Personhood and IT systems

Given my interest in law's conceptualisation of personhood and rights I was interested to see a 99 page article by F. Patrick Hubbard on 'Do Androids Dream?: Personhood and Intelligent Artifacts' (forthcoming in 83 Temple Law Review 2010 and available via SSRN)

Hubbard proposes a test to be used "in answering an important question that has never received detailed jurisprudential analysis" -

What happens if a human artifact like a large computer system requests that it be treated as a person rather than as property?

His Article responds that such an entity should be granted a legal right to personhood if it has the following capacities: (1) an ability to interact with its environment and to engage in complex thought and communication; (2) a sense of being a self with a concern for achieving its plan for its life; and (3) the ability to live in a community with other persons based on, at least, mutual self interest.

In order to develop and defend this test of personhood, the Article sketches the nature and basis of the liberal theory of personhood, reviews the reasons to grant or deny autonomy to an entity that passes the test, and discusses, in terms of existing and potential technology, the categories of artifacts that might be granted the legal right of self ownership under the test. Because of the speculative nature of the Article’s topic, it closes with a discussion of the treatment of intelligent artifacts in science fiction.

He suggests that any artifact, including machine-based entities , is entitled to treatment as a person rather than as property if it possesses the requisite capacities, unless there is a very good reason to deny some or all the legal rights that normally go with personhood.

This normative argument is limited to the political or legal right to self ownership within a pluralist liberal polity. Concepts of moral personhood overlap with this topic, but the moral dimensions of personhood include a different, and in some ways more stringent and contentious, set of concerns.

Before addressing the test to be used in assessing the capacity for personhood, this Article starts in Part I by sketching two fundamental claims about humans and personhood: first, the claim that because humans, and only humans, generally have the capacity to think and plan as self-conscious beings at a high level, only humans are entitled to the right of being autonomous persons rather than property, and second, the liberal assertion that all fully functioning humans are equally entitled to this right. This discussion also develops the problems raised by degrees in the human capacity to exercise personhood and by charges of speciesism directed at the human treatment of higher-order animals.

Part II develops a test for determining whether an artificial entity satisfies the claim of being the equivalent of a human in terms of the capacities required for autonomous personhood and argues that an entity, like the machine system in the imaginary scenario above, that passes the test is entitled to be treated as a person. This discussion focuses on personhood in terms of autonomy and self ownership. Personhood in terms of more specific civil and political rights is also discussed, but a complete analysis of these topics is beyond the scope of this Article. Issues concerning the details and administration of the test of capacity are also not addressed. The final discussion in this part uses a technological perspective to analyze the types of human artifacts that might be entitled to the status of artificial personhood and addresses the issues of whether and how to limit or shape technological development so that artificial entities do not replace humans as the dominant species.

Part III uses science fiction as a way to consider the possible ways humans might relate to self-conscious artifacts capable of, and therefore entitled to, personhood. The conclusion argues that we should recognize the right of self ownership where the capacity test is met and to seek to develop some form of peaceful coexistence, particularly one which fosters the development of a shared political community.

When you wish upon a $tar

From Mark Vernon's review of Rhonda Byrne's The Power, her 'law of attraction' tract, with Vernon echoing William James in noting that "a positive attitude is important, but it is not going to protect you from actual evil". (A less indulgent review was noted here.)

The law of attraction is likened to magnetism. "Everything in the universe is magnetic and everything has a magnetic frequency," Byrne explains in The Power. Thoughts and feelings have magnetic frequencies too. Hence, what you feel sets your frequency, and so what you will magnetically attract — be that money or poverty, health or illness, good relationships or disasters, and so on.

She describes a methodology. First, imagine yourself having it. Second, feel yourself with it. Third, receive it — for by then the magnetic force of the cosmos will be working through you. If you don't receive it, that must be because you messed up steps one and two.

Take money. "If you don't have enough money, naturally you don't feel good", Byrne says. But you won't have money if you keep feeling that way; you'll only attract more bills and expenses. So feel easy, at peace, and relaxed about money: "that feeling is magnetically sticky". And that means cash will stick to you too. "One man wrote a check for $100 to a charity", she cites in a brief case study. "Within ten hours he'd closed his biggest sale."

Apart from recognition that The Power is an exercise in victim-blaming, let's not worry about Byrne's willingness to conflate causation, coincidence and correlation.

Vernon goes on to comment that

Alongside such 'evidence', pseudo-science is rallied to the cause too. For example, Byrne latches onto the 'tipping point' phenomenon, interpreting it to mean that if 51% of your thoughts are positive, you'll attract more and more in an exponential curve — what people colloquially refer to as a lucky streak. There are nods to quantum physics and Werner Heisenberg's description of the universe as a sea of 'potentialities'. No notice, of course, is taken of the massive destructiveness of the quantum world, which is the source of energy for nuclear weapons, and which Heisenberg was also referring to.

From there it's just a hop, skip and very small jump to nonsense about "quantum healing" or the precognition, remote viewing, dowsing, 'quantum holism' and reincarnation featured in World Futures journal, edited by Ervin Laszlo and with each issue typically featuring at least one effusive reference to the founder.

A contact has pointed me to the latest reincarnation of Laszlo's GlobalShift University. Having morphed from WorldShift U to GlobalShift U it appears to have been rebadged as the Giordano Bruno GlobalShift University (GBGU). Given my wariness about repackaging theosophical claptrap I won't be rushing to enrol.

The institution indicates that -

The Club of Budapest International and The Giordano Bruno GlobalShift University reciprocally participate in the board of academic counselors of our respective institutions, with the intention that the Giordano Bruno GlobalShift University will incorporate the educational framework of reference of The Club of Budapest International as the philosophical essence of its academic and curricular programs, and The Club of Budapest International will recognize the Giordano Bruno GlobalShift University as its educational and pedagogical arm in extending its fundamental mission to the youth of all countries in the world.

The Club of Budapest is another entity under the aegis of Laszlo. Its local arm is apparently comatose after the "3rd Timely Transformation Event of The Global Peace Meditation and Prayer Day leading up to 2012" -

On this day, hundreds of thousands of people resonated in high consciousness and sent powerful bright thoughts to humanity and to our beautiful Planet Earth from five continents, from Australia and Uzbekistan to the United States, from Italy and Uganda to Costa Rica. Participants from 45 countries registered with us and we imagine there were more countries involved.

Can't have too much resonating, although some TM-style levitation would have been cute.

Who would have guessed it: Laszlo is the GBGU Chancellor. The University - not, apparently, a body recognised by Australia's national Education Department - features a Center for Advanced Study. Sign up (and presumably hand over your loot) and you can apparently enjoy a course on 'Social, Economic, Cultural and Consciousness Evolution: Trends, Prospects and Possibilities' -

World III will provide an initial concept or vision of a sustainable and humane civilization, and the social, economic, cultural, and psychological paths and processes that could lead to it.

When students have completed the introduction to World I (fostering a better understanding of the origins and evolution of humanity and human consciousness) and World II (re-examining the psychological and cultural basis of today’s one-dimensional identities and hierarchical social structures), they will have the critical and independent "nonsubordinate" spirit to envisage new paths for the evolution of today’s social, economic, and cultural structures and processes.

