA profiling would not assist in resolving the case. Furthermore, in many cases of sexual offending there is no dispute as to whether sexual contact occurred. The issue is consent. Again, in those circumstances, DNA profiling would usually be of limited relevance.

There are similar misconceptions around investigations into serious violent offending. Often identity is known at the outset, and the case will turn on whether the alleged offender intended to cause the resulting injuries. These misconceptions are sometimes attributed to the so-called “CSI effect”.

From the information we do have, it is plain that DNA profiling may be particularly effective when investigating property offending. Of the DNA profiles currently on the Crime Sample Databank, 76 per cent relate to non-suspect volume crime cases. This is the term used by Police to describe cases involving general theft, burglary or vehicle crime (unlawful taking of, and/or theft from, vehicles) where no suspect sample is available for comparison. This may seem surprising, but it makes sense. The central question in property crime investigations is often: who committed the offence? Commonly, complainants have no idea as to the answer.

We consider that the objective of the CIBS Act should be broader than the original objective of serious sexual and violent offending to include identifying and prosecuting offenders for a range of serious crimes, including serious property offending. In our view, a seriousness threshold is necessary to recognise the fact that DNA profiling comes at a constitutional cost, with a risk of inconsistency with the New Zealand Bill of Rights Act, the Treaty of Waitangi, privacy and tikanga. 

7. Familial searching 

Familial searching is when a scientist compares the Crime Sample Databank and the known person databank and looks for near matches. A near match may indicate that a close relative of the person on the known person databank was responsible for the crime scene sample. We consider that this technique is likely discriminatory on the basis of family status, and has the potential to disproportionately impact on Māori, who are currently overrepresented in the criminal justice system and on the known person databank. It also impacts on collective privacy. We explore whether its use may, nevertheless, be justified in limited circumstances.

Police policy is to only use familial searching as a last resort to investigate serious offences. Since 2004, 101 familial searches have occurred in 60 cases. Like forensic DNA phenotyping, familial searching is an investigative tool that raises concerns about human rights, Treaty rights, privacy and tikanga, and its use is potentially controversial. Therefore we consider that it would be best for Parliament to decide whether to prohibit or permit familial searching.

Different countries take different approaches. The UK and Australia have a similar approach to New Zealand. Familial searching is prohibited in Canada. 

8. How long Police retain DNA profiles 

The rules governing the retention periods are very complex. However, the majority of DNA profiles are retained indefinitely. Given that DNA profiles contain information about identifiable people, it is important that there is transparency around destruction and security of retention of DNA profiles. Indefinite retention raises questions around the consistency of the DNA regime with the clean slate law which aims to limit the effect of an individual’s historical convictions. It also raises questions around consistency with the youth justice principles, which focus on rehabilitation and reintegration.

There are different rules relating to the retention of DNA profiles from young people, including shorter retention periods in some cases. However, the 2009 changes to the CIBS Act resulted in the DNA profiles of more young people being retained, even in situations where the Youth Court has discharged charges against them. This seems at odds with the rehabilitative focus of the youth justice regime. It is also important to consider how to address the disproportionate impact that the DNA regime has on Māori children and young people. Of the profiles held on the known person databank that are from children and young persons, approximately 67 per cent are from Māori children and young persons. This is inconsistent the Youth Crime Action Plan that Police and other agencies are responsible for delivering. Two of the three key strategies are to reduce escalation and provide early and sustainable exits from the criminal justice system for young persons. A particular focus of the Plan is on rangatahi Māori who have come to the attention of Police.

We suggest an independent oversight body could be given the task of overseeing the retention of profiles on case files and on the Crime Sample Databank and known person databank. This would provide reassurance to the public, as well as upholding the information privacy principles and the principles of rangatiratanga, equity and partnership under the Treaty of Waitangi. 

9. Oversight of the Police DNA databank system 

These are the two main proposals for reform in this issues paper:

(a) The CIBS Act should be repealed and replaced with more comprehensive legislation. 

(b) A public agency that is independent of Police and ESR should be given oversight functions in relation to the use of DNA in criminal investigations. Māori should have a central role in oversight. Oversight functions could be an extension of an existing agency’s role (such as the Privacy Commissioner), or a new agency could be created (such as a multi-disciplinary oversight committee, an advisory ethics group and/or a specialist Commissioner).

Many countries have established independent bodies to oversee the operation of DNA profile databanks and the use of DNA in criminal investigations more generally. This provides a measure of public accountability and transparency, whilst also enabling legislation to be flexible enough to accommodate continuing scientific change. In the issues paper, we look at the oversight framework in comparable jurisdictions, and emphasise that an important feature of any oversight regime in New Zealand will need to be providing a central role for Māori. That is because Māori are currently overrepresented in the criminal justice system and are more likely to be adversely affected by use of discretionary powers, forensic DNA phenotyping, familial searching, research utilising the Crime Sample databank and known person databank and retention of DNA samples and DNA profiles. In those circumstances, the Treaty principles of active protection, equity, rangatiratanga and partnership indicate that Māori should have an active role in all governance decisions. 

