Marxist Privacy and the escape into theory

 'The Problem of Privacy in Capitalism and the Alternative Social Networking Site Diaspora*' by Sebastian Sevignani in 10(2) TripleC 600-617 proposes a Marxist theory of privacy, alas Karl rather than Groucho.

In this paper, l examine the alternative social networking site Diaspora* from a Marxist standpoint. The investigation focuses on privacy, and contributes to a better understanding of this issue within the context of capitalism in general. First, I describe Diaspora*’s way of production by pointing out its alternative character as part of the free software and copyleft movement. Second, dominant theories of privacy related to individual control, exclusion, and property are introduced. Third, the problem of privacy in capitalism is described wherein dominant concepts of privacy will be contextualised on behalf of a critical political economy analysis that refers to the Marxian concept of ideology critique, Marx’s differentiation between a societal sphere of production and a societal sphere of circulation, and his analysis of capitalist fetishisms. Fourth, taking into account the problem of privacy in capitalism, the alternative potential of Diaspora* is evaluated. Finally, a brief outline of a Marxist theory of privacy is proposed.

Sevignani comments

Diaspora* challenges commodity production; hence, it challenges capital accumulation in the realm of SNSs. Its alternative and cooperative mode of production provides, according to ideology theory, a base for thinking about an alternative notion of privacy. I have argued that an alternative notion of privacy demands grounding in alternative material practices since the dominant notion of privacy is associated with commodity exchange. Thinking about an alternative notion of privacy instead of abandoning it is relevant and worthy as privacy, although predominantly occupied by possessive individualistic concepts such as exclusion and private property, also represents the basal human need of individuality that cannot be meaningfully denied by any alternative form of society. As far as I can see, there is no positive Marxist theory of privacy and I cannot provide one here. Marx’s focus on a negative critique of capitalism first and foremost aims to abolish social structures that inhibit human potentials and creativity. Following this tradition, Fuchs (2011b) and Allmer (2011) provide some critical remarks for a socialist notion of privacy. I tried to apply myself Marx’s negative critique on capitalist ideology and private property to privacy, following the often mentioned connection between both of the latter terms. 

However, an alternative vision of privacy must contain more than an opposition to societal relations of inequality; rather it should constructively theorise the value of privacy alternatively and based on a “social conception of individuality” (Pateman 1989, 136). It is an important theoretical task to reflect on an alternative relation between the individual and society and various approaches that take seriously the critique of individualistic privacy notions are taking this path (for instance: Solove 2008, 91-98; Cohen 2012). 

Unfortunately, these approaches do not engage with Marx’s profound analysis of capitalist domination structures. In his fetish analysis, Marx has shown that the individual, following the commodity exchange induced assumption that he or she owes nothing to society, cannot get rid of society. Society asserts itself behind individuals’ backs and predetermines their behaviour. Accepting and consciously shaping sociality would be the better option. Taking privacy as an individual claim that excludes others and is raised against society from the outset thus makes no sense at all. Privacy can only be a “societal license” (Etzioni 1999, 196). It is a collective task on how best to satisfy individual privacy needs, such as a home, being alone, silence, reflection, recreation, freedom of expression and decision-making, personal and intimate relations, trust and respect, secrecy, and protection from harm. Pure subjective control theories of privacy should be rejected. Instead, comprehensive democratic structures are required to enable individuals to effectively shape their privacy license in association with others. However, privacy is then not my property and I cannot exchange it and contract it out; it is then a collectively achieved individual value that I can only claim as a member of society. Understanding privacy as an aspect of self-possession then makes no sense. It should be conceptualised as an inalienable collective right. 

Objective notions of privacy as an outcome of conscious association are needed, and Diaspora* has practically developed one: it is based on the idea of privacy for SNS users that challenges economic surveillance. As a consequence, the idea of the exploitation of users and the commodification of data, as done by Facebook and Google+, is rejected. Contributors to Diaspora* are associating themselves consciously, not mediated by commodity exchange, but on behalf of copyleft. They have created an objective notion of privacy in and through their practices. This is vital since a basal assumption of Marx was that there would be no individuality, freedom, autonomy, and privacy as long as there is systematic exploitation and class domination in society. It turns out that what is easier to accept as a starting point for theory, i.e. a societal concept of privacy, is much harder to achieve for Diaspora*, although some consequences of this concept are already realised in Dias- pora*’s opposition to exploitation. Diaspora* provides an alternative to privacy commodification and user exploitation, but its struggle is fought out on the ideological battlefield of privacy which is not a neutral one, and is rather predetermined by possessive individualistic thinking that objectively contradicts Diaspora*’s alternative goals. Diaspora* refers to ownership and individual control exactly because these are the most powerful means of action in capitalism. I have introduced views, such as informational exceptionalism, that welcome changes in the intangible mode of production, but do not challenge capital accumulation in general. Sticking to possessive individualistic premises, albeit in terms of privacy, may ultimately refer to an immanent transformation of capitalism that reproduces the overall system rather than to a real alternative to it. 

The challenge for a Marxist theory of privacy and for alternative SNSs, such as Diaspora*, is to thoroughly disentangle privacy from private property (Goldring 1984, 321f.) in such a way that privacy neither appears as a commodity itself nor contributes to the ideological premises of commodity production and capital accumulation. A material base for such thinking can already be found in Diaspora*, copyleft, and projects of a similar nature.

The 'Introduction' by Christian Fuchs & Vincent Mosco in the same issue of TripleC offers a summary of "anti-Marxian prejudices" in communication studies and "a counter-claim that ... shows the importance of Marx for understanding society and the media critically" -

1a) Marxist Outdatedness! Marxism is old-fashioned and not suited for a post-industrial society. 1b) Marxist Topicality! In order to adequately and critically understand communication in society, we need Marx. 

2a) Marxist Repression! Marxism may sound good in theory, but in practice it can only result in terror, tyranny and mass murder. The feasibility of a socialist society and socialist media are illusionary. 2b) Capitalist Repression! Capitalism neither sounds like a good idea/theory nor does it work in practice, as the reality of large-scale inequality, global war, and environmental devestation shows. The feasibility of social- ism and socialist media arises out of the crises of capitalism. 

3a) Marxism = Determinism! Marx believed in deterministic laws of history and the automatic end of capitalism that would also entail the automatic end of capitalist media. 3b) Marxism = Dialectics and Complexity! Marxian and Hegelian dialectics allow us to see the history of society and the media as being shaped by structural conditioning and open-ended struggles and a dialectic of structure and agency. 

4a) Marxist Do-Goodism! Marx had a naïve picture of humanity’s goodness and ignored that humans are naturally selfish, acquisitive, aggressive and competitive. The media industry is therefore necessarily based on profit and competition; otherwise it cannot work. 4b) Capitalist Wickedness! The logic of individualism, egoism, profit maximization, and competition has been tried and tested under neoliberal capitalism, which has also transformed the media landscape and made it more unequal. 

5a) Marxist Reductionism! Marx and Marxism reduce all cultural and political phenomena to the economy. They do not have an understanding of non-economic aspects of the media and communication. 5b) Marxist Complexity! Contemporary developments show that the economy in capitalism is not determining, but a special system that results in the circumstance that all phenomena under capitalism, which includes all media phenomena, have class aspects and are dialectically related to class. Class is a necessary, although certainly not sufficient condition for explaining phenomena of contemporary society. 

6a) Marxist Anti-Humanism! Marx had no interests in religion and ethics and reduced consciousness to matter. He therefore paved the way for the anti-humanism of Stalin and others. Marxism cannot ground media ethics. 6b) Marxist Humanism! Marx was a deep humanist and communism was for him practical humanism, class struggle practi- cal ethics. His theory was deeply ethical and normative. Critical Political Economy of the Media necessarily includes a critical ethics of the media. 

