ICC and Down Syndrome

New Zealand advocacy group Saving Downs is reported to have persuaded the International Criminal Court (ICC) to conduct a preliminary examination in response to the group's claim that the New Zealand government’s prenatal screening programs (which include identification of Down Syndrome) amounts to genocide. The group is associated with Right To Life NZ.

It is important to read the group's promotional material critically, as there is no indication that the ICC has endorsed the group's claims regarding 'genocide', 'ethnic cleaning', 'social engineering' and 'selective breeding'. A preliminary investigation simply means that someone in the ICC prosecutor's office has received the group's paperwork and is looking at it prior to deciding whether the basis of the complaint against the NZ government is reasonable in relation to the ICC's charter.

The group has previously been unsuccessful in action within New Zealand, having argued that the availability of screening violates Article 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide because it imposes measures intended to prevent births within a 'specific human group'. Saving Downs characterises people with Down syndrome as both an ethnic group and a racial group on the basis that they are a stable and permanent group of people, linked genetically through having a third 21st chromosome, and share the same physical characteristics. From its perspective screening discriminates against people with Down syndrome and likewise supposedly violates the Crimes Act 1961 (NZ).

Article 2 of the Convention defines genocide as any act committed with intent to destroy - in whole or in part - a national, ethnic, racial or religious group. That act might include the imposition of measures intended to prevent births within the group. Article 6 of the Rome Statute of the International Criminal Court refers to “imposing measures intended to prevent births within the group'. The Statute - discussed in Building the International Criminal Court (Cambridge University Press, 2008) by Benjamin Schiff, The Emerging Practice of the International Criminal Court ( Martinus Nijhoff, 2009) by Carsten Stahn and An Introduction to the International Criminal Court (Cambridge: Cambridge University Press 2004) by William Schabas - gives the ICC the power to investigate and prosecute international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. Importantly the Statute refers only to groups of religious, ethnic, racial, and national classification.

It is unlikely that the ICC will conceptualise people with Down Syndrome as representing a group under the Statute. That means it will not go on to address the New Zealand screening program as genocide. The NZ Government has in the past argued that it is not mandating abortion on the basis of prenatal screening or euthanasia of minors. It has also recurrently indicated that screening is not compulsory and has been available in some form in New Zealand since 1968.

The New Zealand Human Rights Commission (HRC) reportedly determined that people with Down syndrome are not protected under Article 6 of the Statute and that screening as such is not in breach of the Human Rights Act 1993 (NZ). In subsequent consideration by the New Zealand Director of Human Rights Proceedings it was also reportedly determined that people with Down syndrome are not a discrete group protected under Article 6. The Director was approached by Right to Life NZ for representation in group proceedings before the NZ Human Rights Review Tribunal under s 80(4) of the Human Rights Act 1993 (NZ) on the grounds that the screening programme violated the Convention and the 1961 Crimes Act.

His determination was apparently provided in confidence to those who had sought his support and there is no clear information on the HRC/Director's site.

Claims that deaf people represent a discrete 'ethnicity' have similarly not gained traction in international law. Given its charter the ICC has not aspired to address all human rights abuses (and does not have the authority or resources to do so). It has not for example investigated offences against women and ethno-religious minorities in Saudi Arabia or China.

Given the attention received by claims of genocide it is perhaps unsurprising that advocates have used that characterisation in complaints to the Court. One example is the bizarre complaint that Zachie Achmat and Treatment Action Campaign (TAC) was guilty of genocide in South Africa for promoting cheap access to AZT and other anti-retrovirals, a matter discussed in works such as Jonathan Wolff's The Human Right To Health (Norton, 2012) and Ben Goldacre's Bad Science.

Trams

It's interesting to watch responses to the Victorian student-led initiative for 'tramsurance', promoted as letting "you fare protest worry free".

It appears that the idea was that people who were worried about penalties for evading fares on Melbourne public transport - particularly those lovely trams - would be able to contribute money ($19 per month) to an 'insurance' scheme, which would pay the fine for evaders who were caught by fare inspectors under the Transport (Compliance and Miscellaneous) Act 1983 (Vic).

One enthusiast claimed that "It's cheaper than buying tickets and has attracted around 1000 members since launching a couple of weeks ago". A proponent characterised the scheme as a fighting fund rather than insurance, with the comment "We will pay out all fines up to the limits of Tramsurance's income. Everyone has basically put money into a pool and then people claim their money out of it" and that "“We’re considering $19 per month. (But) to compare that, it’s $120 a month if you’re buying [the standard monthly ticket]”.

The state public transport authority (Public Transport Victoria) was unimpressed, arguing that the scheme was illegal because it incited consumers to break the law and that there were questions about whether the scheme could be made to work (eg would contributions be safeguarded and what would happen if the detection of a few evaders absorbed all of the contributions?).

There are arguably better ways to express discontent with ticket prices or the management of the public transport system than what seems to have initially promoted as an insurance scheme. One reason is that insurance in favour of an illegal act is in itself unviable. Australian law does not for example endorse insurance against loss of illegal drugs, failure of an assassination or an unsuccessful bank robbery. As a corollary it does not welcome insurance against imprisonment or fines imposed for criminal behaviour, eg if you are convicted for burglary you get to cash in at your insurer's expense.

Another reason is that the operation of insurance schemes and financial services schemes involves compliance with national law, notably the Insurance Act 1983 (Cth). It is highly unlikely that APRA, the national regulator, is going to be enthusiastic about a scheme that centres on illegality and would be persuasively claimed by the Victorian Government as contrary to the public interest. There is no indication that the students have the expertise required for compliance with regulatory requirements for offering an 'insurance product' or more fundamentally that they would satisfy the capital requirements regarding insurance. The likelihood of gaining a licence under the Financial Services Reform Act 2001 (Cth) for Tramsurance as a financial service is equally dim. The Dario Fo financial model, however well-meant and irrespective of whether it was promoted at an entrepreneurship event, simply won't fly.

Tramsurance initially put on a brave face after receiving a 'cease & desist' letter from Public Transport Victoria. It stated that -

we're coming against some very strongly worded letters. Never fear - it'll take more than words to stop us. There is too much momentum and support behind us now. All we have at this stage is an idea, an idea that has become very popular very quickly for one reason. The Melbourne public is dissatisfied with with how public transport and Myki have been handled. Public Transport Victoria is threatening to litigate against us rather than address the concerns of those it represents.

We will not take down the site. That would be a little silly given that we haven't operated anything yet. Tramsurance started off as a simple experiment, but we can all agree that it's much more than that now. We are currently seeking legal advice to better understand the options open to us. Rest assured, the final version of Tramsurance will operate fully within the law. We will announce our decision tomorrow, when we are better informed. In the meantime, please don't fare evade. That's against the law.

