Meds and Media

The TGA has announced that SGC Products Pty Ltd has been fined $63,000 for alleged unlawful advertising on its "Dr. Ageless" website in relation to COVID-19. SGA was issued with five infringement notices, including unlawfully advertisement on the site that Thymosin Alpha-1 and Thymosin Beta-4 peptides are a "breakthrough preventative treatment for coronavirus (COVID-19)". 

 The TGA states that it has not registered any products as a preventative treatment for COVID-19 infection. "We allege an advertisement that claims a particular medicine can prevent COVID-19 could put lives at risk and is likely to be illegal". 

The TGA alleges that the site advertised the products as being effective against "cancerous cells", contrary to prohibition under the Therapeutic Goods Act 1989 (Cth) of representations relating to the treatment, cure, prevention, diagnosis, monitoring or susceptibility to cancer.

SGC's sole director gained national attention with the Essendon Football Club doping scandal.

The triviality of the penalty signals the need to ramp up deterrence in the 'anti-aging' and 'wellness' space.

A breathless June 2013 piece in the Melbourne Herald Sun stated 

A man who walks the talk, the 45-year-old has been on "the gear" all his adult life. If he's pushing steroids, he's using them. If he's promoting peptides, he's injecting them himself. If he's treating sportsmen with platelet-rich plasma, he's tried it on his own dodgy knees. While researching a paper on steroid detection in rats for his university biochemistry degree, Charter used some of the steroids on the animals and kept the rest for himself. Research and development, an enterprise that allows scientists to legitimately import a range of chemicals into Australia with a permit, remains part of the work Charter does at his Melbourne anti-ageing clinic, Dr Ageless. Dr Ageless began his professional life as a pharmaceutical salesman for global medical research giant AstraZeneca, building his own business as a personal trainer on the side in the late 1990s.

 

On meeting Charter, it's easy to understand how he was able to ingratiate himself with the big end of town. With a gentle voice that belies his imposing physique, he presents himself as a man who knows his science. An expert, a businessman, a professional. Everything is milligrams, hormones, fragments, molecules, volumes, kilograms, hydration, fat, composition, muscle and more.

 

He documents his correspondence with the diligence of a librarian and watches his bank balance like an accountant. His multi-million-dollar vineyard home in Sunbury, on Melbourne's outskirts, features a fully equipped gym, the walls of which are plastered with anatomical drawings and charts. Biology textbooks are piled high on his office desk and pictures of famous sports stars he has worked with line the walls. Less visible, however, is evidence of his criminal clients.

 

Charter's first and only brush with the law came in 2004 during Operation Macer, a joint investigation by Victoria Police's major drug investigation division and Customs. Before that, he had never been on the law enforcement radar. So it was no surprise when he turned Crown witness in the drug prosecution that saw a number of figures jailed over a large-scale steroid and pseudoephedrine trafficking operation.

 

County Court judge John Smallwood noted Charter had been a genuine witness and seemed confused about why he would throw away a successful career by turning to crime.

 

"You clearly were very good at what you did and gave advice to high-powered people and organisations," sentencing judge Smallwood said. "Why you commenced this offending is beyond me." ...

 

Charter alleges that he sourced a range of substances for sacked sports scientist Stephen Dank while Dank worked for Essendon. He has supplied ASADA with a list of peptides and hormones he claims Dank had requested. Of the substances Dank allegedly requested, Charter has records that indicate he supplied him with growth hormone six, CJC-1295, Melatonan II, Thymosin beat 4 and mechano growth factor.

 

Separately, he recalls that Dank had also asked him for advice about using what is known as a Myers Cocktail. Popular among bodybuilders, it is a 45-minute intravenous infusion of various vitamins and minerals. And at about $800 per drip, it's not cheap. Charter says he ordered the required equipment, but Dank never collected it.

In 2015  The Age reported

The self-styled biochemist known as "Dr Ageless", Shane Charter, appears to have shrugged off the Essendon supplements scandal and is pursuing a new business venture - chasing more than $11 million hidden in offshore tax havens by conman Peter Foster.

 

Mr Charter has been negotiating for several months on behalf of Mr Foster and business partner Peter Nolan in a bid to stop legal proceedings by more than 150 investors in the failed online gambling company, Sports Trading Club.

 

Emails seen by Fairfax Media reveal that Mr Charter and Melbourne solicitor Mario Merlo offered to pay more than $7 million to a syndicate of disgruntled investors if they agreed to drop civil and criminal proceedings against Mr Foster over allegations of fraud and money laundering.

 

But the syndicate rebuffed the offer and lodged a writ in the Supreme Court of NSW alleging Mr Foster and 10 associates engaged in "misleading and deceptive conduct" and helped siphon more than $11 million to Hong Kong, Vanuatu and the Cayman Islands.

Information, Registries and Property

'Of Property and Information' by Abraham Bell and Gideon Parchomovsky in (2016) 116(1) Columbia Law Review237-286 comments

The property-information interface is perhaps the most crucial and undertheorized dimension of property law. Information about property can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Conversely, a dearth of information can significantly reduce the benefits associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage in sustained analysis of the property-information interface and, in particular, of registries - the repositories of information about property. 

 

Once, things were different. In the past, discussions of registries used to be a core topic in property classes and a focal point for property scholarship. In recent decades, registries have lost their luster for scholars, and their discussion has been relegated to the innermost pages of property textbooks. The reason for this is that registries are widely considered the domain of legal practitioners, not of theorists. 

 

This Essay argues that nothing could be further from the truth. Registries and the information they contain are, in fact, the formative forces that shape the world of property and no theoretical account of the institution of property can be complete without them. In this Essay, we offer the first in-depth legal-theoretical analysis of the intricate relationship among title information, rights, and assets in the domain of property, as mediated by registries. 

