Media Pluralism

Alongside the Reuters Institute for the Study of Journalism Digital News Report 2012 noted in the preceding post I'm reading the complementary 54 page News Plurality in a Digital World report [PDF] by Robin Foster.

It offers a perspective on the Finkelstein and Convergence Reviews noted earlier this year.

The report comments that

News media have a significant role to play in supporting the effective functioning of a democratic society. There is a clear and widely accepted public interest in ensuring that measures are taken, where needed, to secure at least two key goals: first, that all citizens can access a range and diversity of high-quality news, opinion, and analysis from different sources, and second, that no single media owner can exercise undue power and influence over the political agenda. 

What these measures should be is a topic of gathering significance, not just in the UK but the rest of the EU. Here we have relied on a ‘public-interest test’ which can be applied in the event of certain media mergers, plus a ban on large newspaper groups owning a significant proportion of the main commercial broadcaster, Channel 3. Elsewhere, caps on market share and media ownership are sometimes used, alongside public funding to fill any gaps in market provision (especially in broadcasting). 

But there are threats to commercial news provision, and plurality rules face stresses and strains. Caps on media ownership are very blunt tools when faced with the twin challenge of convergence and the increasingly uncertain long-term viability of the news sector as a whole. Public funding is under scrutiny and for some carries the risk of too much compliance or self-censorship. Even a media market as big as the UK’s may not in future be able to support the range of competing local and national news brands that have been available to date. 

Some hope that digital media will help to address this plurality gap. It has the potential to transform our consumption of news, and the way in which we engage in the democratic debate. It can help users find many more sources of news than ever before. Over time it may support new business models for high-quality news. But there are risks, too. New and powerful digital intermediaries, such as Apple, Google, Amazon, and Facebook are emerging. They can play a hugely positive role in facilitating wide and open access to news content. But the decisions they take could equally constrain or control access to news and affect the viability of third-party news providers. The scale and scope of their activities could have wider consequences for society as a whole. 

This report focuses on those digital intermediaries, examines their activities and their implications for plurality – now and in the future – and assesses options for addressing any concerns through changes to the existing plurality framework.

Foster argues that -

Digital intermediaries can be classified into four broad groups: news aggregators like Yahoo, search engines like Google, social media like Facebook, and digital stores/devices like Apple. They all bring news content from third-party providers to consumers, using a variety of digital software, channels, and devices. They are increasingly important providers of access to news. According to the recent Reuters Institute Digital News Report, 30% of online news users use search engines as one of the main ways they access news, 22% use news aggregators, and 20% use social media. 

The first group – news aggregators – are close to established news media in the way that they operate, providing carefully curated packages of news content for their users, and sometimes originating new content themselves. They should be treated in the same way as established news media when considering plurality, ownership, and press regulation. 

The other intermediaries – search, social, and apps – are rather different, being neither neutral ‘pipes’ nor full media companies. One way of thinking about these enterprises is as gatekeepers, controlling information flows, selecting, sorting, and then distributing information. In doing so, they have a potentially profound impact on how we take part in and think about our democratic society and culture. Their activities could have a bearing on plurality of news in four broad areas:

• their control of what might be thought of as distribution bottlenecks through which users access news; 

• the editorial-like judgements they make about the news content they link to or carry; 

• their role in shaping future economic models for news provision; 

• their inclination and ability to influence the political agenda.

Together, these could have an important impact on the range and diversity of news readily available to users in the UK – that is, on news plurality. 

Regarding distribution bottlenecks, it would be hard to argue that any of these intermediaries are as yet an ‘essential’ channel for news: news providers have other routes to market, and news consumers can find news on many different platforms. Nevertheless, as the importance to news of digital media grows – especially for some key demographic groups – their role will collectively become more critical. Decisions taken by these privately owned players could impact significantly on the public-interest goal of securing universal access to high-quality news. 

Regarding editorial-like judgements, most digital intermediaries do not currently originate news or make the sorts of editorial decisions that are the everyday currency of mainstream news providers. But their judgements and policies do affect the nature and range of news content that we have access to. To varying degrees, they sort and select content to provide news which is of ‘relevance’ to their customers, and decide which sources of news to feature prominently. Whether intentionally or not this can have an impact (positive or negative) on the range and diversity of news available to their users. They also take decisions about the nature of content they are prepared to link to or carry. Such decisions, as they affect privacy, fairness, and other content standards, are a matter of public interest. 

Regarding future economic models for news, digital intermediaries have so far had a mixed impact. They have helped news suppliers to find new markets, customers and revenue sources, but at the same time they have contributed to the disruptive effect of the internet on advertising markets and enabled disaggregation of news content, hence making it harder for news suppliers to make money. The future of commercial news provision will depend on news providers, with the cooperation of digital intermediaries, finding compelling and viable new propositions, such as apps for smartphones and tablets. 

Regarding political influence, it is clear that very large global companies like Google and Apple will increasingly expect to have a seat at the table when governments and regulators are considering actions which might affect their business interests. It is less clear (yet) whether any of these organisations has the inclination or means to get more involved in shaping the wider political agenda – in the manner of newspaper proprietors of old. Should they in future decide to acquire content companies or to invest in news media in their own right, this would give them more leverage in any such lobbying activity, and would be a plurality concern. 

A related concern to emerge during research for this report is connected with the increasingly important and pervasive role which – at least some – digital intermediaries play in the everyday lives of their individual users. This touches on, for example, issues of privacy, identity, social relationships, notions of acceptable behaviour, shared culture, and values. While not strictly relevant to this discussion of news plurality, and hence not covered in detail in this report, these wider concerns add to the case for including these enterprises in any overall discussion of plurality in its broader sense. 

Across all these areas, a common concern is how to ensure that intermediaries face appropriate levels of accountability to the UK public and parliament for their actions – actions which can have a profound impact on all our lives. They are large global players, and understandably approach their businesses from an international perspective. Some maintain only a nominal corporate presence in the UK. It will be an important challenge for policy- makers and others to find ways of ensuring that these intermediaries understand and fully engage with the UK’s own particular public interest and citizenship concerns in the area of news plurality and beyond.

In considering policy and regulatory implications Foster comments that -

A new framework for news plurality will need to last for at least the next decade. It must therefore reflect and respond to these four concerns. Policy- makers and regulators must pursue a balanced approach, taking care not to chill innovation or penalise success while acting where justified to address evident plurality concerns. A range of tools will need to be considered. Competition law should be the starting point, especially where concerns arise about the potential dominance of intermediaries and their ability to distort competition. A competitive market outcome may still leave plurality shortfalls, however. It does not guarantee either the range and diversity of news prized by most democratic societies, or the principle of universal access to such news across different networks and platforms. Additional measures may therefore be needed. 

This suggests a four-tiered approach:

• Securing effective competition: active use of existing competition rules to ensure that news consumers and suppliers are protected from any anti-competitive behaviour. 

• A new plurality dialogue, involving government, intermediaries and other relevant parties, to ensure that intermediaries understand and are fully engaged with UK citizenship priorities, and are properly accountable to the public. 

• Incorporation of digital intermediaries within the new plurality review framework proposed recently by Ofcom. 

• Consideration of remedies or backstop regulatory approaches, particularly in the area of access, that might be called on should intermediaries over time prove to be a threat to plurality.

News suppliers now have to deal with powerful digital intermediaries to distribute their content to users. The commercial terms on which they can do this will have a big impact on the future viability of high-quality news. These are in the first instance business negotiations, but could also have implications for longer term plurality if powerful intermediaries use their market power to restrict or distort competition. Using existing competition powers to secure effective competition in relevant markets should therefore be a key priority. These are complex and fast-moving markets, however, and competition processes can sometimes be lengthy. It will be important therefore to seek ways of ensuring that the relevant authorities have a good and up-to-date understanding of these markets, and that developments are kept under review to ensure quick and effective action in the event of any emerging concerns. Regular monitoring of market developments by a designated authority – perhaps the communications regulator – could be part of this process. 

There is an opportunity here, building on the initiatives some intermediaries have already taken, to engage them fully in the plurality debate and to ensure that their actions and policies are properly informed by the UK public interest. Three main issues could be on the agenda:

• how intermediaries will help secure universal access to a diversity of news; 

• how intermediaries will ensure that the news content they provide access to meets UK public expectations in areas such as accuracy, privacy, fairness, and compliance with UK laws (this could cover, for example, notification and take-down policies and any pre-approval processes); 

• how intermediaries will ensure that any decisions they take in these areas are properly accountable to the UK public.