The organisers subsequently released an Open Letter that states

Tramsurance started only as an idea. Most people I know evade the fares every now and then. Why? Some didn’t want to endorse a system that didn’t represent them, but most just couldn’t afford to. It’s cheaper for them to pay the occasional fine than to pay for the fares. I understood that mathematically at least, Tramsurance could exist.

It is not just an idea any more. We were not surprised at the support for Tramsurance, though we didn’t expect it to explode like it did. This indicates how poorly the transport system has served its users. There would be no demand for Tramsurance if we were satisfied with the public transport in Melbourne. Demand has, of course, been explosive.

To address Public Transport Victoria’s statement we’ve publicized, we have no intention of breaking the law. Nor have we ever. We do not advocate fare evasion, even of a system whose fares are unaffordable to the more vulnerable members of society. It’s against the law. Don’t do it. We’ve outlined with our idea a simple possibility, and with that the failure of our government to meet the needs of its people.

Public Transport Victoria claims we are encouraging fare evasion. We have said we do not, repeatedly. Whether the proposed fund would encourage it is moot, but all we have is the proposal. We have not facilitated any transactions or written any code to do so. We don’t plan to either. Tramsurance is an idea that has simply illustrated the failings of our public transport system. It’s reprehensible that the government would rather threaten two 19 year olds than address the concerns of those it is supposed to represent.

In May this year the PTV announced [PDF] that there had been a 16% increase in the number of tickets being checked, with 154,000 fines for ticketing offences (up 47% on the previous year) - "no longer a case of if you get caught, but rather when” - and "a substantial decrease in the tram fare evasion rate, down from 20.3 per cent in May 2011 to 13.3 per cent in May 2012".

Paste

'My name is Paste. Copy Paste' in the 3 July Economist reports on another incident of academic plagiarism involving senior EU politicians -

According to party loyalists, Prime Minister Victor Ponta is in select company. Interior minister Ioan Rus on Friday claimed that "ever since Plato and Aristoteles, everyone who has ever written a PhD in philosophy, in social sciences, has plagiarised." Apart from the bemusement that Mr Rus's statement may cause, it is also an indication that despite energetic (foes say clumsy) attempts to silence the plagiarism scandal, the 39-year-old Prime Minister may be heading for the same political graveyard that contains the corpses of the German defence minister Theodor zu Guttenberg and the president of neighbouring Hungary, Pál Schmitt.

In an interview  with El Pais last week, Mr Ponta promised to resign if proven that his PhD about the International Criminal Court was an act of plagiarism. He made those statements before the ethics committee in charge gave its ruling, with its chairman saying it was plagiarised "copy-paste style", 85 pages out of a total of 307, from the work of another Romanian scholar.

Slippery

Breach of the Crimes Act? The SMH reports that Peter Slipper - the deliciously retro sometime Speaker in the Australian House of Representatives - wants to refer former aide James Ashby to the Australian Federal Police -

for investigation into whether he committed a criminal offence when he sent copies of the Speaker's diary to a former Howard government minister, Mal Brough, and the News Ltd journalist Steve Lewis. 

In a letter to Mr Ashby, Mr Slipper's lawyers suggested the former media adviser could have breached sections of the Commonwealth Crimes Act, which prohibits public servants from publishing or communicating internal documents without authorisation. The offence carries a maximum two years' jail. 

The letter, written on June 28, also suggests Mr Ashby could be prosecuted for participating in a conspiracy with Mr Brough, Lewis, and another Slipper aide, Karen Doane. Further, he may have committed the offence of causing harm to a public official under the Commonwealth Criminal Code. That offence carries a maximum 10 years' jail.

Ashby is suing Slipper and the Commonwealth, with claims that Slipper made unwelcome advances and sent him sexually suggestive text messages. Slipper and the Commonwealth allege the litigation is intended to ''vilify'' Slipper and ''destroy or seriously damage'' his reputation. They are seeking an order that proceedings be stopped as an abuse of process.

Ashby in response has referred to a right to claim a privilege against self-incrimination, given that he has been accused of serious criminal offences. The Commonwealth and Slipper argue Ashby should be forced to at least address the areas that did not raise a risk of self-incrimination.

Rares J has reportedly agreed that Ashby could not be forced to incriminate himself and excused him from putting on any evidence or revealing his defence until the case against him had been presented in full.

In the UK the Supreme Court in Phillips (Respondent) v Mulcaire (Appellant) [2012] UKSC 28 [PDF] has considered confidentiality, intellectual property and the privilege against self-incrimination.

The appellant Glenn Mulcaire had pleaded guilty in 2007 to offences regarding unauthorised access to voicemail messages (notably that of members of the royal household) as part of what's now often dubbed the News of the World phone hacking affair, discussed in Dial M for Murdoch (London: Allen Lane 2012) by Tom Watson &Martin Hickman. Mulcaire and News subsequently faced civil claims by individuals who alleged that messages on their mobile phones had been unlawfully intercepted. Respondent Nicola Phillips, in proceedings against News regarding messages left by clients on her mobile, argued that the messages on her mobile included

factual information, some of which is private information and some of which is commercially confidential information, including that relating to her clients’ personal lives and relationships, health, finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans

Phillips later applied to add Mulcaire as a defendant and for an order that he disclose the identity of the person instructing him to intercept the messages. Mulcaire opposed the order for disclosure arguiing that he could not be required to disclose that information as to do so would tend to expose him to prosecution. Phillips contested that argument, relying on the Senior Courts Act 1981 s 72 for excluding the privilege. That section applies to, among others, proceedings for infringement of rights pertaining to any intellectual property and, when it applies, it excludes the privilege if the offence to which the person would tend to be exposed is a related offence. The High Court and Court of Appeal held that Mulcaire could not rely on the privilege as both of those conditions were made out. Mulcaire was accordingly ordered to provide the requested information.