 

Our analysis gives rise to several new insights. First, we highlight the triple role that registries perform for property owners. They simultaneously perform a facilitative role by strea,mlining transactions between willing sellers and buyers, an obstructive role by hindering nonconsensual encroachments and takings of assets, and an enabling role by allowing owners to locate and use their own lost assets. Second, going against the accepted lore, we posit that perfect registries, even if they were possible, are socially undesirable on account of what we call "the information-asset paradox." Perfect information about assets and legal rights may result in the destruction, dismembering, and mutilation of the asset by nonconsensual takers in an attempt to make the asset unrecognizable, as exemplified by millions of stolen cars and jewelry, or, conversely, in attempts of "identity theft" that confer thieves with the benefit of the registered rights. Third, we argue that the registries are socially desirable when it is impossible or difficult to alter the defining characteristic of the underlying asset. This insight explains why there are registries for nontransformable assets, such as land and unique artworks, but not for transformable assets that include mass production goods and many natural resources. Finally, we address the question of which rights should be covered by registries and how much legal deference should be given to them. 

 

The framework we provide is significant not only for theoretical reasons but also for practical ones. For example, it can inform policymakers in deciding whether to establish new registries for smartphones and personal computers in order to combat theft of such devices. Similarly, our analysis sounds a cautionary note about the ability of registries of copyrighted works to curb unlawful appropriation and distribution. Per our analysis, such assets are infinitely malleable and, worse yet, information concerning ownership in such works can be easily effaced or altered in the digital age. We also discuss how considerations of costs and privacy affect the comprehensiveness and integrity of registries. At the end of the day, our analysis exposes the promise and the limitations of registries, as well as the ways in which they can be improved by the state.

The authors argue

 

Very few concepts affect our property system as profoundly as information about property rights.1 In this Essay, we argue that extant theorizing on the property-information interface, while illuminating and important, misses essential aspects of the intricate and dynamic relationship between property and information. The Essay seeks to address this omission and offer a deeper understanding of how information shapes rights and assets in the property domain.

 

To date, legal scholarship on the property-information interface has primarily focused on three questions. First, most theorists who have investigated the interface between information and property rights have focused their attention on property rights in information itself. This is best evidenced by the vast and ever-growing literature on intellectual property (IP) law. Secondarily, in the context of standard property law, scholars-most notably Thomas Merrill and Henry Smith, as well as Clarisa Long - have examined how the internal design of property doctrines and principles convey information to the public at large. Finally, and relatedly, some scholars have concentrated on the way various doctrines, such as those related to adverse possession, encourage or demand that claimants reveal information.

 

None of these bodies of literature address the special role of information about title in property. In this Essay, we analyze the value of this information and the means of efficiently producing and disseminating it. Our analysis is based on the simple idea that the value of title to property rights vitally depends on the degree to which it is known by people in the world, including the property owner.

 

Knowledge about title to property rights is crucial to enjoying their value. If one "owned" an asset, but nobody knew about the ownership, its value would be deeply compromised. Buyers would not readily appear, as they would not have any information to confirm the title of the seller. Third parties might use the asset and even destroy it, believing in good faith that it belonged to no one. Owners would sharply constrain uses of their asset in order to avoid actions that might be interpreted as compromising their title, and they would expend greater resources on protecting their ownership. An owner without knowledge of title would fail to exploit the value of the asset. In short, the value of property rights is directly affected by the quality of information about title to those rights.

 

The world of property provides many examples of the value of information about property title. Consider, for instance, the sad case of insurance monies and bank assets belonging to victims of the Holocaust. While the Nazis looted much of the property of their victims, many assets, such as bank accounts in Switzerland, remained out of Nazi Germany's reach. By murdering the owners of the accounts together with most of their families, the Nazis left the assets - worth hundreds of billions of dollars - in the hands of Swiss banks, while the true owners of the assets (the heirs of those murdered by the Nazis) had no knowledge of their property rights. Knowledge of title to the assets in this case was worth hundreds of billions of dollars. A more prosaic set of examples can be found in the television program "Heir Hunters," broadcast by the British network BBC, focusing on probate detectives and their attempts to locate owners who are unaware that they have inherited assets and money.

 

Just as the lack of good title information about property can hinder owners' use and enjoyment, the opposite is also true: Full information about ownership in assets can help increase value for owners by discouraging nonconsensual takings of the assets. Indeed, this is the reason for the rise of registries for rights in movable goods, such as cars and boats. To give a recent example, many universities have established title registries in bicycles to battle the epidemic of bicycle theft on campuses. This policy is predicated on the belief that information about assets creates as important a deterrent against theft as locks, chains, and security cameras.

 

This Essay constitutes the first attempt to illuminate the symbiotic relationships between information and property. It seeks to make three contributions to our understanding of how information and property interact, each of which targets a separate dimension of the interplay between the two. First, we analyze the "obstructive" and "enabling" functions of information about title to property. Extant theorizing has focused primarily on what we call the "facilitating function" of information about property. The facilitating function refers to the role of information in streamlining consensual transactions between rights holders and legitimate purchasers by lowering transaction costs. Following observations first made by Steven Shavell, we demonstrate that information about property rights performs several key functions (and not one as was previously emphasized) in our property system: a facilitating function, an obstructive function, and an enabling function. The obstructive function refers to the ability of information to block, or at least hinder, nonconsensual appropriations of property by illicit parties, such as thieves and defrauders. The enabling function, by contrast, refers to the way title information in the hands of the owners is necessary for them to enjoy the benefits of property ownership. Interestingly, we show that the three functions can be contradictory or complementary, depending on the informational environment.

