Scanning

Olga Mironenko's succinct 'Body Scanners Versus Privacy & Data Protection' (University of Oslo Faculty of Law Research Paper No. 2011-20) offers a cogent and nicely-illustrated comment on law and body scanning technologies.

Mironenko indicates that -

In recent history, the world has experienced dramatic events which have had a substantial effecton the balance between human rights protection and security measures. Body scanners installed at airports are intended to protect our lives. But at the same time they have a serious impact on privacy and data protection. The international legislation allows limiting people's rights and freedoms, but only if it is in accordance with the law and is proportionate and necessary for national security, public safety and for the protection of the rights and freedoms of others. Do body scanners respect these principles? The article examines the current situation, its background and future prospects. It discusses and analyzes the key terms and legal instruments, problems, disputes and proposed "safeguards". The work concludes by pointing out the unlawfulness of current regimes and sets forth perspective on the possible solutions.

She comments that -

breaching people’s rights and freedoms can be justified under human rights legislation, if it is done in accordance with the law and is proportionate and necessary for national security, public safety and for the protection of the rights and freedoms of others. If it is accepted that the security benefit outweighs the health and privacy risks, this does not automatically mean that privacy and other values should be given up or that standards should be reduced. Increased security does not always mean reduced privacy.

Nevertheless, in the meantime the governments have failed to demonstrate that the body scanner security policy is currently justifiable within the law. Existing legislation and proposals suffer from various weaknesses and need improving. From the EU Commission’s Report and other consultation papers we can see some endeavors to incorporate and ensure the aforementioned standards, but they all contain weak privacy provisions that ignore many of the problems already identified in relation to the devices.

While halting the deployment of scanners would be unrealistic, a more practical solution would be to adopt appropriate legal, policy and technical measures focusing on two key aspects: regulate and control (i) the adoption of the scans and (ii) the use of the scans. In addition to legal norms, the means for ensuring their effective application should be established as well.

The deployment of the machines should be restricted by law and permitted only under conditions where it is necessary. From the effectiveness prospects, as long as the technology detects such sensitive items as prosthetics, breast implants, diapers, etc. and may fail to tell the difference between them and weapons, the law should provide that body scanners may neither be used as the only or primary method of screening passengers, nor as a method for screening any person unless another method of screening, such as metal detectors or behavior analysis, gives cause for additional searches. Any derogations and exceptions should be provided by law and applied strictly.

In order to evaluate the necessity, reasonableness and proportionality of the technology applications, several factors should be taken into consideration: available alternatives, types of scans chosen, technical features, etc. Different devices may differ in the effectiveness levels and privacy impacts. To decide which kind of technology to choose an evaluation of all relevant factors should be fulfilled. Much expectation is also made to the new generation of scanners which would enable a technical solution to some of the ‘privacy issues’.

An option of alternative security methods should be further developed and made available to people with ‘privacy concerns’ and/or who do not consent. States should concentrate on developing alternative solutions that are non-invasive or less invasive for passengers.

Data protection framework could be improved by establishing detailed mechanisms to enable individuals to enforce their rights. Passengers should be provided with appropriate, comprehensive and clear information about the applicable security measures - along with information regarding the protection of their rights - before traveling and before purchasing the tickets.

Complete and reliable information regarding the functioning and technical specifications of the devices, reviewed and examined by competent authorities (including independent reviewers), should be provided and made publicly available in an appropriate form. Moreover, there should be specific requirements regarding the quality of the machines. Technical specifications should include limitations on image capture, storage, or copying. The requirement of a system of encryption, password or similar security, different identification/authentication mechanisms as well as usage of other technical measures enhancing privacy and data protection should be provided and regulated by law. These requirements should concern all the stages of the technology operation, with the measures being integrated into the devices already at the design phase. All technical requirements should not only be established by law, but be accompanied by control and enforcement mechanisms.

Since the images produced by scans include sensitive information, they should receive stricter privacy protection. The potential of extracting health information should not be underestimated. A simple general prohibition is unlikely to be a practical solution. Further research is needed to deal with such risks (Liu, 2010).