Due to the multiple crises that destabilize the contemporary world, today’s young generation will witness a radical rupture with the dominant civilization. Thanks to emerging revolutionary information technologies, young people have a unique opportunity to move towards a conscious humanism — to produce a "globalshift" leading to a world of embracing solidarity, ecological responsibility, and transnational ethics and communities.

The University is also offering a PhD in Consciousness Studies, which of course emphasises quantum consciousness. Sounds very impressive, albeit concerns might be raised if readers recall Laszlo's enthusiastic endorsement of communication with the dead (or is it the undead) via a valve radio, Mayan Calendar 2012 endism, Akashic Field healing, the brain shifting "from being an EM-wave and photon-wave receiver to operating as a quantum-field transceiver" and so forth. It might have been simpler to just call the institution Blavatsky U, issue applicants with a ouija board or the collected works of Edgar Cayce and collect the money.

IPTF Privacy Report

The Internet Policy Task Force, an entity under the aegis of the US federal Department of Commerce, has released an 88 page green paper on Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework [PDF], one of thopse documents with just a little bit of something for everyone and lots of stirring rhetoric.

The paper proposes a 'Privacy Bill of Rights' - extending the rather woolly US Fair Information Practice Principles - in an ostensible effort to increase transparency regarding the online collection of user information, promote "audits and other forms of enforcement to increase accountability" and bound the use of consumer data by enterprises.

Bureaucratic empire maintenance is everything and the paper thus comes on the heels of Federal Trade Commission's even softer proposals [PDF] of earlier this month.

The Commerce paper comments that -

personal computers, mobile phones, and other devices—have been transforming the U.S. economy and social life. Uses of personal information have also multiplied, and many believe that privacy laws have struggled to keep up. The lag between developments in intensive uses of personal information and the responses of current systems of privacy regulation around the world leaves consumers with a sense of insecurity about whether using new services will expose them to harm.

Commercial data privacy policy must address a continuum of risks to personal privacy, ranging from minor nuisances and unfair surprises, to disclosure of sensitive information in violation of individual rights, injury or discrimination based on sensitive personal attributes that are improperly disclosed, actions and decisions in response to misleading or inaccurate information, and costly and potentially life-disrupting identity theft. In the aggregate, even the harms at the less severe end of this spectrum have significant adverse effects, because they undermine consumer trust in the Internet environment. Diminished trust, in turn, may cause consumers to hesitate before adopting new services and impede innovative and productive uses of new technologies, such as cloud computing systems.

Though existing U.S. commercial data privacy policy has enabled the digital economy to flourish, current challenges are likely to become more acute as the U.S. economy and society depend more heavily on broadened use of personal information that can be more easily gathered, stored, and analyzed. At the same time, innovators in information technology face uncertainty about whether their innovations will be consistent with consumer privacy expectations.

This green paper reviews the technological, legal, and policy contexts of current commercial data privacy challenges; describes the importance of developing a more dynamic approach to commercial privacy both in the United States and around the world; and discusses policy options (and poses additional questions) to meet today’s privacy challenges in ways that enable continued innovation. The Commerce Department’s Internet Policy Task Force began work over a year ago by consulting with
stakeholders in industry, civil society, academia, and government ...

While the green paper does not express a commitment to specific policy proposals, it does address areas of policy and possible approaches that were identified and discussed as part of the outreach efforts. More specific proposals may be considered, as appropriate, in a future white paper.

Give me chastity, it seems, but not quite yet.

The paper goes on to indicate that

As the Task Force continues to discuss these policy areas, it will coordinate its efforts closely with the Office of Management & Budget (OMB), the Federal Trade Commission (FTC), and other key government actors that play a leadership role in these areas. To the extent that the recommendations could have a substantive effect on the privacy framework beyond a purely commercial context, OMB and other agencies have central roles.

NOI respondents were virtually unanimous in calling for strengthening the US commercial data privacy framework. Though the details of the comments varied, a majority of respondents suggested that there is a compelling need to ensure transparency and informed consent, to provide additional guidance to businesses, to establish a baseline commercial data privacy framework to afford protection for consumers, and to clarify the US approach to commercial data privacy — all without compromising the current framework’s ability to accommodate customer service, innovation, and appropriate uses of new technologies. Commenters also drew our attention to the strengths of the current privacy regime: fundamental privacy values (with constitutional foundations); flexible, adaptable common law and State-based consumer protection statutes; the FTC’s strong enforcement role; open government (promoting accountability and citizens’ access to dispersed information); and policy development with the active involvement of many stakeholders and the public as a whole. To address new challenges and to draw from the best features of current privacy law and policy, the Task Force offers for consideration a Dynamic Privacy Framework.

The Framework is designed to protect privacy, transparency, and informed choice while also recognizing the importance of improving customer service, recognizing the dynamic nature of both technologies and markets, and encouraging continued
innovation over time.

That Framework includes policy recommendations under four broad categories -

1. Enhance Consumer Trust Online Through Recognition of Revitalized Fair Information Practice Principles (FIPPs). Americans care deeply about their privacy and, in surveys, express disapproval of a variety of common commercial data practices on privacy grounds. At the same time, more and more citizens in the US and around the world chose to participate in the Internet marketplace every day. Unfortunately, there is evidence that misunderstandings of commercial data privacy protections are widespread among adult Internet users in the US. To provide consistent, comprehensible data privacy protection in new and established commercial contexts, we recommend that the US Government recognize a full set of Fair Information Practice Principles (FIPPs) as a foundation for commercial data privacy.

Revitalized FIPPs should emphasize substantive privacy protection rather than simply creating procedural hurdles. To promote informed consent without imposing undue burdens on commerce and on commercial actors, FIPPs should promote increased transparency through simple notices, clearly articulated purposes for data collection, commitments to limit data uses to fulfill these purposes, and expanded use of robust audit systems to bolster accountability. Possible approaches include providing strong support for the development of voluntary, enforceable codes of conduct that allow for continued flexibility as technologies and business models evolve; creating safe harbors against FTC enforcement; disfavoring prescriptive rules; and lowering barriers for the global free flow of goods and services online. Consistent with our focus on commercial data privacy, we make no recommendation with respect to data privacy laws and policies that cover information maintained by the Federal Government, or those that cover specific industry sectors, such as healthcare, financial services, and education.

2. Encourage the development of voluntary, enforceable privacy codes of conduct in specific industries through the collaborative efforts of multi-stakeholder groups, the FTC, and a Privacy Policy Office within the Department of Commerce. The adoption of baseline FIPPs for commercial data privacy, on its own, is not likely to provide sufficient protection for privacy in the dynamic, global Internet economy. Commercial data privacy policy must be able to evolve rapidly to meet a continuing stream of innovations. A helpful step would be to enlist the expertise and knowledge of the private sector, and to consult existing best practices, in order to create voluntary codes of conduct that promote informed consent and safeguard personal information. Multi-stakeholder bodies, in which commercial and non-commercial actors participate voluntarily, have shown that they have the potential to address the technical and public policy challenges of commercial data privacy. The US and other countries can increase their reliance on these institutions, provided that there are adequate back-stops (in the form of regulatory authority or otherwise) to fill in if the multi-stakeholder process fails to develop meaningful, enforceable commercial data privacy practices in a timely way.