7a) The Outdatedness of Class! Marxism’s obsession with class is outdated. Today, the expansion of knowledge work is removing all class barriers. 7b) The Importance of Class! High socio-economic inequality at all levels of societal organisation is indicative of the circumstance that contemporary society is first and foremost a multi-levelled class society. Knowledge work is no homogenous category, but rather a class-structured space that includes internal class relations and stratification patterns (both a manager and a precariously employed call centre agent or data entry clerk are knowledge workers) 

8a) Marxists Oppose Democracy! Marxists favour violent revolution and oppose peaceful reform and democracy. They do not accept the important role of the media for democracy. 8b) Socialism=Democracy! Capitalism has a history of human rights violations, structural violence, and warfare. In the realm of the media, there is a capitalist history of media support for anti-democratic goals. Marxism is a demand for peace, democracy, and democratic media. Marx in his own journalistic writings and practice struggled for free speech, and end to censorship, democratic journalism and democratic media. 

9a) Marxist Dictatorship! Marxism’s logic is the logic of the party that results in the logic of the state and the installation of monstrous dictators that control, monitor, manipulate and censor the media. 9b) Capitalist Dictatorship! Capitalism installs a monstrous economic dictatorship that controls, monitors, manipulates and censors the media by economic and ideological means. Marxism’s logic is one of a well-rounded humanity fostering conditions that enable people to be active in many pursuits and includes the view that everyone can become a journalist. 

10a) Non-class-oriented New Social Movements! New social movements (feminism, environmentalism, gay rights, peace movement, youth move- ment, etc) have left class and Marxism behind. Struggles for alternative media are related to the new social movements, not to class struggles. 10b) Class-oriented New New Social Movements! The new movements resulting from the current crisis (like the Occupy movement) as well as recent movements for democratic globalization are movements of movements that are bound together by deep concern for inequality and cla

Passports

The Canberra Times reports yesterday's conviction in ACT Magistrates Court of a man who obtained a passport under a false name and travelled on it for eight years.

Philip Lindsay Byrne  pleaded guilty to one charge of making a false statement to obtain a passport and another charge of producing a false or misleading document. He apparently purchased a fake birth certificate in Queensland for $500 and used it to apply for a passport under the name Philip Byne in November 2004.

During the following eight years  he used that passport to enter and leave Australia 27 times. After detection (not discussed in the report) Byrne indicated that he "obtained the passport because he had been the subject of an extortion attempt in the Philippines".

The court heard he readily admitted the offence to authorities and gave them a full explanation, pleading guilty at the first opportunity. Byrne's lawyer told the court his client had family and a partner in the Philippines and regarded the country as his home. He had only returned to Australia to receive treatment for cancer and to visit his elderly father. 

Byrne had since been issued with a legitimate passport.

DUI Frighteners

The AIC has released a 160 page report [PDF], under the National Drug Law Enforcement Research Fund, on Evaluating the deterrent effect of random breath testing (RBT) and random drug testing (RDT) — The driver’s perspective.

The project involved a mixed methodology -

• review and a qualitative component guiding development of a survey to assess the deterrent effect of random breath testing and random drug testing, 
• a quantitative component measuring the influence of various law enforcement practices on a driver’s decision to drink/drug drive. 

It centred on identifying the law enforcement practices that have the greatest deterrent effect on drivers who consume alcohol and/or drugs, and who indicate they are likely to drink drive and/or drug drive in the future. In particular it measured RBT and RDT practices from the driver’s perspective rather than from law enforcement activity reports, on the basis that a driver’s perception is more likely to influence behaviour than enforcement activities that are unnoticed by drivers.

Key findings of the qualitative research are that

• Many participants indicated they would know if they were over the legal alcohol limit for driving, albeit many relied on intuition rather than knowledge. By contrast, many said that when it came to drugs they would not really know what it feels like to be over the limit because there is little knowledge about how long one would need to wait before one could drive after consuming drugs. 
• Many marijuana smokers indicated that they would drive regularly after smoking marijuana and that driving while affected by marijuana was less dangerous than driving under the influence of alcohol. However, many gave accounts of driving under the influence where their driving ability was severely impacted by the drug. 
• Although many drivers were aware of RBT on the roads, they did not see RBT as random. Most indicated they knew when and where RBT was conducted on the roads. Drivers reported that ‘booze buses’ were visible generally late at night and early mornings on the weekends, and usually in the same locations, making particular mention of testing taking place during long weekends and holiday periods. Drivers indicated that there was a greater chance of being tested by mobile police, although many believed they would know the places and times this testing was likely to be undertaken. 
• Participants were generally unaware of the specific aspects of RDT, with many drivers unaware if RDT was being undertaken in their jurisdiction. Drivers from Queensland appeared to have lower awareness of RDT compared with drivers from NSW and Victoria. Participants also believed that there was a very low chance of being tested for drugs while driving, due to the lack of resources. There was the perception that they would only be tested if visibly displaying signs of the effects of drug use. 
• Many drivers said that they would drive while under the influence of alcohol if it was only a short trip, with drivers reportedly evaluating the chances of being caught against driving somewhere they felt they ‘needed’ to go. Participants also reported driving the next day after drinking when there was a likelihood they were still over the legal limit. 
• Perceptions of whether someone would ‘get caught’ by RBT were mixed. Even though many drivers believed that RBT was not random, there were many drivers who felt the police were a ‘visible presence’ and that there was a ‘real chance’ of getting caught if they drive over the legal alcohol limit. However, other drivers felt the police were not a ‘visible presence’ on the roads, there was no need to be worried about being tested, or that there was a very low chance of being tested (especially regarding drugs) In general, participants felt there was no ‘real chance’ of being tested for drugs. 
• Some drivers said that RDT was not currently working as a deterrent on the roads and that it needs to be more widespread to be effective. Others mentioned that testing was visible at certain times of the year but questioned whether it was worth RDT being visible throughout the entire year. 
• Most drivers were able to mention television advertising campaigns for alcohol and drugs, particularly mentioning the hard-hitting and graphic nature of these ads. However, although some felt these ads were effective, others mentioned these ads probably miss the mark with younger people, as young people see themselves as being invincible and may socialise with people who consistently and repeatedly drink/drug and drive (and go undetected by police, or who are not penalised for drink driving). 
• Many drivers felt that the government should spend money and invest resources in alcohol and drug testing on the roads. There were some who felt there are too many drivers being pulled over for drink driving, suggesting that drink driving remains a serious community concern and that more should be done. Others mentioned that the fact there are so many drivers out there driving under the influence means the anti-drink driving message isn’t getting through and that perhaps the money allocated to drink driving campaigns is not being well spent. 

Key findings of the quantitative research are that -

• drink drivers are more likely to be male, aged between 26 and 35 years, and regular alcohol users. They are more likely to be in a defacto relationship, working full-time or self-employed. 
• Drug drivers are more likely to be male, aged between 26 and 35 years, and regular cannabis and/or ecstasy users. They are also more likely to be in a defacto relationship and working full-time, self-employed, a stay at home mum/dad or a student. 

The report considers the deterrence value of law enforcement practices, concluding that

collectively perceived credibility of the program, perceived enforcement of the program, reported visibility of police testing, randomness of police testing, publicity of police testing and a driver’s knowledge of penalties, significantly influence a driver’s decision to drink/drug drive. The most crucial aspects of the drink/drug driving programs, in terms of having the greatest deterrence value to drink/drug driving were perceived credibility and enforcement. 

 In relation to drink driving credibility issues surrounding whether a driver (or someone they know) had been caught for drink driving and penalised or ‘let off’, had the greatest influence on a driver’s intention to drink drive in the future, relative to the influence of visibility, randomness, publicity, and knowledge of penalties. Drivers who have had a personal experience with being tested for alcohol (or know someone who has), and perceive avoiding police interception to be difficult, are less likely to drink drive in the future.

In the case of drug driving, credibility and enforcement had an even greater impact on a driver’s intention to drug drive, when compared with the impact of these measures on a driver’s intention to drink drive. Drivers who have had a personal experience with drug testing and perceive avoiding police interception to be difficult, are less likely to drug drive.

The report suggests that perceptions of the accuracy of police testing devices play a role in a driver’s decision to drink/drug drive. It goes on to comment that publicity is likely to have greater deterrence value to those who intend on drink/drug drive if followed up with increased police testing activity (personal experience with being tested).

The report notes the usual  avoidance strategies reported by drivers, including -

• the use of backstreets, either to avoid driving on roads the driver believed would be typical police testing sites, or to avoid a stationary booze/drug bus that was seen by drivers on the road ahead. 
• avoiding police interception by receiving a phone call from a friend about police testing at a specific site. 
• consuming a substance or food helped disguise any alcohol/drug content in their mouth. 