In addition to general privacy and data protection regulations such as the Directive 95/46/EC, other regulatory models may be used for the scanners. It would be a good idea if the ICAO took the initiative to establish global common rules and standard approaches for the image screening technologies, particularly in relation to ensuring passengers’ rights, as has already been done with some other security measures. Although the ICAO’s regulations and guidelines are recommendations only and not obligatory for contracting states, they could become helpful in efforts to establish global, standard approaches in the aviation industry, which by definition is international in scope.

Furthermore, the ICAO’s role could be revised, so that it might be enabled not only to establish, but to enforce such rules. Another option would be adoption of industry selfregulations in the form of Code of conduct, so-called “binding corporate rules”, which are “a set of legally-binding data processing rules adopted by a company or groups of companies and which grant rights to data subjects” (Kuner, 2007, 4.120). Such combination of general privacy and data protection legislation with special guidelines and regulations on the technology may be a promising solution.

Data mining and responsibility

Two articles on privacy, data protection and research. The 58 page 'Balancing Privacy, Autonomy, and Scientific Needs in Electronic Health Records Research' by Sharona Hoffman & Andy Podgurski argues that

The ongoing transition from paper medical files to electronic health records will provide unprecedented amounts of data for biomedical research, with the potential to catalyze significant advances in medical knowledge. But this potential can be fully realized only if the data available to researchers is representative of the patient population as a whole. Thus, allowing individual patients to exclude their health information, in keeping with traditional notions of informed consent, may compromise the research enterprise and the medical benefits it produces.

This Article analyzes the tension between realizing societal benefits from medical research and granting individual preferences for privacy. It argues for a shift in the conceptual and regulatory frameworks that govern biomedical research. When studies involve electronic record review rather than human experimentation, the traditional, autonomy-dominated model should give way to one that emphasizes the common good. In record-based studies, the limited benefits of individual informed consent come at too high a cost - difficult administrative burdens, significant expenses, and a tendency to create selection biases that distort study outcomes. Other mechanisms can better protect data subjects’ privacy and dignitary interests without compromising research opportunities.

In this Article, we formulate a novel, mufti-faceted approach to achieve these ends. This approach recognizes that technical means for achieving identity concealment and information security are necessary but not sufficient to protect patients’ medical privacy and foster public trust while facilitating research. Hence, we call for supplementing such means with (1) an oversight process that is tailored to record-based research and applies even to De-identified patient records, which are currently exempt from scrutiny, and (2) public notice and education about the nature and potential benefits of such research.

David Erdos in 'Constructing the Labyrinth: The Impact of Data Protection on the Development of 'Ethical' Regulation in Social Science' more problematically argues that -

although not drafted with such activities specifically in mind, the growth of legal initiatives protecting personal information have exerted a powerful and under-recognized impact on how social science is ‘ethically’ regulated. This impact has been both direct and indirect. At an indirect level, data protection law has encouraged the development of ‘self-regulation’ by learned societies, research institutions and funding bodies including, most importantly, the recent expansion of the remit of research ethics committees within UK universities. Additionally, interpretations of the 1984 and, even more so, 1998 Data Protection Acts has resulted in the direct imposition by Universities as data controllers of key limitations on research projects. In sum, data protection has helped fuel a radical shift away from a liberal regime based on a high valuation of individual academic autonomy to a much more constrained one where academics are both placed in a formally subordinated position vis-à-vis their institutions and subject to a labyrinth of restrictions and controls.

One response might be whether that loss of autonomy is appropriate, embodies best practice or simply reflects past indifference in the public and private sectors.

Privacy and the media

The Australian offers an interesting view on the forthcoming national government discussion paper regarding a statutory tort for breach of privacy.

'Legal leader denounces Gillard government's statutory tort' by Chris Merritt states that -

Government plans to encourage people to sue each other using a statutory privacy tort have been denounced as so uncertain as to undermine the rule of law.

The Rule of Law Institute says the privacy scheme being considered by the Gillard government is so subjective it would leave ordinary people in doubt about what they could say to each other without incurring liability.