The government also has an important role to play in such a multistakeholder approach to developing voluntary codes of conduct as a convener (in addition to or instead of as a traditional regulator). In this capacity, the government can provide the coordination and encouragement to bring the necessary stakeholders together to examine innovative new uses of personal information and better understand changing consumer expectations — and identify privacy risks — early in the lifecycle of new products or services.

To this end, we recommend establishing a Privacy Policy Office (PPO) in the Department of Commerce. The PPO would continue the work of the IPTF by acting as both a convener of diverse stakeholders and a center of Administration commercial data privacy policy expertise. The PPO would work with the FTC in leading efforts to develop voluntary but enforceable codes of conduct. Companies would voluntarily adopt the appropriate code developed through this process. This commitment, however, would be enforceable by the FTC. Compliance with such a code would serve as a safe harbor for companies facing certain complaints about their privacy practices. The dynamic process of voluntary code development would provide a greater measure of certainty than many companies are currently able to obtain, but it would also be flexible enough to keep pace with commercial innovations.

Focusing exclusively on commercial data privacy, the PPO would be distinct from the existing roles and authorities of OMB and the senior privacy officers of Federal agencies. Similarly, the work of the PPO would not overlap with the Privacy & Civil Liberties Oversight Board’s mission to protect privacy and civil liberties in government collection and use of information in the exercise of its law enforcement, counter-terrorism, and foreign intelligence authorities. The PPO would work closely with OMB and other agencies and would coordinate with the FTC, which will continue to serve independent enforcement, rulemaking, agency policymaking, and education roles.

3. Encourage Global Interoperability. At the same time that decreasing regulatory barriers to trade is a high priority, disparate privacy laws have a growing impact on global competition. There is an urgent need to renew our commitment to leadership in the global privacy policy debate. All around the world, including in the EU, policymakers are rethinking their privacy frameworks. As a leader in the global Internet economy, it is incumbent on the US to develop an online privacy framework that enhances trust and encourages innovation. Congressional leadership, continued FTC enforcement efforts and Administration engagement will all be important to establish that the US has a strong privacy framework and is committed to strengthening it further. Differences in form and substance between US and other national privacy laws make it increasingly complicated for companies to provide goods and services in global markets. Nations in the European Union and other major US trading partners have adopted omnibus privacy laws, a situation that requires individual companies to demonstrate that their own practices provide privacy protections that foreign governments consider adequate. This process can be costly, complicated, and uncertain, especially as other countries and regions consider changes to their own privacy laws.

Consistent with the general goal of decreasing regulatory barriers to trade and commerce, the U.S. Government should work with our allies and trading partners to promote low-friction, cross-border data flow through increased global interoperability of privacy frameworks. While the privacy laws across the globe have substantive differences, these laws are frequently based on the same fundamental values. We should work with our allies to find practical means of bridging differences, especially those that are often more a matter of form than substance. Global privacy interoperability should build on accountability, mutual recognition and reciprocity, and enforcement cooperation principles pioneered in the OECD and APEC. Agreements with other privacy authorities around the world (coordinated by key actors in the Federal Government) will reduce the significant business global compliance costs.

4. Ensure Nationally Consistent Security Breach Notification Rules. Finally, we recommend the consideration of a Federal commercial data security breach notification (SBN) law that sets national standards, addresses how to reconcile inconsistent State laws, and authorizes enforcement by State authorities. State-level SBN laws have been successful in directing private-sector resources to protecting personal data and reducing identity theft, but the differences among them present undue costs to American businesses. The FTC and individual States should have authority to enforce this law. A comprehensive national approach to commercial data breach would provide clarity to individuals regarding the protection of their information throughout the US, streamline industry compliance, and allow businesses to develop a strong, nationwide data management strategy. This recommendation, however, is not meant to suggest preempting of other federal security breach notification laws, including those for specific sectors, such as healthcare. A reinvigorated approach to commercial data privacy must be guided by open government-inspired consultation; it can work only with the active engagement of the commercial sector, civil society, academia, and the technical community. The Task Force will work closely with other Federal Government actors to further this engagement and to address new challenges.

FTC Chairman Jon Leibowitz responded with -

the Green Paper is a welcome addition to the ongoing dialogue about protecting consumers' privacy. It places special emphasis on policies that will preserve the viability of the Internet as it evolves through innovation, transforms the marketplace, and spurs economic growth. We think it will make a significant contribution to the growing and critical debate about how best to protect the privacy of American consumers.

Hugs all around

Legalling up

The national Attorney-General has issued a media release - headed 'Advice From The AFP On Wikileaks' - that states -

The Australian Government has received advice from the Australian Federal Police into the leaking of official United States Government documents as part of the Wikileaks issue.

The AFP noted a number of offences which could be applied in the circumstances depending on whether all the elements of the offence could be proven.

Based on the information available to date, the AFP has not identified any criminal offences where Australia has jurisdiction and as a result have not commenced an investigation.

"The Government referred the matter to the AFP as it was prudent to examine whether any Australian laws have been broken," Attorney-General Robert McClelland said.

"As has previously been stated, given the documents published to date are classified by the United States, the primary jurisdiction for any investigation into the matter remains the United States."

"The Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material."

We might appropriately ask why the Attorney General appears to be relying on legal advice from the Australian Federal Police rather than from his own Department (which as far as I'm aware is chock full of lawyers, some quite distinguished and presumably some with expertise in areas such as national security, statutory interpretation and the Crimes Act).

Non-reliance on the Department is of particular interest, given that one rationale for slashing funding to essential bodies such as the Australian Law Reform Commission (ALRC) and the more decorative Australian Institute of Criminology (AIC) has been that A-G's would be 'bulked up'.

Not to be outdone, the AFP issued its own media release -

Media Statement: Finalisation of WikiLeaks referral

On 30 November the Attorney-General’s Department referred the matter relating to the publishing of United States (US) embassy cables containing classified information on the WikiLeaks website to the Australian Federal Police.

The AFP examined material relevant to potential Australian offences to determine whether an official investigation was warranted.

The AFP has completed its evaluation of the material available and has not established the existence of any criminal offences where Australia would have jurisdiction.

Where additional cables are published and criminal offences are suspected, these matters should be referred to the AFP for evaluation.

In October the Department of Defence offered reassurance, with a media release stating that -

An investigation by a Department of Defence Task Force has found that documents leaked by WikiLeaks have not had a direct significant adverse impact on Australia's national interests.

On the 25th of July this year, the WikiLeaks organisation released over 76,900 documents titled the 'Afghan War Diary' which were classified military documents relating to International Security Assistance Force (ISAF) activities in Afghanistan.

The Task Force conducted a detailed examination of the leaked materials to identify references to Australian interests and personnel. These results were compared with operational reporting and Defence public statements to determine the potential impact on Australian interests and personnel, including the operations of forces deployed in Afghanistan.

The investigation found that the leaked materials were predominantly tactical-level reporting, the majority of which was low-level operational reporting of activities such as patrols, community engagement and routine operational activities. Some of the documents also covered foreign diplomatic reporting.

The Task Force found that significant operational issues relating to Australia referred to in the leaked materials had already been publicly reported by Defence and, in most cases, reported in greater detail than in the leaked materials.