The report concludes that a specific deterrence strategy is more likely to influence a driver’s decision to drink/drug drive.

Although the data suggests that visibility, randomness and publicity (general deterrence strategies), have less deterrence value to drink/drug driving in the driver population surveyed relative to the deterrence value of credibility and enforcement (specific deterrence strategies), it is important to consider the aims of general and specific deterrence. General deterrence strategies remain important in maintaining general compliance within the general driving population, whereas, specific deterrence strategies aim to impact the drink/drug driving intentions of a specific high-risk driver group. The specific deterrence strategies recommended in this report should therefore be implemented in conjunction with, not in place of, current general deterrence law enforcement activities.

Mark

In Mantra IP Pty Ltd v Spagnuolo [2012] FCA 769 the Federal Court of Australia has overturned the decision by the Registrar of Trade Marks to refuse registration by Mantra IP of the 'Q1' word mark.

The Registrar found that the word mark, being used to identify the location of services rather than as a badge of origin, would likely deceive or cause confusion. 'Q1' also formed the name of an 'iconic' 78-level apartment building on Queensland's Gold Coast owned by a Mantra IP associate.

The Court disagreed, finding that the word mark had been sufficiently used as a trade mark to distinguish Mantra IP's services.

Reeves J commented that

It is not in dispute in these proceedings that a person cannot obtain the registration of a trade mark for a building. That is so because under the Trade Marks Act 1995 (Cth) trade marks can only apply to distinguish goods and services: see s 17 of the Act. However, the central question posed in these proceedings is whether a person can obtain the registration of a trade mark for services where the mark concerned is also the name of the building from which the services are supplied. 

With the plethora of large commercial and residential buildings constructed in cities throughout Australia, one might have thought that this question would have come to be judicially determined before now. However, with the exception of one decision of the Full Court of this Court and some decisions of the Registrar of Trade Marks, the counsel for the parties have informed me that is not so.

Spagnuolo - who owns apartments in the building and operates an accommodation service promoted through a domain name that features 'q1' - was successful in his opposition to Mantra IP’s applications for registration of a mark relating to its services. In Danilo Spagnuolo v Mantra IP Pty Ltd [2010] ATMO 110 the Registrar’s delegate refused to register the word mark “Q1” as a trade mark under s 55(1)(a) of the Act, observing that observed that the name “Q1” had a geographical connotation rather than being a badge of origin for Mantra IP’s services: "The applicant’s evidence shows that, in practice, the ‘Q1’ name is predominantly used to identify the location of the services provided, rather than as a badge of origin".

The delegate concluded -

 I find that, because of the geographical connotation contained in the Q1 sign, there is a real likelihood that its use as a trade mark by the applicant in respect of the very wide range of services specified in its applications will cause deception and confusion of the public. The Q1 sign is the only name of a building which, by virtue of its multi-faceted identity, has in the words of the Full Federal Court ‘become part of the common heritage’. As such, it has a connotation that effectively eclipses any function it might otherwise have performed in denoting any single trader, and which renders it simply unsuitable for use as a trade mark. Even with the best of intentions, any use of ‘Q1’ intended to denote a single trader cannot avoid creating deception and confusion in the marketplace, as it is a name patently required for use by all of the many traders with a connection to the building. The very nature of the sign means that it is, to return to the words quoted earlier from the ORLWOOLA case, ‘utterly unfit for registration as a trade mark’.

Mantra IP then claimed that the Registrar erred in making the following findings, or conclusions: (a) the Trade Mark had a geographical connotation; (b) the Trade Mark formed “part of the common heritage” and was therefore unfit for registration as a trade mark; (c) use of the Trade Mark by the Applicant, if the Trade Mark did in fact have a geographical connotation, was likely to deceive or cause confusion; and (d) the Applicant used the Trade Mark to identify the location of the services provided rather than as a badge of origin.

Reeves J referred to the Full Court decision in  MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 90 FCR 236, commenting that

a sign concurrently applied as the name of a privately owned building and to distinguish certain services to be provided from, or in relation to, that building, does not lose its inherent adaptability to distinguish the services concerned. The Full Court appears to have reached that conclusion because the name of a privately owned building cannot be regarded as being the equivalent of a geographical place name such that it is to be considered as part of the “common heritage” over which the public, including a competitor trading in, or near, the building can claim to have a public right to make honest use of that sign in relation to its goods or services. In other words, its use as a trade mark will not, in any way, infringe upon the “common heritage” because its concurrent use as a building name does not bring it within that domain. This does not, of course, prevent a trader operating within the building concerned from using the name of the building to indicate the location of its place of business. 

Like the Chifley Tower, “Q1” was a sign devised by Sunland, a private entity, to, among other things, signify or name its private building development. When it chose the sign “Q1”, it did not adopt or incorporate a geographical name such as that of an established town, suburb or district, like Surfers Paradise, or the Gold Coast. Nor, for that matter, was it a name chosen following some public process, for example, by the Minister under the Place Names Act 1994 (Qld). For the same reason I also do not consider the fact that Sunland chose to register the address of the Q1 building with a Queensland Government Department affects this conclusion .... 

At about the same time as it devised the sign “Q1” as the name of its building development, Sunland successfully applied for the registration of a number of logo marks for the sign “Q1” for a range of services essentially comprising the same services as Mantra IP’s Designated Services. It later assigned those Q1 logo marks to Sunleisure. From late 2005, Sunleisure used the Q1 word mark as a trade mark .... Soon after Sunleisure became a part of the Mantra Group of companies, Mantra IP (then Stella IP) applied to register the word mark “Q1” in relation to its goods or services. From this history, I do not consider there is any basis upon which any trader could claim to have any “common right of the public” to make honest use of the sign “Q1” as a trade mark. Put differently, there is nothing about the sign “Q1” that could be said to bring it within the “common heritage” as discussed in Clark Equipment, or MID Sydney, such that it should be available for use by all members of the community and, as a consequence, remove its inherent adaptability to distinguish Mantra IP’s Designated Services.

The Court went on to note that

it was an agreed fact that Sunleisure has used a website located at www.Q1.com.au to promote its businesses since 2005. Based on this evidence, I find that Sunleisure made sufficient use of the “Q1” word mark, as a trade mark, prior to the priority date of 10 March 2008, to establish a claim to prior use as an owner for the purposes of s 58 of the Act. It follows that I do not consider that this ground of opposition provides any basis for rejecting Mantra IP’s applications. 

It concluded that

the word mark “Q1” is alone inherently adapted to distinguish Mantra IP’s Designated Services and there is no other ground for the rejection of Mantra IP’s applications to register the “Q1” word mark in relation to its Designated Services. I therefore propose to make appropriate orders to reverse the delegate’s decision and dismiss Mr Spagnuolo’s notices of opposition to Mantra IP’s application.

Learning

Reading Judith Shklar's 1989 'A Lifetime of Learning' (Charles Homer Haskins Lecture, American Council of Learned Societies) [PDF], replete with delights such as

One day I picked up the first volume of Shakespeare in the Schlegel-Tieck translation. The first play was Titus Andronicus, and I read it all. To this day I can still feel the fear and horror it inspired. I was so afraid and confused that I could not even bring myself to tell anyone what was bothering me. Finally I managed to spill it out to my oldest sister. As soon as I told her I, of course, felt infinitely relieved, especially as she assured me that these things did not really happen. The trouble was that both she and I knew that far worse was going on all around us. By 1939 I already understood that books, even scary ones, would be my best refuge from a world that was far more terrible than anything they might reveal. And that is how I became a bookworm. It was also the end of my childhood.

and

when I was required to take a course in money and banking it became absolutely obvious to me that I was not going to be a professional economist. Philosophy was, moreover, mainly taught by a dim gentleman who took to it because he had lost his religious faith. I have known many confused people since I encountered this poor man, but nobody quite as utterly unfit to teach Plato or Descartes. Fortunately for me I was also obliged to take a course in the history of political theory taught by an American, Frederick Watkins. After two weeks of listening to this truly gifted teacher I knew what I wanted to do for the rest of my life. If there was any way of making sense of my experiences and that of my particular world, this was it. 