"As far as the rule of law is concerned, it is bad to have an uncertain law and it is bad to have a law that is subjective," said Robin Speed, chairman of the Rule of Law Institute.

No great surprises there. What is interesting is the statement that Speed -

said it was clear the federal government had decided to revisit plans to create a statutory privacy tort as a way of intimidating the media.

In the absence of the discussion paper there's no certainty that the tort is intended as a mechanism for intimidation. Establishment of a tort has, after all, been recommended by the Australian Law Reform Commission, NSW Law Reform Commission and Victorian Privacy Commission, which might lead some observers to deduce that the proposal is not Julia Gillard and her Attorney-General embarking on a wild frolic.

Speed is quoted as commenting that -

But we see this not so much as about freedom of the press but as a matter concerning ordinary Australians who could be sued or prohibited from saying things to his neighbour [with the Law Reform Commissions having provided] no proper evidentiary basis to support it -apart from the fact that emotionally 'we don't like our privacy to be invaded'.

The same article reports Privacy Commissioner Timothy Pilgrim as outlining some possible alternatives to a tort. Pilgrim was speaking at a seminar in the Sydney offices of Henry Davis York; regrettably his speech does not feature on the Office of Australian Information Commissioner site.

He is reported as suggesting that a statutory cause of action for privacy could complement the existing privacy laws and address some of the gaps in the law.

On what he described as a "fairly simplistic view", he said it could be possible to address the same gaps in the law by:

• Amending the Privacy Act and introducing mandatory data breach notification;

• Removing all exemptions from the Privacy Act;

• Extending the Privacy Act to cover actions by individuals instead of leaving it to cover organisations;

• Additional powers could also be given to the Privacy Commissioner, and;

• Extending the act to cover "territorial or bodily privacy".

A copy of Speed's speech is available on the Rule of Law Foundation site [PDF].

The Foundation warns that -

Today, nearly 200 years after the first publication of the Australian newspaper, freedom of speech and freedom of the press remain under attack. This time the battle is the proposal of the Australian Government to pass a new law to make it illegal to talk or write the truth about another person where it "invades" that person's privacy. ...

This legislative cause of action contains the emotive words “invasion of privacy” and then papers over the problems with the action by use of the words “privacy which the individual was reasonably entitled to expect in all the circumstances having regard to any relevant public interest”. That is not an objective test, but a subjective delegation to the courts.

It is revealing that the Bill contains no express reference to freedom of the press or freedom of speech. The closest the Bill gets is to state that the protection of the privacy of individuals must be balanced against other important interests "(including the interest of the public being informed about matters of public concern)". But freedom of speech and freedom on the press are not limited to informing the public about matters of public concern. The Bill displays a fundamental misunderstanding of those freedoms and a desire to marginalise them. ...

The Bill will not only operate as a defacto censor of an individual's freedom of speech but also of the freedom of the press.

The speech goes on -

It is suggested that if the Australian Government is serious in proceeding in this area of privacy, it should start by analysing the leading newspapers for the last 3 years and identifying the articles it considers invade a person‟s privacy and would be prohibited by the proposed law.

These articles should be identified so that the community can see what the Government wants to prohibit publication. This is also critical to see who will be within and those to be expressly exempt from the proposed legislation. Presumably the Government and its agencies will be exempted and excluded from the operation of the new law.

What is at stake is not only the freedom of the press but the freedom of each of us to converse without censorship and without the need for a royal commission to determine whether we can say what we want to say.

None of us want our privacy invaded, but we also want to live in an open and free community with other individuals who want the same thing.

The initial issue is whether Australia should enact into legislation a cause of action for breach of privacy and, if so, with or without enactment of the other rights, i.e. freedom of expression, freedom of the press, and a priority listing of rights. Or, alternatively, whether the common law should be allowed to develop incrementally.

The New Zealand Law Reform Commission in its 2010 Report rejected a legislative cause of action in favour of the development by the courts of the common law. The High Court of Australia has not ruled out the existence of a privacy remedy; such judicial development would allow the courts to deal with each case and develop incrementally the law as it is needed.

