deaths in custody

The 103 page Deaths in Custody: National Deaths in Custody program 2008 report [PDF] released last month by the Australian Institute of Criminology (AIC) notes that many of the deaths in custody are attributable to natural causes (in particular the ghastly illness known as old age), in contrast to the 1980s and 1990s when the death often involved younger men dying from self-inflicted injuries such as hanging.

The report analyses of data collected through the National Deaths in Custody Program, established in 1992 following recommendations by the Royal Commission into Aboriginal Deaths in Custody.

In 2008 there were 86 deaths in prison and police custody, up from 74 deaths in 2007 but much lower than the numbers in the 1980s and 1990s. No deaths occurred in juvenile justice centres in 2008.

Co-author Laura Beacroft commented that -

Overall deaths in custody have been decreasing since 2000. The slight increase in the numbers of deaths since 2006 are associated with the ageing prison population and resulting health issues such as cancer and heart attacks – 70% of prison deaths were due to natural causes, and 47% of all deaths in custody were due to natural causes.

Beacroft went on to note that the long-term trends for both Indigenous and non-Indigenous deaths in custody have been decreasing over the past decade.

Indigenous people are not more likely to die in custody. The problem lies in the over-representation of Indigenous persons entering custody – Indigenous people comprise less than 2.5 percent of the total Australian population yet account for over a quarter (28%) of young people in juvenile detention, one-third (33%) of people involved in police custody incidents and almost one-quarter (24%) of the total prison population.

Between 1980 and 2005 there were generally more deaths of prisoners aged 25–39 years each year than those aged 55 years and over, a pattern reversed in the past seven years. In 2008 the number of deaths of persons aged 55 years and older was the highest recorded since data collection began in 1980, representing 35% of prison deaths in 2008. The number of 40 to 54 year olds who died in prison custody in 2008 was the second highest ever recorded.

In 2008 some 16 prison deaths occurred in cells, 26 in public hospitals, 10 in prison hospitals and two in other custodial settings. Six Indigenous deaths in 2008 occurred in a public hospital, two occurred in a cell and one in another custodial setting.

The AIC reports that young Indigenous and non-Indigenous prisoners are more likely to hang themselves than older prisoners, with 84% of total hangings involving persons aged under 39 years and 39% involving persons under 25 years. Preliminary analysis indicates that the median age of those dying in police custody (as of 2008) is 29 years, lower than the median age at death of 43 years in prison custody.

It goes on to indicate that -

factor contributing to this rise in the number of natural cause deaths in prison custody may be the poorer health of prisoners compared with the general population. Conclusions from a recent study [PDF] completed by the AIHW on prisoner health indicate that

prisoner populations are acknowledged as having some of the worst health in the community. High rates of chronic disease, blood-borne viruses and sexually transmitted infections, psychiatric illness and injury are found in this population.

Further, research has found that prisoners in Australia had higher rates of schizophrenia and psychotic disorders than the wider community and that the percentage of the prison population with these mental illnesses was much higher in Australia than in New Zealand, Canada or worldwide figures. As a result of these findings, it is concluded that recent rises in natural cause deaths in prison can probably be attributed, in part, to the ageing of the prison population combined with the poorer physical and mental health of prisoners in Australia when compared with the wider community.

In a co-authored article in the December issue of Melbourne University Law Review last month I pointed to indications that the incarcerated have a greater incidence of ADHD and comorbidities, likely to shape the individual's economic circumstances and thus health prior to incarceration.

Coming thru the rye

The BBC reports - alas with few details - that Fredrik Colting's 60 Years Later: Coming Through the Rye (Windupbird, 2009), the unauthorised sequel to Salinger's The Catcher in the Rye, will not be published in the US or Canada and will be renamed.

Colting (aka John David California) has apparently reached a settlement with the Salinger estate, following decisions by the US federal court and appeals court during 2009 and 2010 in favour of Salinger. The latter described himself as "fiercely protective of his intellectual property" and as someone who "has never allowed any derivative works to be made using either The Catcher in the Rye or his Holden Caulfield character".

In the 2009 decision in the US District Court for the Southern District of New York Judge Deborah Batts granted a permanent injunction against Colting and his publisher [PDF]. Batts was unimpressed by the claim that 60 Years Later was a literary commentary rather than a sequel and went on to conclude that Colting's work infringed Salinger's copyright.

Batts held that 60 Years Later was not a commentary and not a parody. She drew attention to Colting's public description (consistent with promo on the novel's jacket) that 60 Years Later was a sequel. Somewhat tartly, she noted that the 'commentary' characterisation was only introducted after Salinger sought an injunction, dismissing Colting's claims as "post hoc rationalizations employed through vague generalizations about the alleged naivete of the original" and tagging the 'transformative' defence as "at most, a tool with which to criticize and comment upon the author, JD Salinger, and his supposed idiosyncracies".

Colting had claimed that his work was not -

designed to satisfy any interest the public might have in learning what happened next to Holden Caulfield or the other characters in Salinger's book. Rather, it is intended to stand on its own as a critical examination of the character Holden Caulfield, the relationship between author and his creation, and the life of a particular author as he grows old but seems imprisoned by the literary character he created.

That claim would seem problematical, particularly given the experience related by Ian Hamilton in In Search Of J D Salinger (Heinemann, 1988).

Colting's publisher characterised his work as a "speculative psychological mystery"; the Salinger estate described it as "a rip-off, pure and simple".

Colting and publisher filed an appeal to the Second Circuit Court of Appeals, supported in an amicus brief by the New York Times, Associated Press, the Gannett Company and the Tribune Company. Publisher support reflected their traditional disquiet about prior restraint, ie the Court's willingness to issue a ban in anticipation of publication rather than providing remedies after publication.

The brief thus describes Salinger's injunction and Batt's decision as -

the most offensive and least tolerable prohibition on speech. ... [I]n this case, where the only harm appears to be to the pride of a reclusive author in not having his desires fulfilled barring commentary about his iconic book and character, without any actual financial harm, the lower court saw fit to ban publication of a new book. Such a result defies common sense, and is not — and cannot be — the law.

A separate amicus brief was filed by The Organization for Transformative Works (of interest to fanfic and slash enthusiasts), the Association of College & Research Libraries, the American Library Association and the Association of Research Libraries [PDF].

Under the terms of the settlement Colting has reportedly agreed not to dedicate the book to Salinger, is prohibited from referring to The Catcher in the Rye or Salinger and is "prevented from using the copyright claim or Salinger's so-called 'ban' to promote the work". No details, alas: "We've come to an agreement with the Salinger trust but I'm afraid I can't go into any specifics".

Colting's novel apparently features an incontinent 76-year-old named "Mr C" escaping from a retirement home and heading to New York before stalking Salinger. One friend - having given up on Alice Randall's The Wind Done Gone: A Novel (Houghton Mifflin), dismissed as much much longer than the Civil War and more tasteless than Margaret Mitchell's Ashley-Wilkes-&-hominy-grits epic - commented tonight that he had hoped for something wildly postmodern, for example a fanfic parody in which Mr C watches American Psycho, buys a chainsaw, heads to NY in a limo and despatches the undead HLA Hart, Andy Warhol and a truckload of other zombies before being eaten by emo Catcher In The Rye kids.