Watkins was a remarkable man, as the many students whom he was to teach at Yale can testify. He was an exceptionally versatile and cultivated man and a more than talented teacher. He not only made the history of ideas fascinating in his lectures, but he also somehow conveyed the sense that nothing could be more important. I also found him very reassuring. For in many ways, direct and indirect, he let me know that the things I had been brought up to care for, classical music, pictures, literature, were indeed worthwhile, and not my personal eccentricities. His example, more than anything overtly said, gave me a great deal of self-confidence, and I would have remembered him gratefully, even if he had not encouraged me to go on to graduate school, to apply to Harvard, and then to continue to take a friendly interest in my education and career. It is a great stroke of luck to discover one’s calling in one’s late teens, and not everyone has the good fortune to meet the right teacher at the right time in her life, but I did, and I have continued to be thankful for the education that he offered me so many years ago.

and

I had hardly arrived [at Harvard] when the wife of one of my teachers asked me bluntly why I wanted to go to graduate school, when I should be promoting my husband’s career and having babies. And with one or two exceptions that was the line most of the departmental wives followed. They took the view that I should attend their sewing circle, itself a ghastly scene in which the wives of the tenured bullied the younger women, who trembled lest they jeopardize their husbands’ future. I disliked these women, all of them, and simply ignored them. In retrospect I am horrified at my inability to understand their real situation. I saw only their hostility, not their self-sacrifices.

and

I was struck very forcefully by the difference between legal and political thinking and by the professional constrictions of jurisprudential thought, especially when it was extended beyond the limits of normal court business. Nothing could have been more remote from my mind, however, than to attack legal scholarship, lawyers, or the integrity of our legal system, but the majority of law journals were really upset at the very notion that politics structured the law very significantly. Nor were they exactly thrilled to read that one could justify the Nuremberg trials only on political grounds and the Tokyo ones not at all. I was told in no uncertain terms that only lawyers could really understand the perfection of legal reasoning. I look back with some amusement at this episode, because my skeptical inquiry into the traditional orthodoxies of legal thought was so mild and so qualified, compared to the assaults that Critical Legal Studies have mounted against the basic assumptions of the legal establishment since then. And it is with some dismay that I now find myself treated as the purveyor of standard ideas, known to and accepted by all, even by the most conservative academic lawyers. To recognize that professions have their self-sustaining ideologies is hardly news today, but it was in 1964. And so Legalism, which is my favorite of the books that I have written, went quickly from being a radical outrage to being a conventional commonplace.

and

Although I sometimes have students in mind when I write, I tend to keep writing and teaching apart. I have many friends who write their books as they lecture, but I somehow cannot do that, though I wish that I could. I think of the two as complementary, but different. In class I have to think of what the students must be taught, when I write I have only myself to please. I do not even find that the two compete for my time, and rather that mysteriously and semi-consciously, they interact. I have had the good luck to have taught some absolutely wonderful young people. Some of the Harvard seniors whose undergraduate theses I have directed are the most intelligent, stimulating, and delightful people I have known, and preparing for their tutorials has certainly done a lot for my own education as well. 

Graduate students are not as easy to get on with at first, because they are in such a difficult position, having just fallen from the top of their undergraduate class to the very bottom of a very greasy pole. I certainly prefer frank and independent students to ingratiating and flattering ones, and trust those who take charge of their own education most of all. Ultimately they can be the most gratifying people for a teacher. The graduate students who become professional quickly and develop a real passion for their studies may soon be one’s friends, their success is in some way one’s own, and they are often the best partners for discussion, whether we agree or not.

Big Alan

Monday's UK Independent, under the heading 'Big Alan is watching you … on YouView: Catch-up box will report all your programme choices so broadcasters – and the neighbours – learn your habits', reports on privacy aspects of a Tivo-style service -

 YouView allows broadcasters and their commercial partners to know exactly which programmes you are watching, and when. 

An internet connection from the box to the outside world tracks individual choices and reports the data back to the company, gathering similar information to that collected online by Google. YouView will use the material to build up a profile of each user. 

The company – some of whose employees worked for Phorm, a US technology firm accused of developing advertising spyware – hopes to become as popular in British living rooms as Sky. Priced at £300 with no further television subscription, its box will be sold by John Lewis, Currys and other retailers later this year and offered by internet service providers as part of phone and broadband packages. 

Prospective viewers, however, may not be aware that the technology will record each channel being viewed. Each time you change channels or start/stop recording a programme, YouView reports back to headquarters via the internet connection, telling the company what it is you are watching and what you are doing with the box. 

The profile might contain information such as the type of box being used, when you first used YouView, your internet address, which programmes you have watched, and whether you prefer sports, news or cookery programmes and so on. 

YouView indicates that data from each box will be anonymised and "only relates to the device and is mainly technical in nature"."YouView doesn't sell advertising so it doesn't use data for behaviourally targeted advertising" but data will be passed to third-party companies, allowing targeted advertising on a postcode by postcode basis. Presumably targeting could be more granular.

The service is touted as a 'carcase' that will eventually be enhanced to include on-demand movies, games and other services.

The Independent indicates that

 Other likely applications are features such as "What's hot in your area" showing what neighbours are watching, with percentages for each show displaying, for instance, that 40 per cent are watching Downton Abbey, 31 per cent Strictly Come Dancing and 3 per cent shows on gambling or pornography. 

'Neighbours' presumably covers an aggregate of consumers in the particular postcode or other catchment area, rather than a report that the little old lady two doors down is fogging up the screen watching a documentary on dogging.

Legality? The service is broadly permissible under UK law on the basis that consumers agree to sharing of information.

The YouView privacy statement indicates that -

YouView is committed to safeguarding your personal information. Whenever you provide such information, we are legally obliged to use your information in line with all laws concerning the protection of personal information, including the Data Protection Act 1998 (these laws are referred to collectively in this Privacy Policy as the "data protection laws"). 

We will keep your information confidential except where disclosure is required or permitted by law (for example to government bodies and law enforcement agencies). However, we may use third parties to process your information but only for the purposes set out in this policy. These third parties will be required to comply strictly with our instructions and we will also require that they do not use your personal information for their own business purposes, unless you have explicitly consented to the use of your personal information in this way. We will not otherwise share your personal information without first seeking your consent. 

Under the Data Protection Act you have the right to request a copy of the personal information we hold about you and to have any inaccuracies corrected. (We charge £10 for information requests and require you to prove your identity with 2 pieces of approved identification). We will use reasonable efforts to supply, correct or delete personal information about you on our files.

Repatriation of Cultural Property

The national Arts Minister, Simon Crean, has announced that international loans of "important cultural objects will be secured by new legislation to protect them from seizure".

The new legislation will guarantee the return to the lender of cultural objects such as paintings, drawings, sculptures, textiles, stamps and coins, which are brought to Australia on loan for temporary public exhibition. 

The SMH report indicates that the Minister argued that in the absence of such a statute 'Australians might have been denied the opportunity to see masterpieces such as those on loan from the Prado in Madrid to the Queensland Art Gallery' and that its absence 'has been cited by Australian collecting institutions as a barrier to negotiating loans where there is the potential for dispute about a work's ownership or ethics of acquisition'.

The new legislation, scheduled for passed in the 2012 spring session of Parliament, will supposedly "ensure that any [such] loans from overseas collections will be co-ordinated in consultation with Aboriginal and Torres Strait Islander people". It will modify the regime provided by the Protection of Movable Cultural Heritage Act 1986 (Cth) and the Foreign States Immunities Act 1985 (Cth).

Australia is a party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Export and Transfer of Ownership of Cultural Property and is considering accession to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, the Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and the 2001 Convention on the Protection of the Underwater Cultural Heritage.

The proposed legislation reflects last year's consultation exercise centred on the 23 page 'Immunity from Seizure for Cultural Objects on Loan' discussion paper [PDF] under the auspices of the Office for the Arts in the Prime Minister's Department.

The expectation is that the granting of immunity for an object or collection would prevent third party claimants from lodging petitions to disrupt or terminate the loan of the object or collection in question.