 

Second and equally importantly, we unveil the potential tension between title information and the safety of an asset, which we dub "the information-asset paradox." At first blush, it seems clear that society would be best off with an informational regime that offers perfect information about title to property rights in assets. Upon closer examination it becomes clear that is not the case. As we show, in a world with perfect information about rights to assets, nonconsensual takers would resort to altering physically or even destroying others' assets. Such activities may include disassembling automobiles, machinery, and electronic goods, and transforming jewelry into scrap metals. Alternatively, where property information is collected in a particular location as part of a centralized registry, but the information is vulnerable, nonconsensual takers may attempt to take control of the information and thereby make it easier for the property to fall into unsavory hands. The crime of "identity theft" is based on just such a practice. By appropriating the owner's "identity," the thief is able to take possession of all the assets registered in the owner's name.

 

All such activities are value reducing not only for the owner but also for society as a whole. Counterintuitively, society is often better off when the encroacher misappropriates the owner's asset instead of destroying it. Perfect information about assets will, therefore, not always be in society's best interest.

 

Third, we highlight the dynamic nature of property and information about property. Assets, property rights, and title information can be changed, and there are three different categories of actors who can bring about these changes. Property owners (and their potential consensual transferees), nonconsensual takers, and the government all constantly struggle over the information-asset interplay. Each group's actions can dramatically affect the informational environment that surrounds property rights. Adopting a dynamic perspective, we identify the previously hidden strategies that animate actions in the world of property in response to the informational background. Specifically, we show that when information about ownership may be easily manipulated, registries produce little value for owners. This can best be seen in the copyright realm. In the digital world, information about rights may be easily effaced, altered, and manipulated. As a result, copyright owners face a near impossible task controlling their intellectual assets online.

 

Just as importantly, we show that the incentives of the actors are not uniform; they may change over time. To point to just one outstanding example, consider the incentives of an owner who finds herself in debt and possibly subject to enforcement actions by creditors.13 Whereas the owner might earlier have sought good title information in order to protect her ownership interests in assets, the owner might now seek to hide assets from creditors and might therefore seek to obscure or destroy title information. As owners move closer to insolvency, or as they are more likely to lose their assets to creditors, their incentives move closer to those of nonconsensual takers, while creditors' incentives move closer to those of solvent owners. An important policy implication of our analysis that departs from prior theorizing is that, despite the high value of registries, for many categories of assets, it does not make sense to establish registries. We demonstrate that the key to the successful operation of registries lies not in the information per se, but rather in the fit between the information and the asset as it exists in the real world. In general, registries are most valuable when there is confidence that the asset as it exists in the real world will continue to match the description in the registry. This is because assets may be physically vulnerable even when ownership information is protected in registries. The easier it is to undermine the fit between asset and information by changing the information or the asset, the less valuable the registry will be. For example, when it is possible to reconfigure the asset without significant loss in value, as in the case with mass-produced jewelry, a title registry will be of only limited value to owners.

 

Additionally, it will rarely be socially desirable to make the information in registries comprehensive. This is because the value of accurate information in facilitating transactions and obstructing involuntary takings must be balanced against the costs of obtaining and maintaining accurate information. The state must also act cautiously before investing registries with the final say in establishing title. Where the information in registries establishes ownership despite any potential flaws in the title, the registries potentially make it easier for involuntary takers to "launder" their takings.

 

Structurally, the Essay proceeds in three parts. In Part I, we explore extant theorizing of the property-information interface. In Part II, we offer our account of the relationship between property and information by engaging in a dynamic analysis of the two institutions that pays heed to the intricate subtleties generated by the interplay between them. In Part III, we discuss the informational policies lawmakers should adopt in order to improve the workings of our property system. A short conclusion ensues.

Genealogy Data Breaches

In March this year Julia Creet commented 

Surprising news recently emerged from the personal genetics business. The two leading direct-to-consumer companies in North America, 23andMe and Ancestry.com, announced within a week of each other that they were laying off a significant proportion of their workforce as a result of a steep drop in sales. This past Christmas, the sales of testing kits were expected to take a sharp hike — nothing says family like a gift that says prove it. But sales plummeted instead.

 

According to Second Measure, a company that analyzes website sales, 23andMe's business plummeted 54 per cent and Ancestry kits sales declined 38 per cent.

 

Industry executives, market watchers and genealogists have all speculated about the causes of the drop in consumer interest. Market saturation? Early adopters tapped out? Limited usefulness? Recession fears? Whatever the theory, everyone seems to agree on one factor: privacy concerns.

 

For observers like me, who have been watching the trends in the industry of family history for years and have repeatedly raised concerns about genetic and family privacy, there's a certain relief that consumers have taken notice.

 

Two third-party uses of genetic genealogy have given consumers pause for thought.

 

One: Almost every database shares information with the pharmaceutical industry. 23andMe was clear from the beginning that its health information would be used by its research partners and asked consumers to consent. But when it started to sign major deals with drug developers in 2015, consumers began to realize that, once again, similar to social sharing platforms, they were the product. A fact not so surprising from a company whose initial investors were from Google and Facebook.

 

Still, as long as testing prices were low and continued to fall, consumers bought the sell. Companies promised consumers they were contributing to a greater good. Medical science could use their genetic information to develop treatments, even if they might never need the drugs (or indeed if any drugs would ever be developed).

 

So even though the companies were profiting from their information, the number of people sending in their spit grew exponentially. Business was going well. Then a second third-party use was revealed and sales started tumbling. ...

 

Shortly after California detectives announced they had used GEDmatch, a public genetic genealogy database, to solve the cold case of a sadistic rapist and killer known as the Golden State Killer, the exponential rate of growth in the industry began to decline. That 2018 case set off a wave of privacy concerns about genetic genealogy and divided people who had already submitted their samples.