A visit by Mr C, with chainsaw and flamethrower, to the Australian cricket team might be more useful.

Spam and Fax DNC

The Australian Communications and Media Authority (ACMA) has accepted an 11 page enforceable undertaking [PDF] from Virgin Blue Airlines under the Spam Act 2003 (Cth).

The undertaking follows an ACMA investigation into complaints alleging that the airline continued to send commercial email despite multiple attempts by recipients to unsubscribe from its mailing list. The Act, as noted in past posts on this blogs, requires commercial email to include a functional unsubscribe facility. Undertakings have been received in the past by enterprises such as Virgin Mobile (Australia) Pty Ltd, Commonwealth Securities Ltd and Vodafone Hutchison Australia Pty Ltd. They are a gentler regulatory mechanism than the penalties imposed by the Federal Court under the Spam Act, eg the $22 million penalties noted in December and August last year over egregious misbehaviour.

The enforceable undertaking - which includes payment of $110,000 - commits Virgin Blue to "a thorough overhaul and independent assessment of its email marketing practices". Virgin Blue acknowledged that it had "experienced problems" with its email marketing systems, leading to receipt by some previously unsubscribed consumers of new (and undesired) email.

ACMA Chair Chris Chapman commented that -

Businesses which market by email need to regularly test that the unsubscribe function in their messages is working properly. The Spam Act requires that a request from a consumer to be unsubscribed from commercial emails must be addressed. No further commercial electronic messages are allowed to be sent to the consumer five working days after an unsubscribe request is made.

Announcement - sound the trumpets, beat the drums - aside, the undertaking does not provide much to write home about (ACMA's guide to undertakings is online [PDF]). It was more than a year in the making. It features standard wording in 'sorry but no admission' mode and promises to try harder in future. Virgin Blue will engage an independent third party to "thoroughly assess its email marketing processes" and to implement any recommended changes. It will also provide training to relevant employees, establish a complaints handling policy, and audit 10 per cent of its email marketing campaigns monthly for a year.

Readers are reminded that closing date for submissions in response to ACMA's call for comment on the draft national standard for the fax marketing industry is 4 February 2011.

ACMA is seeking views on the proposal to require a destination sending number (a 'header line') on all marketing faxes as part of the fax marketing industry standard. Submissions in previous consultations proposed inclusion of the additional information to assist in reducing the number of complaints arising from faxes that were originally sent to numbers not on the Do Not Call Register being redirected automatically to numbers that are on the register.

Ask not for whom the bell tolls

Andrew Jacobs in the New York Times notes claims that Chinese farmer Shi Jianfeng evaded over US$550,000 in road tolls during eight months of driving, being punished by the Pingdingshan Intermediate People's Court in Henan province with a US$300,000 fine and life imprisonment.

There seems to be little dispute that Mr. Shi, who had turned to hauling sand and gravel to make a living, behaved egregiously. He purchased two fake military license plates and other documentation that allowed him and his hired drivers to escape paying tolls on his two trucks during 2,300 trips between May 2008 and January 2009. In announcing the verdict this week, The Dahe Daily suggested that the defendant had accepted his guilt because he declined to appeal. He also did not have a lawyer.

But the financial details of the violations for which Mr. Shi was convicted only served to feed suspicions that he had been railroaded. The toll per truck trip averages more than $200 — a high figure, though truck tolls can go by weight.

But many people noted that his profit during those toll-free days amounted to $30,000. If he had truly evaded $556,000 in road fees, as the police charge, he would have lost more than $520,000 from his trucking business.

Criticism of the sentence has reportedly included comments such as -

Rape and murder will earn you 15 years in prison but evading road charges will get you life. Ours is a miraculous country with peculiar laws.

The Times comments that -

Popular aversion to such fees has been inflamed by media reports of freeloading government motorcades and inflated tolls that end up in the pockets of local officials. In 2008, the country’s National Audit Office said that motorists had handed over $2.3 billion at illegally erected tollbooths.

The China Daily offered a more nuanced account, highlighting identity offences -

A man who used fake military documents to evade 3.68 million yuan ($557,000) in highway toll fees in a Central China city has been sentenced to life in prison for fraud. ... Shi Jianfeng, from Yuzhou city, bought two fake military car license plates, military driver's licenses, military ID cards and other documents.

Tollgate records showed that Shi avoided toll payment 2,362 times from May 2008 to January 2009, the court said.

Shi said in court that he hired people to drive two trucks to transport sand and stone and had earned more than 200,000 yuan during that period.

He was fined 2 million yuan and his illegal revenue was confiscated, according to the court verdict.

Shi did not hire a lawyer and does not plan to appeal, the court said.

An employee, surnamed Li, at Xiatang tollgate on Zhengzhou-Yaoshan Highway where Shi's trucks went through every day, said Shi claimed he was a soldier with Xuchang city's Armed Police division and came to apply for toll-free passes for two trucks in May 2008, saying there was a construction project going on for the division, the local Dahe Daily reported.

The documents were complete, but there was no way to identify if they were authentic, according to Li.

Shi Jianfeng admitted that he used fake military documents to evade toll fees in order to earn more money.

Fearing that tollgate employees would notice flaws in the documents, he regularly changed his drivers, the report said.

'Some socio-economic impacts of toll roads in rural China' by Him Chung in 10(2) Journal of Transport Geography (2002) 145-156 notes that China's Roadway Law of 1998

authorises local governments at county levels or above to establish toll stations and collect fees within their administrative jurisdiction. Generally, toll stations are allowed every 40 km in the plains and 20 km in hilly areas. Thus, China's toll roads are found in both city and countryside – a case that is different from Malaysia, Indonesia and Thailand, where toll roads are mainly established in urban areas. Also, the toll road is often the only connection between two places.

The idea of “maintain road by road” also entails the establishment of illegal toll stations. Huge revenues generated by tolls attracted a variety of government authorities to join this "gold rush" since the 1990s. Tollbooths have been established by Ministries of Police, Forestry, Taxation, Industry and Commerce, Urban Construction, Family Planning and Public Health, and different levels of local government. Illegal tolls have become a serious problem in China, and are regularly found along county, township and village roads. In 1993, a study showed that a local freight transport company in Shangdong province was fined a total of 275,732 yuan within 10 months. Among the total, 5% were contributed to transport departments, 89% to police departments and 6% to environmental, industry and commerce, and tax departments.

Illegal tolls were levied under various rubrics including vehicle washing, vehicle entrance, commodity delivery, border crossing and road user fees. Car washing was one of the most common levies. A car-washing booth was illegally established on a busy highway linking Guangzhou and Shenzhen SEZ. Drivers were stopped and forced to pay to have their vehicle washed. This 24 hr operated illegal booth occupied two of the three lanes and created serious traffic congestion at the eastern border of Guangzhou city. Also, according to the Ministry of Transport, there were illegal checkpoints and roadblocks. Road users were forced to pay separate fines to irrelevant authorities under the pretext of speeding, overloading and dangerous driving. A Guangdong newspaper disclosed that tickets for traffic infringements were given by agricultural officers at illegal checkpoints in Dongguan and Yunan). Another case showed that a farmer's utility truck was stopped at a roadblock in Weicheng and received a ticket of 190 yuan. No reasons were given from the uniformed officials who issued the infringement. Also, the receipt given was a fake with incorrect date and amount of fine. The situation worsened when legal tollbooths levied unauthorised charges so that the officers could profit personally. These "three illegals" (san lun)” – illegal tollbooths, illegal fines and illegal levies – jeopardised normal economic activities and transport development.