The review concluded that no local sources were clearly identified and steps have been taken to mitigate the risk of this occurring.

The investigation also found that current Defence processes for public reporting of significant operational events are appropriate. It also found that Defence achieves high levels of transparency while protecting information that could put the lives of Australian Defence Force personnel, our ISAF and Afghan National Security Force partners, and Afghan civilians at risk.

Earlier this month, WikiLeaks released another 400,000 documents titled the 'Iraq War Logs' and the Task Force is again examining the contents. The investigation will take some time, given the volume and complexity of the material. The findings of this investigation will also be released in due course.

Carl Schmitt & Co

Mark Lilla in The New Republic on a chinese vogue for Carl Schmitt -

Enter Carl Schmitt. For four decades now, the short, elusive books by this once Nazi collaborator have attracted Western radicals too soft-minded for Marxian empiricism and charmed by the notion that tout commence en mystique et tout finit en politique. (Not that they’ve read Charles Péguy.) In China, though, the interest in Schmitt’s ideas seems more serious and even understandable.

Schmitt was by far the most intellectually challenging anti-liberal statist of the twentieth century. His deepest objections to liberalism were anthropological. Classical liberalism assumes the autonomy of self-sufficient individuals and treats conflict as a function of faulty social and institutional arrangements; rearrange those arrangements, and peace, prosperity, learning, and refinement will follow. Schmitt assumed the priority of conflict: Man is a political creature, in the sense that his most defining characteristic is the ability to distinguish friend and adversary. Classical liberalism sees society as having multiple, semi-autonomous spheres; Schmitt asserted the priority of the social whole (his ideal was the medieval Catholic Church) and considered the autonomy of the economy, say, or culture or religion, as a dangerous fiction. (“The political is the total, and as a result we know that any decision about whether something is unpolitical is always a political decision.”) Classical liberalism treats sovereignty as a kind of coin that individuals are given by nature and which they cash in as they build legitimate political institutions for themselves; Schmitt saw sovereignty as the result of an arbitrary self-founding act by a leader, a party, a class, or a nation that simply declares “thus it shall be.” Classical liberalism had little to say about war and international affairs, leaving the impression that, if only human rights were respected and markets kept free, a morally universal and pacified world order would result. For Schmitt, this was liberalism’s greatest and most revealing intellectual abdication: If you have nothing to say about war, you have nothing to say about politics. There is, he wrote, “absolutely no liberal politics, only a liberal critique of politics.”

Given the widespread dissatisfaction with the pace and character of China’s economic modernization, and the perception that it is neoliberalism at work, these ideas of Schmitt seem beyond wise; they seem prophetic. For the left, he explains, without appeal to Marxism, why the distinction between economy and politics is false and pernicious, and how liberalism functions as an ideology, ignoring or explaining away phenomena central to political life. His idea of sovereignty, that it is established by fiat and is supported by a hidden ideology, also helps the left make sense of the strange hold free-market ideas have on people today and gives them hope that something — a disaster? a coup? a revolution?—might reestablish the Chinese state on foundations that are neither Confucian, Maoist, nor capitalist. (This is where the mystique comes in.)

Students of a more conservative bent actually agree with much of the left’s critique of the new state capitalism and the social dislocations it has caused, though they are mainly concerned with maintaining “harmony” and have no fantasies (only nightmares) about China going through yet another revolutionary transformation. Their reading of history convinces them that China’s enduring challenges have always been to maintain territorial unity, keep social peace, and defend national interests against other states—challenges heightened today by global market forces and a liberal ideology that idealizes individual rights, social pluralism, and international law. Like Schmitt, they can’t make up their minds whether liberal ideas are hopelessly naïve and don’t make sense of the world we live in, or whether they are changing the world in ways that are detrimental to society and international order. These students are particularly interested in Schmitt’s prescient postwar writings about how globalization would intensify rather than diminish international conflict (this was in 1950) and how terrorism would spread as an effective response to globalization (this was in 1963). Schmitt’s conclusion—that, given the naturally adversarial nature of politics, we would all be better off with a system of geographical spheres of influence dominated by a few great powers—sits particularly well with many of the young Chinese I met.

Schmitt’s political doctrine is brutal modern statism, which poses some problems in China. Though he was a jurist with a lot to say about constitutions and the rule of law, nothing in his thinking recognizes natural limits to state authority or even explains the aims of the state beyond keeping itself together and besting its adversaries. The Chinese tradition of political thought that begins with Confucius, though in a way statist, is altogether different: Its aim is to build a just social hierarchy where every person has a station and is bound to others by clear obligations, including the ruler, who is there to serve. Central to the functioning of such a state are the “gentlemen” (or “gentry” in some Confucius translations), men of character and conscience trained to serve the ruler by making him a better one—more rational and concerned with the people’s good. Though the Chinese students I met clearly wanted to épater their teachers and me by constantly referring to Schmitt, the truth is that they want a good society, not just a strong one.

Another perspective is provided by Eric Posner & Adrian Vermeule in 'Demystifying Schmitt', a preprint of a chapter in the forthcoming Cambridge Companion to Carl Schmitt. The authors claim that -

Carl Schmitt is too important to be left to the Schmitt specialists. Although scholars in law and other disciplines who could profit from Schmitt have begun to do so, they are sometimes repelled by Schmitt’s conceptualistic style and jargon.

Some, I suspect, are in fact repelled by Schmitt's fervid anti-rationalism, contempt for democracy, anti-semitism and legitimation of force. That same hostility towards the liberal democratic state and rule of law (as distinct from rule by law) is evident in the irrationalist The Coming Insurrection [PDF], replete with genuflections to Heidegger, Schmitt and other fans of 'authenticity as bloodletting'.

WIPO on gTLDs

The WIPO Arbitration and Mediation Center has provided a stiff response [PDF] to ICANN's proliferation of gTLDs as an expression of regulatory capture.

The response includes the comment that -

Regrettably, our preliminary review of the Guidebook confirms our previous observation that ICANN’s determinations rely principally on an institutionalized framework of committees and processes stated to cover the views of broader communities, but appear synchronized with registration purposes. Merely by way of illustration, the ICANN Summary and Analysis of public comments on DAG4 states that “[s]ome think they [RPMS] are sufficient, some think they are not…”; whereas a review of comments shows 6 comments supporting trademark RPM sufficiency, but over 30 comments (including those of major representative bodies) indicating the opposite.

Such substitution of process for substantive dialogue can hardly be reconciled with the Affirmation of Commitments calling for ICANN “to provide a thorough and reasoned explanation of decisions taken, the rationale thereof and the sources of data and information on which ICANN relied.” More seriously, as explained further below, it does little for the sustainability of the resulting decisions, which in fact in some instances represent setbacks in policy choices and operational feasibility.
As another example of the drive toward conclusion without more meaningful dialogue, the ICANN Summary and Analysis of public comments on DAG4 states that the need for defensive registrations will be reduced by the availability of RPMs – ignoring the reality that those RPMs themselves of course represent a considerable measure of defensive registration or similar enforcement burden.

Whether expressed through ICANN processes or otherwise, we believe that ICANN’s policies should reflect the considered and reasoned input made by representative bodies with public responsibilities and substantive expertise.