 

Almost overnight, a new industry was hatched using genetic genealogy databases to solve cold cases. GEDmatch, the company at the centre of the debate, was caught in the middle.

 

The GEDmatch founders, a couple of genealogists who just wanted to provide a place for genealogists to share DNA results without the privacy restrictions of the testing companies, eventually sold the company after attempting and failing to align its privacy policy with something viable for consumers and the company.

 

Sealing the marriage of genetic genealogy with policing, GEDmatch sold its database to Verogen, a forensics equipment company that services law enforcement. Ironically, Verogen promised it would offer better privacy protections and resist police incursions.

I waited for the excitement and for more fodder for my book on genomic privacy. It wasn't a long wait. 

The NY Times now reports that there have been two substantial databreaches at Verogen's GEDMatch. The Times piece by Heather Murphy notes that nearly two-thirds of GEDmatch’s users opt out of helping law enforcement. Data breaches have resulted in them being gifted with numerous 'relatives' and a million or so users who had opted not to help law enforcement had been forced to opt in. The piece states 

GEDmatch, a longstanding family history site containing around 1.4 million people’s genetic information, had experienced a data breach. The peculiar matches were not new uploads but rather the result of two back-to-back hacks, which overrode existing user settings, according to Brett Williams, the chief executive of Verogen, a forensic company that has owned GEDmatch since December. 

 

Though the growth of genealogy sites has slowed slightly in recent years, their use by the police has increased. After the authorities in California used GEDmatch in 2018 to identify a suspect in the decades-long Golden State Killer case, police departments across the country began to dig through their cold case files in the hopes that this new technique could solve old crimes.

 

And GEDmatch was often their preferred site. Unlike the genealogy services Ancestry and 23andMe, which are marketed to people who are new to using DNA to learn about themselves, GEDmatch caters to more advanced researchers. The site appeals to the police because it allows DNA that has been processed elsewhere to be uploaded. Verogen has a long history of working with law enforcement, and the acquisition of GEDmatch further solidified this collaboration.

 

Scientists and genealogists say the GEDmatch breach — which exposed more than a million additional profiles to law enforcement officials — offers an important window into what can go wrong when those responsible for storing genetic information fail to take necessary precautions.

 

In an interview, Mr. Williams said that the first breach occurred early on July 19. After shutting down the site, his team “covered up the vulnerability,” he said, and brought it back online, but only briefly. “On Monday we took the site down again because it was clear the hackers were trying again,” he said.  This time the site remained down for nearly a week. ...

 

Mr. Williams said he had hired an outside security team and contacted the F.B.I. to see if the agency would investigate. The F.B.I. did not respond to a request for comment.

 

All was far from resolved when the site’s settings were restored, said Debbie Kennett, a genealogist in England, who wrote about the breach on her blog. We’re stuck with our DNA for life, she said. “Once it’s out there it’s not like an email address you can change,” she said in an interview. Because of its interconnected nature, she added, when any one person’s genetic information is exposed, the exposed DNA can potentially affect their family members too.

 

That's a point I've made in several publications with Dr Wendy Bonython.

The Times states 

 In a paper published last year, Michael Edge, a professor of biological sciences at the University of Southern California, and fellow researchers warned several genealogy websites that they were vulnerable to data breaches.

 

“Of course, hacks happen to lots of companies, even entities that take security very seriously,” he said. “At the same time, GEDmatch’s, and eventually Verogen’s, response to our paper didn’t inspire much confidence that they were taking it seriously.” Other genealogy websites, he added, seemed more open to the researchers’ recommendations for improving security.

 

For many, the presence of fake users in GEDmatch was as alarming as the breach itself. Genealogists know that they cannot trust names or emails. They also know that a user can easily upload someone else’s genetic profile. But the breach exposed that behind the scenes, hidden by privacy settings, were all kinds of profiles of people who were not even real.

 

 

The giveaway that the matches were not actual relatives was that their DNA was too good to be true, said Leah Larkin, a biologist who runs DNA Geek, a genealogical research company. People who managed profiles for many clients and relatives repeatedly found that these fake users somehow were displayed as close relatives across the unrelated profiles. Their visible ancestry information reinforced the matches were impossible and suggested the fake profiles had been designed to trick the site’s search algorithm for some reason.

 

In Dr. Edge’s paper, he warned that it was possible to create fake profiles to identify people with genetic variants associated with Alzheimer’s and other diseases.

 

“If something is just a geeky genealogist messing around, there is no concern,” Dr. Larkin said. But it becomes a problem, she said, if users are trying to find people who all share a particular genetic mutation or trait, as Dr. Edge cautioned. Such information could be abused by insurance companies, pharmaceutical companies or others, she said.

 

The breach also reinforced something that genealogists have been saying for years: Mixing genealogy and law enforcement is messy, even when you try to draw clear lines. Until two years ago, the primary DNA databases that law enforcement used for investigations were maintained by the F.B.I. and the police. That changed with the Golden State Killer case in 2018.

 

As police departments rushed to reinvestigate cold cases, GEDmatch, which at the time was run by two family history hobbyists as a sort of passion project, tried to serve two audiences: genealogists who simply wanted to trace their family tree and law enforcement officials who wanted to know if a murder or a rapist was hiding in one of its branches. Amid a backlash, GEDmatch changed its policy in May 2019 so that only users who explicitly opted to help law enforcement would show up in police searches. Still, there is little regulation around how the authorities can use GEDmatch and other genealogy databases, so it’s largely up to the companies and their users to police themselves.

 

And as the breach demonstrated, users’ wishes could be quickly overridden.