There are no statistics on the number of illegal stations, but the situation can be projected from sundry sources. Early in 1993, the Ministry of Transport abolished 467 toll stations and 292 levies were cancelled nationally. In Guangdong, a special team was established in 1995 to investigate the "three illegals". Within six months, over 1000 complaints were received. This led to the abolition of 14 illegal tollbooths in the province – six of them were located in rural areas. However, despite this achievement, many of the illegal toll stations have metamorphosed and now appear in mobile forms. Some mobile tollbooths are primitive and comprised only a rope, a torch, a "stop" sign, and several motorcycles. These mobile manifestations are difficult to check and close down. A survey in 1996 demonstrated that there were 2582 teams (excluding police departments) – 46 950 people in 15 different government uniforms – involved in collecting illegal tolls in Guangdong province. According to the Guangdong government, another 13 illegal toll stations, including 10 in the countryside, were abolished in 1998. However, these official figures underestimate the real number. A typical example of this was two illegal booths in Zhongshan persisted in tolling after they had been officially abolished.

Global Village Idiot

From Nicholas Carr's TNR review of Marshall McLuhan: You Know Nothing of My Work! (Atlas, 2010) by Douglas Coupland -

a Canadian television show in 1968 featur[ed] a debate between Norman Mailer and Marshall McLuhan. The two men, both heroes of the '60s, could hardly be more different. Leaning forward in his chair, Mailer is pugnacious, animated, engaged. McLuhan, abstracted and smiling wanly, seems to be on autopilot. He speaks in canned riddles. "The planet is no longer nature", he declares, to Mailer's uncomprehending stare; "it's now the content of an art work".

Watching McLuhan, you can't quite decide whether he was a genius or just had a screw loose. Both impressions, it turns out, are valid. As Douglas Coupland argues in his pithy new biography, McLuhan's mind was probably situated at the mild end of the autism spectrum. He also suffered from a couple of major cerebral traumas. In 1960, he had a stroke so severe that he was given his last rites. In 1967, just a few months before the Mailer debate, surgeons removed a tumor the size of an apple from the base of his brain. ...

McLuhan was a scholar of literature, with a doctorate from Cambridge, and his interpretation of the intellectual and social effects of media was richly allusive and erudite. But what particularly galvanized the public was the weirdness of his prose. Perhaps because of his unusual mind, he had a knack for writing sentences that sounded at once clinical and mystical. His books read like accounts of acid trips written by a bureaucrat. That kaleidoscopic, almost psychedelic style made him a darling of the counterculture — the bearded and the Birkenstocked embraced him as a guru — but it alienated him from his colleagues in academia. To them, McLuhan was a celebrity-seeking charlatan.

Perhaps he was, instead, the global idiot savant.

I'm reminded of William Melody's acerbic review in Information, Communication & Society of Marshall McLuhan: The Medium and the Messenger (MIT Press, 1998) by Philip Marchand -

Now that McLuhan has been dead for nearly twenty years and cannot divert us with his dazzling elliptical metaphors and bad puns, his work can be examined without raising the passions the deliberately provocative oral communicator managed to inflame in his prime. Adopting a stance of arrogant superiority, he considered clarifying his ideas an unworthy menial task for intellectual plodders, and dismissed challenging questions with comments like, 'You don't like those ideas. I got other ones', and the infamous, 'You think my fallacy is all wrong?' He paid scant attention to facts and never conceded a point. His ultimate put down was a benign explanation that the question revealed the person was locked into the uni-dimensional visual bias of the age of print and could not really be expected to understand.

Content regulation

National Attorney-General Robert McClelland and Minister for Home Affairs Brendan O'Connor have tasked the Australian Law Reform Commission with a review (to be completed by 9 December) of content classification "in light of changes in technology, media convergence and the global availability of media content".

The review will update the ALRC inquiry of 1991. In that report the ALRC recommended -

• There should be a national legislative scheme to deal with censorship issues. A federal Act should establish the administrative bodies and set out the procedures for classifying films and publications.
• A non-legislative code should contain the criteria for classification.
• The States and Territories should adopt classifications determined under the code and provide enforcement proceedings.

Implementation of the recommendations saw -

enactment of the Classification (Publications, Films and Computer Games) Act 1995 (Cth), providing for the classification of publications, films and computer games for the Australian Capital Territory and, through complementary State and Territory legislation, the basis of a national classification scheme.

The Broadcasting Services Act 1992 (Cth) was amended by the Broadcasting Services (Online Services) Amendment Act 1999 (Cth) to provide for censorship and classification of internet material and online services. Under that statute complaints regarding content can be made to the Australian Communications & Media Authority (ACMA), which can ask the Classification Board to classify the content consistent with the Classification (Publications, Films and Computer Games) Act 1995 (Cth) and the National Classification Code (2005). ACMA can require a host or service provider to stop or restrict access to certain content, depending on the classification it attracts.

In announcing the current review the Minister for Home Affairs commented that -

When the National Classification Scheme began, classifiable content and the way it was delivered to consumers was relatively static.

Today, films can be watched in a cinema, on DVD, on TV or downloaded. Many video games include significant film segments to tell stories, and some films have interactive content. The National Broadband Network will increase this ready access to classifiable content.

People, particularly parents, need a system of classification in Australia that allows them to make informed choices about what they wish to read, see and hear.

This important review will look not only at classification categories, but also at the whole classification system to ensure it continues to be effective in the 21st century.

The Attorney-General’s Department is seeking comments on the proposed terms of reference [PDF] for the review, with comments to be provided by the 28th of this month.

As might be expected, the preamble to the 'Review of Censorship and Classification' offers something for everyone, with the Ministers "having regard to" -

• the rapid pace of technological change in media available to, and consumed by, the Australian community
• the needs of the community in this evolving technological environment
• the need to improve classification information available to the community and enhance public understanding of the content that is regulated
• the desirability of a strong content and distribution industry in Australia, and minimising the regulatory burden
• the impact of media on children and the increased exposure of children to a wider variety of media including television, music and advertising as well as films and computer games
• the size of the industries that generate potentially classifiable content and potential for growth
• a communications convergence review, and
• a statutory review of Schedule 7 of the Broadcasting Services Act 1992 and other sections relevant to the classification of content

Moving on from genuflections to the divergent interest groups, the ALRC is to consider -

1. relevant existing Commonwealth, State and Territory laws and practices
2. classification schemes in other jurisdictions
3. the classification categories contained in the Classification Act, National Classification Code and Classification Guidelines
4. any relevant constitutional issues, and
5. any other related matter.

Law students

A colleague has pointed me to results from the US Law School Survey of Student Engagement [PDF].