On appeal the Supreme Court considered whether -

• information left in voicemail messages on Ms Phillips’s mobile is “technical or commercial information” within the definition of “intellectual property” such that the proceedings are “for infringement of rights pertaining to any intellectual property”; and 
• on the footing that Mr Mulcaire would expose himself to a charge of conspiracy in providing the information ordered, such proceedings would be for a “related offence” within the meaning of s.72(5)

The Court's explanation of the leading judgment indicates that

the definition in s.72(5) contains the words “technical or commercial information”. The meaning of those words must be something in which a civil claimant has rights capable of being infringed. The fact that technical and commercial information ought not, strictly speaking, to be described as property cannot prevail over the clear statutory language. Whether or not confidential information can only loosely, or metaphorically, be described as property is simply irrelevant. Not all technical or commercial information is confidential. Conversely a secret about a person’s private life is not naturally described in normal usage as technical or commercial, even if it could be turned to financial advantage by disclosing it, in breach of confidence, to the media. Purely personal information is not “other intellectual property” within the meaning of s.72(5). The purpose of s.72 was to prevent remedies against commercial piracy from being frustrated, not to cover the whole of the law of confidence. While there may be commercial value in personal information and this may lead to some difficult borderline cases, it is not a reason for adopting an unnatural construction of the definition. On the facts pleaded in this appeal there is no great difficulty as to “mixed messages”, where some of the information is commercial and some is not. Ms Phillips’s pleading is to the effect that the voicemail messages left by her clients contained commercially confidential information. There is no reason to suppose that the commercial information was not significant. 

There must be a sufficient connection between the subject-matter of the claimant’s civil proceedings and the offence with which the defendant has a reasonable apprehension of being charged. Pursuant to s.72(5) the offence must be committed by or in the course of the infringement to which the proceedings relate unless the offence involves fraud or dishonesty, in which case a looser connection is sufficient. It is well established that conspiracy is a continuing offence. While the offence is committed as soon as the unlawful agreement is made, the conspiracy continues until the point when the agreement is terminated by completion, abandonment or frustration. If Mr Mulcaire conspired to intercept messages on mobile phones, an offence was committed when the unlawful agreement was made. But the offence continued so long as the agreement was being performed. Every interception pursuant to the unlawful agreement would be in the course of the offence.

Lawfare

'Lawfare, Wikileaks, and the Rule of Law' by Eric Engle argues that

 "Lawfare" is the idea that international law only exists as a strategem; that states only comply with or create international rules as part of their quest for power; that power, not law or morality or even trade dominates international relations; and that states are rational power maximizers. As such, it is a variant within the (failed) IR Realist theory of international law.

This article outlines the tenets of "lawfare" placing "lawfare" in the broader historical context. It then places lawfare into the practical contemporary context. It positions lawfare within a spectrum of ideas and movements opposing globalization such as Wikileaks, Al Qaeda, Occupy Wallstreet, and also Neoconservatism. The article concludes that global liberalism ("Empire") will likely meet and triumph over each of these challenges because liberalism is open textured, sustainable, and self-replicating whereas its opponents are conspiratorial, fragmented, disorganized, lack a mass base, and cannot articulate a comprehensive and compelling alternative vision. ...

I wish to look at Wikileaks as an example of Foucault's theory of knowledge-as-power applied in practice to a network. Network theory argues that networks are more powerful (dominant) than isolated autarchic actors due to productive synergies and improved communications allowing more effective rationalizations and uses of power. The ideal power relationship, according to network theory, is a constantly growing and ever linked network: many nodes, with many linkages, and the number of nodes and linkages growing. Drawing from network theory, Assange/Wikileaks decided to try a disruptive strategy intended to render a network of international relations militarists inoperative. Notice however, that we can really only understand wikileaks as an instance of altruism, of enlightened self interest. The "payoff" for Assange/wikileaks, other than peer-recognition and whatever that entails (hot chicks, wild parties?) is decidedly not monetary. Wikileaks versus (U.S.) Empire is, like Al Qaeda versus (U.S.) Empire, a struggle between competing networks. Each seeks to disrupt the others' nodes and the linkages between the opponent's nodes. Low intensity conflict seems to be the present and future face of war, as exemplified in terrorist attacks and information warfare. Are the Chinese and Leo Strauss right? Is there no justice? To answer that, we must return to Aristotle.

Engle concludes - more poetically than (for me) persuasively -

The struggles, some overt, some covert, between Al Qaeda, Empire, Wikileaks, Chinese Maoists, and other international movements such as OWS swirl about us, dancing in the shadows. Sometimes, they strike fast and furious, like hell-fire, leaving a trail of tears and blood in their wake. To decipher these secret wars we must thread our way through the web of war, the maze of the minotaur man-beast, following Ariane's golden wisdom. We are in darkness. We seem lost. Yet, there is an exit. It is illuminated by the lamp of knowledge, a magic lantern: the knowledge of the rule of law as the means to justice to attain the good life of peace and prosperity for all. Will our fellow travelers take heed? I cannot say. There is an exit. Follow me. I know the way.

Pharma Fraud

What were they thinking? In reading the overnight announcement about the US$3bn settlement by GlaxoSmithKline (GSK) with the US Government I'm struck by several passages in the Department of Justice media release -

The United States alleges that, among other things, GSK participated in preparing, publishing and distributing a misleading medical journal article that misreported that a clinical trial of Paxil demonstrated efficacy in the treatment of depression in patients under age 18, when the study failed to demonstrate efficacy. At the same time, the United States alleges, GSK did not make available data from two other studies in which Paxil also failed to demonstrate efficacy in treating depression in patients under 18. The United States further alleges that GSK sponsored dinner programs, lunch programs, spa programs and similar activities to promote the use of Paxil in children and adolescents. GSK paid a speaker to talk to an audience of doctors and paid for the meal or spa treatment for the doctors who attended. 

There's nothing like the old ghost-written journal article, an international practice highlighted here, here, here, here, here, here and the 2010 Grassley report [PDF].

Grassley noted that -

Medical ghostwriting is a practice where pharmaceutical or device companies hire medical education, marketing or communications companies to draft articles that are presented to prominent physicians and scientists to sign on as authors to increase the likelihood that the article will be published in important medical journals. Ghostwritten articles include articles that are drafted by pharmaceutical or device company employees who are not acknowledged in the final publication. The articles may be review articles, editorials or primary research papers, and they are typically presented to physicians and scientists affiliated with academic institutions. The physicians and scientists agree to sign on even if they may not be intimately familiar with the underlying data or relevant research or provided limited input on the article. Authors who make little to no contribution to a publication are also referred to as “guest” authors. 

Senator Grassley is concerned about the lack of transparency that exists in medical ghostwriting. Not only are the articles typically initiated and paid for by a pharmaceutical or device company, but also more significantly, the final publications do not disclose the company’s role and financial support for the article. Ghostwritten articles can have a significant impact on, among other things, physician prescribing practices. When prominent physicians and scientists lend their names to an article, it raises the credibility of the findings and conclusions presented. This, in turn, can affect the pocketbook of the American taxpayer since Medicare and Medicaid pay billions of dollars for prescription drugs. In addition, manipulation of medical literature could lead physicians to prescribe drugs that are more costly or may even harm patients.