The overarching principles should be open access, consistency with UK public expectations, transparency of policies, and clear accountability for any decisions taken. Intermediaries should be encouraged, as many do already, to publish the criteria used in making access decisions, including access to news. Search companies, for example, would be encouraged to publish in a clear and simple format the principles they use in designing search algorithms. Digital stores would likewise be asked to publish details of their approval processes and how they decide to give prominence to certain apps. 

In parallel, they should be encouraged to participate in sector-wide initiatives to help devise a transparent, coherent, and widely understood approach to content regulation as it applies to their unique roles, including news. This does not mean that intermediaries would be forced to take responsibility for all the content they provide access to, but that appropriate guidelines, codes, and processes would be put in place for the types of editorial decision they do take – whether in response to complaints about illegal content, or in applying any wider standards. 

In both cases, digital intermediaries should be encouraged to build on their current processes to put in place procedures for responding effectively to complaints and ensuring appropriate action is taken in the event of any breach of published criteria or codes. Such processes could include a clear route for content suppliers or users if they wish to complain about any significant and unexplained changes in search rankings or other forms of prominence, and any decisions to block access to content. 

While much of this can be left to intermediaries themselves, experience of media self-regulation elsewhere suggests that there are advantages in having some form of statutory underpinning, to secure public trust and clear and independent accountability. There may therefore be a role for an independent body, such as Ofcom, to establish the basic principles and ground rules, to keep processes under review, and to take action in the event that they prove unsatisfactory. 

For UK policy-makers, a dialogue of this sort will help avoid the need for potentially intrusive regulation. For intermediaries it would help sustain public confidence in their activities, and, perhaps, help them develop models of good behaviour which could be adopted elsewhere. Digital intermediaries could also be challenged by government to voluntarily play a more proactive role in securing future news plurality. For example, they could be asked to help create a ‘breathing space’ for news providers to develop compelling new products by looking again at all aspects of their relationships with news providers, especially access to customer data. 

Alongside this, digital intermediaries should be incorporated in the new plurality framework proposed by Ofcom. They should be included in any future review of plurality, whether carried out periodically or triggered by a market event. In a plurality review, Ofcom could, for example, examine:

• the positive effects associated with digital intermediaries – improved access to a wider variety of news, multi-sourcing, etc.; 

• the potential risks to diversity, including the observed availability of news via different platforms, the ways in which search, social media,  and app stores are selecting and sorting news, and the impact of any ‘filter bubble’ effect.

In carrying out its assessment Ofcom could, for example, examine indicators of consumption and impact, such as the share of news consumed via intermediaries collectively and via any single intermediary, levels of user satisfaction and trust associated with intermediaries, and the extent to which intermediaries enable easy access to sources of impartial news and other news deemed to be of public interest. 

The conclusions of such reviews would indicate whether any measures needed to be introduced to help secure desired plurality outcomes. The legislative framework would need to be adjusted to enable such action to be taken – either directly by Ofcom (as with existing telecommunications regulatory powers) or perhaps via referral to the competition authorities. Such action would need to include plurality concerns arising from organic growth or change in the market, not just mergers or acquisitions. Consideration would need to be given to whether regulation was best formulated at a UK or EU level – given the cross-border nature of many intermediaries, the latter might be more appropriate. 

Ofcom, in its recent review of plurality measurement, has concluded that bright-line ownership caps would not be effective in securing plurality of news media. This is even clearer in the case of digital intermediaries, whose value to users often comes from scale or network benefits. Nevertheless, if plurality concerns are identified, Ofcom would need to consider the available remedies or actions it could take. The focus should be on ensuring transparent and open access to news. Approaches might include:

• A requirement that digital intermediaries should guarantee that no news content or supplier will be blocked or refused access, unless for legal or other good reason, such reason to be explained with reference to publicly available criteria. 

• A requirement that digital intermediaries should carry or link to in a prominent position a range of news content deemed to be in the public interest (for example, a search engine could be asked to list at least x different news sources on the first page of a search, app stores could be asked to provide appropriate prominence to public-interest news over a period of time). 

• Establish an independent review body which could audit access practices and take complaints.

Such steps could be taken after Ofcom has carried out a plurality review and found that there are significant concerns, and has also demonstrated that regulation will not impose any net costs. 

A risk of relying on periodic plurality reviews and specific remedies, however, is that there is a time delay between reviews and action, during which plurality could be significantly affected. An alternative approach, therefore, would be to consider some form of backstop regulation, either to secure fair and open access and/or to address media ownership concerns. A precedent for access regulation exists in the existing application of ‘must carry’ and ‘appropriate prominence’ rules to broadcast content on digital transmission networks and electronic programme guides. These might  be adapted to apply to some or all digital intermediaries, although designing appropriate rules will not be straightforward. 

Given the problems associated with ownership caps even in the established media, it is unlikely to be appropriate to consider fixed limits on ownership and control for intermediaries. However, cross-media ownership could be an exception to this general rule. As suggested earlier, if large digital intermediaries decided to move extensively into content production in their own right – perhaps through acquisition – then their ability to exercise political leverage might be enhanced. Consideration could be given, therefore, to formulating specific cross-media ownership constraints, which would seek to enshrine the principle that any company with a large market share (level to be determined) in ‘mediating’ activities should not also be a major player in content creation. The potential risk associated with any cross-media merger would, of course, need to be weighed against the opportunity that might be created to secure increased investment in high-quality content.

News Delivery

The 64 page Reuters Institute Digital News Report 2012 [PDF], based on a multi-nation online survey for the Reuters Institute for the Study of Journalism, suggests that "social media is now beginning to rival search as a gateway to news" and that social network services (eg Facebook) and email continue to be more important mechanisms for the delivery of news than Twitter.

Supposedly around 20% of UK respondents said they "share news stories each week via email or social networks", with 55% of that cohort (ie a bit over 10% of the UK respondents)  shared a news link via Facebook within the past week. 33% had shared a link to news by email, against 23% via Twitter.

Twenty per cent, (one in five), now come across a news story via a social network, whereas 30% use search. Younger people are more likely to use social media rather than search to discover news – whereas for older groups it is the other way round. Email was found to be a popular choice with the over 45s (51%), while Facebook (71%) and Twitter (24%) "are the natural choice for young people" with only 10% of young people sharing news by email.

Key findings claimed by the Institute are that -

• There are significant differences in how regularly people keep up with the news across our surveyed countries. Almost 9 in 10 Germans access the news at least once a day compared with only 3 in 4 people in the United Kingdom. 
•  The rapid switch from print to digital in the United States is not being replicated exactly in European countries. Germany is showing the strongest allegiance to traditional viewing and reading habits and has the lowest levels of internet news use. 
• Online is the most frequently accessed form of news for young internet users – with television remaining most popular for older groups. In general those who’ve grown up with the internet are showing markedly different consumption habits online. They discover and share more news through social networks and show less loyalty to traditional media platforms. 
• Smartphones are starting to play a significant role in the consumption of news. One-third of Danish internet users access news stories via a connected mobile every week. More than a quarter of those in the US and UK do the same.
• The tablet is emerging as an important device for news consumers. Of tablet owners, 58% use the device to access news every week in the UK. They access a larger range of sources than other users, are more likely to pay for news content and over 40% say they find the experience better than a PC. In the UK, we find that some newspaper brands with paid apps do significantly better on a tablet than on the open internet – in terms of overall market share. 
• More widely, consumers remain resistant to paying for news in digital form. Propensity to pay for online news is lowest in the UK (4%) compared to the other markets and highest in Denmark (12%). 
• One in five of our UK sample share news stories each week via email or social networks – but in general Europeans are less enthusiastic than Americans about both the sharing of news and other forms of digital participation. 
• In the UK, news about politics is perceived to be less important – and celebrity news more important – compared to the other countries surveyed. 
• There is more interest in business and especially economic news in the UK and the US than in the European countries surveyed. 
• A relatively small number of people are disproportionately important in the creation, consumption, and distribution of news. We’ve identified a small group of news absorbed users in the UK who access significantly more sources of news, are more likely to comment on news, and twice as likely to share news. 
• The level of interest in foreign news in Britain is lower than in most of our comparator countries. Only 48% of British people place foreign news in their top five areas of interest, and this compares with 65% in Denmark, 64% in Germany, and 54% in France. The level of interest in the US, at 44%, is closest to that in the UK. If one were to assume that interest in foreign news might be correlated with levels of overseas diplomatic and military activity in each of the countries then the low US figure seems surprising, particularly alongside the very high Danish one. But interest in foreign news may also reflect people’s sense of interconnectedness, the degree to which affairs abroad are likely to impact on them directly, or for which they feel some affinity, as much as any direct relation with their government’s degree of foreign engagement.