Highlights include -

What is going well
• Three quarters of 3Ls (73%) reported that they were involved with pro bono or volunteer work during law school.
• Only 7% of 1Ls frequently came to class unprepared. Forty-two percent of first-year students never came to class without completing the readings or assignments.
• The average student spent 27 hours per week reading assigned material and studying.
• More than half of students (57%) frequently worked harder than they thought they could to meet faculty members’standards or expectations.

What needs attention
• The average student found faculty members to be only moderately available, helpful, and sympathetic.
• Half of students never worked with faculty on activities other than coursework, such as committees or student life activities.
• More than a quarter of students (27%) never discussed ideas from readings or classes with faculty members outside of class.
• Female students were less likely than male students to ask questions in class frequently.
• One in four students (24%) said that their coursework placed a strong emphasis on memorizing facts, ideas, or methods from courses and readings so that the student could repeat them in pretty much the same form.

What warrants further investigation
• While half of students felt that their legal education contributed substantially to the development of a personal code of values and ethics, half felt that the law school contributed only some or very little in this regard.
• Forty percent of 3Ls reported spending some time each week working for pay in a legal setting.
• A majority of students (59%) who used career-counseling services at the law school were satisfied with their experience, but more than half of 3Ls (57%) were unsatisfied with job search help

The report goes on to comment that -

The Carnegie Report concluded that law schools do an excellent job of preparing students academically. In its assessment of the status of modern legal education, the authors noted that a primary strength of law school is the focus on the intellectual transformation of students—teaching students to think like lawyers. Data from LSSSE also confirm that students devote significant time and energy to class preparation. Results indicate that law school provides a rigorous academic experience for students.

At the same time, however, Carnegie suggests that law schools are not as effective in facilitating the transformation of law students to lawyers. In this regard, elements of professionalism and ethics are relevant. In part, the failure of law schools to achieve this broader transformation in their students may be due to ambivalence of faculty in teaching and discussing ethical and moral issues, suggesting that this is perhaps due to an assumption that such efforts are futile as students enter law school with well-developed moral sensibilities. Data from the 2010 LSSSE survey corroborate Carnegie’s assertion that professional development of students during law school is largely underemphasized. [The report is based on] responses from 6,839 students attending 22 law schools to a set of experimental items that explore students’ perceptions of how well their law school prepared them to step into the role of professionals.

According to students, law schools provide only moderate preparation for various ethical and professional aspects of their future legal careers. For example, only half of students reported that law school prepared them well (combining response options “very much” and “quite a bit”) to deal with ethical dilemmas that may arise as part of law practice, while only slightly more reported that law school prepared them to serve the public good through their profession. By contrast, more than two-thirds of students reported that law school has prepared them to manage their time effectively. While time management is important for success in school as well as in practice, the data suggest that law schools could do more to nurture the ethical development of their students.

Students with experience in clinics or pro bono work were more likely than other students to report that their law schools provided adequate professional preparation. Specifically, clinical participation and pro bono work correlated with a higher degree of preparation in the following areas:

• Understanding the needs of future clients
• Working cooperatively with colleagues as part of a legal team
• Serving the public good through their profession
• Understanding professional values that will serve them in their legal careers

Must try harder

Human Rights Watch has released a 67-page report [PDF] titled Promises Unfulfilled: An Assessment of China's National Human Rights Action Plan, arguing that the plan has remained a public relations exercise because China's government has failed to deliver on commitments in its first-ever National Human Rights Action Plan (2009-2010) (NHRAP).

That Plan has been promoted as protecting key civil and political rights. Its goals have been undermined through the tightening of restrictions on rights of expression, association and assembly, thereby exacerbating rather than significantly reducing the human rights abuses specifically identified by the NHRAP.

The NHRAP articulates policy objectives in categories such as social, economic, civil, cultural and political rights. It includes sections on international human rights obligations and China's human rights education initiatives.

HRW notes that in 2009-2010 Beijing -

* continued its practice of sentencing high-profile dissidents such as imprisoned Nobel laureate Liu Xiaobo to lengthy prison terms on spurious state secrets or "subversion" charges;

* expanded restrictions on the media and internet;

* tightened controls on lawyers, human rights defenders and nongovernment organizations;

* broadened controls on Tibetans and Uighurs; and

* engaged in increasing numbers of enforced disappearances and arbitrary detentions, including use of secret, unlawful detention facilities known as "black jails.

Despite an NHRAP pledge that "it is strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means," torture of suspects remains routine. Contrary to protestations prohibiting illegal detention by law enforcement personnel and promises that "Those who are responsible for illegal, wrongful or prolonged detention shall be subjected to inquiry and punished if found culpable" illegal detention also remains widespread, with thousands of people held in 'black jails', ie secret illegal detention centers.

China's police use legal powers to routinely impose administrative detention via 're-education through labor' (laojiao) and house arrest (ruanjin). Laojiao allows the police to unilaterally impose custodial sentences of up to three years while depriving detainees of any due process of law and judicial oversight. Ruanjin (which Chinese police can impose arbitrarily and outside of any legal procedure) results in detention with restricted and monitored internet and phone communications, and 24-hour surveillance by unidentified and often aggressive security forces.

Perceptions of prudence differ. The Plan indicates that the death penalty "shall be strictly controlled and prudently applied"; lots of families are paying for the bullets used for prudently executing criminals.

HRW notes that -

The NHRAP committed the government to "fulfill its obligations to the international human rights conventions to which it has acceded, and initiate and actively participate in exchanges and cooperation in the field of international human rights." Yet the Chinese government continued to have a poor record of cooperation with international bodies on issues of human rights. The government has repeatedly rejected requests for an independent international investigation into the March 2008 protests across the Tibetan plateau, refused to approve requests to visit Tibet by the United Nations high commissioner for human rights and six United Nations special rapporteurs, and made false statements during China's first Universal Periodic Review at the UN Human Rights Council in February 2009, including "There is no censorship in the country," and "No individual or press has been penalized for voicing their opinions or views."

The report goes on to note that -

the NHRAP does not address several major human rights issues prioritized by both Chinese and foreign human rights activists: China's hukou, or household registration system; rights abuses related to rising numbers of property disputes; and human rights concerns related to China's increasingly active diplomatic, development, and investment activities in the developing world.

Westboro Hatespeech

The Arizona legislature is reported to have passed legislation to prevent members of the Westboro Baptist church (noted for hatespeech regarding LGBTQI people, Jews, Roman Catholics and sundry others) from disrupting the funeral of the nine-year-old victim of shooting by Jared Loughner.

Given the church's delight in excess - and the readiness with which the statements and activities of its members are relayed by the mass media - it is unsurprising that church founder Fred Phelps has praised Loughner for killing six people and announced that the righteous will picket their funerals. Westboro has attracted attention for disrupting the funerals of soldiers and people who have died of AIDS.

The new law does not stop the picketing. It does however keep the picketers at least 100 metres from the funeral.

Distaste for Westboro's activity is reflected in news that 40 people wearing 3m high angel wings will stand between the funeral and church members. A group of bikers reportedly will also interpose themselves between the fans of Mr Loughner.