A prominent researcher and professor of medicine at a leading medical school informed Committee staff that in the late 1990s and early 2000s it was common practice for pharmaceutical companies to approach him and his colleagues with requests to review and sign on as primary authors to company studies. Specifically, a company would tell a physician or scientist at an academic institution that it completed a study and would like his or her interpretation and feedback on the results of that study. In return, the company would offer that physician or scientist lead authorship on the paper, which was written by someone other than the physician or scientist. The physician or scientist would not be paid for being the author of the paper, but he or she may receive compensation for the time and effort related to reviewing and commenting on the study results. The researcher who contacted Senator Grassley stated that while he was aware of colleagues accepting the companies’ offers, his own policy is “I won’t touch it if I wasn’t involved in the concept of the study.”

The DOJ media release goes on to report that -

The United States contends that GSK paid millions of dollars to doctors to speak at and attend meetings, sometimes at lavish resorts, at which the off-label uses of Wellbutrin were routinely promoted and also used sales representatives, sham advisory boards, and supposedly independent Continuing Medical Education (CME) programs to promote Wllbutrin for these unapproved uses. GSK has agreed to plead guilty to misbranding Wellbutrin in that its labeling did not bear adequate directions for these off-label uses. For the Paxil and Wellbutrin misbranding offenses, GSK has agreed to pay a criminal fine and forfeiture of $757,387,200.

 The DOJ notes that GSK

agreed to plead guilty and to pay $3 billion to resolve its criminal and civil liability arising from the company’s unlawful promotion of certain prescription drugs, its failure to report certain safety data, and its civil liability for alleged false price reporting practices, the Justice Department announced today. The resolution is the largest health care fraud settlement in U.S. history and the largest payment ever by a drug company.

GSK supports the International Federation of Pharmaceutical Manufacturers & Associations 'global position' on misbehaviour, has its own corporate 'code of best practice' [PDF] and has vaunted [PDF] its ethical excellence.

Leftovers

Custodians of health data sometimes walk away from medical records and responsibilities, with a particularly egregious Australian example being the Dore clinic noted here.

The UK Information Commissioner (ICO) - counterpart of Australia's OAIC - has hit Belfast Health & Social Care (BHSC) Trust with a £225,000 Civil Monetary Penalty over a serious breach of the Data Protection Act. The Trust was responsible for the management of over 50 largely disused sites, including Belvoir Park Hospital. In March 2010 the Trust was alerted that trespassers had gained access to the Belvoir Park site, taken photos of patient records and posted them online.

That breach involved the sensitive personal data of thousands of patients, including notes, X-rays, scans and lab results. It also involved staff records such as unopened payslips. Media reports indicate that some records were offered for sale on the net. Others apparently featured in horror movie videos - in the style of The Blair Witch Project? - made by intruders who accessed the buildings and got to play around with medical records, used x-ray machines, lab equipment and other kit.

A superficial search of sites such as Flickr reveals a large number of snaps of the interiors of various buildings, medical equipment and piles of files. That's consistent with the vogue for 'asylum gothick' evident in for example Asylum: Inside the Closed World of State Mental Hospitals (MIT Press 2009) by Christopher Payne.

The Commissioner reports that the Trust -

carried out inspections of seven buildings at the hospital and a large quantity of patient and staff records were discovered, some dating back to the 1950s. However, some parts of the site were not inspected because they were either locked or inaccessible, due to concerns about asbestos contamination

While the Trust took action to improve the security of the site, including repairing damaged doors and windows, on 11 April 2011, the Irish News reported that it was still possible to access the site without authorisation. The Trust then increased the number of security guards on site and carried out a full inspection which revealed further records, many of which were being retained in breach of the Trust’s ‘Records Retention and Disposal’ policy. 

The Trust failed to report the situation at the Belvoir Park site to the ICO. The ICO’s investigation found that the Trust failed to keep the information secure and also to securely destroy medical documents which it no longer required.

The Commissioner comments that -

The Trust failed to take appropriate action to keep the information secure, leaving sensitive information at a hospital site that was clearly no longer fit for purpose. The people involved would also have suffered additional distress as a result of the posting of this data on the Internet. “The Trust has therefore failed significantly in its duty to its patients, and we hope that the action we’ve taken sets an example for all organisations that they must keep personal data secure, irrespective of where they choose to store it.

The  Commissioner has meanwhile imposed a £325,000 penalty on the Brighton & Sussex University Hospitals NHS Trust over exposure of "highly sensitive personal data belonging to tens of thousands of patients and staff" via Trust hard drives sold on an internet auction site in 2010.

The breach occurred when the Trust’s IT service provider was asked to destroy some 1000 hard drives held at Brighton General Hospital. A data recovery company bought four hard drives from a seller on the auction site.

Although the ICO was assured in our initial investigation following this discovery that only these four hard drives were affected, a university contacted us in April 2011 to advise that one of their students had purchased hard drives via an Internet auction site. An examination of the drives established that they contained data which belonged to the Trust. .... The Trust has been unable to explain how the individual removed at least 252 of the approximate 1000 hard drives they were supposed to destroy from the hospital during their five days on site.

The data included -

•  details of patients’ medical conditions and treatment, disability living allowance forms and children’s reports. 
• documents containing staff details including National Insurance numbers, home addresses, ward and hospital IDs, and information referring to criminal convictions and suspected offences.

Masks

'Mask Panic: Past and Present' by Dylan Reid in (2012) 4 Toronto Review of Books reports that  -

On January 7, 1514, the Parlement of Normandy, the royal court of appeal for that prosperous French province on the Channel coast, issued a decree banning the wearing and owning of masks. “It is prohibited for all persons [...] to wear or purchase any false visage, mask, fake nose or beard, or anything else that disguises the face,” proclaimed the magistrates. They prohibited merchants from selling masks and ordered that all masks be handed in to the authorities, as if they were dangerous weapons. The timing of this decree suggests the court issued it in anticipation of Carnival, the traditional mid-winter festival that preceded the forty-day fast of Lent in the Christian calendar. As they still do in many parts of the world, in Normandy at the time people, especially young men, celebrated by parading the streets wearing costumes and masks. The Parlement, whose duties included regulating public order, evidently felt that by hiding people’s identity, masks created the potential for disorder. 