Are the findings persuasive? Online polling was conducted by YouGov across five countries in April 2012. The Institute states that -

This is an online survey – and as such the results will under-represent older people's consumption habits, namely use of newspapers and TV.  It also excludes people who said they are not interested in news at all which in most countries was more than 10 per cent. All countries used the same methodology to allow for valid comparisons. Within our sample there were targets set on age and gender, region, newspaper readership, and social grade to accurately reflect the total population who are also online.

Indigenous Recognition

'A Referendum on Indigenous Constitutional Recognition – What are the Chances?' (Sydney Law School Research Paper No. 12/21) by Helen Irving notes that

 The Report of the Expert Panel on Constitutional Recognition of Indigenous Australians was presented to the Prime Minister in January this year. It includes many recommendations for constitutional change as well as for the referendum process. The Panel is emphatic that ‘achieving a successful referendum outcome should be the primary consideration of the Government and Parliament.’ Despite this, the Report devotes surprisingly modest attention to the history of Australia’s referendums. From what we know of the record, however, the Report’s confidence that its recommendations ‘are capable of succeeding’ is questionable. This paper considers the record, and concludes that the government would be unwise to put the Panel’s recommendations - at least in their current form - to a referendum. 

Irving comments that -

 The Panel, it is clear, has relied substantially on George Williams and David Hume, People Power: The History and Future of the Referendum in Australia.  This, unquestionably, is an authoritative source, and is by far the most thoroughly-researched in the large body of literature on Australia’s referendum record. But it is also a work of advocacy and serves the dual purposes of detailing the history of referendums and promoting a higher ‘Yes’ rate in the future. Its core premise, shared by almost all other referendum analyses, is that failures are aberrant. 

This is not the only perspective available. It could alternatively be argued that section 128 serves as a type of ‘plebiscite’ with legal consequences. It invites Australian voters to say whether or not they agree with a particular proposal for constitutional change. The people are asked: the people respond. If a referendum fails, this reflects the people’s opinion. Seen in this light, the failure of a referendum on indigenous recognition, as the Panel recognised, would be doubly distressing. 

A dispassionate examination of the chances of success is therefore essential. ‘Talking-up’ the referendum may be a legitimate strategy in promoting a ‘Yes’ vote, but it must be grounded in reality. Fatalism is equally unscientific. The statistical record tells us nothing, in itself, about the chances in an individual case. Failure is not the default. It is the decision of the voters, on each occasion.

Irving concludes that

 The Report’s recommendations reflect a tentative confidence. A reader, unfamiliar with the literature, might conclude that, while that the referendum hurdle is high, the reasons for failure are fairly well understood. This would be a mistake. It is true that a substantial amount of research has been done on the referendum record (although the Report does not capture this as well as it might have). We know a lot about the data, the nature of the campaigns, the media coverage, and so on. But it would be misleading to assert that we know an equal amount about the reasons people vote one way or another. There is no ‘scientific’ explanation of referendum success. There are a number of well-worn hypotheses, and a good deal of conjecture. This does not mean that the familiar explanations are necessarily wrong, simply that we do not know with any level of precision or certainty. 

What we know is that referendums are defeated if there is an appreciable level of opposition to the proposal. The government would be ill-advised to proceed with a referendum in the absence of unanimity – at least nem con - in the parliament. It should be equally wary, if there is any indication of substantial public opposition. We know that education and information programs, no matter how well resourced or long-running, cannot be relied upon to turn around opposition. Indeed, a swing towards the ‘No’ vote in the course of a referendum campaign is much more likely. 

The hypothesis that those who ‘don’t know’, will ‘vote No’ is appealingly simple (and provides referendum opponents with a handy slogan), but it is misleading. It assumes its own conclusion, namely that the proposed changes are inherently worthy, and that rejection reflects misunderstanding of their worth. As noted, this explanation does not fit easily with the data or the history of referendum campaigns. We do have a few inferential guidelines, as well as recourse to sensible intuitions, but these can also lead us to conflicting conclusions. Australia’s referendums have happened over a long span of time. On almost any measure - social, political, demographic, legal – immense changes have occurred, and the character, predisposition, and values of the people have changed. Even to compare 1967 with 2012 is ‘unscientific.’ 

This is not to say that proposals for a new referendum cannot learn from the record. Some hypotheses are better than others, and these, it is hoped, will help guide a government’s decision whether or not to go ahead in the first place. While George Williams’s recommendation of a ‘sound and sensible proposal’ is tendentious (a flaky proposal, by definition, will not appeal to voters, assuming there can be agreement on its flakiness), it does put its finger on something upon which everyone can agree. A majority of people will (probably) vote ‘Yes’ if the proposal reflects a combination of settled norms and comfortable aspirations. A tentative, but judicious, understanding of what the record reveals, combined with a ‘gut’ sense of what the Australian people are likely to support (assisted by well-designed opinion polls), is the best guide to the chances of success. 

From this perspective, if the proposed alterations recommended by the Panel are separated, the chances will vary, depending on the question. The Panel, however, should be much less confident than its Report suggests about the likelihood of success if its proposals are put in the form of a single question.

Prohibition

'The New Prohibition: A Look at the Copyright Wars Through the Lens of Alcohol Prohibition' by Donald Harris in University of Tennessee Law Review deploys the prohibition meme, commenting that

Over the past decade, copyright holders and content providers have increased legislative and judicial protection for copyrighted works and have concurrently increased enforcement efforts. Much of this has been directed at curbing massive filesharing. Despite the tremendous amount of resources expended in such efforts, filesharing continues at unabated and never before seen levels. Filesharing continues and enforcement efforts has failed because neither the laws nor the copyright industry’s efforts take into account the immense resistance and civil disobedience engendered by efforts to prevent a considerable segment of society from recognizing the reality of the Internet. Moreover, such enforcement efforts also fail to address the evolving nature of copyright. Rather than continuing to impose on society laws that society feels are both unjust and illegitimate, new copyright laws much reflect current societal morals and norms. These current norms suggest that filesharing is here to stay. As such, this Article offers a different look at the controversy surrounding the filesharing. 

This Article argues that legislators, commentators, and the copyright industry must entertain laws that embrace filesharing, and seek other ways to incentivize artists and other creators. The Article traces Alcohol Prohibition of the 1920s and 1930s as an historical example of laws that were inconsistent with the vast majority of society’s morals and norms. Looking back, one can see many similarities between the Alcohol and Filesharing Prohibitions. The Article suggests, then, that lessons learned from the failed “noble experiment” of Alcohol Prohibition should be applied to the current filesharing controversy. Doing so, the Article advocates legalizing certain noncommercial filesharing. A scheme along these lines will comport with societal norms and will force new business models to replace outdated and ineffective business models.

Own Goal?

Australian Attorney-General Nicola Roxon seems to have mistaken an own goal for kite-flying, judging by comments in today's Sydney Morning Herald.

In an article for this month's Privacy Law Bulletin (or snippier pieces here and here) I questioned wide-ranging proposals for 'rationalising' national security law and requiring business to retain telecommunication traffic data for a two year period.

Those proposals are disappointing because the issues have been explored in depth on several occasions in different parliamentary inquiries without gaining much support.

The proposals are also disappointing because they are accompanied - and apparently justified - by a notably thin (indeed misleading) discussion paper from the Attorney-General's Department. The urgency of the consultation can be attributed to political opportunism or merely to ineptitude within the Department and the Minister's Office. If we are going to reshape the privacy landscape and strengthen the powers of a range of agencies it is important that law reform take place on a properly informed basis, rather than being rushed in a way that disregards consideration by the legislature and consultation with the community, including bodies such as the Law Institute of Victoria that have highlighted problems in the past.

Under the heading 'Roxon doubts over security plans to store web history' the article states that -

 "The case has yet to be made'' for a controversial plan to force internet providers to store the web history of all Australians for up to two years, says the Attorney General, Nicola Roxon, who has acknowledged the financial and privacy costs of such a scheme. 

She expressed her reservations in an interview with The Herald in what may be a sign the government does not have the appetite for forcing through Parliament the most controversial proposal among more than 40 national security proposals. 

The proposals, if passed, would be the most significant expansion of national security powers since the Howard-era reforms of the early 2000s.

It is true that the case made by the discussion paper is unpersuasive, not least because of its vagueness. 

The SMH states that -

Regarding data retention, Ms Roxon said she had some sympathy for the view of national security agencies, but said: "I am not yet convinced that the cost and the return - the cost both to industry and the [civil liberties] cost to individuals - that we've made the case for what it is that people use in a way that benefits our national security." 