This battle, like those of the 1820's will only be won by critically testing the proposed law and whether there is substantial evidence that the law is necessary, that those sought to be exempt from the law should be exempt, and that the operation of the law will not extend beyond which is necessary.

Data Breach

'Patient Data Posted Online in Major Breach of Privacy' by Kevin Sack in yesterday's New York Times reveals that personal information regarding 20,000 emergency room patients at Stanford Hospital went onto the web and stayed online for nearly a year.

The information included patient names and diagnostic codes. It featured in a spreadsheet from a Stanford billing contractor (Multi-Specialty Collection Services) that appeared on the Student of Fortune web site, used by students to solicit paid assistance with their schoolwork. The spreadsheet reportedly appeared on the site in September 2010 as an attachment to a question about how to convert data into a bar graph. The sheet included names, account numbers, admission and discharge dates, diagnostic codes (including those for psychiatric treatment) and billing charges for patients using the hospital over six-month period in 2009.

The NYT reports that -

The breach was discovered by a patient and reported to the hospital on Aug. 22, according to a letter written four days later to affected patients by Diane Meyer, Stanford Hospital’s chief privacy officer. The hospital took "aggressive steps", and the Web site removed the post the next day, Ms. Meyer wrote. It also notified state and federal agencies, Mr. Migdol said.

"It is clearly disturbing when this information gets public,” he said. “It is our intent 100 percent of the time to keep this information confidential and private, and we work hard every day to ensure that."

The Times goes on to note that -

Records compiled by the Department of Health and Human Services reveal that personal medical data for more than 11 million people have been improperly exposed during the past two years alone.

Since passage of the federal stimulus package, which includes provisions requiring prompt public reporting of breaches, the government has received notice of 306 cases from September 2009 to June 2011 that affected at least 500 people apiece. A recent report to Congress tallied 30,000 smaller breaches from September 2009 to December 2010, affecting more than 72,000 people.

The major breaches — a disconcerting log of stolen laptops, hacked networks, unencrypted records, misdirected mailings, missing files and wayward e-mails — took place in 44 states.

One occurred at the Lucile Packard Children’s Hospital at Stanford in January 2010, when a desktop computer holding the medical records of 532 patients was stolen from the heart center by an employee. Hospital officials said at the time that no patient information was compromised.

But the California Department of Public Health fined the hospital $250,000, the maximum allowed, for failing to report the breach within five days of discovery, as is required under state law. The hospital appealed the fine, and a settlement has been reached but not yet disclosed ...

Massachusetts General Hospital in Boston, which trains Harvard medical students, agreed this year to pay a $1 million federal fine after an employee left paper medical records on a subway while commuting to work. The pages included the names of 192 patients, and diagnoses for about a third of them, including diagnoses for H.I.V./AIDS. They were never recovered.

The Department of Health and Human Services viewed the breach as a potential violation of the Health Insurance Portability and Accountability Act, the 1996 law that requires protection of medical records....

Bryan Cline, a vice president with the Health Information Trust Alliance, a nonprofit company that establishes privacy guidelines for health providers, said nearly 20 percent of breaches involved outside contractors, accounting for more than half of all the records exposed.

Cheating

The New South Wales Law Reform Commission has released its 116 page report on Cheating at gambling [PDF].

The report reflects concern regarding the adequacy of the common law offence of conspiracy to cheat & defraud, the scope of Part 4AA of the Crimes Act 1900 (NSW) and the scope of s 18 of the Unlawful Gambling Act 1998 (NSW). It also reflects concern regarding "conduct directed at fixing results or individual events in the course of sporting and other activities which may be the subject of spot or spread betting".

The Commission comments that -

Sports betting has become a major industry in Australia. Cheating at sports betting, including by match-fixing, undermines the integrity and reputation of the sports in question, can involve significant fraud, and has the potential to cause disruption to a significant economic activity.

The criminal law has not kept up to date and the Commission proposes two new sets of sports specific offences.

The first set of offences cover conduct by anybody (including players, match officials and team support people) that "corrupts the betting outcome of an event" with the intention of obtaining a financial advantage from betting.