Five centuries later, we are going through our own moral panic about adults wearing masks in public. During the June 2010 meeting of the G20 in Toronto, police deployed a rarely-used law against wearing a disguise with criminal intent - one usually applied to armed robbers - to arrest people wearing bandanas in the protest area. Recently, a Conservative Member of Parliament introduced a private member’s bill to create a law against wearing a mask during an “unlawful assembly,” and the government has said it will support the bill. Since rioting, vandalism, and wearing a mask with intent to engage in a criminal act are all already illegal, this law won’t discourage any further violence. It could potentially, however, be used against a protest that was peaceful but not approved by the authorities. A new bylaw passed by the City of Montreal, meanwhile, does not even make that distinction, banning the wearing of masks at all protests in response to the continuing student demonstrations against Quebec’s proposed tuition hikes. 

Canada isn’t alone in its mask panic. In response to widespread riots in 2011, Britain moved to give police the power to remove masks from people wearing them in public. In New York, police revived a little-used law from 1845 that bans mask-wearing at gatherings to arrest several Occupy Wall Street protestors wearing Guy Fawkes masks. Tellingly, the law was first introduced after poor protesters in nineteenth-century New York donned “Indian” costumes of “calico gowns and leather masks” to inflict political violence against the agents of a wealthy landowner who was trying to evict his tenant farmers. 

.... during Carnival in sixteenth-century Normandy, maskers felt free to make public satirical comments about the foibles of their fellow-citizens and authorities - whether of the church, nobility or the law - that they would not make so boldly at other times of the year. But this satire could also degenerate into vicious personal attacks, and there was always the threat of riot. Given the genuine potential for rule-breaking that comes with wearing masks, it becomes easier to understand why authorities might have concerns about people wearing them in public. Regulators need to guard against over-reacting, however. Over time, the Parlement of Normandy learned to distinguish between harmless and dangerous masking. Their initial ban was completely ineffectual - not only did masking continue, but masked Carnival celebrations in the city of Rouen, where the court was based, became ever more elaborate. Eventually, the Parlement abandoned its blanket prohibition and instead came to an understanding with the maskers. The magistrates let the Carnival organizers themselves decide who got to wear a mask, making them self-policing. They then focused their regulation on keeping the festivities from going bad, by punishing vicious satirical attacks against individuals, making sure people wearing masks didn’t carry weapons, and keeping the festivities from going on too late into the dark winter nights.

Tradition

'Tradition as Justification: The Case of Opposite-Sex Marriage' [PDF] by Kim Forde-Mazrui in 78(1) University of Chicago Law Review (2011) 281-343 argues that

A central point of contention in the national debate over same-sex marriage is the importance of preserving tradition. That debate also features prominently in constitutional litigation over bans on same-sex marriage. Opponents of such bans argue that tradition is an illegitimate justification for the bans, while defenders of traditional marriage contend that tradition is not only a legitimate justification, but is in fact sufficiently important to withstand heightened judicial scrutiny. 

This Article assesses tradition as a justification for laws challenged on equal protection grounds, with a focus on laws that limit marriage to opposite-sex couples. The Article makes two main points. First, it concludes that a state’s interest in preserving tradition — including the tradition of opposite-sex marriage — is probably legally sufficient to survive the most deferential standard of rational basis review under the Equal Protection Clause. 

Second, this Article argues that courts should nonetheless view tradition with skepticism when it is offered to justify laws challenged on equal protection grounds. Tradition exhibits certain features, or “indicia of suspectness,” that counsel skepticism. Those features include tradition’s speculative utility, rhetorical appeal, and manipulability. Additionally, tradition is especially suspicious when offered to justify laws that burden a group toward whom there has been a cultural shift from widespread societal disapproval in the past to substantial public tolerance today. In such circumstances, tradition may serve as a convenient justification for people who are actually motivated by now-repudiated attitudes toward the burdened group. For bans on same-sex marriage, this Article contends, courts should invalidate such laws unless, after careful scrutiny, courts are satisfied that the laws are motivated by legitimate, non-tradition-based interests.

Forde-Mazrui concludes that -

The debate over same-sex marriage divides the nation along political, cultural, and religious lines. Central to that debate is the question whether the traditional definition of marriage, requiring one man and one woman, should be protected because that definition is traditional. In litigation under the Equal Protection Clause,  the doctrinal question is whether the traditional status of opposite-sex marriage is a sufficiently legitimate justification for excluding same-sex couples from marriage. 

This Article concludes that tradition can serve as a legally sufficient basis on which to uphold discriminatory laws, including bans on same-sex marriage. More specifically, the benefits associated with tradition, such as time-tested wisdom, social-identity reinforcement, and avoiding unintended consequences, are legally permissible justifications for a law challenged under the Equal Protection Clause, provided that tradition is not relied on simply for its own sake and that the expected benefits that might result from preserving tradition are not premised on illegitimate purposes or beliefs. In the case of opposite-sex marriage, the Article concludes, a state’s reliance on the presumed benefits of traditional marriage articulates a legally sufficient justification able to withstand the most deferential standard of rational basis review.

This Article has also argued, however, that certain circumstances warrant skepticism toward the use of tradition when offered to justify a discriminatory law. A significant factor warranting suspicion is that a tradition serves beliefs that have become repudiated, such as antagonism toward a historically stigmatized group that has gained substantial social acceptance. In such circumstances, tradition may serve as a convenient justification for those who hold the attitudes that are no longer an acceptable justification for the discrimination in question. The risk is heightened when tradition is emphasized as the sole or primary justification for the law rather than the law’s consequential benefits or other legitimate moral foundation. That the concept of tradition is manipulable and has rhetorical appeal further contributes to its opportunistic usefulness to support a law that is in fact based on illegitimate or arbitrary motivations. As a result, tradition is as likely as not to reflect outmoded attitudes that are not expressed due to their current unacceptability. Courts should therefore be skeptical of a law justified by tradition, and should not uphold it absent a convinc-ing showing of alternative, legitimate purposes. 

In the case of laws against same-sex marriage, a number of circumstances make the risk significant that opponents of same-sex marriage offer tradition to justify such laws when their opposition is actually motivated by illegitimate attitudes. There has been a long history of societal disapproval of homosexuality, a disapproval still prevalent among some populations and in certain locales. At the same time, public expression of such disapproval has become increasingly unacceptable and, equally important, courts have concluded that animosity toward gay and lesbian people is not a constitutionally legitimate basis for state-sponsored discrimination. The tradition of limiting marriage to opposite-sex couples serves the interests of people holding anti-gay beliefs and - because of the tradition’s longevity - is likely rooted in such beliefs. Moreover, claims about the purported psychological pathology of homosexuality have been repudiated and contemporary claims about the harmfulness to children of same-sex parents remain unproven and improbable. Given that opposition to same-sex marriage cannot be justified by demonstrable harm and reliance on moral disapproval risks constitutional invalidation, it is not surprising that resort to tradition as the justification of choice would emerge at this time and in this context. Accordingly, to guard against the risk that tradition is serving as a veil for illegitimate attitudes, courts should require states to substantiate that the consequences of same-sex marriage are demonstrably harmful or that bans on same-sex marriage are otherwise based on constitutionally acceptable moral grounds. 