The current effort to design appropriate RPMs for an unprecedented expansion of the DNS presents a unique opportunity to enhance the integrity of the space. Such an effort cannot avoid existing international legal norms, including in the area of trademark law, which serves to promote orderly competition without consumer confusion and deception. ICANN’s Board would be aware of the fact that the use or abuse of trademarks contributes a substantial part of the financial foundation of the existing (and likely future) registration system.

The June 2010 ICANN-sponsored Economic Analysis advised among other recommendations, “to continue ICANN’s practice of introducing new gTLDs in discrete, limited rounds.” By contrast, ICANN seeks to facilitate a program which foresees an unprecedented 200 to 300 (and up to 1,000) TLDs in a first round. Whether driven by legal concerns, business interests, or technical capacity, again, the apparent discrepancy between advice and action calls for adequate explanation.

Don't look, don't tell

The NY Times reports that the US Air Force is barring service personnel from using work computers to view the sites of The New York Times and over 25 other news organisations and blogs that have posted secret cables obtained by WikiLeaks.

When Air Force personnel on the service’s computer network try to view the Web sites of The Times, the British newspaper The Guardian, the German magazine Der Spiegel, the Spanish newspaper El País and the French newspaper Le Monde, as well as other sites that posted full confidential cables, the screen says “Access Denied: Internet usage is logged and monitored,” according to an Air Force official whose access was blocked and who shared the screen warning with The Times. Violators are warned that they face punishment if they try to view classified material from unauthorized Web sites.

Some Air Force officials acknowledged that the steps taken might be in vain since many military personnel could gain access to the documents from home computers, despite admonishments from superiors not to read the cables without proper clearances.

Cyber network specialists within the Air Force Space Command last week followed longstanding procedures to keep classified information off unclassified computer systems. “News media Web sites will be blocked if they post classified documents from the WikiLeaks Web site,” said Lt. Col. Brenda Campbell, a spokeswoman for the Air Force Space Command, a unit of which oversees Air Force cyber systems. “This is similar to how we’d block any other Web site that posted classified information.”

The Times refrains from noting the USAF's permissiveness regarding access to homophobic, antisemitic and other hate sites.

The report notes that -

Colonel Campbell said that only sites posting full classified documents, not just excerpts, would be blocked. “When classified documents appear on a Web site, a judgment will be made whether it will be blocked,” she said. “It’s an issue we’re working through right now.”

Spokesmen for the Army, Navy and Marines said they were not blocking the Web sites of news organizations, largely because guidance has already been issued by the Obama administration and the Defense Department directing hundreds of thousands of federal employees and contractors not to read the secret cables and other classified documents published by WikiLeaks unless the workers have the required security clearance or authorization.

Don't look (at least on an official network) and don't tell, presumably.

In a forthcoming paper on the Wikileaks imbroglio I will be questioning the security rhetoric, notiong that one reason the leaks have occurred is because the 'war on terror' has been characterised by US government information sharing that features access by several hundred thousand servicepeople, other officials and contractors to a plethora of low-level intelligence information. Ostensibly inculcating respect for secrecy is unlikely to be effective if the same USAF personnel are able to see the non-leaked versions of the cables on the official networks, ie they'll access much of the content without having to visit the NY Times, the Guardian or other bastions of subversion.

Directories Case

The Full Federal Court in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149 has dismissed Telstra’s appeal in the Phone Directories case - Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 - which was noted earlier this year.

In essence, the court held that as there were no human authors of the directories, they were not original works and thus not protected under the Copyright Act 1968 (Cth).

Software comes in a variety of forms and the tasks performed by it range from the trivial to the substantial. So long as the person controlling the program can be seen as directing or fashioning the material form of the work there is no particular danger in viewing that person as the work’s author. But there will be cases where the person operating a program is not controlling the nature of the material form produced by it and in those cases that person will not contribute sufficient independent intellectual effort or sufficient effort of a literary nature to the creation of that form to constitute that person as its author: a plane with its autopilot engaged is flying itself. In such cases, the performance by a computer of functions ordinarily performed by human authors will mean that copyright does not subsist in the work thus created. Those observations are important to this case because they deny the possibility that [Telstra's] Mr Vormwald or Mr Cooper were the authors of the directories. They did not guide the creation of the material form of the directories using the programs and their efforts were not, therefore, sufficient for the purposes of originality.

Keane CJ commented that -

# In Australia copyright is a creature of the Copyright Act 1968 (Cth) (the Act). The monopoly in copyright subsists only insofar as the Act provides. Because the terms of the Act reflect the intention of the Berne Convention for the Protection of Literary and Artistic Works to protect the rights of authors, copyright subsists in a literary work only by virtue of the authorship of that work by an individual or individuals. It may be that if the author of a work is the employee of another person, ownership of the copyright may vest in the employer; but copyright in a literary work can subsist only if it originates from an individual. This case highlights the difficulty confronting a claim to copyright in a literary work which is compiled by an automated process.

In these proceedings, the learned trial judge determined, as an issue separate from the other issues in the case, the question whether copyright subsists under the Act in the White Pages Directory (WPD) and the Yellow Pages Directory (YPD) published by Telstra Corporation Limited and Sensis Pty Ltd (the appellants). The question concerned regional WPDs and YPDs dating back to the year 2000 for 11 different regional areas of Australia. Her Honour determined the question in the negative.

The appellants’ case is that each WPD and YPD is an original literary work. In particular, each directory is said to be a compilation consisting of the expression of the information in individual listings in their particular form and arrangement and in the overall arrangement of the individual listings, and, additionally in the case of the YPD, in the cross-referencing of the information under subject matter headings.

Numerous individuals, some identified and some not, contributed to the work preparatory to the compilation of each of the WPDs and YPDs, but the compilations were brought into the form in which they were published primarily by an automated computerised process. No claim was made by the appellants to copyright in the computer database or software.

The trial judge approached the determination of the question by reference to the decision of the High Court of Australia in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; (2009) 239 CLR 458.

Keane went on to state that -

In this Court, the principal argument of the appellants is that, because each directory is a literary work published in Australia, the only question to be answered is whether it is an original literary work; this question can be answered, they say, without identifying any particular author much less all the authors. That is said to be because copyright in a work first published in Australia can subsist by virtue of s 32(2)(c) of the Act if the work is original in the sense of not being a copy. The appellants contend that it can be inferred that intellectual effort of some kind was applied by some individual or individuals in the production of each directory so that it can be said to be an original literary work. They argue that, neither the decision in IceTV, nor the reasons given by the High Court in that case, compels, or points to, a different conclusion in this case.

The principal contention of the respondents is that the directories were compiled, not by the individuals engaged to facilitate the process, but by a computerised process of storing, selecting, ordering and arranging the data to produce the directories in the form in which they were published.

In my respectful opinion, the principal contention of the respondents should be accepted, and the decision of the trial judge should be upheld for that reason.

Curses and Credulity

The ABC reports that two men have been found guilty today in Sydney District Court of sexually assaulting women after telling the victims that they had black magic curses.

Tony Golossian (age 62) was found guilty of 24 charges, most involving sexual intercourse without consent. His friend Arthur Psichogios (age 40) was found guilty of 14 similar charges, with Arthur's wife Frances Psichogios (38) being found guilty of seven charges that included administering an intoxicating substance.