The conduct of a person “corrupts a betting outcome” if it affects or would be likely to affect the outcome of a bet, and is contrary to the standards of integrity expected by reasonable people.

This covers for example spot and match fixing, deliberate underperformance, tanking, disrupting or interfering with the course of the event, and deliberately officiating in a dishonest way. It extends to anybody who fixes the event, or agrees to do so, or persuades another to do so, and also to conduct designed to conceal the existence of any such arrangement.

The second set of offences cover using inside information in connection with a sporting event to bet on that event, as well as providing inside information to someone else to enable them to bet on the event.

In both cases, the Commission proposes a maximum penalty of 10 years imprisonment, the same penalty as for fraud, recognising the seriousness of activity that can involve the corruption of sporting activities in aid of betting.

The Commission notes that national work is underway in this area following the adoption by the Australian Sports Ministers of the National Policy on Match-Fixing in Sport; and the agreement of the Standing Committee of Attorneys-General to develop a nationally consistent approach to criminal offences relating to match-fixing.

It also comments that it -

reviewed the role of sports controlling bodies and wagering agencies in ensuring the integrity of sporting events and gave support to the initiatives underway in Australia and internationally in this respect.

The Commission also examined cheating at gaming in connection with gaming machines and Casino type games, and proposes a review to rationalise the range of existing offences including the creation of a new general cheating at gaming offence in the Crimes Act.

Finally, the Commission recommends a review to improve NSW’s complex regulatory and enforcement arrangements to consider the creation of a single authority to replace the current division of authority between the Office of Liquor, Gaming & Racing (OLGR) and the Casino Liquor & Gaming Authority (CLGA), and to rationalise the powers of inspectors.

In relation to amendment of the Crimes Act 1900 (NSW) the Commission proposes offences of corrupting the betting outcome of an event.

The first set of recommended offences proscribe forms of conduct that corrupt the betting outcome of an event or a contingency connected with it, including -

• engaging in such conduct (cl 193M);
• offering to engage in such conduct (cl 193N(1));
• encouraging another person (including by various forms of incitement and coercion) to engage in such conduct (cl 193N(2)) and
• entering into an agreement that results in such conduct (cl 193N(3)); and
• encouraging a person to conceal, from the relevant authorities, conduct or an agreement that corrupts a betting outcome. (cl 193O)

To avoid criminalising actions that involve the breaking of the rules of a sport, or making tactical decisions for reasons other than affecting betting the Commission suggests several qualifications. The relevant conduct must be contrary to the standards of integrity that a reasonable person would expect of someone in a position to affect the outcome of any type of betting on the event, there must be an intention to obtain a financial advantage or of causing a financial disadvantage as a result of any betting on the event and there must be knowledge or recklessness as to whether the relevant conduct corrupts a betting outcome of the event.

The Commission also recommends an offence of using inside information about an event for betting purposes, ie to -

• bet on that event (cl 193P(1)(a));
• encourage another person to bet on that event in a particular way (cl 193P(1)(b)); or
• communicate the information to another person who would be likely to bet on that event. (cl 193P(1)(c)).

The proposed provision is limited by the requirement that the inside information must not be "generally available" and that it must be information that would affect the decision of a person, who commonly bets on such events, whether or not to bet on that event.

Chapter 4 calls for a central gambling authority. The Commission notes issues concerning establishment of a revised regulatory or supervisory structure in relation to gambling (wagering on sporting and other events and gaming) -

• the desirability of a national uniform approach;
• the role of sports controlling bodies in detecting and in responding to cheating;
• the adoption of sporting codes of conduct that govern relevant conduct;
• the need to establish anti-corruption education programs;
• the role of betting providers in detecting and reporting suspicious betting trends;
• the need for a clearer and more comprehensive consultative process for identifying approved betting events within the States and Territories;
• the need for international collaboration between sports controlling bodies, betting agencies, and law enforcement agencies; and
• the potential formation of a national sports betting integrity unit to perform a policy and liaison role within a national regulatory framework.

It suggests that there is a need to review the current NSW regulatory arrangements that are shared between the OLGR and the CLGA.