The extent to which tradition should be viewed suspiciously when offered to justify other discriminatory laws is difficult to assess in the abstract. For the reasons discussed in this Article, any emphasis on tradition over other justifications should invite some inquiry into whether ulterior motives are at work. Many of the circumstances that make tradition a suspicious justification, however, are contingent on the particulars of the law being justified, including past and present societal attitudes toward the burdened group, the nature of the burden imposed, the availability of less burdensome alternatives, and the persuasiveness and constitutional acceptability of other justifications. The degree of suspicion and corresponding scrutiny warranted will thus depend on the specific law being challenged. Moreover, as this Article has acknowledged, that a practice or law is a tradition may give reason to believe that it serves some useful purpose, depending on the circumstances in which the tradition has been sustained. It is thus prudent to assess carefully the virtues of any tradition before changing it. 

At the same time, traditions do not exist in a vacuum. They exist in a world in which some attitudes once well accepted come to be understood by society as unfair or unfounded and by the courts as constitutionally invalid. Throughout American history, different groups once disdained or misunderstood have been welcomed into the political and constitutional fold. If social change brings acceptance to other groups in the future, we can expect that those resistant to such change will seek refuge in tradition when other justifications become unacceptable or unpersuasive. 

Taking a broader perspective, the debate over same-sex marriage and the value of tradition reflects a larger debate in American culture and politics. In very general terms, traditionalists, associated with political conservatism, tend to see America’s values as rooted in the past, in its founding origins and longstanding traditions, whereas reformists, associated with liberal progressivism, tend to see America’s virtue in what has changed and in what can be attained in the future. Traditionalists favor the status quo, putting the burden on groups discontented with extant laws to substantiate that reforms in their interest would not be unduly disruptive. 

Reformists, in contrast, view disadvantages imposed on a traditionally disfavored group as presumptively objectionable, placing the burden on those who defend the status quo to demonstrate that change would do more harm than good. These perspectives are not, of course, binary, but rather reflect a continuum upon which different people and communities fall. Where people situate themselves with respect to a given controversy tends to reflect the extent to which they find inspiration in the past or hope in the future. 

Managing this tension is a continuous challenge of American politics, a process in which courts can play only a limited role. That role can be important, however, and the interpretive approach proposed in this Article can contribute to it. If optimal policymaking about poten- tial legal reform, including the pace of implementation, is aided by informed deliberation and reasoned argument, then processes that help to reveal the actual concerns that motivate people on competing sides of a controversy can serve a useful function. Equal protection analysis, which aims to reveal the motivations behind legislative and state constitutional enactments, can help to facilitate a candid and realistic assessment of laws that impose burdens on historically disfavored groups. By “smoking out” the real reasons for laws that discriminate, including bans on same-sex marriage, courts can facilitate in litigation and encourage in the political process a fuller airing of competing perspectives on societal controversies. A more open, deliberative process can, in turn, inform questions such as whether to reform existing institutions, in what manner, and at what pace. Judicial scrutiny of tradition and other suspicious justifications can thus contribute constructively to the process of legal change.

Pharma Licensing

'Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents' [PDF] by Richard Epstein & F. Scott Kieff in 78(2) University of Chicago Law Review (2011) 71-93 comment that -

Many advocates for using compulsory licensing (CL) for pharmaceutical patents in developing countries like Thailand rest their case in part on the purported use of CL in the United States. In this Article we take issue with that proposition on several grounds. As a textual matter, the “commercially reasonable terms” language in Article 31 of TRIPS, even when qualified by the Doha declaration, prevents any host nation from using whatever royalties it wants in its CL arrangements, especially those that are below marginal cost. As a theoretical matter, we argue that the basic presumption in favor of voluntary licenses for intellectual property (IP) should apply in the international arena, in addition to the domestic one. In the international context, voluntary licenses are of special importance because they strengthen the supply chain for distributing pharmaceuticals and ease the government enforcement of safety standards. Next, this Article analyzes several of the key illustrations of purported CL for drug patents in the United States and shows that the use of CL elsewhere deviates in material ways from the standard US practices. These are the compulsory copyright licenses for music, the limited statutory exemptions for pharmaceuticals and medical procedures, the award of damages instead of injunctions after eBay Inc v MercExchange, LLC, government takings, and the use of compulsory licenses in antitrust settlements. Whatever the ultimate desirability of these American doctrines, none of them seeks to reduce the payment on licenses to the marginal cost of the licensed goods. Any need to help poor people gain access to vital drugs should not rely on CL, but instead should rely on tools precisely aimed at that purpose, including direct government purchases of patented drugs from their manufacturers at negotiated prices.

In criticising the "frequency of purported CL now in use in the United States" Epstein & Kieff question claims that US compulsory licensing falls into five categories -

• broadcast licenses, 
• limited statutory exemptions for pharmaceuticals and medical procedures, 
• federal court cases that deny injunctive relief, 
• federal or state sovereign immunity and associated takings, and 
• antitrust enforcement proceedings. 

They argue that  "these practices should not be viewed as instances of CL" and that "the purported CL now being conducted in the United States is distinguishable in key respects from the CL used in Thailand for pharmaceutical products" -

A. Broadcast Licensing 

The US regime of compulsory licensing of copyrighted songs (which has its own problems) is worlds apart from pharmaceutical CL. It is also important to note that this system is not intended to displace a successful system of voluntary licenses because of unhappiness with the prices charged. Rather, this use of CL is a response to the need to compensate holders of songs that many parties use in the ordinary course of business. Each infringement is small, but the sum of all infringements is large. CL thus functions as a transaction cost–saving device that permits the rapid dissemination of copyrighted material. The prices of these licenses are, moreover, not determined by the fiat of an interested government party, but rather are subject to elaborate industry-wide negotiation systems that are intended, in part, to secure a fair return for the holder of the IP. Expropriation and governmentally coerced wealth transfer are not part of this system. With that said, a CL framework may not be efficient so long as copyright holders can pool their resources for sale. At that point, antitrust issues can emerge, but these can be partly obviated by allowing all parties in the pools to license outside of the pools — an option, of course, that is never available in CL systems. 