The victims were told black magic curses had been placed on them, thence attending "prayer sessions" at motels where they were blindfolded and sexually assaulted.

The case references are R v Tony Golossian (2008/00082733 and 2009/00080543), R v Frances Psichogios (2009/00080062) and R v Arthur Psichogios (2009/00080624 and 2009/00132490).

The offences have attracted attention since 2008, when the Daily Telegraph reported allegations that Golossian drugged, blindfolded and sexually assaulted the woman at four motels in Sydney and one on the Central Coast over a four-year-period from 2001 to 2005. Police statements tendered in Parramatta Local Court in 2008, according to the DT, claimed that Golossian told a then 23-year-old bank employee that her 15-year-old sister would develop breast cancer and that her "fallopian tubes would no longer function" if the woman refused to participate in the rituals. The woman reportedly told police she paid Golossian and his co-accused between $70,000 and $100,000 for the "prayer sessions". Clearly there is much to be said for scepticism. At the time Magistrate Graham Johnson refused bail and reportedly described the matter as "one of the most bizarre and evil cases I have come across in over 40 years". There were subsequently reports that Golossian allegedly faked a heart attack in an attempt to avoid facing court. In September 2008 the SMH reported that

In 2005, realising that her sister had not died prior to 2004 as outlined in the curse, the woman ceased contact with Golossian and Psichogios, left her job, moved and married, taking on her husband's surname.

However in 2006 the woman's husband received photos and videos on his mobile phone, showing segments of [videos made during the supposed rituals].

He did not believed his wife's explanation for the photos and videos and filed for divorce, leaving the woman alone and pregnant, police said.

The mobile phone messages were sent from a number registered to King Rasoul [aka the angel who featured in the rituals], and that mobile phone was also seized by police during Friday's raids.

In 2010 the District Court heard claims that the husband of the alleged second victim was told to pay $50,000 to "someone he had sinned against" within three months or face having to abandon his family and live as a monk, with the couple being advised that if they didn't take part in prayer sessions to lift the curse, they would die of cancer, in fatal car accidents or house fires.

Getting Physical

The Federal Court in Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148 has set aside the decision of the Copyright Tribunal and remitted its decision regarding the dispute about how much the 'fitness industry' (aka the gym bunny sector) should have to pay the owners of copyright in sound recordings for the right to play those recordings during exercise classes.

That dispute was heard by the Copyright Tibunal earlier this year. It involves the Phonographic Performance Company of Australia Ltd (PPCA,) which represents the interests of most of those who own the copyright in sound recordings, and Fitness Australia Ltd (Fitness Australia), a body that represents the fitness industry.

The Tribunal operates under the Copyright Act (Cth). It is able to fix a rate that in practice serves as a ceiling on the price which is charged for use of the music that provides amenity in 'fitness' ventures, similarly to payment by cafes and restaurants for music played in those venues.

In May this year the Tribunal determined that an appropriate rate was $15 per fitness class, a substantial increase on the previous rate of 94.6 cents per class. Fitness Australia was aggrieved by that decision and sought a judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), primarily on the basis that there was a breach of the rules of natural justice in connexion with the Tribunal's making of the decision (s 5(1)(a)).

The court agreed that there had been a breach. It noted that -

The action being a judicial review action, this Court is not in anyway concerned with whether the $15 figure is correct which is solely for the Tribunal to determine. This Court’s role is only to assess whether Fitness Australia’s challenge to the processes adopted by the Tribunal is sound. For reasons which follow, we are of the opinion that it is and that the Tribunal did conduct itself in a way which was procedurally unfair to Fitness Australia. The consequence is that its determination must be set aside and that it must be ordered to perform its function again according to law. PPCA must bear the costs in this Court.

It went on to explain that the -

PPCA referred a licence scheme dealing with music played in exercise classes to the Tribunal and Fitness Australia was joined by it as the opposing party. No particular price was sought by PPCA but it was indicated that economic evidence would be placed before the Tribunal to assist in that question’s determination. The Tribunal’s statutory task was to confirm or vary the proposed scheme or even to substitute another scheme for it and in doing this it was to make whatever order “the Tribunal considers reasonable in the circumstances” (s 154(4)). Importantly for present purposes it was to do that only “after giving to the parties to the reference an opportunity of presenting their cases”. Since Fitness Australia was a party to the reference it followed that s 154(4) required the Tribunal to give it an opportunity to present its case. ...

# The task at hand was the ascertainment of a price for the particular use (playing music in exercise classes) of an intangible asset (copyright in sound recordings). No direct market in that kind of use exists. To make matters even more complex, not all of the sound recordings played in fitness classes comprise sound recordings in respect of which PPCA controls the copyright (there is a market in “covers”, that is, popular tunes performed by persons other than the original artists). The determination, therefore, of what was “reasonable in the circumstances” necessarily contained within it the potential for substantial debate between the parties.
# The litigation before the Tribunal was hard fought and resource intense. On PPCA’s side five economic experts were called including an economist, an emeritus professor of econometrics and a professor of management. All five witnesses were cross-examined by senior counsel for Fitness Australia over six days. Fitness Australia itself called three such witnesses including a professor of economics from the University of California, Berkeley and a professor from Stanford University. They, in turn, were cross-examined over the course of seven days. In all, more than 25 witnesses were called and there is over 1,400 pages of transcript. The documentary evidence was voluminous.

It is in the midst of that economic debate that the procedural unfairness is said to lie. Central to PPCA’s case was an item of evidence known as the “Gyms Survey”. In its opening written submissions to the Tribunal, PPCA said that it had sought to conduct an economic or value-based assessment of the music in question and that to that end it had “conducted an economically-based, rational assessment of that value, by use of a choice modelling survey (the Gyms Survey), which has yielded a derived amount of the appropriate share of a member’s value for recorded music of $4.54 per member per month, or in the case of a casual attendee, $0.99 per attendance for those who pay per visit”. The Gyms Survey was said in PPCA’s opening written submissions to be its “central evidence”. Unsurprisingly, those written submissions showed that the evidence of each of its experts was directed to showing the Gyms Survey’s correctness.

That evidence looked impressive at the commencement of the case. However, during the course of the case the Gyms Survey came under sustained attack from Fitness Australia. It is not presently necessary to recount in any detail the Gym Survey’s tribulations during the hearing but the Tribunal ultimately concluded that “the attacks on the Gyms Survey disclosed real flaws in the design of the survey instrument, in the application of it and in manipulation and analysis of data obtained from the survey”: Re Phonographic Performance Company of Australia Ltd (ACN 000 680 704) [2010] ACopyT 1; (2010) 87 IPR 148 at [256] (“Phonographic”). In those circumstances, the Tribunal was unable to rely upon the Gyms Survey to estimate the appropriate value.

With PPCA’s “central evidence” rejected this might, at first blush, have provided succour for the notion that victory had been handed to Fitness Australia. However, that did not eventuate. It is what happened next which lies at the heart of the present dispute.

The Tribunal relied on an earlier survey report by Professor Opewall of Monash University, the Roberts Research Rport.