"I think there is a genuine question to be tested, which is why it's such a big part of the proposal." 

 The article goes on to comment that -

This view will be greeted with some apprehension by one of the main advocates for such a regime, Neil Gaughan, who heads the Australian Federal Police High Tech Crime Centre. 

"If we don't have a data retention regime in place we will not be able to commence an investigation in the first place. And it's already getting increasingly difficult," he said. Opposition to such laws in Germany - the government has declared them invasions of privacy and forbidden them - has left the German federal police agency the Bundeskriminalamt or BKA a laughing stock, Assistant Commissioner Gaughan said.

Asst Commissioner Gaughan might want to do his homework. The German Constitutional Court - applying EU law and the German Constitution - rather than the German Government held over-reaching law to be invalid. Law enforcement in Germany continues: the nation isn't a wild west in which police are unable to act. Wiretaps are permissible within the German legal framework. It is thus disconcerting to read that

"No one can work with them internationally," he said. "If I go to Germany with an inquiry about who called who, when and why, they can't tell us. It's causing the BKA all sorts of problems."

 Evidence to a current inquiry in Germany noted here might suggest that bureaucratic ineptitude rather than unprecedented legal constraints is what causes people to laugh at Germany's spooks and feds.

The SMH article also notes that

 The committee investigating the proposals has already reacted to complaints that four weeks allowed for submissions from the public was not long enough. It announced yesterday that it was extending the deadline by a fortnight.

Privacy Notices

Recent posts in this blog have referred to frameworks for consent in online transactions and notions of 'visceral notice'.

'What happens to my data? A novel approach to informing users of data processing practices' by Bibi van den Berg & Simone van der Hof in (2012) 17(7) First Monday notes that -

Citizens increasingly use the Internet to buy products or engage in interactions with others, both individuals and businesses. In doing so they invariably share (personal) data. While extensive data protection legislation exists in many countries around the world, citizens are not always aware (enough) of their rights and obligations with respect to sharing (personal) data. To remedy this gap, users ought to become better informed of companies’ data processing practices. In the past, various research groups have attempted to create tools to this end, for example through the use of icons or labels similar to those used in nutrition. However, none of these tools have gained extensive adoption, mostly because it turns out that capturing privacy legislation in simple, accessible graphics is a complicated task. Moreover, we believe that the tools that were developed so far do not align closely enough with the preferences and understanding of ordinary users, precisely because they are too ‘legalistic’.

In this paper we discuss a user study conducted to gain a better understanding of the kinds of information users would wish to receive with respect to companies’ data processing practices, and the form this information ought to take. On the basis of this user study we found a new approach to communicating this information, in which we return to the OECD’s Fair Information Principles, which formed the basis for (almost all) data protection legislation. We end the paper with a rudimentary proposal for an end user tool to be used on companies’ Web sites.

They comment that -

One of the interesting findings of the survey we conducted (section 1) was that the informational wishes of end users neatly align with the requirements laid down in data protection law: end users tend to want to be informed of the same information processing issues (what information is processed, passing information on to third parties, processing purposes etc.) as the legal demands that companies need to meet. On some level, of course, this is not surprising: if all goes well legal requirements mirror the demands of the people they aim to protect, or at least align with these demands. However, other attempts at improving the accessibility of privacy statements, or companies’ data collection and processing practices, have never started from this finding. As we have seen, for example in the icons developed in the PrimeLife project, these generally start from the assumption that the intricacies of data protection legislation have to be communicated — in great detail — to end users to inform them of the many, many hazards and pitfalls they may (legally) encounter when sharing data in online environments. In contrast, our survey reveals that end users’ expectations remain at a much more general, and much less legally detailed level. 

This led us to the idea of going back to the origins of (almost all) of the data protection legislation that is available today: the OECD Guideline, composed in 1980, on the ‘Protection of privacy and transborder flows of personal data’, also known as the Fair Information Principles. These Principles form the basis of the European Data Protection Directive, along with most of the data protection legislation of the Member States. There are eight basic principles in the OECD Guideline, ranging from a Collection Limitation Principle (also known as the data minimization principle: one can only collect those data one needs to complete a certain action, and no more than that), the Data Quality Principle (data should be accurate and up to date), and the Purpose Specification Principle (data may only be collected and processed for specified purposes). 

As said, the survey revealed that users look for precisely these types of information when engaging with companies who set out to collect and process their data. This is why we rephrased the key principles in the OECD Guideline in everyday language and used those as our starting point. 

In the previous section, we concluded that many of the existing initiatives to improve the communication of privacy policies either provided too much information at a single glance for end users to process (icons, labeling) or too little (the Privacy Bird). To avoid this, we decided to opt for a layered approach, which does contain all the information an end user may wish to receive, but not at first glance. Moreover, we decided to use words rather than a single image such as the Privacy Bird to avoid oversimplification. We placed eight core concepts, related to the Fair Information Principles, on the spokes of a wheel .... This wheel can be placed on a company’s Web site .... Clicking the wheel makes the spokes rotate, so that each of the eight topics can be studied by end users should they desire to do so. 

The spokes have the following labels:

Limited collection: this is the OECD’s ‘Limited Collection Principle’ 

Data quality: this is the ‘Data Quality Principle’ 

Clear purposes: this is the ‘Purpose Specification Principle’ 

Limited use: this refers to the fact that data shall not be used for purposes other than the ones specified, but also to the fact that data shall be stored for a limited period of time. 

Safe & secure: this refers to the OECD’s Security Safeguards Principle, which stipulates that data should be stored in a safe and secure way. 

Consent: this is actually not a part of the Fair Information Principles, yet has become a key feature of existing data protection legislation, which is why we chose to create a separate label for it. If this demonstrator were to be developed further into an online tool, to be posted on companies’ Web sites, one could imagine that clicking this spoke would not only give end users access to the stored consent form regarding their data, but possibly even a direct means to change or revoke their consent. 

Third parties: this also is not an explicit part of the Fair Information Principles, yet plays an important role in existing data protection legislation. Moreover, the survey revealed that users attach great value to being informed about whether or not their information is passed on to third parties. This is why we created a separate spoke for this theme. 

Hold us accountable: this refers back to the OECD’s Openness and the Accountability Principle, which states that users ought to have the right to hold a data controller accountable, and have insight into what data is processed and by whom.

We have chosen these labels because they are intuitive and easy to understand — even if end users do not click on the spokes to find out more information, they are still informed of a company’s data collection and processing practices on a minimal level. 

Clicking on the wheel enlarges the image. Next, clicking on the individual spokes enables users to access second and even third layers of information, where they receive more and more in–depth information about each specific aspect of the processing. The information becomes more ‘legalistic’ with every layer the end users access. What’s more, in some cases end users may even exercise their rights directly through the use of this tool

Dollar Washing

The Australian Minister for Home Affairs has launched the sixth money-laundering 'typologies' report [PDF] by the Australian Transaction Reports & Analysis Centre (AUSTRAC) under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and the Financial Transaction Reports Act 1988 (Cth), the key statutes in Australia's anti-money laundering (AML) regime.

It is described as "showing how money laundering and other serious offences pose a significant threat to Australian businesses and the community".

The AUSTRAC typologies and case studies report 2012 includes 21 real-life case studies featuring an array of offences, including large-scale tax evasion, advance fee fraud and investment scams, identity theft and drug trafficking.

“These case studies show that Australia’s strong economy makes us a tempting target for transnational and high-tech crime” ...

“It also confirms that when government and industry work together we can catch the criminals responsible.”

AUSTRAC analyses financial information and shares this information with a range of government law enforcement and other agencies, which has led to asset seizures and the arrest and conviction of criminals.

AUSTRAC's 2011 Money laundering in Australia report identified key characteristics of money laundering in Australia, including -

• Intermingling (or co-mingling) legitimate and illicit financial activity. This process of reinvesting criminal proceeds and providing a cover for criminal enterprise (for example, through cash-intensive businesses and front companies) is a well-established money laundering methodology. 
• Engaging specialist money laundering syndicates. Specialist syndicates, based in Australia and overseas, are providing specific money laundering services to domestic and international crime groups operating in Australia. 
• ‘internationalisation’ of the Australian organised crime environment. There is almost always an international component to the money laundering cycle for major crime groups operating in Australia. 

The case studies in the 96 page typologies report include -

• manufacturing companies using shell companies, cheques and secret cash payments to undertake large-scale tax evasion; 
• an extensive Nigerian ‘advance fee’ fraud, where more than 20 Australian victims lost millions of dollars; and
• a criminal syndicate that stole the identities of victims to perpetrate a multi-million dollar superannuation fraud. 