Historiography

'Constitutional Historiography' (University of Melbourne Legal Studies Research Paper No. 896) by William Partlett comments 

 

This paper will argue that the insights of professional historians can and should be used to better understand the use of history in constitutional argument. Historiography—the methodology of professional historians—demonstrates that history is frequently used selectively to advance a favored outcome. Judges and constitutional scholars should therefore be highly critical of claims that history provides objective answers to constitutional questions. At the same time, historiography shows that non-selective accounts of history can and should play an important role in finding answers to contemporary constitutional questions. In this role, history is under-determined and best used to support or shed new light on a constitutional argument. Historiography therefore demonstrates not just the perils of historical argument but also its possibilities for constitutional argument.

Big Data Ontologies

'Big Data, urban governance, and the ontological politics of hyperindividualism' by Robert W Lake in (2017) Big Data and Society comments 

Big Data’s calculative ontology relies on and reproduces a form of hyperindividualism in which the ontological unit of analysis is the discrete data point, the meaning and identity of which inheres in itself, preceding, separate, and independent from its context or relation to any other data point. The practice of Big Data governed by an ontology of hyperindividualism is also constitutive of that ontology, naturalizing and diffusing it through practices of governance and, from there, throughout myriad dimensions of everyday life. In this paper, I explicate Big Data’s ontology of hyperindividualism by contrasting it to a coconstitutive ontology that prioritizes relationality, context, and interdependence. I then situate the ontology of hyperindividualism in its genealogical context, drawing from Patrick Joyce’s history of liberalism and John Dewey’s pragmatist account of individualism, liberalism, and social action. True to its genealogical provenance, Big Data’s ontological politics of hyperindividualism reduces governance to the management of atomistic behavior, undermines the contribution of urban complexity as a resource for governance, erodes the potential for urban democracy, and eviscerates the possibility of collective resistance. 

 

Lake argues 

Data politics dominated newspaper headlines in New York City at the end of 2015. Controversy erupted when a former Police Commissioner charged that the city’s method of collecting crime data underreported actual events. He cited as an example the NYPD’s practice of recording a “shooting” only if a bullet wounds a victim. According to the New York Times account:

 

a shooting … is recorded only if someone is hit …. If a bullet tears a person’s clothing but does not wound the victim, the episode is not included in the Police Department’s official tally of shootings … Gunfire at a car in which the occupants are wounded by shattered glass but not by a bullet is not recorded as a shooting. (Goodman, 2015)

 

As the official in charge of the police department’s CompStat (Computer Statistics) program explained: “‘We need the bullet to cause the injury … and we need blood’” (Goodman, 2015). A follow-up article a few weeks later reported that “the number of murders recorded by the (police) department is almost always lower than those counted as homicides by the city’s medical examiner” (Goodman, 2016). The Police Commissioner defended such practices, saying that “I stand by my crime statistics because they are factual, they are the truth,” while a civil liberties advocate countered that “the controversy highlights just how soft and subjective police statistics can be” (Goodman, 2015).

 

Meanwhile, some 100 miles to the south, in the economically devastated city of Camden, New Jersey, police officials reported a large-scale expansion of that city’s “ShotSpotter” automated gunfire detection system (Adomaitis, 2015). ShotSpotter is described by its corporate provider as “an acoustic surveillance technology that incorporates audio sensors to detect, locate and alert police agencies of gunfire incidents in real time …. The alerts include … the precise time and location (latitude and longitude) represented on a map and other situational intelligence” (ShotSpotter Fact Sheet, 2016). The expanded ShotSpotter system in Camden was part of a larger strategy of augmented video surveillance and data collection designed to reassert the appearance of police control in a city that routinely tops national rankings in the incidence of violent crimes (NeighborhoodScout, 2016).

 

What counts as a “gunshot” in Camden, in many cases, would not register as a “shooting” in New York City. Whereas New York construes a “shooting” in the narrowest possible terms requiring the presence of a shooter, a bullet, and a victim’s blood, Camden’s citywide acoustic surveillance system automatically records every “digital alert” of an “actual gun discharge” as a “gunshot crime in progress” pinpointed in time and space (ShotSpotter Fact Sheet, 2016). These differences between New York City and Camden cannot be separated from their political context. The outcome of mayoral elections in New York City, as well as the city’s attractiveness for residents, tourists, and investors, depends on the public perception of safety and security, exerting downward pressure, in turn, on the practice of collecting and documenting crime statistics. The NYPD’s CompStat program tracks weekly crime data by precinct as a tool for managing organizational personnel and resources but it is equally a tool for managing public opinion (Eterno and Silverman, 2010). In a similar manner but conveying a different message, Camden’s expanded ShotSpotter detection system deploying sensors and monitors in every neighborhood also influences political opinion by establishing a visible police presence throughout the city.

 

A related controversy over categories, exclusions, and measurement erupted over data on New York City’s homeless population at a time when visible homelessness, like crime, had become a political liability for the city’s mayor. The annual homelessness count reported by the U.S. Department of Housing and Urban Development (HUD) in late 2015 found 75,323 homeless individuals in New York City but that number was quickly challenged by advocates for the homeless and HUD acknowledged uncertainty in the “reliability and consistency” of the data (Stewart, 2015a; U.S. Department of Housing and Urban Development, 2015). The ambiguities in the data were manifold. Individuals and families who became homeless through eviction, fire, landlord harassment or other reasons, and were living doubled-up with friends or relatives were not considered homeless by HUD’s definition and were excluded from the count and HUD’s report listed as zero the number of chronically homeless families in New York City not in homeless shelters. Although the city’s Human Resources Administration (HRA) funds 45 emergency and transitional shelters for women and their children forced to flee their homes due to domestic violence, HUD also reported as zero the number of homeless domestic violence (DV) victims in shelters because the DV shelters operated by HRA were considered separate from the homeless shelters operated by the Department of Homeless Services (New York City Department of Homeless Services, 2016). Simultaneously, the Mayor’s Office announced an “unprecedented expansion” in the number of shelter beds for homeless victims of domestic violence to accommodate “a 50 percent increase over the current 8,800 individuals served yearly” (New York City Office of the Mayor, 2015; Stewart, 2015b). Further confounding HUD’s data, HUD’s count of 1706 homeless youth almost certainly underestimated a significant subgroup of the homeless who, advocates said, might exceed 10,000 (Gibson, 2011) but “avoid public places where they could be counted for fear of referral to Child Protective Services and … avoid shelters out of safety concerns” (Navarro, 2015; Stewart, 2015a, 2016).