Immunity would also prevent the enforcement of any judgment or arbitration award, and would prevent judicial seizure (including criminal seizure) resulting from third party claims whilst in Australian territory, providing the above requirements were maintained and remained true for the duration of the loan. That would address concerns highlighted in the litigation over Schiele's Portrait of Wally from 1998 to 2010, discussed in works such as Holocaust Restitution: Perspectives on the Litigation and Its Legacy (New York University Press, 2006) by Michael Bazyler & Roger Alford and 'Art Loans and Immunity from Seizure in the United States and the United Kingdom' by Lawrence Kaye in (2010) 17 International Journal of Cultural Property 335-359.

Immunity would

prevent any court in Australia from making any order which deprives the borrower or any person or organisation contracted by them in accordance with the loan agreement from possession of the object or collection, unless the court is required to make the order under, or under provision giving effect to, any international treaty to which Australia is a party.

Key points in a 'hypothetical model' identified in the paper are -

• An immunity from seizure certificate may be granted for each item or collection proposed for loan at the discretion of the Minister for the Arts or their delegate. 
• The objects must be arriving in Australia for the purpose of public exhibition, and the granting of immunity would be subject to particular requirements. These may include

• the exhibiting institution’s demonstration of due diligence in their general operations, as well as specifically in regard to the loan in question, such as compliance with the ICOM code of ethics; 

• the provision of provenance and acquisition records by the lender; 

• evidence of the lender’s legal authority to lend the object and confirmation that these have been checked by the borrower; 

• confirmation that there has been no breach of any international obligations; 

• that the import of the object does not contravene a prohibition or restriction on the import of goods (for example CITES); and 

• confirmation that the ICOM Red Lists and ‘100 Missing Objects’ list has been checked.

• Immunity from seizure would only be granted to objects or collections for which the lender was seeking immunity as a non-negotiable clause in the loan agreement. 
• Applicants would be able to apply for immunity for up to two years in advance of an object entering Australia. Applications must be made at least 6 months before the object is due to arrive in Australia.
• The immunity certificate would be current for up to two years, from the date the object arrives in Australia, with an extension only in the event that conservation or repair work must be undertaken in Australia as a result of damage incurred to the object during the period of the loan. The length of the certificate would be inclusive of travel periods for the transport to and from the exhibition. 
•  In the case of Australian material that fell within the definition of an Australian Protected Object under the Protection of Movable Cultural Heritage Act 1986, a Certificate of Exemption might be sought via the existing process. 
• As Commonwealth legislation, the provisions would override all state and territory laws to the extent of any inconsistency, except public records laws which allow state and territory public record offices to seize and retain ownership of documentary heritage records that were created by the relevant state or territory government.

Submissions in response to the paper are here.

Memoirs and Proceeds of Crime

The SMH reports that the Commonwealth has abandoned attempted use of the Proceeds of Crime Act 2002 (Cth) to seize the proceeds - apparently around $10,000 - of Guantanamo, My Journey (Heinemann) by controversial former Gitmo prisoner David Hicks.

Hicks had joined the Taliban in Afghanistan prior to 9/11,  pleaded guilty before a US military commission, spent five years at Guantanamo Bay and was returned to Australia under a plea deal in 2007 (thereafter serving out the remainder of his US sentence in Adelaide's Yatala Prison).

The Hicks memoir is in my opinion disingenuous and perhaps unsurprisingly has not been a best-seller, despite his claim that -

This is the first time I have had the opportunity to tell my story publicly. I hope you find that this book is not only a story of injustice, but also a story of hope.

The Commonwealth Director of Public Prosecutions had sought to have Hick's profits from that book declared 'proceeds of crime' (aka POC), consistent with past moves designed not to reward celebrity criminals or their associates.

Lionel Robberds QC for the Commonwealth reportedly advised Garling J of the Supreme Court of NSW that the DPP had decided not to continue the case, with the Commonwealth then being ordered to pay Hicks's costs.

The DPP had successfully sought orders in August last year freezing the proceeds under s 20 of the Act pending a decision on whether they could be seized as POC under s 152 of the Act.

Hicks is reported to have claimed that he had been unfairly pursued by the Australian government and that the abandonment was a vindication.

In a way I feel that this has cleared my name and I hope now that the Australian government acknowledges that Guantanamo Bay and everything connected with it is illegal. I've always felt that it's always been political, whether back in the days of Guantanamo Bay and now I've been out for four years and we're still going and there's been some closure to that today. 

If there was actually any evidence, if any crime had been committed we would have been able to proceed at court but they've pulled the pin, they weren't prepared to fight us on that.

The DPP media statement today indicates that -

As is often the case under the Proceeds of Crime Act, these proceedings were commenced with initial steps to preserve assets from dissipation, in order that the assets placed under restraint could remain available to satisfy any orders that the Court might ultimately make. 

The evidence available to my Office was sufficient to commence those proceedings on the basis that Mr Hicks stood to benefit financially from the commercial exploitation of his notoriety resulting from the commission of a foreign indictable offence. 

The evidence included Mr Hicks’ plea of guilty before the United States Military Commission and admissions made by him before that Commission. These admissions are recorded in the following documents, which were obtained through international cooperation:

• A certificate of conviction issued by the Military Commission in relation to Mr Hicks, for an offence against 10 United States Code section 950v Part 25 – providing material support for terrorism, to wit al Qaeda. 

• The transcript of the Military Commission hearings on 26 and 30 March 2007. 

• The Stipulation of Fact, Charge Sheet and Pre-Trial Agreement produced in the course of the Military Commission proceedings against Mr Hicks. 

Following commencement of the proceedings, Mr Hicks challenged the admissibility of the documents listed above, based upon the conditions and circumstances in which he made the relevant admissions. The challenge also relied upon the fact that Mr Hicks entered what is known in the United States as an “Alford plea”. This is a type of plea not recognised in Australia, whereby a defendant is able to acknowledge that the available evidence is sufficient to prove the case beyond reasonable doubt, without admitting commission of the offences charged. 

In support of the challenge, the Defendants served evidential material not previously available to the CDPP and AFP.

 The nature of the new evidential material is undisclosed.

I'm reminded of Gerard Henderson's rather tart observations in the SMH about the book in 2010 -

Since his release from prison, Hicks has had many opportunities to tell his story. As the author makes clear in the final chapter of his memoir, he "had no interest in talking to the media". 

It seems that Hicks has decided to write a book and leave it at that. This means that he can state his case without being questioned about his life or his story. Reading Guantanamo: My Journey, you can see the rationale for such an approach. In the author's note, Hicks declares that his book will address how he "came to Afghanistan and many other topics truthfully, honestly and in full detail". It doesn't. A few paragraphs later the author asserts that he "did not harm anyone". How would he know? 

Hicks became a Muslim before he left on his journey to the subcontinent in 2000. In Pakistan he joined the terrorist group Lashkar-e-Taiba (LET). As a member of LET, Hicks engaged in military action from the Pakistan side of the Kashmir Line of Control against targets on the Indian side of the line. 

In his memoir, Hicks presents this military action as of no moment. He writes: "We did not fire upon Indian soldiers or any other people. We only participated in the symbolic exchange of fire. Both sides remained safely housed within their stone bunkers, so we knew we were in no danger of actually hurting anyone . . . nor was that our intention." 

That is what Hicks asserts in 2010. But it is not what he claimed a decade ago. On August 10, 2000, Hicks wrote to his family in the following terms: "Every night there is an exchange of fire. I get to fire hundreds of rounds . . . There are not many countries in the world where a tourist ... can go to stay with the army and shoot across the border at its enemy - legally." 

Hicks's family released his correspondence for a documentary by Curtis Levy and Bentley Dean, which was titled The President Versus David Hicks and was shown on SBS in March 2004. 

In 2000 Hicks was not claiming that that his firing on "the enemy" was in any sense symbolic. In this same correspondence Hicks stated that he had joined the Taliban, praised Islamist beheadings and advocated the overthrow of what he termed "Western Jewish domination". 

In his memoirs, Hicks describes the letters written to his family as "regrettable and embarrassing". Well, yes. But they give a clear picture of how Hicks thought when he was an active member of the LET before he was captured by the Northern Alliance in Afghanistan and handed over to US authorities shortly after the Allied invasion in late 2001. 