The OLGR is "accountable for the development, implementation and integrity of the overall regulatory framework across alcohol, licensed clubs, charitable fundraising and gambling activities in NSW", including policy direction and advice regarding regulated activities, early intervention, education activities and co-ordination of licensing, compliance and enforcement functions. Those regulatory activities encompass oversight over -

• Sale and consumption of alcohol (over 14,000 licensed premises including over 1,700 hotels)
• Operation of licensed clubs (over 1,300 clubs)
• Gambling (including 96,000 gaming machines, wagering, lotteries, keno, art unions and raffles with an annual turnover in excess of $40bn and combined annual state tax contribution of $1.6bn)
• Charitable fundraising (over 5,200 current fundraising licences).

The CLGA operates under the Casino Liquor & Gaming Control Act 2007 (NSW) and which replaced the NSW Casino Control Authority, Liquor Administration Board and Licensing Court.

The Commission argues that those arrangements are "unduly complex and out of line with the approach adopted in other States and Territories". Consideration should accordingly be given to the possible establishment of a NSW central gambling authority, with specific powers in relation to the regulation of gaming and sports and other event betting.

Gawking

From the Rorotoko interview with Mark Anderson about his Twilight of the Idols: Hollywood and the Human Sciences in 1920s America (University of California Press, 2011) -

Twilight of the Idols is ultimately a book about the central importance of deviance to the formation of American mass culture during the 1920s.

Given our current media obsessions with unusual crimes, bizarre occurrences, and public scandals, such an assertion is perhaps not all that surprising. Yet, what has changed with our contemporary media, and what has been one of its most determining characteristics for the last ninety years, is the ability to maintain a strong distinction between representations of deviance as news and information (crime reportage, political scandal, biographies of the famous and the infamous) and representations of deviance as entertainment (fictional movies, video games, popular music).

Of course, some media forms exist at the boundaries of such a distinction — reality television, for instance, or the celebrity tabloids. Yet, these are the exceptions that prove the rule.

Consider, for example, how often we pursue the tabloids in the supermarket line as a temporary amusement. Part of the fun of tabloids comes from their sheer outrageousness, from their unconvincing masquerade as serious news. Significantly, this fun also rests upon the joke that is on some imagined audience who might, in fact, take the tabloids seriously, an audience who might just mistake these sensational stories for real news.

In other words, we assist the dominant media in upholding the distinction between social discourse and entertainment by continually postulating a pathological audience incapable of adequate cultural discrimination. A portion of our pleasure in the consumption of deviance comes from the very properness of our appreciation of those media forms that deliver it to us. Appreciating the difference between news and amusement is an important means of being normal in our society today.

Twilight of the Idols is about a moment just prior to this particular epistemological separation of consumers of mass culture from the worlds that are depicted there. This separation had to be achieved, in part, so as to maintain a set of divisions upon which modern social authority rests—divisions between public and private, work and leisure, self and other.

Twilight looks at the historical possibilities that early Hollywood celebrity culture posed for overcoming such divisions, as well as the way those possibilities, those dynamic new ways of experiencing and knowing the world, were attenuated by evolving film industrial practices, by the multiple regulatory responses to the many star scandals that filled the nation’s headlines from 1921 to 1926, and by the consolidation of the human sciences of psychology, sociology, sexology, and ethnography.

While liberal left critics in America today typically view celebrity culture as a burdensome popular distraction taking citizens away from the real political issues facing our world, I have written an elegy for a lost moment when mass cultural reception, particularly the reception of Hollywood stars, was a principal site of social involvement. ...

Schooled in post-structuralism and postmodernism, we like to pride ourselves on having sophisticated notions about identity. We find it fairly unimaginable that large sectors of the public prior to, say, the Second World War were capable of conceiving of identity as relational, of having a nuanced understanding of the unconscious, or of thinking race, gender, and sexuality to be amenable to personal, social, and historical transformations. To the extent that such sophistication is cherished by us as properly the domain of social scientists, media experts, and cultural critics, I want readers of Twilight to question at what cost such professionalization was won and at what costs it continues to be maintained.

dot au regulation

The Board of auDA, the nongovernment body responsible for the dot au gTLD, has announced its acceptance of the final report of the Names Policy Panel established in 2010.