The Supreme Court has yet to decided on the constitutionality of restrictions on protests at funerals in a case brought by the father of a soldier killed in Iraq. restrictions have attracted substantial academic literature, including 'A Time to Mourn: Balancing the Right of Free Speech Against the Right of Privacy in Funeral Picketing' by N Rutledge in (2008) 67(2) Maryland Law Review 295-357, 'Balancing Freedom of Speech with the Right to Privacy: How to Legally Cope With the Funeral Protest Problem' by A Messar in (2007) 28(1) Pace Law Review 101-128, 'Freedom of Speech and the Intentional Infliction of Emotional Distress Tort' by E Volokh in (2010) Cardozo Law Review, 'Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment' by C Wells in 1 California Law Review Circuit (2010) 71-86, 'The Incompatibility of Free Speech and Funerals: A Grayned-Based Approach for Funeral Protest Statutes' by R McCarthy in (2007) 68(5) Ohio State Law Journal 1469-1508, 'The Constitutionality of "Let Them Rest in Peace" Bills: Can Governments Say "Not Today, Fred" to Demonstrations at Funeral Ceremonies?' by K Ritts in (2007) 58(1) Syracuse Law Review 137-170 and 'Making Sense of "God Hates Fags" and "Thank God for 9/11": A Thematic Analysis of Milbloggers' Responses to Reverend Fred Phelps and the Westboro Baptist Church' by D Brouwer & A Hess in (2007) 71(1) Western Journal of Communication 69-90.

The latter comments that -

Through codes of religious authority, including scriptural references and common symbols of Christianity, Phelps claims the weight of God. On their protest signs and in their protest slogans, his church and his movement frequently employ the "Thank God for ..." motto, usually inserting the latest national tragedy, whether it be the death of Supreme Court Justice Rehnquist, Hurricane Katrina, or the improvised explosive devices (IEDs) that kill soldiers overseas. Phelps simultaneously defends and attacks through the use of Christianity. As a shield, religion and its constitutionally protected expression defend Phelps and his right of protest. Frequently, he has reverted to his religious rights and freedom of speech as a defense in court. As a weapon, Christianity warrants Phelps’ vexing presence at a sacred location that is particularly meaningful to military-aligned audiences. Phelps' articulations of religion inspire a riotous variety of responses about the values and meanings of Christianity, complicating any sort of ideological closure advocated in the name of Christianity.

The major funeral protest in Australia of which I am aware was at the Sydney Opera House memorial service for the unlovely Kerry Packer, with the arrest of eight protestors. In 2009 Westboro foreshadowed protests at the memorial service for Australian bushfire victims, stating that -

The guilty Australians will not repent of their national sins of the flesh - (ie sodomy, divorce, fornication, adultery, etc) - even after God killed hundreds in the fires and cast them into hotter fire and brimstone in Hell. Therefore we will picket them in their hypocritical grief.

Phelps and associates have been denied entry to Australia, the UK and Canada.

Smart Meters, Dumb Headlines

Elsewhere - more in sorrow than in anger (of course) - I've critiqued claims about the inevitable and imminent supremacy of broadband over powerline (BPL), aka powerline communication (PLC), as a mechanism for providing broadband to rural/urban consumers using plain old powerlines ... in other words the 'grid' that connects businesses, households and other entities to the power stations.

Those claims have on occasion been driven by commercial opportunism (nothing like good news to pump up a flaccid share price or buff a stodgy corporate profile), incomprehension or indifference on the part of the mass media and the tendency of 'citizen journalists' to drink the digital koolade. The reality is - and will remain - that although broadband (however defined) can be delivered via the conventional electricity grid, such delivery is fraught with difficulty and is not commercially competitive once steps are taken to deal with radio interference and other problems. (I've noted that is also possible to deliver the net via carrier pigeon or bongo drum ... both mechanisms are technically feasible but, how very strange, have not supplanted wireless, fibre or conventional copper.)

I can thus empathise with the following response to reports that a 'smart meter' trial in Liverpool (UK) will lead to householders enjoying broadband over the grid -

Will this minion of the undead ever get a stake in its heart. Please ... silver bullets, garlic, wooden stakes, holy water something! anything!!!

Small scale Australian trials, under the auspices of ACMA, of BPL have gone nowhere - typically distinguished by deliriously upbeat media releases (and equally uncritical reporting) followed by an embarrassing silence as implementation does not eventuate. Across the world BPL solution vendors have packed their kit and slunk away; urban and rural showpiece projects have fizzled (eg here).

BPL continues to be "the technology of the future ... and always will be" - bright forecasts, dim reality.

Trust

Recent posts (here and here) have pointed to claims - unsubstantiated, exaggerated or otherwise - of unauthorised access to Vodafone customer data.

As some readers of those posts have inferred, alongside perceived security inadequacies at Vodafone - and arguably at some of its competitors, given that most telcos rely on similar dealer networks that are often staffed by apparently bored, inexperienced 18-somethings - there are grounds for criticism of the way that the organisation has responded to consumer (and broader public) concern.

Ongoing unhappiness with Vodafone coincides with release by the Brookings Institute of a 17 page paper by Allan Friedman, Patrick Crowley & Darrell West on Online Identity and Consumer Trust: Assessing Online Risk [PDF]. That document is not radical or scintillating and is arguably less incisive than the discussion in recent IPTF and FTC documents noted here.

However, it is a useful reminder - although one I suspect will escape the notice of both Vodafone and the Australian Privacy Commissioner - of the importance of trust in online environments.

Data loss may well be an unpleasant, inevitable fact of life for both consumers and data custodians (we should conceptualise public/private sector organisations as data custodians rather than data owners). However, the relationship between consumers, organisations and third parties needs to be founded on trust. For maintenance of that trust is is imperative that organisations demonstrate that they are aware of sensitivities, are committed to a meaningful response and are committed to proactive effective action that will substantially inhibit future losses.

Luhmann meets Facebook

Jesper Tække's 'Facebook: Networking the Community of Society' Conference Paper for the 11th Annual International and Interdisciplinary Conference of the Association of Internet Researchers (AoIR)) [PDF] -

The article examines the significance of new "social media" like Facebook for the way we socialize, develop social identity, and shape society. Based on the work of Luhmann, the article proposes that community communication is fundamental to the selfregulation of our society and that this type of communication also provides the basis for the formation and maintenance of people’s social identity, so that they and society are in harmony. In contrast to community communication, the article explores the notion of network communication, which is classified as communication that may have some positive effects but that also may pose certain risks for modern society and for the development and maintenance of social identity. The article argues that communication through and about status updates on Facebook may be categorized as network communication, and finally it discusses whether and to what extent this kind of communication leads to the aforementioned risks.

In a comment on the metrics of cool Tække goes on to comment that -

Facebook consists of thousands of synchronously existing parallel networks and all users are isolated in the centre of their own unique networks.

Since Facebook is a medium for online contact between people who know each other offline, there must be a limit to how many friends a user can have before seeming unserious, or becoming a microcelebrity, as Danah Boyd called this phenomenon when I discussed it with her. It is my feeling that it seems cool to have at least 200 friends, but, conversely, not very cool to have many more than the 400. Users with so many friends seem to be collecting all sorts of unknown people in order to become a micro-celebrity, which someone with around 700 friends may be described as. The fact that many comedians and politicians (and also some of my colleagues) now have thousands of friends means that they have gone from using Facebook as do other mortals ― to network with friends, colleagues and family ― to using it as a quasi-mass medium facing their crowds of fans. ...