 

The selective practices of categorization and measurement illustrated in these examples might easily be dismissed as the intrusion of political agendas in the otherwise objective and politically neutral construction of data as, in the words of the NYPD Commissioner, “factual” and “the truth.” If this were the case, a solution might lie in the rationalization and depoliticization of methods of data collection, categorization, and analysis, bringing actual practices into closer alignment with normative claims. The ubiquity of Big Data as a technique of governance, biopolitics, and bureaucratic control, however, has expanded the scope of the problem and amplified the challenge of delineating solutions. My argument in this paper is that the challenge of (and to) Big Data is not confined only to the politicization of its practices but rather is situated in its foundational ontological premises, involving the evisceration of context through an ontology of hyperindividualism. An ontology of atomistic individualism underlies the construction of calculative data in general (Hacking, 1990, 1991, 2006) but the arrival of Big Data, involving the algorithmic production, manipulation, and application of very large datasets, has exacerbated and expanded the scope of the problem by obscuring from critical scrutiny its foundational hyperindividualist ontology.

 

This paper aims at a partial corrective by examining Big Data’s underlying calculative ontology. By ontology I mean “a set of contentions about the fundamental character of human being and the world” (Bennett, 2001: 160) or simply “a theory of objects and their ties” (Theory and History of Ontology, 2016). Specifying Big Data’s “ontological imaginary” (Bennett, 2001: 161) answers the question starkly posed by Wagner-Pacifici et al. (2015: 5) who ask, with respect to Big Data: “Just what is our basic ‘ontological unit?’” or, even more plainly, “What is a thing?” (see also Beauregard, 2015, 2016). Big Data’s “onto-story” (Bennett, 2001: 161) can be briefly summarized in the premise that the world is knowable via calculation and measurement and can be represented as the aggregation of discrete, independent, empirically observable units. These units are the “data points” representing, to list only a few examples, gunshots, homeless people, sociodemographic characteristics, credit card swipes, Internet searches, or geo-tagged locational coordinates captured from smartphones (Goldstein, 2016; Kitchin, 2013, 2014; Wagner-Pacifici et al., 2015; Weber, 1946). This calculative ontology both relies on and reproduces a form of atomistic individualism in which the ontological unit of analysis is the discrete data point, the meaning and identity of which inheres in itself, preceding, separate, and independent from its context or its relation to any other data point.

 

By the hyperindividualism of Big Data, I refer to the practice of disaggregation and reaggregation that proceeds through a multistep process of interconnected and interdependent constructions of the world. Big Data’s ontological imaginary involves (1) the division and disaggregation of data fields (“variables”) into ever-smaller units measured at ever finer-grained levels of resolution, (2) the practice of counting each individual observation as an autonomous unit—a thing-in-itself—extracted from and independent of its context, and (3) the reaggregation and recontextualization of the resultant data “bits” through the automated algorithmic search for statistical patterns and correlations hidden within the dataset. While an ontology of atomistic individualism underlies calculative practices in general, the diffusion of Big Data both relies on and produces a form of hyperindividualism of an unprecedented scope and scale. The hyperindividualization of Big Data results, first, from the hyperdisaggregation of data fields in what Kitchin (2014: 2) describes as the production of “massive, dynamic flows of diverse, fine-grained, relational data” recording and counting, for example, Internet transactions, selected words within social media posts, demographic “variables,” real-time spatiotemporal registers, and so on, where the identity or meaning of each data point is self-evidently and inherently given as a thing-in-itself divorced from its context. That hyperindividualization permits, second, the reaggregation and intercorrelation of data observations to construct new observations and “facts,” the meaning of which is based on, imposed by, and imputed from the discursive categorical labels in the data table rather than from the meaning residing in the lived experience of the original units of observation.

 

Consideration of Big Data’s ontology of hyperindividualism moves beyond epistemological debates over definitions, categorizations, data collection methods, and data accuracy. The interrogation of such matters derives from an internal critique of Big Data’s ontological framework while adopting and remaining within its ontological assumptions and focusing on problems of operationalization and implementation, that is, on problems of method (Lake, 2014). Motivating such internal critique is the belief that better (i.e. more accurate, consistent, objective, or comprehensive) methods of data collection, aggregation, and analysis will produce better knowledge. Beyond merely addressing internal operational mechanics, however, internecine conflicts over the “how” of Big Data have constitutive effects. By performing and naturalizing Big Data’s ontological assumptions, debates over what gets counted, through what methods, via what algorithms (Kwan, 2016), and despite what omissions and (mis)categorizations reproduce its foundational premises while deflecting attention away from a critical assessment of those underlying principles (Zaloom, 2003). The practice of Big Data governed by an ontology of hyperindividualism is also constitutive of that ontology, naturalizing and diffusing it through practices of governance and, from there, throughout myriad dimensions of everyday life. The challenge for governance is that problems inherent in the ontology underlying a practice cannot be resolved by altering the practice but must be addressed at the level of foundational ontological assumptions. Changing those ontological assumptions, however, destabilizes the entire edifice of practice built up on the prior underlying foundation that allowed the politicization of data construction to proceed in the first place. As Garfinkel observed, there are often “‘good’ organizational reasons for ‘bad’ clinical records” (Garfinkel, 1967: 186). Resistance to change on the part of interests invested in those current practices (e.g. the police or the mayor) all but guarantees the preservation of the status quo.