The Panel, drawn from industry and community representatives, advised the Board on potential changes to rules governing dot au domain names. Its report is sensible and forward-looking, avoiding the regulatory capture that is increasingly evident in decision-making by ICANN.

The Board has accepted the following recommendations -

Domain Name Eligibility and Allocation Policy Rules for Open 2LDs

• the requirement for registrants to be Australian (or registered to trade in Australia) should remain in place.
• the “special interest club” eligibility criterion for org.au and asn.au domain names should be more clearly defined.
• auDA should publish the results of its periodic audits.
• auDA’s position on third party rights with respect to domain name leasing or sub-licensing arrangements should be clarified and published.
• the close and substantial connection rule for id.au should be relaxed to include domain names that refer to personal hobbies and interests.
• direct registrations under .au should not be allowed at this time.

Reserved List Policy

• the Reserved List Policy should be retained, and updated as necessary to ensure consistency with Commonwealth legislation.
• the names and abbreviations of Australian states and territories should remain on the Reserved List, but may be released on application provided that the proposed registrant is eligible to use the name under normal policy rules, and that they have received permission from the relevant state or territory government.

Domain Monetisation Policy

• the Domain Monetisation Policy (2008-10) should be abolished as a separate policy;
• Schedules C and E of the Domain Name Eligibility and Allocation Policy Rules for Open 2LDs (2008-05) should be amended to include domain monetisation under the close and substantial connection rule for com.au and net.au domain names (as exemplified in Attachment A to the Panel’s report);
• the existing conditions of use on domain names registered on the basis of domain monetisation under the “close and substantial” connection rule should be retained;
• the definition of “domain monetisation” should be replaced with a description of permissible practice, to accommodate a range of monetisation models; and
• the Guidelines for Accredited Registrars on the Interpretation of Policy Rules for the Open 2LDs (2008-06) should be amended to include additional explanatory material regarding domain monetisation.

Prohibition on Misspellings Policy

• the Prohibition on Misspellings Policy should be retained in its current form.

The Board noted the following recommendations, pending further information from auDA staff regarding implementation issues -

• That registrants should be able to license a domain name for a 1, 2, 3, 4 or 5 year period.
• in the absence of any compelling technical or policy reason to maintain the restriction, single character domain names should be released (subject to the registrant being eligible to register the name).

Intervention Orders

The always-useful Quis custodiet ipsos custodes? blog notes that the Personal Safety Intervention Orders Act 2010 (Vic) has come into effect.

The statute replaces the Family Violence Protection Act 2008 (Vic), which in turn - along with the Stalking Intervention Orders Act 2008 (Vic) - replaced the Crimes (Family Violence) Act 1987 (Vic).

The purposes of the new statute are -

a) to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats; and

b) to promote and assist in the resolution of disputes through mediation where appropriate.

The characterisation of stalking in s 10 is as follows -

(1) A person (the first person) stalks another person (the second person) if the first person engages in a course of conduct-

(a) with the intention of causing physical or mental harm to the second person, including self-harm, or of arousing apprehension or fear in the second person for his or her own safety or that of any other person; and

(b) that includes any of the following -

(i) following the second person or any other person;

(ii) contacting the second person or any other person by post, telephone, fax, text message, email or other electronic communication or by any other means whatsoever;

(iii) publishing on the Internet or by an email or other electronic communication to any person a statement or other material-

(A) relating to the second person or any other person; or
(B) purporting to relate to, or to originate from, the second person or any other person;

(iv) causing an unauthorised computer function (within the meaning of Subdivision 6 of Division 3 of Part I of the Crimes Act 1958) in a computer owned or used by the second person or any other person;

(v) tracing the second person's or any other person's use of the Internet or of email or other electronic communications;

(vi) entering or loitering outside or near the second person's or any other person's place of residence or place of business or any other place frequented by the second person or the other person;

(vii) interfering with property in the second person's or any other person's possession (whether or not the first person has an interest in the property);

(viia) making threats to the second person;

(viib) using abusive or offensive words to or in the presence of the second person;

(viic) performing abusive or offensive acts in the presence of the second person;

(viid) directing abusive or offensive acts towards the second person;

(viii) giving offensive material to the second person or any other person or leaving it where it will be found by, given to or brought to the attention of, the second person or the other person;

(ix) keeping the second person or any other person under surveillance;

(x) acting in any other way that could reasonably be expected -

(A) to cause physical or mental harm to the second person, including self-harm; or
(B) to arouse apprehension or fear in the second person for his or her own safety or that of any other person.