I have defined communities as a special kind of communication system whose main principle is that everyone has access to communication. Networking is also an expression of communication, but with a much smaller degree of community; networks are not organized and can only be poorly described as systems because their social differentiation is weak. Even though Facebook is not as cartel‐like as LinkedIn, the medium still plays a role in increasing the diffusion of networks. Theoretically, this could perturb the balance between society's primary functional
differentiation based on organizations and the secondary network coding.

He concludes - oh mirabile dictu - that

The societal risk is that network friends might not be sincere in their contributions to organizations. So rather than base their contributions on objective criteria and rules that apply equally to all, people will choose to further their network friends’ special interests. The parasite may kill the host. From a theoretical perspective, the problem is that networks cut across the closure of functional systems in the fact dimension and the closure of organizations in the social dimension. This problem is more complex in the case of Facebook: Exchanging services in the Facebook network may well be limited in the fact dimension but not in the social dimension because Facebook does not require membership in a strict sense. In addition, Facebook allows messages to be forwarded. It may be argued that the friendship system for the individual bounds the system in the social dimension, while no closure is evident in the fact dimension (everything can be communicated).

The fact of the matter is, however, that within Facebook's communicative structure many parallel networks are actualized in which no one has the same circle of friends, which means that the relationship structure is poly‐centred in the social dimension and thus open and impossible to limit. As a result, the only unique feature of the system is that communication occurs in it, and that this communication is decoupled from other communication by the very technology that enables and quasi‐duplicates it. If Facebook is considered a quasi‐mass medium it might actually contribute to the community of society. For example, Facebook can also be used critically to address the corruption of networks that worries Luhmann, and it can be used to focus the debate, as foreseen by Habermas, by processing societal reflection within all the functional systems.

There is a similar perspective in 'Clicking for friendship: social network sites and the medium of personhood' [PDF] by Daniel Lee, Jessica Goede & Rebecca Shryock in 49 MedieKultur: Journal of media and communication research (2010) -

Social networking sites such as MySpace and Facebook depend on familiar social resources, including language, reading/writing and established semantic constructs such as personhood, privacy and friends. However, the use of computers, the Web 2.0 platform, and the latest networking software are revolutionising how "personhood" and "friendship" are produced by communication. We refer to the media theory of Niklas Luhmann to identify specific differences in how communication is organised and reproduced on networking sites. The electronic medium appears to be changing the way participants selectively construct and bind expectations of personhood and communicative ties to themselves and others. Using software available on the Web, users confront each other as digital bodies, as participants in communication, available for friendship within a new "ether of interactivity".

the business of judging

From 'The work of the Australian judiciary: Public and judicial attitudes' by
Sharyn Anleu & Kathy Mack in 20(1) Journal of Judicial Administration (2010) 3-17, drawing on the Australian Survey of Social Attitudes [AuSSA] -

a very large proportion of Australians regard the work of courts as important to their community, a view which is shared by the judiciary. A desire to undertake work of value to the community was an important factor for many in the judiciary to undertake that role, and most are satisfied with the importance to society of their work.

However, experience with the courts is very limited among the Australian public, and the lack of direct knowledge may contribute to low levels of confidence, especially if the primary source of information is media reports. It is important to recognise that general questions about confidence tend to produce overall negative responses. Specific questions generate a more complex picture: Australians are almost equally split regarding their confidence in the criminal courts to deal with matters fairly – 52% express a great deal or quite a lot of confidence while 48% express not very much or no confidence. Over two-thirds of respondents express confidence in criminal courts to have regard for defendants' rights compared with less than half who think courts have regard for victims’ rights. Four-fifths (78%) express not very much or no confidence in the criminal courts to deal with matters quickly, and there is widespread agreement among the AuSSA respondents.

Public confidence in the courts (or lack thereof) may be derived, in part, from an assessment about whether the courts and judicial personnel are performing their roles appropriately and whether they possess the relevant skills for judging. One important judicial role is sentencing persons convicted of crime. A large majority of Australians agree that people who break the law should be given stiffer sentences and a clear majority believe that judges should reflect the (presumably more punitive) views of the public when sentencing. Australian attitudes are ambivalent about whether "courts should emphasize solving social problems more than punishing offenders". Nearly four in 10 Australians agree the court should emphasise solving social problems more than punishing offenders, while one-third disagree. Other research finds that public views are more nuanced about the role of sentencing work and that informed publics share judicial views regarding appropriate sentences.

Moving away from areas where there is a high degree of media attention, such as sentencing, other areas of similarity between the attitudes of the judiciary and the public emerge, particularly in relation to the important skills and qualities for judicial office. In general, similar proportions of the judiciary and the Australian public regard general life experience, diligence/hard work and compassion as essential or very important for the judiciary, while higher proportions of the public regard legal knowledge as essential, compared with the judiciary.

The most striking difference is with impartiality, regarded as essential by over 90% of the judiciary contrasting with two-thirds of the Australian public. These findings may suggest that some, though not most, Australians may have a somewhat different understanding of a core attribute of the judiciary and judicial decision-making compared with judicial views. Nonetheless, well over half of the AuSSA and the judicial respondents agree that legal knowledge and impartiality are integral to judicial work.

The findings about impartiality and sentencing may be linked: when imposing sentence, the law requires judges and magistrates to give impartial consideration to a much wider range of factors than simply punishment, which may result in sentences which appear lenient to the large proportions of Australians who indicate they want stiffer sentences. The legal view which emphasises the paramount importance of impartial application of law to judicial decision-making may be an aspect of the judicial role which some members of the public either do not fully appreciate or do not accept.

While responses to concrete, specific questions about judicial work demonstrate more congruence between the general public and the judiciary, especially in relation to the necessary skills for judicial work, there are still significant areas where public and judicial attitudes differ, which can be factors in reducing public confidence in the courts.

Griefing

Having reread Julian Dibbell's 'Mutilated Furries, Flying Phalluses: Put the Blame on Griefers, the Sociopaths of the Virtual World' (in Wired in 2008, now in Steven Johnson [ed] The Best Technological Writing 2009 (Yale University Press, 2009)) and Burcu Bakioglu's less engaging 'Spectacular Interventions of Second Life: Goon Culture, Griefing, and Disruption in Virtual Spaces' in 1(3) Journal of Virtual Worlds Research (2009) 3-21 over lunch I am struck by a BBC item today reporting that YouTube has removed hundreds of explicit videos that were tagged with the names of teenage celebrities such as Hannah Montana and that commenced with images suitable for minors before featuring groups of adults engaged in various intimacies. The uploading, supposedly in response to restrictions on music copyright infringement, was claimed as demonstrating the ease with which adult content can be disseminated via YouTube.

The BBC claims that one user (or briefer) believed to have uploaded some of the videos is -

Flonty, whose profile states that he is 21 and from Germany.

He told the BBC: "I did it because YouTube keeps deleting music. It was part of a 4Chan raid."

4Chan [being a culture where] "Anything and everything can, and usually does, happen here. We have our very own unique culture, and there is no group quite like us anywhere out there".