The report features an analysis of two established money laundering methods (ie use of cheques to launder money and evade tax and the use of third parties to carry cash across borders) alongside discussion of emerging money laundering vulnerabilities.

In discussing 'emerging vulnerabilities' the report comments that - 

‘Digital currencies’ and so-called ‘virtual worlds’ offer opportunities for criminals to launder money due to their global reach, lack of face-to-face transactions and the convenience of using electronic commerce. 

While the nature and extent of money laundering through digital currencies and virtual worlds are unknown, it is important to recognise their potential for criminal exploitation, particularly in response to tighter regulation of established or traditional financial channels. 

The evolution of digital currencies has led to the development of internet-based, electronic means of transferring ‘real-world’ value. In contrast to the traditional physical currencies issued by national governments, digital currencies (such as Bitcoins, SolidCoins and Linden dollars) are issued by commercial enterprises. They are not issued by or under the authority of a government body. Nor are they backed by traditional currencies, precious metals or other physical commodities. 

Digital currencies potentially allow individuals and entities to conduct quick and complex international funds transfers outside the regulatory requirements of the traditional financial system. Digital currencies that are not backed, either directly or indirectly, by precious metal or bullion are not regulated by the AML/CTF Act. Some digital currencies can be purchased with traditional currencies through online digital currency exchanges (DCEs) such as Mt.Gox, VirWoX and LindeX. Bitcoins can be exchanged for stored value cards, while other digital currencies can be exchanged for gold, silver and online goods and services. 

The anonymous nature of digital currencies may appeal to criminal groups and individuals who seek to use digital currencies as an instrument of crime to pay for illegal goods and services and obscure the source of illicit funds or evade tax. Criminal groups and individuals may increasingly use digital currencies, as opposed to online trading of real currency, due to the anonymity some digital currencies provide. These digital currencies present challenges for government agencies in following the money trail. 

On the other hand, there are some disadvantages for criminals using digital currencies for illicit purposes. In general, digital currencies at this time are not widely accepted as payment for goods and services. This limits the avenues through which digital currency can be used to convert, move and launder illicit funds. The limited size of digital currency markets, in turn, reduces the extent to which large amounts of illicit value can be moved. In contrast, traditional financial channels (such as banks and remittance services) interact with a wide range of economic sectors through which illicit funds in large volume can be moved, co-mingled and concealed. 

The overall utility of digital currencies for criminals at this point may currently be limited to niche crimes in the cyber environment and individual or smaller scale illicit activity.

Virtual worlds (also known as gaming platforms, 3D environments and massive multiplayer online games) are internet-based simulated ‘worlds’ with their own virtual ‘economy’. Examples include Second Life and World of Warcraft.

The economy of a virtual world is generally based upon a digital currency which can be purchased and/or converted into real currency. Users interact with each other in a virtual environment, purchasing virtual property, trade goods, services and currency.

By definition, virtual worlds operate in a borderless environment. They provide potential for criminals to launder money with anonymity. For example, the potential exists for virtual world users to purchase ‘virtual real estate’ using illegally obtained money in an attempt to legitimise the transfer of funds to a third party. The proceeds of these transactions can subsequently be converted into real currencies or transferred offshore or to third-party accounts.

The vulnerabilities associated with digital currencies and virtual worlds include:

• Digital currencies and virtual worlds are generally not captured by anti-money laundering and counter-terrorism financing (AML/CTF) legislation around the world. Because there is limited or no regulation of digital currency transactions, authorities have difficulty monitoring criminal activity which exploits digital currencies.

• Online DCEs provide the opportunity for criminals to exchange digital currencies for other digital currencies (for example, exchanging Bitcoins for Linden dollars), before converting them into real world currency. This provides additional ‘layering’ in the money laundering cycle.

• Criminals can use their illegally obtained physical currency to purchase the digital currency of a virtual world. Depending on the virtual world platform or online DCE, digital currency can be purchased using a debit card, credit card, internet payment service provider or, in some instances, using an online voucher payment.

• The proceeds of some transactions can be converted into traditional or real currency by linking a virtual account to a debit card or through DCEs. These channels would allow individuals to trade digital currencies and receive payment via a debit card, credit card or internet payment service provider.

Reassurance or rhetoric

The report noted in the preceding post came a day before news that Attorney-General Roxon had chaired the eighth meeting of the Business-Government Advisory Group on National Security. The group is The advisory group is characterised as "a high level forum for Australia’s business leaders to discuss security issues with Australian Government Ministers and security, intelligence and law enforcement senior officials".

The eighth meeting was concerned with the strengthening of identity security and presumably included some discussion of the rather murky national intelligence legislation proposals highlighted here and in my more detailed article in this month's Privacy Law Bulletin.

The media release accompanying the meeting states that

 The group met in Melbourne to discuss identity crime, identity security measures, and other security challenges faced by Australian companies. 

“Identity security is important because it underpins our objectives for national security, law enforcement and, more broadly, the national economy,” Ms Roxon said. 

Attendees, including more than 20 industry leaders, received confidential briefings from the Australian Crime Commission, Australian Federal Police, and the Attorney-General’s Department. 

“Identity crime is one of the top three enablers of serious and organised crime in Australia, and it can have serious financial implications for business, governments and individuals,” Ms Roxon said.

One might hope that the analysis shared with the supremos was somewhat more rigorous than a succession of facile or even misleading reports from the Australian Crime Commission - duly hyped by the Government as the "how-to manual" for "the war on organised crime" - or the discussion paper regarding the national intelligence law proposals that featured a range of impressive-looking statistics that, alas, had absolutely nothing to do with those proposals!

The media release went on to state that -

 “Identity security is a shared responsibility. Only when governments at all levels work together with industry and the community can we effectively tackle the insidious effects of identity misuse. 

“Business needs to protect the personal information that they hold on behalf of the community. They are leaders in promoting good identity security practices within their organisations and in the community,” Ms Roxon said.

The Minister seems to have been careful to avoid reference to the proposed privacy tort. The media release concludes -

Under the National Identity Security Strategy [of which official criticism is noted here], Australia has a number of initiatives underway to strengthen identity security.  

A key initiative is the Document Verification Service, which will allow the private sector to check, in real time, the authenticity of particular proof-of-identity documents. 

“The Document Verification Service offers a practical way for organisations to reduce identity crime and misuse, which affects their reputation and their clients. 

“We announced in the Budget that the service would be made available to financial institutions and telecommunications providers from next year. 

“This initiative will not only address law enforcement and national security risks, but also contribute to the Government’s national priorities of streamlining the digital economy and improving service delivery.”

Can't, it seems, have enough sharing.

Letters

Overseas action regarding data breaches provides a perspective on Australian practice.

The UK Information Commissioner has penalised St George’s Healthcare NHS Trust £60,000 for sending a "vulnerable individual’s sensitive medical details" to the wrong address.

The Information Commissioner indicates that

The information was contained in two letters that were sent out by the Trust in May 2011. While the letters were addressed to the correct recipient, they were sent to an old address, despite the person not having lived in the property for nearly five years. The ICO’s investigation found that the individual’s current address had been provided to the trust’s staff before the medical examination took place. Additionally the correct address had been logged on the national care records service, known as NHS SPINE, in June 2006. The mistake was made after the Trust’s staff failed to use the address supplied before the examination, or check that the individual’s recorded address on their local patient database matched the data on the SPINE. The Trust had set up a prompt to remind staff about the need to check and update patient information against SPINE; however the Trust knew the prompt could be bypassed and failed to take action to address the problem until it was too late.

The ICO’s Head of Enforcement commented that -

It’s hard to imagine a more distressing situation for a vulnerable person than the thought of their sensitive health information being sent to someone who had no reason to see it. This breach was clearly preventable and is the result of the Trust’s failure to make sure the contact details they have for their patients are accurate and up to date. 

This is the fourth monetary penalty we have issued to the NHS in the past two months. It is vital that these organisations make sure they have the necessary measures in place to keep patients’ details secure.

The NHS Trust has reportedly taken action to make sure that the personal information is kept secure, including "making sure adequate checks are in place to ensure that local information the trust has for patients is correct, by cross checking that information against SPINE and other relevant sources". The Australian legal framework is different, with the national Privacy Commissioner having neither the power to impose financial penalties nor apparently (until a succession of promo items, replete with snaps of the Commissioner himself) much interest in shaming errant bodies.

Yesterday the Canberra Times - only slightly less provincial than the Bungedore Mirror - reported that "A defence agency emailed the personal details of almost 2500 former military personnel to hundreds of people, even though its software had warned it not to". The information apparently included each former ADF member's name, ID number, unit name, date and reason for leaving the service and personal email address.