As Sally Neighbour wrote in The Australian last Tuesday, Hicks was "a highly trained and seemingly dedicated al-Qaeda recruit" who undertook "no fewer than four military training courses run by al-Qaeda in Taliban-ruled Afghanistan". 

Yet, despite his promise of full disclosure, Hicks deals with this issue in just over a page and denies that he had heard of al-Qaeda until he arrived in Guantanamo. He also ignores the inconvenient truths about him documented by Leigh Sales in her empirical and balanced book Detainee 002, which was published in 2007.

Without endorsing Gitmo and other abuses I'd have liked to have seen more acknowledgement in the memoir of the price paid in Afghanistan by people who disagreed with the Taliban or who were just in the wrong place at the wrong time.

Neither Hicks nor the US military prosecution emerge with glory from Detainee 002, an excellent piece of journalism (reviewed by Sir Anthony Mason & Geoffrey Lindell here), and it is likely that we will never resolve apparent major inconsistencies in statements by Hicks.

Elsewhere the Supreme Court of Victoria in Director of Public Prosecutions v Moran [2012] VSCA 154 has found that property claimed by the state's Director of Public Prosecutions to be tainted could not be considered as such.

The DPP had unsuccessfully sought orders under the Forfeiture Act 1997 (Cth), ie the Victorian PoC statute. On appeal from R v Moran [2011] VSC 375 it was found that there was insufficient connection between loan payments to Moran's co-offenders (for which the property was used as security), for the property to be considered as used in connection with the offence.

The Court in the first instance had

heard an application by the Director of Public Prosecutions for the forfeiture of the proceeds of the sale of your house at 10 Ormond Road, Ascot Vale and of the Land Rover Discovery vehicle that [Judy Moran] purchased for, and gave to, Geoffrey Armour in consideration for his part in the killing of Desmond Moran. 

As I have already indicated in my reasons, I have refused the DPP’s application in respect of the proceeds of the sale of your house, but I have granted the application in respect of the Land Rover Discovery vehicle which I have determined is “tainted property” for the purposes of the Confiscation Act 1997. Apart from the vehicle, which you paid for, there is, therefore, no other issue of forfeiture that must be taken into account in your sentence other than the forfeiture of the vehicle. The proceeds of the sale of your home at 10 Ormond Road will remain available to you.

The Court of Appeal found that the Land Rover was removed from the property to conceal it from police after being used in the murder. That vehicle would only have been considered tainted if given to a perpetrator as payment or reward.

Legal Invisibility

The Victorian Law Reform Commission (VLRC), in announcing an inquiry into birth registration and access to birth certificates, comments that

Without a birth certificate a person can feel legally invisible and unable to invoke their full rights as a citizen. We will look at whether the current process makes getting a certificate difficult, particularly for already marginalised groups. 

The VLRC is to ask the community about their experiences in using the system, examining whether the current Victorian law meets community expectations. It will look in particular at "the experiences of people from disadvantaged, Indigenous and CALD [ie culturally and linguistically diverse] backgrounds". VLRC chair David Jones commented that

In deciding to take on the review, the Commission has heard evidence of Indigenous experiences of non-registration and failure to obtain a certificate. The Commission believes these issues may also affect other disadvantaged groups such as CALD communities and those experiencing homelessness or mental illness. 

The Commission notes that -

A birth certificate is often considered the first step in creating a child's identity. Once a birth is registered, parents can apply for a birth certificate, which is usually required when the time comes for signing up for school, Medicare, government benefits, a passport and eventually, a drivers' licence. Without a birth certificate access to these may be impossible. 

The current system for getting a birth certificate is a three-step process that includes notification, registration and an application. The Commission proposes to examine whether the three-step process has created an indirect barrier to obtaining a certificate.

The inquiry will presumably touch on questions regarding identity fraud and adoption.

EC3

The European Data Protection Supervisor (EDPS), noted in the preceding post, has issued an Opinion [PDF] on the European Cybercrime Centre, aka EC3.

The Centre is to "serve as a focal point in the fight against cybercrime" and "will cooperate closely with relevant agencies and actors at international level", presumably including the Australian Crime Commission and the AFP High Tech Crime Centre that was in the news over the weekend over rather plaintive claims that the absence of a data retention regime left it powerless.

It is to address cybercrimes -

• committed by organised crime groups, particularly those generating large criminal profits such as online fraud, 
• which cause serious harm to their victims, such as online child sexual exploitation, and
• seriously affecting critical Information Communication Technology systems in the Union.

It will have four main tasks: -

• serving as the European cybercrime information focal point; 
• pooling European cybercrime expertise to support Members States in capacity building; 
• providing support to Member States' cybercrime investigations; 
• becoming the collective voice of European cybercrime investigators across law enforcement and the judiciary.

The Supervisor comments that

This opinion addresses the importance of data protection when setting up the EC3, and provides specific suggestions that could be taken into consideration in the course of the set up of the terms of reference for the EC3 and in the legislative revision of the Europol legal framework.

He goes on to note that -

The information processed by the EC3 will be gathered from the widest array of public, private and open sources, enriching available police data, and it would concern cybercrime activities, methods and suspects. The EC3 will also collaborate directly with other European agencies and bodies. 

Accordingly the EDPS seeks through the Opinion to -

• ask the Commission to clarify the scope of the activities of the EC3, as far as they are relevant for data protection; 
• assess the foreseen activities in the context of the current Europol legal framework, especially their compatibility with the framework; 
• highlight relevant aspects where the legislator should introduce further detail in the context of the future review of Europol's legal regime to ensure a higher level of data protection. 

He comments that -

The EDPS regards the fight against cybercrime as a cornerstone in building security and safety in the digital space and generating the required trust. It can also enhance the security in the digital space and consequently improve the level of data protection in this area. Indeed, protection of individuals in cyberspace will inherently benefit if the Centre can achieve its goals while at the same time fully respecting fundamental rights and in particular the right to data protection. Against this background, the EDPS would like to express his support for the creation of mechanisms to fight against cybercrime, such as the proposed Centre. 

The fight against cybercrime will often require processing personal data in the context of investigations. It consequently entails risks of intrusions into the citizens' privacy. This is why privacy concerns should be taken into consideration together with the objectives of the EC3. 

The EDPS is convinced that effective action to fight cybercrime cannot be put in place without the support of a solid data protection scheme complementing it. Appropriate safeguards are needed to ensure that monitoring and processing of personal data will only be done in a strictly targeted way, and that misuse of this mechanism is prevented by adequate measures. The EDPS wishes to ensure that this monitoring is carried out under a clear framework with adequate data protection safeguards put in place.

In relation to data retention (subject of an item here) the Opinion comments that

The fight against cybercrime is likely to often require the cooperation of the private sector as most of the data relevant to investigate cybercrime offences are stored by private entities that keep records of electronic transactions and communications in the course of their regular activities or in compliance with specific legislative requirements. For instance, telecom operators retain data of internet and telecom communications for commercial purposes or in compliance with the [2006] Data Retention Directive. 

It is obvious that the fight against cybercrime constitutes a purpose unrelated to the commercial activities carried out by such companies. Therefore, issues with regard to lawful processing and compatible use of personal data have to be considered as this collection and further use of the associated data in the fight against cybercrime could amount to an infringement of the right to the protection of personal data. 

The EDPS referred to the cooperation with the private sector in law enforcement activities on different occasions, recognising its sensitive nature. In particular, the EDPS is concerned about the issues raised by the involvement of a commercial actor, offering a specific service, in a sphere such as law enforcement where in principle only competent authorities are supposed to intervene, under the conditions foreseen in national law. 

Unfortunately, the Communication does not mention data protection as an element to be considered in the activities of the Centre. The EDPS calls on the Commission to consider that activities of EC3 should be based on a solid data protection scheme and that this should be reflected in its establishment, both in the terms of reference of the Centre and in the upcoming review of Europol's legal framework.

It concludes that -

Until the new Europol legislation becomes applicable, the EDPS recommends that the Commission sets forth such competences and data protection safeguards in the terms of reference for the Centre. These could include: a clear definition in which data processing tasks (in particular, investigations and operational support activities) the Centre's staff could be engaged, alone or in collaboration with joint investigation teams, and  clear procedures that on the one hand ensure the respect of individual rights (including the right for data protection), and on the other hand provide guarantees that evidence has been lawfully obtained and can be used before a court. 