(2) For the purposes of this Act, the first person has the intention to cause physical or mental harm to the second person, including self-harm, or to arouse apprehension or fear in the second person for his or her own safety or that of any other person if -

a) the first person knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or

b) the first person in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.

(3) In this section - mental harm includes -

a) psychological harm; and

b) suicidal thoughts.

Under s 123 a person must not publish, or cause to be published, a report of the proceeding or about the order that contains

(2) (a) if a party to or a witness in the proceeding, or a person the subject of the order, is a child-

(i) the locality or any particulars likely to lead to the identification of the particular venue of the court; or

(ii) any particulars likely to lead to the identification of the child or any other person involved in the proceeding, either as a party to the proceeding or as a witness in the proceeding, or the subject of the order; or

(b) a picture of or including a child concerned in a proceeding for a personal safety intervention order.

The associated penalty is 100 penalty units or 2 years imprisonment or both for a natural person and 500 penalty units in the case of a body corporate.

The Big Guy Has A Beard

There's nothing like accounts of religious revelation.

Colton Burpo, who's claimed to have visited Heaven (the place of the white light, angel and fluffly white clouds rather than the defunct Melbourne nightclub) at the age of four, reports that Jesus has a beard, bare feet, white robes and a purple sash. Indeed.

Burpo's short-term trip to domains celestial is recounted in Heaven Is For Real: A Little Boy's Astounding Story of His Trip to Heaven and Back (Thomas Nelson, 2011) by Todd Burpo, Sonja Burpo, Colton Burpo and Lynn Vincent, the latter being Sarah Palin's ghostwriter.

The book includes passages such as -

"What do people look like in heaven?"

"Everybody's got wings", Colton said.

Wings, Huh? "Did you have wings?" I asked.

"Yeah, but mine weren’t very big." He looked a little glum when he said this.

"Okay ... did you walk places or did you fly?"

"We flew. Well, all except for Jesus. He was the only one in heaven who didn't have wings. Jesus just went up and down like an elevator."

Oh, great, an elevator, albeit with eyes that "were just sort of a sea-blue and they seemed to sparkle" and one-liners such as "I had to die on the cross so that people on earth could come see my Dad".

JC has a very big seat just next to that of his dad.

All in all it's an entirely missable tract unless you are fascinated by religious kitsch and by the latest breathless iteration of the "it's big, it's real, and I'm back to tell you about my visit" genre.

Sister Choo Nam Thomas in Heaven Is So Real (Charisma Press) - well, if you have been there you are unlikely to report that it is so dull, or fake, or cheesy - reports on how the guy with the beard taught her a special dance, which sounds something like the Frug.

Conveniently, she claims that people who reject her message are under the influence of the Devil. Those who are sick need to cast out the Devil, pray and repent rather than summon a surgeon or reach for the pharmaceuticals. Presumably if they avoid medicine they'll go upstairs (or to the big rotisserie downstairs) so much quicker.

Televangelist Morris Cerullo - another recurrent day-tripper to the great beyond, and on first name terms with the big guy - announces that -

At [his] World Conference, God will prepare you to face every circumstance and every satanic assault you are facing these days in this worldwide economic famine. You will be assured of 100 percent victory in your family, finances, property, health, as well as your lost, prodigal and unsaved loved ones!

Oh yes, and there's the usual blind getting to see, lame to walk etc although - as I've pointed out elsewhere - the miracle-working seems quite selective because there are no reports of missing arms, legs, hands, fet or other excised body parts miraculously reappearing. Amputation, it seems, is forever.