When asked if he was concerned that children can freely watch such inappropriate material on YouTube, Flonty replied: "Children will find inappropriate material around the internet anyway.

"This kind of raid showed how easy it is to upload porn to a website that millions of people browse on a daily basis".

One response to that was

Flonty - you may have shown how easy it is to upload this material. It's also easy to hit people with a car, but that doesn't mean you do it. The anonymity of the internet helps cowards.

Another is

The problem is that the hackers intentionally tagged the videos under misleading names. So it seems to me that their intent was to get children to look at pornographic materials. The issue is more than just porn on YouTube. I'm all for freedom of expression and allowing people to upload whatever they want, but I'm not for dishonesty. And in this overtly sexual world, it gets hard for parents to trust the internet even though its becoming close to impossible to live without it.

True, there's porn on millions of sites which children could easily have access to, but there is a significant difference between that and interest groups purposely tricking and delivering porn to children in a Hannah Montana package on YouTube.

away from magical thinking

Reading Ideology, Evidence and Competing Principles in Australian Indigenous Affairs: From Brough to Rudd via Pearson and the NTER (CAEPR Discussion Paper 289) (2009) [PDF] by William Sanders and the thoughtful 2011 Parliamentary Library paper by Matthew Thomas & Luke Buckmaster on Paternalism in social policy: when is it justifiable? [PDF].

The 31 page Sanders paper -

tracks the recent rise of ideology and evidence discourse as a way of describing good and bad Indigenous affairs policy. Expressing dissatisfaction with this discourse, it suggests a slightly more complex analytic way of thinking about Indigenous affairs involving three competing principles; equality, choice and guardianship. The paper suggests that dominant debates in Indigenous affairs balance these principles and move between them over time. Using a fourfold categorisation of ideological tendencies, it also suggests that different tendencies of thought about settler society and its relations with Indigenous societies occupy different positions in relation to the three competing principles. Finally, using the work of the Northern Territory Emergency Response Review Board as an example, the paper examines the role of evidence in Indigenous affairs. Evidence, it argues, always needs to be contextualised and is always a part of arguments or debates. The role of evidence in Indigenous affairs needs to be understood in relation to the much larger issue of balancing competing principles.

Thomas & Buckmaster comment in their 30 page paper that -

Governments are increasingly called upon to introduce paternalist policies — that is, policies that restrict the choices of individual citizens in their own interests and without their consent. Paternalist policies are often controversial, not least because they infringe a key principle of liberal societies; namely, that citizens are best placed to know their own interests.

While paternalist policies are often contentious, they are nevertheless ubiquitous. This suggests that the main issue is not whether or not paternalism itself is justifiable, but rather the conditions under which particular paternalist policies may be said to be justifiable.

This paper argues that paternalist policies may be considered justifiable under circumstances where high stakes decisions are involved, the decisions being made by individuals are irreversible and it is possible to identify failures in people's reasoning. It is further argued that if paternalist interventions are able to be justified in terms of people's own values and preferences, then this adds weight to their acceptability given that they do not undermine people's autonomy.

Relatively little scholarly attention has been devoted to the questions of what particular forms of paternalism may be deemed to be appropriate. This paper suggests that the principles of discrimination, proportionality, accountability and efficacy provide a framework with which to consider the appropriateness or otherwise of various forms of paternalist intervention.

The emphasis on making sense of evidence is continued in a GeoCurrents post on 'The Failure of the Failed State Index'.

The author of that post comments that -

If the Failed State Index is a promising but problematic analytical tool, the map that accompanies it on the Foreign Policy website is something else altogether. At first glance, it appears the cartographers have mapped sovereign states from red to green, while using white as an unmarked category to include both dependent territories, such as Greenland and Puerto Rico, and key disputed lands, such Western Sahara and the Hala'ib Triangle (claimed by Sudan, administered by Egypt). Closer inspection, however, reveals a stunning lack of consistency. The regions depicted in white turn out to have nothing in common. Some are dependencies and a few are disputed territories, but others range from autonomous areas, to insular portions of sovereign states, to fully independent countries. Meanwhile, the world's hottest territorial dispute, Kashmir, is essentially invisible: the area controlled by India is mapped as part of India, the area controlled by Pakistan is mapped as part of Pakistan, and the area controlled by China (Aksai Chin) is mapped as if it were a lake (or perhaps desiccated lake, given that it is portrayed exactly like the Aral Sea!).

A few of the oddities on the map deserve special mention. The cartographer's most glaring gaffe is the excision of the island of Newfoundland from Canada. France too is shorn of most of its islands; the map implicitly refutes French sovereignty over all of its overseas departments (Guiana, Martinique, Guadeloupe, and Réunion), even though they are as much parts of France as Hawaii and Alaska are parts of the United States. In the Caribbean, several independent island countries (Saint Vincent and the Grenadines, St. Lucia, Dominica, and more) are denied sovereignty, mapped instead as white splotches. Further south, Chile has been divested of its half of Tierra del Fuego. Some autonomous island groups, such as Portugal's Azores and Finland's Åland Archipelago, are mapped in white, but not Denmark's autonomous Faroe Islands. Taiwan, a de facto sovereign state not recognized by most other independent countries, is shown in white, but Kosovo, which fits the same category, is colored. A too-large West Bank is mapped in white, but in the accompanying tables it is aggregated with Israel. Elsewhere the mapmaker takes islands belonging to one country and assigns them to another. The coloration scheme shows Socotra as part of Somalia rather than Yemen, Rhodes as part of Turkey rather than Greece, and the Florida Keys as part of the Bahamas rather than the United States. Similar errors abound. Have the editors of Foreign Policy and the creators of the Failed State Index never checked their own map?

We take it very seriously

Over the weekend I pointed to reports of unauthorised access and use of Vodafone customer data, with claims that data had been exploited by gangs.

The story continues, with Vodafone chief executive Nigel Dews reported as commenting that he does not believe there is a widespread problem and that "It appears to have been a one-off incident". Customer reassurance aside, it is likely that Vodafone is not in a position to determine whether the problem is a "a one-off" or otherwise.

Mr Dews is reported as stating that -

We take this data security issue very seriously.

It's very important that we uphold the highest standards of data integrity for our customers. ...

I'm not concerned about the brand at the moment, I'm mostly concerned about making sure our customers' records are safe.

That stance is traditional, with similar statements by other organisations over the past two decades after revelation that information has been exposed. A more proactive approach to data protection (thereby upholding "the highest standards of data integrity") is appropriate and is indeed achievable.

In an ABC report today Vodafone is described as indicating that a dealer or employee is probably responsible for sharing a password that allowed personal information to become available on the internet. The reality is that probably numerous dealers and employees, rather than an isolated individual, have been sharing. The statement does not lessen the gravity of the situation; it merely indicates that Vodafone has experienced social engineering rather than falling victim to the master hacker - black tshirt, inked, bad attitude, accommodation in Vladivostok courtesy of the cyber mafiya - featured in popular tales about data loss.

Vodafone is reportedly "resetting passwords every day to make sure the system is secure". we might ask whether that is effective and why such a regime wasn't in place prior to 2011. Are Vodafone's competitors (inc the plethora of Telstra, Optus and Virgin dealers) using the same arrangements?