The EDPS considers that the exchanges of personal data of the EC3 with the "widest array of public, private and open source actors" imply specific data protection risks as they will often involve the processing of data collected for commercial purposes and international data transfers. These risks are addressed by the current Europol Decision which establishes that, in general, Europol should not exchange data directly with the private sector, and with specific international organisations only in very concrete circumstances. 

Against this background, and given the importance of these two activities for the EC3, the EDPS recommends that appropriate data protection safeguards should be provided in compliance with the existing provisions in the Europol Decision. These safeguards should be embedded in the terms of reference to be elaborated by the implementation team for the EC3 (and later in the revised Europol legal framework) and should in no event result in a lower level of data protection.

The Directive referred to in the EDPS Opinion is the subject of works such as Breyer's 'Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Data Retention with ECHR' in 11(3) European Law Journal (2005) 365; Escudero-Pascual & Hosein's 'The Hazards of Technology Neutral Policy: Questioning Lawful Access to Traffic Data' in 47(3) Communications of the ACM (2004) 77 and 'The German Constitutional Court Judgement on data retention: proportionality overrides unlimited surveillance (doesn't it ?)' (Bepress, 2010) by de Vries, Bellanova, De Hert & Gutwirth.

ACTA and Privacy

I'm belatedly catching up with the European Data Protection Supervisor's (EDPS) April Opinion regarding the controversial Anti-Counterfeiting Trade Agreement (ACTA)

That Agreement is meant to cover the US, Australia, New Zealand, European Union (and Member States), Switzerland, Canada, Japan, South Korea, Mexico, Singapore and other nations such as Morocco.

Scrutiny by the EDPS of the proposals reflects the Supervisor's role in advising on EU agreements and legislation, in particular to check whether changes are compliant with the EU data protection regime.

Alas for ACTA fans, include people in Australia's DFAT, the Supervisor is unimpressed, commenting that -

• measures that allow the indiscriminate or widespread monitoring of Internet users' behaviour, and/or electronic communications, in relation to trivial, small-scale, not for profit infringement would be disproportionate and in breach of Article 8 ECHR, Articles 7 and 8 of the Charter of Fundamental Rights, and the Data Protection Directive; 

• many of the voluntary enforcement cooperation measures would entail a processing of personal data by ISPs which goes beyond what is allowed under EU law; 

• ACTA does not contain sufficient limitations and safeguards, such as effective judicial protection, due process, the principle of the presumption of innocence, and the right to privacy and data protection.

The 16 page Opinion states [PDF] that

In February 2010, the EDPS issued an Opinion on his own initiative in order to draw the attention of the Commission on the privacy and data protection aspects that should be considered in the ACTA negotiations. While negotiations were being conducted confidentially, there were indications that ACTA would contain online enforcement measures having an impact on data protection rights, notably the three strikes mechanism. 

The EDPS at the time focused his analysis on the lawfulness and proportionality of this type of measure and concluded that the introduction in ACTA of a measure that would involve the massive surveillance of Internet users would be contrary to EU fundamental rights and in particular the rights to privacy and data protection, which are protected under Article 8 of the European Convention on Human Rights and Articles 7 and 8 of the Charter of Fundamental Rights of the EU. The EDPS furthermore underlined the safeguards needed for international exchanges of personal data in the context of IP rights' enforcement. 

Now that the text of the proposed agreement on ACTA has been made public, the EDPS considers it appropriate to issue a second Opinion on ACTA to assess some of the provisions contained in the Agreement from a data protection perspective, and by doing so to provide specific expertise that could be taken into consideration in the ratification process. Acting on his own initiative, the EDPS has therefore adopted the current Opinion ... in view of providing guidance on the privacy and data protection issues raised by ACTA.

... the EDPS underlines that the Agreement is unclear about the scope of enforcement measures in the digital environment, and whether they only target large- scale infringements of IP rights. He regrets that the notion of 'commercial scale' is not defined with sufficient precision and that acts carried out by private users for personal and not-for profit purpose are not expressly excluded from the scope of the Agreement.

The nub of the Opinion begins at para 63  -

Pursuant to Articles 27(2), 27(3) and 27(4) of the Agreement, the enforcement measures to be implemented in the digital environment must preserve 'fundamental principles, such as freedom of expression, fair process and privacy'. The EDPS underlines that a mere reference to these principles is not enough. Besides, it is unclear what 'fundamental principles' and 'fair process' refer to. ... 

At international level, freedom of expression and privacy are recognised as fundamental rights in the Universal Declaration of Human Rights, and not as mere 'principles'. Furthermore, the notion of 'fair process' does not correspond to any generally recognised human right. It appears to mix two different legal concepts, on the one hand the right to a fair trial (recognised in Article 10 of the Universal Declaration of Human Rights and Article 47 of the Charter of Fundamental Rights of the EU), and on the other hand, the notion of 'due process' (used for example in the US constitution as a means to protect any person against deprivation of life, liberty or property without due process of law). 

While the EDPS acknowledges the legitimate concern of ensuring the enforcement of IP rights in an international context, a right balance must be struck between demands for the protection of IP rights and the rights to privacy and data protection. 

The EDPS emphasizes that the means envisaged for strengthening enforcement of IP rights must not come at the expense of the fundamental rights and freedoms of individuals to privacy, data protection and freedom of expression, and other rights such as presumption of innocence and effective judicial protection.

Many of the measures envisaged in the Agreement in the context of enforcement of IP rights in the digital environment would involve the monitoring of users' behaviour and of their electronic communi­cations on the Internet. These measures are highly intrusive to the private sphere of individuals and, if not implemented properly, may therefore interfere with their rights and freedoms to, inter alia, privacy, data protection and the confidentiality of their communications. 

It should be ensured that any online enforcement measure implemented within the EU as a result of entering into ACTA is necessary and proportionate to the aim of enforcing IP rights. The EDPS underlines that measures that entail the indiscriminate or widespread monitoring of Internet user' behaviour, and/or electronic communications, in relation to trivial, small-scale not for profit infringement would be disproportionate and in breach of Article of the ECHR, Articles 7 and 8 of the Charter of Fundamental Rights, and the Data Protection Directive. 

The Supervisor then details specific concerns

•  the Agreement is unclear about the scope of enforcement measures in the digital environment envisaged in Article 27, and whether they only target large-scale infringements of IP rights. The notion of ‘com­mercial scale’ in Article 23 of the Agreement is not defined with sufficient precision, and acts carried out by private users for a personal and not-for profit purpose are not expressly excluded from the scope of the Agreement, 
•  the notion of ‘competent authorities’ entrusted with the injunction power under Article 27(4) of the Agreement is too vague and does not provide sufficient certainty that the disclosure of personal data of alleged infringers would only take place under the control of judicial authorities. Furthermore, the conditions to be fulfilled by right holders to be granted such an injunction are also not satisfactory. These uncertainties may have a particular impact in cases of requests from foreign ‘competent au­ thorities’ to EU-based ISPs, 
•  many of the voluntary enforcement cooperation measures that could be implemented under Article 27(3) of the Agreement would entail a processing of personal by ISPs which goes beyond what is allowed under EU law, 
• the Agreement does not contain sufficient limitations and safeguards in respect of the implementation of measures that entail the monitoring of electronic communications networks on a large scale. In particular, it does not lay out safeguards such as the respect of the rights to privacy and data protection, effective judicial protection, due process, and the respect of the principle of the presumption of innocence".

Scanners

In December last year I noted the national Privacy Commissioner's case note regarding scanning by licensed premises of drivers licences and other identity documents. Capture of information by nightclubs, football clubs and similar venues continues to be problematical, with disagreement about principles and practice (particularly supervision of biometric scanners and questions about the security of the systems).

The Canberra Times today reports 'ACT clubs scanning your licence' -

ACT clubs are increasingly using scanning systems to make copies of guests' drivers licences upon entry, prompting privacy concerns from civil liberties groups. 