10. Use of DNA profiles collected by Police for other purposes, such as for research 

The CIBS Act does not prohibit the disclosure of information on the known person databank (or the Crime Sample Databank) in anonymised form. Neither does the Privacy Act 1993. This raises a number of issues:

(a) Can DNA profiles really be “anonymised”? 

(b) What is the impact of the crime science and Māori data sovereignty movements on potential uses of this DNA information? 

(c) How can research avoid the risks of inadvertently exacerbating racial stereotypes? 

(d) How can regulation ensure Māori participation in decision-making concerning Māori data?

Police policy currently requires any application to use the known person databank for research purposes to be approved or reviewed by an ethics committee, preferably a New Zealand committee. Our understanding is that Te Ara Tika – Guidelines for Māori Research Ethics, which provides a framework for addressing Māori ethical issues within the context of decision-making by ethics committees, is widely used by New Zealand committees. However, Police external research policy does not apply to Police internal research and, because of the way the external policy is worded, it is not immediately apparent whether it would apply to agencies working in collaboration with Police, such as ESR, the Evidence Based Policing Centre or the New Zealand Institute of Crime Science. This highlights the need to ensure that Māori have a central role in decision-making about use of the DNA profile databanks.

Digital Assets

Another piece on postmortem dealing with digital assets. 'The ‘New’ New Property: Dealing with Digital Assets on Death' by Heather Conway and Sheena Grattan in Conway and Hickey (eds), Modern Studies in Property Law (Hart, 2017) 99-115 comments 

Over the years, the law of succession has not been immune to the challenges posed by changing circumstances, whether social, economic or familial. In 1981, Professor Mary Ann Glendon published The New Family and the New Property, chronicling, inter alia, the move away from traditional property and family forms. Three years later, Professor John Langbein’s seminal article entitled ‘The Nonprobate Revolution and the Future of the Law of Succession’ highlighted the challenges posed to traditional succession law rules by alternative wealth forms such as insurance and life policies, joint assets, and pensions. More than three decades later, succession law continues to grapple with both changing family structures and the issues posed by so-called ‘will-substitutes’. However, it now faces another ‘New Property Probate Revolution’: the legal challenges generated by the so-called ‘digital footprint’ that virtually every citizen (old and young) leaves behind on death. 

As the time of writing, the latest available statistics suggest that almost 3.5 billion people worldwide (around 46% of the global population) are internet users. With the advent of the digital age, we spend increasing amounts of our time in the virtual world - creating not only an online personna, but leaving a trail of digital  assets in our wake. But what actually happens to digital assets when someone dies? This basic question raises a host of legal issues around ownership, privacy, access to usernames and passwords, and the duties of personal representatives when adminstering estates, which do not fit neatly within traditional succession law and property law concepts. The location of digital assets also leads to complex multi-jurisdictional legal issues, yet there is currently no ‘joined-up’ international law on the subject. 

This paper looks briefly at digital assets and how they are defined, before examining the challenges posed by this (apparently) new form of property from an estate planning perspective. Arguing that English succession law has so far failed to address these issues, the paper draws on the approach taken in the United States under the Uniform Fiduciary Access to Digital Assets Act and signposts some of the potential issues which any concerted attempt at law reform will have to embrace. ...  

 A major difficulty in this area is one of nomenclature: defining ‘digital assets’ is not straightforward,8 and there is no current definition in English law. Even outside the legal context, standard definitions are equally hard to find; what we have instead are collective descriptors of what typically falls within the realm of digital assets. 

Obvious examples include things like emails and email accounts, blogs, social media profiles and accounts (Facebook, Twitter, MySpace and LinkedIn), digital music collections (downloaded from iTunes or similar stores), repositories of digital photographs and videos (beyond those which have been uploaded onto social media sites), and online bank accounts and other financial investments. Online billing arrangements, subscriptions to magazines and gyms, Amazon accounts and Ebay seller profiles, as well as other registered shopping sites and loyalty schemes are also digital assets, as are business information lists (for example, client details and purchasing profiles) and domain names which an individual may have registered. In effect, any files stored or generated on digital devices are treated in this way. Several problems are immediately apparent. First, there is the seemingly endless list of things that can constitute a digital asset. Secondly, the value attached to specific types of digital assets will differ immensely; some (for example, bank accounts, financial investments, and domain names) will have an obvious monetary worth, while others (such as photographs, emails and social media profiles) have a purely emotional or sentimental value to the deceased’s surviving relatives. Thirdly, there is the issue of how to categorise digital assets, and the implications that this has. These problems all come to the fore in the succession law context, and are discussed at various stages throughout the following sections.