Dews is reported as stating that Vodafone will refer anyone caught to the Australian Federal Police, explaining that "It could be someone who works in our stores or one of our dealers. If that's the case, we will come down with the full force of the law."

A sceptic might wonder about the statement that -

People know and understand and are well trained in our procedures and protocols and it's very important they aren't breached.

Without excessive disrespect for Mr Dews, it would appear that the procedures, training and understanding are inadequate if there has been large-scale (especially recurrent) exposure of data and if Vodafone is not in a position to readily determine what is going on.

Mr Dews is reported as saying "I do want to reassure our customers that we are investigating quickly and thoroughly". Quite so. He went on to promise that "If there are things that we can do to make our data safer, we will implement those with the highest priority". Such reassurance would be strengthened if action had been taken in the past, rather than on a reactive basis.

Credit Reporting

The national Minister for Privacy, Brendan O'Connor, has announced a roundtable meeting at Parliament House on 10 February to discuss development of a proposed new Credit Reporting Code of Conduct.

Under the Privacy Act 1988 (Cth), financial institutions are required to protect consumers' private information, including details they use to assess a customers' eligibility for banking products. The Minister commented that -

A binding Code of Conduct will be an integral part of the new credit reporting regime, helping to provide better protection for consumers and better guidance for business

The new Code will supposedly -

encompass more specific rules around access to clients' personal information, data accuracy and complaint handling than is currently possible to include in legislation

The Roundtable will "contribute to the development of the industry-led Code, and will provide an open forum for interested parties to discuss any outstanding issues of concern". Credit reporting agencies that collect, store and disclose consumer information, finance companies, and consumer and privacy advocates are invited to attend.

The Minister's media release indicates that draft amendments to the Privacy Act regarding comprehensive credit reporting will soon be finalised and referred to the Senate Finance & Public Administration Committee for inquiry and report.

Mr O'Connor commented that -

Any Code of Conduct developed by industry will need to be approved by the Australian Information Commissioner before taking effect

The former Privacy Commission's complaisance regarding requests by magicians in white coats (ie re PID 11 and 11A) suggests that a permissive approach to code development by the credit reporting industry is likely.

Interestingly, the round table is not being organised by the Office of the Information Commissioner, with an OIC representative politely (well done) indicating that you will need to contact the Department of Prime Minister & Cabinet if you wish to attend the event. One issue with privacy policy development in the Commonwealth is that it verges on being everyone's responsibility and no-one's.

Data loss

The Sunday Age reports that

the personal details of millions of Vodafone customers, including their names, home addresses, driver's licence numbers and credit card details, have been publicly available on the internet in what is being described as an "unbelievable" lapse in security by the mobile phone giant.

Just another example of large-scale data loss, in a regulatory environment that features no meaningful penalties for poor practice on the part of data custodians?

The newspaper goes on to state that it -

is aware of criminal groups paying for the private information of some Vodafone customers to stand over them.

Other people have apparently obtained logins to check their spouses' communications.

The Sunday Age explains that -

Personal details, accessible from any computer because they are kept on an internet site rather than on Vodafone's internal system, include which numbers a person has dialled or texted, plus from where and when.

The full extent of the privacy breach is unknown but ... possibly thousands of people have logins that can be passed around and used by anyone to gain full access to the accounts of about 4 million Vodafone customers.

Professor Michael Fraser, the head of the Australian Communications Law Centre at the University of Technology, Sydney, said that it appeared to be a major breach of the company's privacy obligations and "unbelievably slack security".

"The fact you can look up anybody as easily as that seems to be a gross breach of privacy and resulting in an almost negligent exposure to criminal activity," said Professor Fraser, who also heads the Australian Communications Consumer Action Network.

A spokesman for Vodafone said yesterday the company had ordered an immediate investigation and review of security procedures. "Customer information is accessed through a secure web portal, accessible to authorised employees and dealers via a secure login and password," he said.

"Any unauthorised access to the portal will be taken very seriously, and would constitute a breach of employment or dealer agreement and possibly a criminal offence."

"We will be conducting a thorough investigation of the matter with our internal security experts and will refer the matter to the Australian Federal Police if appropriate."

He said all passwords would be reset, and training and other procedures would be reviewed.

Well, he would say that, wouldn't he.

A post on the Vodafone site by Cormac Hodgkinson, Director of Customer Service and Experience, reads -

Vodafone customer data security

You may have seen recent media reports in relation to customer information – please be assured that Vodafone takes customer information and data security extremely seriously. Customer information is not 'publicly available on the internet'. Customer information is stored on Vodafone's internal systems and accessed via a secure web portal, accessible to authorised employees and dealers via a secure login and password.

Yours sincerely

That reassurance is problematical, given indications that a large number of Vodafone employees and dealers have access and that access is being misused. Exactitude about 'publicly available' look disingenuous if passwords are being passed around, sold or gifted to mates (and thence to mates of mates).

The Sunday Age comments that -

Because the customer database is not an intranet (internal company system) and instead on the internet, users with a password can log in to the portal from anywhere, then access any customer's information.

Vodafone retailers have said each store has a user name and password for the system. That access is shared by staff and every three months it is changed. Other mobile dealers who sell Vodafone products also get full access to the database.

Anyone with full access can look up a customer's bills and make changes to accounts. Limited access allows searching by name, which takes much longer and is more involved but can be just as effective when done correctly. "It's scary stuff in the wrong hands"

What is the response from the Office of the Information Commission, the new agency that includes the national Privacy Commissioner. Regrettably, it's same old, same old. The Sunday Age reports that -

Australian Privacy Commissioner Timothy Pilgrim said all organisations should take appropriate steps to secure the personal information of their customers or they risked breaching the Privacy Act.

"If an individual believes their privacy has been interfered with they should first contact the organisation responsible and if they are not satisfied with their response they can make a complaint to our office," Mr Pilgrim said.

He has backed the federal government's intention to give his office extra powers to impose penalties should he find a breach of the act.

The prospect of complaints to the Privacy Commissioner is underwhelming, given that entity's historic reluctance to take on major offenders, failure to publicly shame behaviour such as that noted here and questions about its policy analysis (eg the alarming PID 11 and 11A highlighted in Privacy Law Bulletin last year, that authorise large-scale - and ineffective - genetic fishing expeditions.)

Given what appears the scale of the data exposure and the possibility that some of Vodafone's competitors use similar systems (that may also have been compromised, to use another delightful bureaucratic euphemism) it would be appropriate for the Privacy Commissioner to initiate an own-motion investigation rather than waiting for the complaints to flood in or rather wanly complaining, yet again, that he needs more resources and more power. Public shaming - pungent, timely, pertinent - is a key mechanism for agencies ... a mechanism that offsets perceptions that agencies have experienced regulatory capture. The federal Commissioner would do well to adopt the forward-looking, positive and articulate approach taken by the Victorian Commissioner (OVPC).

It would also be appropriate for investigation by ACMA, the national telecommunications regulator. The co-regulatory scheme for telecommunications is founded on industry responsibility. In practice, both major telcos and the telco minnows have behaved - and continue to behave - in ways that call co-regulation into question.