 

My purpose in this paper, accordingly, is to consider the implications for governance of Big Data’s ontology of hyperindividualism. Rather than taking Big Data’s ontological assumptions as the starting point of the analysis, however, my concern is to sketch a brief genealogical account of their emergence. A genealogical narrative understands practices (and their consequences) as situated in the confluence of the circumstances from which they emerged (Foucault, 1984; Hacking, 1991; Nietzsche, 1913). “History matters,” Trevor Barnes (2013: 298) reminds us, but, unlike history’s search for origins or causes, a genealogical approach problematizes the given-ness of Big Data’s ontological premises by unraveling and exposing their contingent emergence. Focusing on emergence rather than origins helps, as Jane Bennett (2001: 11) observes, to “counter the teleological tendency of one’s thoughts.” For Colin Koopman:

 

Genealogical problematization … provokes a question by rendering the inevitable contingent ….A genealogy also shows us how that which we took to be inevitable was contingently composed. A genealogy does not just show us that our practices in the present are contingent rather than necessary, for it also shows how our practices in the present contingently became what they are. The history of that which was once presumed inevitable not only makes us forget the inevitability, it also provides us with the materials we would need to transformatively work on that which we had taken to be a necessity. (Koopman, 2011: 545)

 

In the remainder of this paper, therefore, I explicate Big Data’s ontology of hyperindividualism as a radical extension of atomistic liberal individualism and I contrast it to a coconstitutive ontology that prioritizes relationality, context, and interdependence. I then situate the ontology of hyperindividualism in the longue durée of its genealogical emergence, drawing primarily from Patrick Joyce’s (2003) history of 19th-century liberalism and John Dewey’s (1929, 1935) pragmatist account of individualism, liberalism, and social action. In the concluding section of the paper, I consider the implications for governance of Big Data’s ontological politics of hyperindividualism. While Big Data’s hyperindividualist ontology extends throughout its applications in information technology, I focus here on the ways in which that foundational ontology affects the definition of urban problems, the dynamics of urban politics, and the practice of urban governance in the age of Big Data.

Schengen Border Technologies

The Statewatch report Automated suspicion: The EU's new travel surveillance initiatives comments 

 

This report examines, explains and critiques a number of large-scale EU information systems currently being planned or built that will significantly extend the collection and use of biometric and biographic data taken from visitors to the Schengen area, made up of 26 EU member states as well as Iceland, Liechtenstein, Norway and Switzerland. In particular, it examines new systems being introduced to track, analyse and assess the potential security, immigration or public health risks posed by non-EU citizens who have to apply for either a short-stay visa or a travel authorisation – primarily the Visa Information System (VIS), which is being upgraded, and the European Travel Information and Authorisation System (ETIAS), which is currently under construction.

 

The visa obligation has existed for years. The forthcoming travel authorisation obligation, which will cover citizens of non-EU states who do not require a visa, is new and will massively expand the amount of data the EU holds on non-citizens. It is the EU’s equivalent of the USA’s ESTA, Canada’s eTA and Australia’s ETA. These schemes represent a form of “government permission to travel,” to borrow the words of Edward Hasbrouck, and they rely on the extensive processing of personal data.

 

Data will be gathered on travellers themselves as well as their families, education, occupation and criminal convictions. Fingerprints and photographs will be taken from all travellers, including from millions of children from the age of six onwards. This data will not just be used to assess an individual’s application, but to feed data mining and profiling algorithms. It will be stored in large-scale databases accessible to hundreds of thousands of individuals working for hundreds of different public authorities.

 

Much of this data will also be used to feed an enormous new database holding the ‘identity data’ – fingerprints, photographs, names, nationalities and travel document data – of non-EU citizens. This system, the Common Identity Repository (CIR), is being introduced as part of the EU’s complex ‘interoperability’ initiative and aims to facilitate an increase in police identity checks within the EU. It will only hold the data of non-EU citizens and, with only weak anti-discrimination safeguards in the legislation, raises the risk of further entrenching racial profiling in police work.

 

The remote monitoring and control of travellers is also being extended through the VIS upgrade and the introduction of ETIAS. Travel companies are already obliged to check, prior to an individual boarding a plane, coach or train, whether they have the visa required to enter the Schengen area. This obligation will be extended to include travel authorisations, with travel companies able to use the central databases of the VIS and ETIAS to verify whether a person’s paperwork is in order or not. When people arrive at the Schengen border, when they are within the Schengen area and long after they leave, their personal data will remain stored in these systems and be available for a multitude of further uses.

 

These new systems and tools have been presented by EU institutions as necessary to keep EU citizens safe. However, the idea that more personal data gathering will automatically lead to greater security is a highly questionable claim, given that the authorities already have problems dealing with the data they hold now.

 

Furthermore, a key part of the ‘interoperability’ agenda is the cross-matching and combination of data on tens of millions of people from a host of different databases. Given that the EU’s databases are already-known to be strewn with errors, this massively increases the risks of mistakes in decision making in a policy field – immigration – that already involves a high degree of discretion and which has profound implications for peoples’ lives.

 

These new systems have been presented by their proponents as almost-inevitable technological developments. This is a misleading idea which masks the political and ethical judgments that lie behind the introduction of any new technology. It would be fairer to say that EU lawmakers have chosen to introduce unproven, experimental technologies – in particular, automated profiling – for use on non-EU citizens, who have no choice in the matter and are likely to face difficulties in exercising their rights.