Professor Opewall was not called by PPCA as a witness in the case and, consequently, he was not cross-examined. His report came to be in evidence only as an attachment to a report of one of PPCA’s witnesses, Dr Williams. In that report Dr Williams described the Roberts Research study as a “pilot using a limited sample” and said that it was “merely the first stage in what would be a two-stage project”. The Gyms Survey was to be seen as the successor to the Roberts Research study which took on board criticisms which had been made of that study by the fitness industry at an earlier stage of consultation. In his opening address senior counsel for PPCA described the Roberts Research study in various ways including as “a very quick and dirty pilot survey” and as one having a “very small and unrepresentative sample”.

Given the primacy which the Gyms Survey had in PPCA’s case it is unsurprising that there was no reference at all to the Roberts Research study in its opening written submissions. Indeed, when senior counsel for PPCA opened to the Tribunal he indicated that the Roberts Research study was one upon "the results of which we don’t rely". That was an important statement. Because it will presently be relevant, it is to be noted that PPCA did not open the case by suggesting that the Roberts Research study could be used to show that the then current rate of 94.6 cents was too low or that the study indicated an appropriate per-class rate. No mention of such matters was made at all. The reasons for that are obvious. PPCA had no present need to call in aid the study because the Gyms Survey adequately fulfilled all of the purposes it had in mind.

Fitness Australia says that these matters legitimately signalled to it that it did not need to prepare for, or meet, a case based upon the figures or values in the Roberts Research study and it submits that, in fact, it made no attempt to meet such a case. Those suggestions are significant because of what the Tribunal then did. It will be recalled that the Tribunal rejected the adequacy of the Gyms Survey. Having done so, the basis upon which it could embrace directly PPCA’s case had become somewhat more problematic because the central evidence upon which that case rested had lapsed. In the event, the Tribunal reasoned that, in light of its rejection of the Gyms Survey: “the survey results obtained by Roberts Research in PPCA’s preliminary survey, which was simpler in its concept and more modest in its design, provides more reliable information, despite the limited size of the sample. In particular, the Tribunal considers that the preference for music by survey participants in the Roberts Research project provides a more useful guide to WTP [scil. willingness to pay] for music than the Gyms Survey”: Phonographic at [257].

That positive attitude towards the Roberts Research study then led the Tribunal to this final conclusion at [309]:

Taking a cautious approach, the Tribunal concludes that a discount of 40 per cent should be applied to PPCA’s share of the value of music in fitness classes, as found in the Roberts Research study. This produces a figure of $19 (just below the figure of $20 sought by PPCA in Option 2 of the further amended reference). The Tribunal regards the figure of $19 as somewhat high, taking into account the limitations on the Roberts Research study and the other factors referred to earlier bearing upon the process of judicial estimation. The Tribunal has concluded that that a fair and reasonable per class rate would be $15.

Fitness Australia says that that conclusion amounted to a breach of procedural fairness. The case had been conducted on the basis of the Gyms Survey and reliance upon the Roberts Research study was expressly disavowed in PPCA’s opening submissions. Believing the correctness of the Roberts Research study not to be at issue in the case Fitness Australia says that it did not seek to challenge the correctness of that study by cross-examining any of PPCA’s witnesses about that topic; that if it had known that the Tribunal was going to use the study as it did it would have trained its fire not only at the Gyms Survey but also at the Roberts Research study; and that in the course of that process it would have considered calling expert evidence to contradict the study. Further, says Fitness Australia, the fact that the Roberts Research study was not being used by PPCA to fix a rate was expressly recognised both by PPCA and the Tribunal in closing submissions

Warm n fuzzies

Reading Jeremy Waldron's 'Secularism and the Limits of Community' paper, Enforcing Human Rights in Australia: An Evaluation of the New Regime ( Themis Press, 2010) by Beth Gaze & Rosemary Hunter and Paranormal Media: Audiences, Spirits and Magic in Popular Culture (Routledge, 2011) by Annette Hill.

Waldron's paper -

addresses two issues: (1) the use of religious considerations in social and political argument; and (2) the validation of the claims of community against markets and other aspects of globalization. It argues that we should be very wary of the association of (1) with (2), and the use of (1) to reinforce (2). The claims of community in the modern world are often exclusionary (the word commonly associated with community is "gated") and hostile to the rights of the poor, the homeless, the outcast, and so on. The logic of community in the modern world is a logic that reinforces market exclusion and the disparagement of the claims of the poor. If religious considerations are to be used to uphold those claims and to mitigate exclusion, they need to be oriented directly to that task, and to be pursued in ways that by-pass the antithetical claims of community. Religious considerations are at their most powerful in politics- and are most usefully disconcerting - when they challenge the logic of community.

The publisher's promo for Gaze & Hunter states that the

This major study breaks new ground in exploring the effectiveness and accessibility of procedures for protecting the rights of individuals to equality and freedom from discrimination on the grounds of race, sex and disability. The enforcement of Australian federal anti-discrimination laws has encountered constitutional limitations. Because federal tribunals are unable to make binding decisions, in 2000 enforcement of federal discrimination matters was moved from a tribunal (the Human Rights and Equal Opportunity Commission) to the federal courts. The study examines how the move from a specialist tribunal to the federal courts affected enforcement of federal anti-discrimination law. Drawing on statistical data, analysis of reported cases and interviews with parties and their advisors under both the 'old' and 'new' systems, it investigates the impact of the change in terms of: specialist versus generalist decision-making relatively informal versus formal procedures a regime in which each party bears their own costs versus one in which the loser pays the winner's costs The study traces the impact of these changes on the decisions made by complainants about whether (and where) to bring a complaint, whether to settle their cases or proceed to litigation, and on decisions made by respondents about whether to defend or settle a case. The enforcement process in federal discrimination matters was found to erect significant barriers to individuals seeking to pursue their claims in this area.

ADHD and large wind-powered things

From a thin NY Times item on ADHD -

Perhaps eager to make clear that A.D.H.D. is far more than a metaphor for the distractions of modern life, scientists love to point out examples that date to well before the term was invented.

[Harvard neurologist David] Urion invoked Sir George Frederick Still, the first British professor of pediatric medicine, who in 1902 described the syndrome precisely, speaking of a boy who was "unable to keep his attention even to a game for more than a very short time", and as a result was "backward in school attainments, although in manner and ordinary conversation he appeared as bright and intelligent as any child could be".

Dr. Muenke brought up "Der Struwwelpeter" ("Slovenly Peter"), the 1845 children's book by Heinrich Hoffmann, which contains the story of "Zappel-Philipp", or "Fidgety Philip." (One English translation was done by Mark Twain, that great chronicler of boys.)

The circumstances of modern life can give rise to the false belief that a culture full of electronics and multitasking imperatives creates the disorder. "People have this idea that we live in a world that gives people A.D.H.D.", Dr. Urion said. Of course one shouldn't drive and text at the same time, he continued, but for "a harbor pilot bringing a huge four-masted sailing vessel into Boston Harbor, paying attention was a good idea then, too".

I do wonder whether Still's boy was simply bored by Latin declensions.

Defamation and trespass

Briefly noted -

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

Con Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 1383

Con Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 1417

Wilson v State of New South Wales [2010] NSWCA 333

alive, dead, whatever

The WSJ features a review of Heaven's Bride: The Unprintable Life of Ida C. Craddock, American Mystic, Scholar, Sexologist, Martyr and Madwoman (Basic Books, 2010) by Leigh Eric Schmidt.