The Defence Department - like Telstra, Sydney University, Vodafone, First State Super and other organisations that have been criticised regarding a breach - offered the usual response: it is "treating this matter with the utmost seriousness". They would say that, wouldn't they. "An external consultant is undertaking a formal investigation and Defence has conducted an immediate review of its processes and procedures pending the outcome of this investigation".

The Defence Community Organisation, which helps families that are struggling to adjust to military life, has since acknowledged the error was a ''serious breach of privacy and … also a breach of trust". 

Last month, one of its new employees accidentally attached the database to a survey, which was then sent to about 400 people who had recently left the Australian Defence Force.

The computer initially blocked the email, warning that it contained an "unauthorised security clearance". However, after seeking advice, the employee was then told to "just send the email again". ... the email contained personal information of more than 2400 former personnel, "including members who were now deceased".

The Times reports that staff members involved in the incident have been counselled and directed to undertake privacy training. We might wonder about the meaningfulness of that training.

The Organisation's site does not provide information about the data breach; apparently less important than the announcement that "The Defence Child Care Centres have successfully transitioned to a new service provider, Mission Australia Early Learning Services (MAELS) from 1 July 2012".

Do Not Track

''Do-Not-Track' as Contract' by Joshua Fairfield in 14(3) Vanderbilt Journal of Entertainment and Technology Law (2012) 101 comments that -

 Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically — telephone numbers do not change, whereas Internet protocol (IP) addresses may vary. 

This Article explores whether, as a matter of contract law, a browser do-not-track option is enforceable against a corporation, and concludes that it is. The emerging standard of online consent has been whether a party proceeds with a transaction after the counterparty informs the party of the terms of the contract. Adhesion contracts in electronic contexts have bound consumers for over a quarter century in precisely this manner. 

This Article argues that what applies to consumers should apply to corporations. When a consumer expresses her preference, in the very first exchange between the consumer and corporate computers, for the corporation not to track her information, the company is free to refuse the transaction if it does not wish to continue on the consumer’s terms. This Article therefore proceeds in three broad parts. Part I introduces the current methods of corporate surveillance of consumers, which have reached dizzying heights. Part II discusses the law of e-commercial and mass-market contracts, which courts have held to bind consumers even on the merest fig leaf of a legal theory of consent. Part III proposes a solution: the answer is not to continue making consumers read more privacy policies on various websites, but instead to enforce the simple preferences that the consumer expresses once.

Traditional Knowledge and the US

'A Defense of Native American’s Rights over their Traditional Cultural Expressions' by Kay Mathiesen argues

The Protocols for Native American Archival Materials (PNAAM) recommend a set of best practices for dealing with Native American Traditional Cultural Expressions and Traditional Knowledge held in libraries and archives. “Traditional cultural expressions” (TCE) have been defined by the World Intellectual Property Organization (WIPO) as cultural materials created by the community that reflects that “community’s cultural and social identity” and are a “community’s heritage” “handed down from one generation to another” (WIPO 2005, 5). Traditional knowledge (TK) has been defined as “traditional technical know-how, or traditional ecological, scientific or medical knowledge” (WIPO 2005, 4). Thus, Native American TCE and TK would potentially include any materials that represent in some way the cultural heritage or knowledge that has been developed and passed down by Native American tribes and Native Hawaiians. 

The normative foundation of PNAAM’s recommendations is that Native American tribes have rights over the TCE and TK held in libraries and archives. It is important to note that the rights claimed in PNAAM are moral rights; a “moral right” creates an obligation for others to respect it, whether or not the right is encoded in law. As Joel Feinberg puts it, a person “has a moral right when he [or she] has a claim the recognition of which is called for...by moral principles, or the principles of an enlightened conscience” (Feinberg 1970, 253). Concern for the moral rights of others is nothing new to the library and archival professions. Consider, for example, the rights listed in the Library Bill of Rights, which do not necessarily have the force of law, but which are, nevertheless, held up as guides for the ethical conduct of library professionals (ALA 2002). 

In particular, PNAAM recommends that librarians and archivists recognize the rights of Native Americans to limit or deny access to Native American stories, images, and information. While there is anecdotal evidence that some non-tribal archives have formal or informal policies in line with some or all of the recommendations of PNAAM (Walters 2011), such policies and practices are not generally accepted within the archival profession. According to one archivist, “The Protocols call for sweeping power to control what is studied and written about Native American communities, which ... is incompatible with our basic professional tenets of open and equitable access to information, and the practice of free and open inquiry ...” (Bolcer 2009, 4). Others have objected that, “The Protocols challenge many ‘bedrock’ principles of American archival practice” (Society of American Archivists 2008). Concerns such as these have led both the Society of American Archivists (SAA) and the American Library Association (ALA) to refrain from endorsing PNAAM (SAA 2008, ALA Office for Information Technology Policy 2011). 

At heart, the controversy over PNAAM is based on a disagreement about the norms that ought to guide ethical practice in the archival and library professions. Like any profession, archivists have ethical codes that govern the practice of the profession (Danielson 2010, 301-337). “Ethics” have been defined as the “well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues” (Velasquez and Andre 1986). “Professional ethics” are “the principles and standards that underlie a profession's responsibilities and conduct” (Davis 2003). Ethical responsibilities of archivists include the obligations to safeguard records from theft or destruction, to ensure equitable access to records, and to protect the privacy of the subjects of archival records. Work in archival ethics discusses the rationale for the codes and how they apply to specific cases (Cox and Wallace 2002, Benedict 2003, Danielson 2010). The issue of how to deal with Native American archival materials, however, has gained little attention from those writing on archival ethics in the United States. Karen Benedict’s 2003 Ethics and the Archival Profession: Introduction and Case Studies, for example, contains no case studies dealing with the issue of the proper treatment of Native American Archival materials. Elena Danielson’s 2010 book, The Ethical Archivist, briefly mentions the issue in a single paragraph, but does not cover the controversial ethical issues surrounding it. While there has been some description of archival projects involving materials held by Native American tribes (Christen 2011), these articles do not provide an in-depth discussion of the ethical issues involved. 

Globally, the ethical questions surrounding control over Indigenous TCE and TK have received much more attention. International organizations such as the United Nations (UN) and the WIPO have drafted statements asserting the rights of indigenous peoples to control access to their TCEs and TK (UN 2006, WIPO 2003). The Declaration of the Rights of Indigenous Peoples, for instance, states that indigenous peoples, “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions” (U.N. 2007, Article 31) Archivists in countries such as Australia have been grappling with these ethical issues for almost twenty years. The Aboriginal and Torres Strait Islander Protocols for Libraries, Archives and Information Services (ATSI Protocols), which served as an inspiration for PNAAM, was written in 1995 and was endorsed by the Australian Society of Archivists in 1996 (Aboriginal and Torres Strait Islander Library Information Resources Network 2005). Since that time, a significant scholarly literature has developed on the ethical and legal issues surrounding the ATSI Protocols (Nakata and Langton 2006). 

Given the increasing international attention to the question of Indigenous peoples’ rights over their TCE and TK, it is imperative that archivists and other LIS professionals in the United States engage in a serious discussion of the ethical issues involved. This paper seeks to advance this discussion by engaging in an ethical analysis of the key question involved: “Do Native Americans have a moral right to control access to their TCE and TK?” As a work of applied ethics, this paper “seeks a reasoned defense of a moral viewpoint” using “considered judgments and moral frameworks to distinguish justified moral claims from unjustified ones” (Beauchamp 2005, 23). The moral viewpoint defended here is that Native Americans do have a moral right to control access to their TCE and TK. Group privacy and the concept of restorative justice provide an ethical justification of this right. 

The case for the rights of Native American tribes to control access to their cultural heritage only makes sense when situated within its historical context. Thus, this essay begins with a short description of the history of suppression and appropriation of Native American cultures. In the second section of the paper, some of the controversial recommendations of PNAAM are summarized, and a number of objections that have been made to them are noted. The third section grapples with questions of methodology in ethics. John Rawls’ “overlapping consensus” approach is adopted as a method for resolving ethical conflicts between cultural groups. The fourth section surveys a number of proposed defenses of Native American rights over their TCE and TK, and argues that they fail to provide the basis for an overlapping consensus. The fifth section argues that the right to privacy, as extended to groups, does provide such a basis. The final section of the paper addresses objections to the group privacy argument, most notably, that recognizing Native American rights to their cultural information will put us on a slippery slope towards massive restrictions on access to information. It is argued that the nature, context, and history of Native American cultures are unique. Consequently, the right of Native Americans their TCE and TK as grounded in cultural privacy does not extend to other social, cultural, ethnic, or religious groups. 