B. Limited Statutory Exemptions for Pharmaceuticals and Medical Procedures 

The application of CL in the context of pharmaceuticals and medical devices also needs some attention. On the negative side, CL systems often block the creation of efficient modes of voluntary sale, such as the reagent freezer programs that private firms have long used to supply patented biological reagents to basic research scientists. This approach has resulted in transaction costs for the scientists that are lower than those of purchasing a can of soda from a vending machine. Pharmaceutical products simply do not present the high-volume and low-value settings where US copyright CLs make their appearance. 

On the positive side, CL supplements market efficiency when, to use Joseph Sax’s useful distinction, the government acts as an arbitrator of private disputes and not an entrepreneur acting for its own benefit, in which case its motives should be treated as more suspect. For example, the Hatch-Waxman Act excludes from liability the use of medical devices reasonably related to obtaining FDA approval. The Hatch-Waxman Act also implements a carefully wrought quid pro quo whereby generic pharmaceutical manufacturers receive the benefit of a limited experimental-use exception to ordinary patent liability in exchange for which the original patentee, usually a branded pharmaceutical manufacturer, gains an extension of up to five years in patent life to offset the time that the patented pharmaceutical is subject to regulatory review before the FDA. This tradeoff ushered in huge new investments in pharmaceuticals, by both major companies and new boutique firms. In contrast, the Thai CL approach offers no benefit at all to those who invested in commercializing the patented drugs. 

The Medical Procedures Act of 1996 (MPA) is similarly distinguishable from the Thai CL approach. The MPA removed all remedies by way of damages, injunctions, and attorneys’ fees “with respect to a medical practitioner’s performance of a medical activity” against both the medical practitioner and any related health care entity. The MPA is both general and prospective. It does not apply to a single patent whose validity had already been judicially upheld. Nor does it bar all remedies against all possible defendants. Instead, the MPA explicitly reserves ordinary damages actions against the various firms (who are not health provider–related entities) that actively promote these remedies for use by surgeons, in order to secure substantial profits for themselves. Thus, the MPA rests on an efficiency justification not available to the Thai CL, concentrating litigation against those few institutional promoters who consciously violate the patents while knocking out infringement actions against isolated physicians who might not even know that any patented procedure was involved at all. The Thai CL approach lacks this saving grace, as it eliminates all remedies against all defendants. 

C. Denial of Injunctive Relief 

The next purported example of CL in the United States relates to the 2006 Supreme Court decision in eBay Inc v MercExchange, LLC. This case displaced the traditional rule for patent disputes, under which “courts will issue permanent injunctions against patent in- fringement absent exceptional circumstances.” In its place, the Supreme Court substituted a four-factor test to decide between damages and injunctive relief: 

A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

In practice, this new test is both more complex and less protective of property than the earlier rule. Indeed, we jointly argued against its adoption for just those reasons. We urged that the clear boundary lines secured by relief facilitated the voluntary transactions needed to commercialize patented technologies. Only such strong protection prevents potential customers from taking an end run around the contract system by first violating a patent and then daring the IP holder to initiate a costly action to recoup damages, which are always difficult to value. We also noted that any systematic decline of injunctions would make it difficult for IP holders to enter into exclusive contracts with preferred trading partners. Recent lower court cases have partly cut back on eBay in response to these concerns, typically by awarding injunctions to parties that practice or license their IP technologies.  To be sure, injunctive relief always poses the risk that a single pat- ent holder can dominate an entire technology. But the denial of injunctive relief poses far greater risks. Patents are always issued for limited times. Their subject matter is properly confined to a particular product or process. It does not extend to an entire area of human endeavor. The telegraph was patented, but not total control over the electromagnetic spectrum. In addition, the Hatch-Waxman Act creates a narrowly crafted privilege for experimental use. 

For all its weaknesses, however, the eBay rule bears no resemblance to the Thai CL regime, which depends solely on government discretion. Here are the key differences. 

First, nothing in the eBay synthesis requires national governments that use CL to rely solely on the four eBay factors, or indeed even take them into account. For example, these governments need not abandon CL upon a showing that awarding only monetary dam- ages will cause a patentee irreparable injury. Nor must such a government consider the relative hardship facing the patentee. Nor need the government show how the CL advances the public interest—that is, the concerns of outsiders to the immediate dispute. In particular, CL may be imposed on a patent holder who is willing to commercial- ize the patented technology, either directly or through intermediates in the local economy or government. 

The relative hardship factor also points against injunctive relief for several reasons. National governments have powerful alternatives if CL is denied, while foreign corporations have no choice but to capitulate. Even withdrawing from a country does not preclude the local use of CL. And exercising that withdrawal option could require a patentee to forego lucrative sales of products not subject to CL. In contrast, the option of state purchase at bulk discounts, followed by resale at below-market costs to citizens in need, is always available. As a result, the four-part eBay test offers no justification for CL. 

In addition, CL has nothing to do with the specter of patent trolls that influenced the eBay decision (even though it was not presented on the facts of the case). Patent “trolls” are defined “as individual inventors who do not commercialize or manufacture their inven- tions.” Even that formulation excludes from the class of “trolls” any parties who are actively engaged in licensing negotiations, even if their first voluntary license has not been completed at the time of the defendant’s patent infringement. Every patent is a wasting asset, so few patent holders prefer to lurk around the weeds waiting to pounce on infringers when they could license their products today for a fee. It is foolhardy to require a patentee to rush into an unwise agreement solely to preserve its right of injunctive relief against third parties. What is more, in the high-profile cases of CL for pharmaceutical pat- ents, the patentees are never nonpracticing “trolls.” Instead, they are large companies producing and selling large quantities of the patented drugs. Since all new entrants need to receive state licenses to market their goods, the class of inadvertent infringers is likely to be empty. The distinctive features of strong pharmaceutical patents drive the risk of “trolls” in this area to zero and strengthen the case for injunctive relief. We know of no instances in which nations have used CL because foreign pharmaceutical companies refused to license, directly or through intermediates, their products in the host country. The sole source of dispute in CL cases is price. Ironically, any buying nation with monopolistic buying power undermines all conceivable claims of hardship that exist on the eBay scales. eBay brings the entire CL movement to a crashing halt.

They conclude that -

The efforts to justify CL for pharmaceutical patents are simply not tenable. The defenders of CL fail, first, to understand the power of the background presumption against CL. They then compound their initial mistake by ignoring the adverse effects that CL has even in the countries in which it is used. Last, they wrongly seek to bolster their tenuous case by appealing to established US practices for copyrighted songs, limited exemptions for pharmaceuticals and medical procedures, injunctive relief, government immunity and takings, and antitrust, all of which are driven by profoundly different concerns. CL for songs is an effort to make markets work in high-transaction settings that are nowhere to be found in pharmaceutics. Similarly, CL through the limited statutory exemptions for pharmaceuticals and medical procedures brings improvements to the set of market actors — patentees and users alike. Both the denial of injunctive relief for patents and the use of government takings are far from universal, and are backstopped everywhere by extensive damages that allow the patentee to recover some portion of its fixed costs. In contrast, the Thai CL is intended to drive prices as close to marginal cost as possible, if not lower. Finally, antitrust remedies presuppose an abuse of a dominant market position that the mere possession of a patent establishes. 