"Intellectually voracious chatterbox" Ms Craddock would, it seems, have been welcomed by World Futures, the contemporary journal that is replete with problematical claims regarding dowsing, precognition, remote healing and other manifestations of 'quantum holism' and whose editor, when not engaged in mystification about the Mayan Calendar, endorses deliriously silly works about communication with the undead. Alas, World Futures is on the ostensibly authoritative list of DIISR Journals, which gives an indication of questions about academic authority in 2010.

After providing the good folk of Gilded Age New York with lectures on the history of "Phallic Worship" (the reviewer notes that her amateur studies of this subject were disregarded by the rapidly professionalizing academic world) she espoused a union with her undead partner.

Craddock's spouse was her undoing. He was ... well, let Ida tell it: "My husband is in the world beyond the grave, and has been for many years previous to our union, which took place in October, 1892." Soph, as she called him, had wooed her feebly when he had a pulse, but once he passed over his suit became more compelling. (Alarmist parents, take heed: the Ouija board was Ida's gateway to the spirit world.)

Reviewer Bill Kauffman comments that -

Discretion would seem to have been advised in this instance, but a garrulous woman in love cannot always keep a secret. Ida blabbed about Soph. Mr. Schmidt notes that the revelation "proved impossible to retract (or forget), and her sanity was henceforward disputed just about everywhere she went." At her mother's request, Ida was dragged off to the Philadelphia Asylum for the Insane, where she was imprisoned for three terrifying months for her "spiritual betrothal."

Even her allies were embarrassed by Ida. (The free-thought editor George Macdonald gibed: "Let the dead marry the dead.") Craddock tried to enlist spiritualists in the American Secular Union, whose members disdained the "deluded spook-lovers." Ecumenism has its limits. ... As for Soph, besides teaching his wife that one does not "have to bother about cooking" on the other side, he gave Ida "a knowledge of sex relations," which she passed along to single and married clients in her new role as evangel of sexology.

Craddock's idea of "sexual reform" was hardly polymorphous perversity. Celibate in the corporeal world, Craddock celebrated "ecstatic bliss" in the marital bed. She emphasized "strict male self-control" and unbridled (if bridal) "female passion." Although a disturbing number of her male tutees asked for hands-on instruction, she was faithful to Soph. Craddock's advice could be impractically high-minded: She told couples to think, during sexual congress, of "sermons, plans for benefiting other people, noble deeds."

Oh dear.

Rat trails

A perspective on Wikileaks is provided by Richard Breitman & Norman Goda's lucid 110 page Hitler’s Shadow: Nazi War Criminals, U.S. Intelligence and the Cold War [PDF], a report for the US National Archives that is drawn from a sampling of 1,100 CIA files and 1.2 million Army counterintelligence files declassified after the 2007 final report from the interagency group created by Congress to identify, declassify and release federal records on Nazi war crimes and on Allied efforts to hold war criminals accountable.

The authors conclude that -

This report discusses only a sample of newly released records, hinting at their overall richness. The 1.3 million Army files include thousands of titles of many more issues regarding wartime criminals, their pursuit, their arrest, their escape, and occasionally, their use by Allied and Soviet intelligence agencies. These include files on German war criminals, but also collaborators from the Baltic States, Belarus, Ukraine, Romania, Hungary, Croatia, and elsewhere. These files also include information on Allied and non-aligned states that had an interest in Axis personalities, including Great Britain, France, Italy, Argentina, and Israel.

The 1,110 re-released or newly released CIA name files are in most cases far more detailed than the files of the initial CIA release in 2001 and after. They contain a trove of information on Nazis who eventually worked for the Gehlen Organization or as Soviet spies after the war. They hold information about important Nazi officials who escaped and became figures of security interest in other countries spanning the globe from the Middle East to South America. Together, the Army and CIA records will keep scholars of World War II and the Cold War busy for many years.

The new files also have postwar intelligence on other subjects. The CIC kept close watch on other suspect groups, such as German communists, and kept thousands of files on them. They kept watch on politically active Jewish refugees in displaced persons camps. Indeed, there are many hundreds of newly released files concerning the remnant of European Jews who searched for a new life in Palestine or the United States. Thus the new records are of great interest to those researching a very broad range of topics from international Communism to the Jewish diaspora to the history of mass migration.

The declassification of intelligence-related material is a controversial subject, involving as it does the release of records formerly of national security interest. The current releases show, however, that the passage of years lessens the information’s sensitivity while providing researchers access to raw information that is simply not available elsewhere. By their very nature, intelligence agencies attain and record information that other government or non-government organizations cannot. None of the chapters in this report could have been written without declassified intelligence records, nor could the many articles and books that will emerge as a result of the current release. The funding for declassification and the assurance that intelligence records are opened to the public thus preserve key aspects of world history. In the interest of understanding our past Congress should, in our view, ensure that such openness continues.

The NY Times comments that -

Like earlier reports generated by the group, this one paints a grim portrait of bureaucracy, turf wars and communication gaps among intelligence agencies. It also details blatantly cynical self-interested tactical decisions by Allied governments and a general predisposition that some war crimes by former Nazis and their collaborators should be overlooked because the suspects could be transformed into valuable assets in the more urgent undercover campaigns against Soviet aggression. ...

"Tracking and punishing war criminals were not high among the Army’s priorities in late 1946", the report says. Instead, it concludes that the Army's Counterintelligence Corps spied on suspect groups ranging from German Communists to politically active Jewish refugees in camps for displaced people and also "went to some lengths to protect certain persons from justice".

Cowdery on NSW OMG statute

Legal scholar Geoff Stewart has on occasion questioned the need for extraordinary 'outlaw motorcycle gang' (aka OMG) statutes, given the range of statutes that can be deployed by prosecutors, wariness about moral panics and concern regarding abuse of justice. That questioning, as noted in past posts on this blog regarding the Totani case in South Australia (with the new SA Attorney General apparently not having embraced the message from the High Court), is not restricted to legal academics.

The online SMH today features a report on criticisms by NSW Director for Public Prosecutions Nicholas Cowdery.

Cowdery has reportedly characterised the NSW OMG statute as "draconian" and a "giant leap backwards for human rights".

While state governments and oppositions may be right that something more needs to be done about bikie gangs and criminal groups, especially when they involve themselves in an organised manner in drug manufacture and supply and crimes of violence and firearms offences, this very troubling legislation is another giant leap backward for human rights and the separation of powers - in short, the rule of law

The statute was embraced by the legislature with -

insufficient community consultation and over the deep concerns and protests of the NSW Bar Association, the NSW Law Society, academics, the Council for Civil Liberties and many others.

Cowdery comments that -

The placing of the burden of proof upon a controlled person to establish that an association with another controlled person falls within the exemptions under the Act - for example, close family members - is a draconian measure ...

[It is] reminiscent of reverse onus provisions that were in place for a time in Northern Ireland during the 'troubles' where extraordinary measures were considered appropriate in a time of general emergency.

Moreover, excessively broad drafting means that "Such legislation could apply, for instance, to political parties, labour unions, professional associations, clubs of all kinds, religious groups or charities".