It must be emphasized that I do not claim in this paper to speak for Native American tribes or individuals. I approach this topic as a non-native ethicist trained in western philosophical ethics. I have sought to construct an ethical argument that provides a basis for a shared understanding of the rights of Native Americans’ over their TCE. I am deeply indebted for my understanding of these issues to both my Native American students and to Native American and Indigenous scholars who have written so passionately and convincingly on these issues. For a deeper understanding of the perspectives of Native Americans, readers can do no better than to consult what Native Americans have written on this topic (see e.g., Nason 2001, PNAAM, Todd 1990, Tulalip Tribes 2003). 

Furthermore, it should be noted that no policy proposals or suggestions for implementation will be made here. I argue that there are grounds already accepted within the archival ethics to justify the rights of Native American’s to their TCE and TK. Exactly how these rights may be best respected through practices, policies, and laws is beyond the scope of this paper. Indeed, it would be inappropriate to make such suggestions here, as any such policies should be the result of dialogue and negotiation between Native American Tribes and those who handle their cultural materials. Such dialogue is a central theme of PNAAM and a key component of a restorative justice approach to the legacy of past injustices (Zion and Yazzie 2006).

Rigidification

In SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Ltd [2012] FCAFC 95 Finn, Dowsett & Bennett JJ of the Federal Court have dismissed SNF's challenge to Ciba's 'rigidification' patents.

They found that Kenny J in SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Limited [2011] FCA 452 had not erred in concluding that the term 'rigidification' was not a term of art and was to be constructed ordinarily. The Full Court endorsed the primary judge's conclusions regarding novelty and innovative step.

Dowsett J quoted Lord Hoffmann in Kirin-Amgen Inc and Others v Hoechst Marion Roussel Ltd [2004] UKPC 6; (2004) 64 IPR 444 regarding construction in patent claims

Construction, whether of a patent or any other document, is of course not directly concerned with what the author meant to say. There is no window into the mind of the patentee or the author of any other document. Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance was addressed would have understood the author to be using the words to mean. Notice, however, that it is not, as is sometimes said, “the meaning of the words the author used”, but rather what the notional addressee would have understood the author to mean by using those words. The meaning of words is a matter of convention, governed by rules, which can be found in dictionaries and grammars. What the author would have been understood to mean by using those words is not simply a matter of rules. It is highly sensitive to the context of and background to the particular utterance. It depends not only upon the words the author has chosen but also upon the identity of the audience he is taken to have been addressing and the knowledge and assumptions which one attributes to that audience. ... 

In the case of a patent specification, the notional addressee is the person skilled in the art. He (or, I say once and for all, she) comes to a reading of the specification with common general knowledge of the art. And he reads the specification on the assumption that its purpose is both to describe and to demarcate an invention – a practical idea which the patentee has had for a new product or process – and not to be a textbook in mathematics or chemistry or a shopping list of chemicals or hardware. It is this insight which lies at the heart of “purposive construction”. If Lord Diplock did not invent the expression, he certainly gave it wide currency in the law. But there is, I think, a tendency to regard it as a vague description of some kind of divination which mysteriously penetrates beneath the language of the specification. Lord Diplock was in my opinion being much more specific and his intention was to point out that a person may be taken to mean something different when he uses words for one purpose from what he would be taken to mean if he was using them for another. The example in the Catnic case was the difference between what a person would reasonably be taken to mean by using the word “vertical” in a mathematical theorem and by using it in a claimed definition of a lintel for use in the building trade. The only point on which I would question the otherwise admirable summary of the law on infringement in the judgment of Jacob LJ in Rockwater Ltd v Technip France SA ... is when he says in subpara (e) that to be “fair to the patentee” one must use “the widest purpose consistent with his teaching”. This, as it seems to me, is to confuse the purpose of the utterance with what it would be understood to mean. The purpose of a patent specification, as I have said, is no more nor less than to communicate the idea of an invention. An appreciation of that purpose is part of the material which one uses to ascertain the meaning. But purpose and meaning are different. If, when speaking of the widest purpose, Jacob LJ meant the widest meaning, I would respectfully disagree. There is no presumption about the width of the claims. A patent may, for one reason or another, claim less than it teaches or enables. 

“Purposive construction” does not mean that one is extending or going beyond the definition of the technical matter for which the patentee seeks protection in the claims. The question is always what the person skilled in the art would have understood the patentee to be using the language of the claim to mean. And for this purpose, the language he has chosen is usually of critical importance. The conventions of word meaning and syntax enable us to express our meanings with great accuracy and subtlety and the skilled man will ordinarily assume that the patentee has chosen his language accordingly. As a number of judges have pointed out, the specification is a unilateral document in words of the patentee’s own choosing. Furthermore, the words will usually have been chosen upon skilled advice. The specification is not a document inter rusticos for which broad allowances must be made. On the other hand, it must be recognised that the patentee is trying to describe something which, at any rate in his opinion, is new; which has not existed before and of which there may be no generally accepted definition. There will be occasions upon which it will be obvious to the skilled man that the patentee must in some respect have departed from conventional use of language or included in his description of the invention some element which he did not mean to be essential. But one would not expect that to happen very often. 

One of the reasons why it will be unusual for the notional skilled man to conclude, after construing the claim purposively in the context of the specification and drawings, that the patentee must nevertheless have meant something different from what he appears to have meant, is that there are necessarily gaps in our knowledge of the background which led him to express himself in that particular way. The courts of the UK, the Netherlands and Germany certainly discourage, if they do not actually prohibit, use of the patent office file in aid of construction. There are good reasons: the meaning of the patent should not change according to whether or not the person skilled in the art has access to the file and in any case life is too short for the limited assistance which it can provide. It is however frequently impossible to know without access, not merely to the file but to the private thoughts of the patentee and his advisors as well, what the reason was for some apparently inexplicable limitation in the extent of the monopoly claimed. One possible explanation is that it does not represent what the patentee really meant to say. But another is that he did mean it, for reasons of his own; such as wanting to avoid arguments with the examiners over enablement or prior art and have his patent granted as soon as possible. This feature of the practical life of a patent agent reduces the scope for a conclusion that the patentee could not have meant what the words appear to be saying. It has been suggested that in the absence of any explanation for a restriction in the extent of protection claimed, it should be presumed that there was some good reason between the patentee and the patent office. I do not think that it is sensible to have presumptions about what people must be taken to have meant but a conclusion that they have departed from conventional usage obviously needs some rational basis.

Personhood

'Atrocity, Entitlement, and Personhood in Property' (Vanderbilt Public Law Research Paper No. 12-30) by Daniel Sharfstein comments that -

 For a generation since Margaret Jane Radin’s classic article Property and Personhood, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence — the “atrocity value” in property — upends core assumptions about the American property tradition and complicates the progressive social function of property law. This article explains why atrocity creates entitlement, drawing from social psychology and accounts of law and violence to show how violence can foster personhood. The article then explores the deep historical roots of atrocity within the American property tradition, which helped establish an abiding cultural value that encouraged personal identification with property. Finally, the article surveys how atrocity continues to foster personhood in an array of contexts involving common ownership, exclusion, and use. Ultimately, personhood emerges less as a progressive value in property than as a challenge that the law has had to negotiate. Property law is often successful in promoting progressive and cooperative goals because courts do not attempt to decide cases on the basis of a personhood value in property. ... 

This Article explores how people identify with their property when they have committed hurtful and harmful acts in its acquisition and use. The inverted correlation between ownership and violence complicates a dominant view in legal scholarship that property creates or reinforces “personhood,” a “value” in property law that has long been equated with autonomy, dignity, and basic civil rights. Rooted in Hegel’s Philosophy of Right, given concrete form by a century of psychological literature, and canonized in legal thought in a classic 1982 article by Professor Margaret Jane Radin, personhood theory views property as necessary for an individual “to achieve proper self-development — to be a person.” Because people are “bound up” in their property, it has a crucial “human flourishing” function as well as a central role in the progression “from abstract autonomy to full development of the individual in the context of the family and the state.” As a result, personhood presents what Radin calls a “moral basis” for resolving legal questions across a broad range of property-related doctrines, separate and apart from categorical defenses of the right to exclude or utilitarian justifications for particular allocations of rights and uses. For thirty years, scholars have viewed Radin’s insights as an alternative from the left to traditional, more utilitarian and economically focused property theories. 