It is possible to have serious reservations about some aspects of the American legal synthesis and to still recognize that its breaches in the property wall pose none of the dangers associated with the use of CL in developing countries. The Thai CL was a matter of political fiat, unrestrained by law. It sets a dangerous precedent that other nations should avoid, given that they have other sensible methods, in the form of direct and bulk purchases, to help their own vulnerable populations. Perhaps these reasons are now persuasive even to the Thai government, which has not extended its dubious CL approach beyond a few patents.

Asylum

Any port in a storm? With Julian Assange's bid for asylum in Ecuador I note the Human Rights Watch chapter on aspects of information law in that country -

Criminal defamation laws that restrict freedom of expression remain in force and [President] Correa has used them repeatedly against his critics. Some articles of a draft communications law in the legislature since 2009 could open the door to media censorship. ... 

Freedom of Expression 

Ecuador’s Criminal Code still has provisions criminalizing desacato (“lack of respect”), under which anyone who offends a government official may receive a prison sentence up to three months and up to two years for offending the president. In September 2011 the Constitutional Court agreed to consider a challenge to the constitutionality of these provisions submitted by Fundamedios, an Ecuadorian press freedom advocacy group. A new criminal code presented by the government to the National Assembly in October does not include the crime of desacato, but if approved would still mandate prison sentences of up to three years for those who defame public authorities. 

Under the existing code, journalists face prison sentences and crippling damages for this offense. According to Fundamedios, by October 2011 five journalists had been sentenced to prison terms for defamation since 2008, and 18 journalists, media directors, and owners of media outlets faced similar charges. 

President Correa frequently rebukes journalists and media that criticize him and has personally taken journalists to court for allegedly defaming him. In July 2011 a judge in Guayas province sentenced Emilio Palacio, who headed the opinion section of the Guayaquil newspaper El Universo, and three members of the newspaper’s board of directors, to three years in prison and ordered them to pay US$40 million in damages to the president for an article the judge considered defamatory. In an opinion piece Palacios had referred to Correa as a “dictator” and accused him of ordering his forces to fire on a hospital, which was “full of civilians and innocent people,” during the September 2010 police revolt. 

In September 2011 a three-person appeals court confirmed the prison sentence and the fine by majority vote. Correa said in a press conference that he would consider a pardon if the newspaper confessed that it had lied, apologized to the Ecuadorian people, and promised to be more “serious, professional and ethical” in the future. 

In order to rebut media criticism the government has also used a provision of the broadcasting legislation that obliges private broadcasters to interrupt scheduled programs to transmit government messages known as cadenas. According to an independent media observation group, between January 2007 and May 2011, there were 1,025 cadenas totaling 151 hours of broadcasting time, many of which included attacks on government critics. 

Legislation to regulate broadcasting and print media has been under congressional debate since 2009. In the May 2011 referendum voters supported, by a small majority, a proposal to create an official council to regulate the content of television, radio, and print media. Proposals by six ruling party legislators under discussion in the National Assembly in July 2011 would grant broad powers to this council, allowing it to punish media that disseminate “information of public relevance that harms human rights, reputation, people’s good name, and the public security of the state,” terms so vague that they could easily lead to sanctions against critical outlets.

The Ecuadorean government, in a response to similar statements from Reporters Without Borders, sniffed that -

The Ecuadorean government does not silence or avoid criticism that is respectful and it promotes a legitimate debate of ideas. Its communication policy promotes inclusion, democratization and a free access to information. A poorly informed society is the worst of all evils. We therefore have a duty to provide Ecuadoreans with what they need to establish forums for the expression of well-grounded public opinion with the aim of creating citizens who play an active role in the country’s political life.

Assange is, of course, the person who's reportedly been indifferent to redaction before release of sensitive information, exemplified by his reported comment - in WikiLeaks: Inside Julian Assange's War on Secrecy about targeting of Afghans as a result of WikiLeaks: "Well, they're informants. So if they get killed, they've got it coming to them. They deserve it."

Regulatory Kabuki

Under the heading 'Privacy Commissioner Timothy Pilgrim will probe Telstra's culture in light of privacy breach' Andrew Coley in The Australian announces that "Federal Privacy Commissioner Timothy Pilgrim wants to delve into Telstra's operational culture to work out why it breached privacy law by making customer URLs visited available to a US company".

 PRIVACY tsar Timothy Pilgrim says he's on the lookout out for systemic privacy weaknesses in Telstra's operational culture after finding the telco had breached parts of the Privacy Act. 

Mr Pilgrim revealed his concerns today after handing down findings of his six-month investigation into a major privacy breach by the carrier last December when it left 734,000 customer records exposed on the internet. 

The Federal Privacy Commissioner found that Telstra breached parts of the Privacy Act requiring companies to protect customer information from unauthorised disclosures. 

 The Commissioner's heartfelt concern arguably wasn't quite clearly expressed in the OAIC media release noted earlier this week.

The article states that -

[Telstra] was again this week briefing the Commissioner after it admitted sending information about its Next G customers' web browsing habits to a computer security firm in the US. 

"In terms of this investigation, what we're saying is that we think there are some identifiable problems in how their privacy processes have been applied in the particular instance. 

"What I am considering with other issues that are ongoing is the question of whether there is a broader issue here. That's something I will consider in terms of this (breach) and the more recent allegations about the other system at the moment," Mr Pilgrim said.  

 "This breach certainly highlighted a problem with how the followed through their procedures to basically bolt in privacy and whether they did that in accordance with their policies. It doesn't look like they did," Mr Pilgrim said. 

"What I want to analyse now is whether this is an issue that's common to other matters that have been brought to my attention," he added.

It is unclear whether we'll see more than the standard regulation theatre - the OAIC indicates that he will "consider", Telstra expresses "regret" and indicates that yet another incident is unrepresentative, and no attention is paid to entities that are not currently under the spotlight. Telstra's commitment to privacy protection is debatable. So is that of its competitors.

The weak response by the Commissioner to the Vodafone data breach and to Telstra's performance suggests that we are not going to get much more than a rather lame version of kabuki ... the OAIC is "on the lookout" but nothing happens and a stated desire to "delve into Telstra's operational culture" results in no change?