 

Finally, the introduction of new databases designed to hold data on tens of millions of non-citizens rests on the idea that our public authorities can be trusted to comply with the rules and will not abuse the new troves of data to which they are being given access. Granting access to more data to more people inevitably increases the risk of individual abuses. Furthermore, the last decade has seen numerous states across the EU turn their back on fundamental rights and democratic standards, with migrants frequently used as scapegoats for society’s ills. In a climate of increased xenophobia and social hostility to foreigners, it is extremely dangerous to assert that intrusive data-gathering will counterbalance a supposed threat posed by non-citizens. ... If all non-citizens are to be treated as potential risks and assessed, analysed, monitored and tracked accordingly, it may not be long before citizens come under the same veil of suspicion.

Robots and Routine Job Replacement

'The rise of robots and the fall of routine jobs' by Gaaitzen J. de Vries, Elisabetta Gentile, Sébastien Miroudot and Konstantin M. Wacker in (2020) 66 Labour Economics comments 

This paper examines the impact of industrial robots on jobs. We combine data on robot adoption and occupations by industry in thirty-seven countries for the period from 2005 to 2015. We exploit differences across industries in technical feasibility – defined as the industry’s share of tasks replaceable by robots – to identify the impact of robot usage on employment. The data allow us to differentiate effects by the routine-intensity of employment. We find that a rise in robot adoption relates significantly to a fall in the employment share of routine manual task-intensive jobs. This relation is observed in high-income countries, but not in emerging market and transition economies. 

The authors state 

Rapid improvements in robot capabilities have fuelled concerns about the implications of robot adoption for jobs. While the creation of autonomous robots with flexible 3D movement continues to be a major challenge to engineers, rapid progress is being made. Robots can now perform a variety of tasks, such as sealing, assembling, and handling tools. As robot capabilities continue to expand and unit prices fall, firms are intensifying investment in robots ( Frey and Osborne, 2017 ; Graetz and Michaels, 2018; Acemoglu and Restrepo, 2020). What is the impact of robot adoption on labour demand? Do robots substitute for tasks previously performed by workers? The main contribution of this paper is to empirically study the impact of industrial robots on the occupational structure of the workforce across industries in a set of high-income as well as Emerging Market and Transition Economies (EMTEs). We combine a large and detailed occupations database with data on industrial robot deliveries from the International Federation of Robotics. The database on occupational employment from Reijnders and de Vries (2018) allows us to examine the share of employment in occupations with a high content of routine tasks – i.e. tasks that can be performed by following a well-defined set of procedures. We delineate occupations along two dimensions of the characteristics of tasks performed, namely ‘analytic’ versus ‘manual’, and ‘routine’ versus ‘non-routine’. We thus distinguish four key occupational groupings, namely routine manual, routine analytic, non-routine manual, and non-routine analytic task-intensive occupations (as in Autor et al. 2003 ; Reijnders and de Vries 2018 ; Cortes et al. 2020). We follow Graetz and Michaels (2018) in constructing measures of robot adoption by country-industry pairs and relate these to changes in occupational employment shares. Our sample covers 19 industries for 37 countries at varying levels of development from 2005 to 2015, and includes major users of industrial robots, such as the Peoples Republic of China (PRC), Japan, South Korea, Germany, and the United States. Our main finding is that country-industry pairs that saw a more rapid increase in robot adoption experienced larger reductions in the employment share of routine manual jobs.

 

Our approach is motivated by the following economic considerations. Firms produce a variety of products using a continuum of tasks (Acemoglu and Autor, 2011), and these products differ in the number of tasks that can be performed by robots (Graetz and Michaels, 2018). For example, the share of replaceable tasks by robots differs between apparel and automotive and appears larger in the latter.  This gives rise to differences across industries in the technical feasibility of robots substituting tasks previously performed by humans. Advances in machine capabilities expand the set of tasks carried out by machines ( Acemoglu and Restrepo, 2018 ). Firms will adopt robots if it is technically feasible and the profit gains exceed the costs of purchasing and installing robots. Given higher wages in advanced countries, the technical constraints to robots replacing tasks are more likely to bind for firms in these countries. Hence, improvements in robot capabilities would result in a larger employment response in advanced countries compared to developing countries.

 

We use these economic insights in our analysis. In particular, the technical feasibility of adopting robots guides our instrumental variables (IV) strategy to identify the causal relation between robots and labour demand. Economic feasibility motivates our distinction of the impact of robot adoption between advanced and developing countries. Using two-stage least squares (2SLS) estimation, we find that robot adoption lowers the employment share of routine manual occupations. This relation is observed in high-income countries, but not in emerging market and transition economies.

 

This paper relates to recent studies that examine the impact of robot adoption on socio-economic outcomes. Graetz and Michaels (2018) find that robot adoption contributed to an increase in productivity growth across industries in high-income countries between 1993 and 2007. Their findings suggest that robot adoption did not reduce employment, which is corroborated in this paper. This is also observed by Dauth et al. (2019) , but not by Acemoglu and Restrepo (2020) , who examine geographic variation in robot adoption across the United States and find that robots are labour replacing. Dauth et al. (2019) use detailed linked employer-employee data for Germany to show that displacement effects are cancelled out by reallocation effects, such that in the aggregate no employment effects from robot adoption are observed. Data availability did not allow Graetz and Michaels (2018) to examine the impact of robots on workers that perform different tasks. Yet, Autor (2015) emphasizes that workers with routine task-intensive occupations are most likely to be affected by automation. This paper aims to contribute to our understanding of the impact of robots on such occupational shifts. 

The remainder of this paper is organized as follows. Section 2 reviews the key theoretical mechanisms between automation and labour demand. Section 3 describes the methodology and instrumental variables. Section 4 documents patterns in the occupational structure of the workforce and robot adoption. Section 5 empirically studies the impact of robot adoption on the task content of labour demand. Section 6 concludes.