It is undoubtedly true that many people derive great satisfaction and a sense of personhood from exercising their property rights in socially and environmentally responsible ways and from contributing to the interests and aspirations of a broader community. At the same time, this Article suggests that when conflicts over ownership and use arise, even harmful conduct can become conflated with the rights of ownership and with people’s identities as owners. These moments when violence and pain intensify the bond between people and their property reveal how personhood does not always have a progressive valence. It presents itself less as a value that should be recognized — a basis for decision making — than as a set of challenges for property law to navigate as it seeks to define and protect individual rights and obligations in a peaceful, pros- perous, and democratic society. 

The connection between violence and personhood has deep roots in the American experience, extending back to the earliest colonial encounters between Europeans and Native Americans, and it continues today at a less cataclysmic level in everyday conflicts involving property owners, their neighbors, and the government. If colonial violence played a role in establishing a cultural value that encouraged personal identification with property, today’s conflicts show how personhood remains a complicated product of ownership that can defy easy categorization as good or bad. 

In writing about the connection between violence and personhood, I discuss a broad spectrum of conduct, from historical massacres to the most commonplace unneighborly acts. To reflect this conceptual range, I call the personhood that arises from nasty conduct the “atrocity value” in property. It is a phrase that encompasses the worst acts imaginable — what the Oxford English Dictionary terms “horrible or heinous wickedness” — as well as acts that are merely “atrocious,” or “violations of taste or good manners.” If “atrocity” appears to be a hyperbolic way to describe, say, unsightly landscaping that dismays the neighbors, it captures the vehemence with which people fight over such matters and the significance that keeping a ratty couch in the yard can attain with regard to how owners see their property and themselves. 

In questioning personhood’s progressive valence, this Article develops three insights about personhood and the American prop-erty tradition. First, I argue that personhood is more pervasive and deeply rooted in American property law than most scholars have realized because it is not limited to doctrinal areas associated with progressive goals for property. If personhood is fostered by bad conduct, in cases where “human flourishing” and “the freedom to live one’s life on one’s own terms” through property ownership is a function of mistreating others, it becomes much more difficult to resolve property disputes on the basis of personhood. There will always be winners, and there will always be losers - and in some cases the winners will value their property precisely because there are losers. Progressive theorists have declared that “[p]roperty law can render relationships within communities either exploitative and humiliating or liberating and ennobling.” In cases in which the humiliating and ennobling aspects of property are two sides of the same coin, the absence of a stated goal of promoting personhood - related to what Professor Henry Smith describes as the indirect connection between ends and means in property law - has allowed property law to domesticate and resolve even the most inflamed conflicts within an institution that promotes order, predictability, and cooperation. 

Second, this Article seeks to refine one sense of how property works in American society. It is often said that property is a social institution. But so is a pogrom. Social institutions do not have to be sociable; violence can also be constitutive of communities. But property regimes are not violent. They often reveal human behavior at its most inspiring. They require, as Professor Carol Rose observed, a great deal of cooperation, enough in fact to call into question classical assumptions of rational utility-maximizing. Property is a sociable institution despite the high stakes of conflicts over it — not just economic stakes, but deeply personal stakes on both sides of an issue. One of the achievements of property law is the way that it contains personhood, turning threats to the regime into occasions that strengthen it. While property law tends to check much of the most atrocious behavior, the decisions often turn on questions that are independent of whether the litigants’ conduct is good or bad or whether they are deriving the right kind of personhood from their property. Not basing decisions on personhood can mean that some people succeed in getting a right to be hurtful, unneighborly, or worse. But more often, it means that property law can guide and govern people who are invested in atrocious exercises of ownership without directly attacking their personhood or otherwise defining them as outsiders to the regime. 

Third, acknowledging the atrocity value in property may help explain some of the deep-seated resistance of many Americans to particular reforms that privilege social obligation or, more broadly, eliminate externalities. There are many ways to account for the widespread hostility to environmental measures and other forms of regulation. We often presume it is because regulation prompts people to imagine that the government will come for their property next. There is widespread denial that certain problems such as global warming exist, and, for a variety of reasons, many see the government as an outside entity that will never represent or consider their interests. But individuals are also capable of contemplating externalities and collective responsibility. The atrocity value that shadows personhood suggests how polluting uses can become indistinguishable from the meaning of a property right and of ownership itself. Property law’s success in realizing certain pro- gressive “human flourishing” goals will turn on how it acknowledges and works with manifestations of personhood that run contrary to those goals.

Sharfstein concludes -

A generation of scholars has embraced the “human fulfilling” aspects of property, but for hundreds of years, it has been possible for Americans to identify with their land because they have been able to hurt people in the course of acquiring and owning it. While long associated with the most progressive values of property, personhood has a dark side, as people justify morally unacceptable conduct by investing themselves in their land. From the beginning of the American experience of property, personhood has cut in multiple directions. It has been less of a progressive value in property than a challenge that the law has had to negotiate. 

It might seem possible to ignore the historical link between atrocity and personhood and focus on ways to cultivate human fulfillment in the present. But as long as people find personhood in bad behavior as owners, property will continue to have to balance incompatible personhood claims. Given its ambiguous valence, ignoring personhood altogether in favor of deciding property questions with other moral principles may be tempting. But the American cultural investment in property is so closely tied to personhood that ignoring it risks moving the law too far from shared normative assumptions about the obligations of ownership. As a result, people may view such rules as illegitimate, or they may invest less of themselves in the land, altering their sense of ownership in socially detrimental ways. 

Progressives aspire to shape property’s norms to “promote ... environmental stewardship, civic responsibility, and aggregate wealth” and to “establish the framework for a kind of social life appropriate to a free and democratic society.” But the complex moral valence of “human flourishing” compels more sustained attention to the ways individuals might resist progressive measures as well as the kinds of indirect approaches the law has long relied upon to contain and channel the behavior of property owners. When property conceives of personhood as a fact of ownership, for pleasure and for pain, as opposed to a basis for decision, it can balance competing interests and give both sides a continuing and ultimately cooperative stake in making the system work.

SSRN meanwhile offers 'Featuring People in Ads', a chapter by Eric Goldman & Rebecca Tushnet in their 2012 casebook Advertising & Marketing Law: Cases and Materials.

They note that

In the United States, privacy rights generally trace back to the immensely influential privacy article by Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HARVARD L. REV. 193 (1890). Both Warren and Brandeis were lawyers at the time; Brandeis went on to become a celebrated U.S. Supreme Court justice. The authors were reacting to improvements in camera technology. Initially, camera shutter speeds were so slow that people had to pose (i.e., stand still) for photographs. However, technological evolutions reduced shutter speeds, which allowed photographers to take unconsented photos of people. Warren and Brandeis argued that “the existing law affords a principle from which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds.” 

Recapping privacy law in the early 1960s, Dean William Prosser classified privacy legal claims over the intervening seventy years into four categories. See William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960) and RESTATEMENTS (SECONDS) OF TORTS (for which Prosser was the reporter). As defined by Prosser, the key for our purposes here is category 4, “Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness,” which has evolved into the modern “publicity right.” 

Although the publicity rights doctrine is well recognized, its legal implementation is a little chaotic. There is no federal publicity right. Currently, twenty-eight states statutorily codify publicity rights, and some statutes explicitly provide that publicity rights survive beyond a person’s death. See, e.g., Cal. Civil Code § 3344.1 (surviving rights for seventy years post- mortem); Indiana Code 32-36 (surviving rights for 100 years post-mortem). In some states, publicity rights are protected by way of common law doctrines. California protects publicity rights both by statute and the common law. 

Because many celebrities reside there, California and New York play particularly important roles in the development of publicity rights laws. However, publicity rights are not limited to celebrities, and they usually equally protect both well-known and unknown individuals. 

Publicity rights generally govern two discrete activities: first, the “merchandizing” of a person by selling an item that incorporates some identifiable part of the person, such as the incorporation of a celebrity’s image on a t-shirt, and second, the depiction of a person in ad copy. Typically, the ad copy cases are doctrinally easier than the merchandizing cases, but both types of cases can create difficult line-drawing situations. In addition, the publicity rights doctrines have an uneasy fit with the First Amendment, especially in the merchandizing context. 

Publicity rights only apply to individuals; companies or other business organizations “protect their name” through trademark law and related doctrines. If a person’s name develops secondary meaning in association with commercial offerings, people can develop trademark rights in their name or other attributes to complement their publicity rights (which exist automatically). When enforcing those rights, trademark law requires that the usage creates a likelihood of consumer confusion. (Recall the Lamparello v. Falwell case from Chapter 10.) In contrast, no consumer confusion is required for a publicity rights claim.