The territory's larger clubs, including the Tradies, Canberra Labor Club, Hellenic Club, and the Canberra Southern Cross Club, have all begun to use scanning systems in the past year. 

The technology, which is optional for guests, is used to scan the identification of visiting patrons instead of signing in manually. 

Clubs use the scanners to allow guests to get through the door quickly and without hassle, particularly on busier days like Anzac Day. 

The scanned data can be stored for up to seven years, according to ClubsACT chief executive Jeff House. ... Mr House said scanning the licences did not give clubs any more data than they would have collected during manual sign ins. 

He also stressed the technology was optional. 

"Clubs are member-based organisations so patrons need to prove they're a member to gain entry anyway," he said. 

"Scanning their identification is merely one of several options for patrons to choose from in how they demonstrate they're a member."

 As things stand such scanning is legal, subject to people having an alternate mechanism for demonstrating their membership or otherwise indicating their identity.

In H and Registered Club [2011] AICmrCN 2 the complainant alleged that a registered club interfered with that person's privacy by scanning the complainant's driver licence and, in doing so, recording unnecessary information.

The complaint related to

National Privacy Principle [NPP] 1.1 - an organisation must not collect an individual's personal information, unless that information is necessary for one of more if its functions or activities. 

NPP 1.3 - at or before the time (or if that is not practicable, as soon as practicable after) an organisation collects an individual's personal information, it must take reasonable steps to ensure an individual is aware of a number of factors, including the purposes for which the information is collected. 

NPP 4.1 - an organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.

The complainant conceded that the club was required by NSW law to collect the person's name, address and signature. However, the complainant argued that collection of the other information on the licence (including the individual's date of birth, driver's licence number, driver's licence type and photograph) was unnecessary.

The club relied on statutory obligations under the Registered Clubs Act 1976 to retain certain personal information for five years, stating it had a procedure in place to delete the information after that time. It would not agree to cease or alter its identity scanning practices, instead continuing to offer patrons the option of manually completing and signing its entry register. The club advised that a privacy statement regarding collection and handling of the personal information was displayed at its entrance. The statement was also displayed on the device where identification documents were scanned.

The complainant accepted the registered club's offer to delete the personal information from its database, on the condition that the complainant would provide a statutory declaration setting out the person's name, address, and the date the club was entered as a visitor.

The Commissioner decided that the offer of deletion coupled with the alternative option of manual sign-in adequately dealt with the collection issues in the complaint. Clubs were thus free to scan the licences or other identity documents.

The organisations operating those scanners in the ACT or elsewhere would be expected to safeguard the captured information. Past controversies have featured claims that nightclubs were networking biometric databases (eg security staff at one venue could use an identity management service to access fingerprint scans, drivers licences and other data from multiple venues in order for example to exclude 'blacklisted' people). Given weak regulation of the 'bouncer' sector some concerns about dissemination of personal information and about its long-term retention appear justified.

In 2007 the then Privacy Commissioner commented that -

our Community Attitudes study found only 18% of individuals surveyed felt it was acceptable for identification documents to be copied or scanned in order to obtain entry into licensed premises. 

What are the concerns people have expressed? Firstly, personal information collected by scanning is digitised and has the potential to be used or disclosed for other purposes, such as direct marketing or the creation of customer databases. Individuals may be concerned that scanned and electronically stored personal information can be matched to personal information held by other organisations. This can create a detailed picture of how they go about their day to day activities. 

With the rise of identity crime, there are also legitimate community concerns about possible misuse of personal information, especially with regard to identity information contained on driver's licences and other proof of identity documents. Individuals are also concerned that the stored personal information could be compromised through hacking, computer theft or other inappropriate access. Those who steal the personal information may be able to do significant damage to the individual, whether by committing financial, credit card or identity fraud. 

A business may only scan customers' identity documents if it is necessary for its functions or activities. In the first instance businesses should consider whether identification is required and, if so, whether simply sighting a ''proof of identity' document without scanning it would be sufficient. 

Businesses that do seek to use scanning technology must make sure they comply with the National Privacy Principles in the Privacy Act, which regulate the collection and handling of personal information by businesses. In general, if an organisation scans customers' identity documents, the Privacy Act requires that, among other things, the organisation: collect only necessary personal information; give customers information about why it is collecting their personal information and how it will be handled; only use or disclose the personal information for the purpose of the collection, unless an exception applies; only retain the scanned personal information for as long as necessary, consistent with the collection purpose; store the personal information securely and allow access to it by the individual if requested.

Citizenship

'"Everyone with Eyes Can See the Problem": Moral Citizens and the Space of Irish Nationhood' by Anwen Tormey in 45(3) International Migration (2007) 69-98 ...

examines Ireland’s 2004 Constitutional Amendment which removes birthright citizenship from any future Irish-born children of immigrant parents. I argue that for particular historical reasons, the ability of the state to convince its citizens of the necessity for this Amendment was remarkable and I suggest that it was able to do so by constructing citizenship as a moral regime and foreign-nationals and their foetuses as ‘suspect patriots.’ I describe how the notion of immorality is laminated upon black bodies – specifically black pregnant women – and how the presence of black migrant workers, refugees and asylees consequently comes to be experienced in Irish national space as transgressive, their political subjecthood constrained by the supposedly legible abjectivity of their bodies. The issue of race remains unenunciated, and yet, as the Minister for Justice stated during the referendum debate, "anyone with eyes can see the problem". The Irish government’s privileging of moral rather than cultural incommensurability is strikingly similar to culturalist rhetorics of exclusion that are often invoked when race is at issue in European public debate on immigration. Configured upon, and therefore experienced as a type of body, immorality becomes an alibi for race and is naturalized as a form of exclusion and as a potential site of state intervention in the form of xenophobic legislation and policymaking. Reading this decision as merely racist however, fails to give voice to the experiences of Irish Citizens who voted for this Amendment. Their struggle to build a “New Ireland” and to accept a multiculturalist framework in the face of neo-liberal restructuring policies and a European-wide retreat from the welfare state must be considered as being in dialectical tension with the ideological smearing of immigrants if we are to fully grasp the complex interaction between relations of power and the privileging of difference.

Tormey concludes that -

If the government had promoted this Amendment based on racial or cultural incommensurability, it would have run afoul of its self-proclaimed multiculturalist ethos. Instead, by juxtaposing Irish morality with that of foreign-national parents, failures in immigration policy could be displaced upon the victim, and their (supposedly) amoral being construed as unacceptable to a rational state. Reading morality as incommensurable difference brings to a head the kind of impasse anthropologists have already recognized between the themes of progressive liberal multiculturalism (rationality and morality) invoked in the Irish case. Povinelli, for example, describes a similar scenario for Australian Aborigines: a core obligation of liberalism is to decide public matters on the basis of autonomous, reasonable and rational subjects bracketing the social differences that exist among themselves and presenting to their fellow citizens the most robust, true, sincere and legitimate argument they can muster. Moral obligation – moral sensibility – is exactly where critical rationality is not (Povinelli, 2002). 

In other words, there are social differences which liberal subjects experience as intractable – at the limit of their tolerance – and therefore unable to “bracket” even in the broader (rational) interests of multicultural harmony. Matters are complicated by the fact that there are two moralities at play here – the supposed moral degradation of foreign-national parents, and the moral obligation and sensibilities of a liberal society. It is the latter, and the outrage produced in the attempt to bracket the former, which produces what Povinelli refers to as “moments [which] may then be experienced as the failure of the guarantees of liberal regimes and may produce a complex range of subject experiences such as minor emotions, doubt, irritation, outrage and so on” (ibid:16). As Aretxaga has astutely noted, governments cannot, generally, sustain these moments of failure and so they direct themselves to producing “state power and national unity,” in the forms so beautifully manifested by this citizenship amendment debate (Aretxaga, 2003). 

During the 2004 politically mediated “crisis of immigration” Irish anxieties were laminated upon black bodies with such effect that a significant alteration to the Irish Constitution could be passed. These anxieties were generated in tension with fears concerning neoliberal economic reforms but also from doubts concerning Ireland’s ability to protect its national interests within an international rights regime and what is widely perceived as an overweening and unaccountable EU structure. The propensity to blame socioeconomic ills resulting from recession and capitalist readjustments on immigrants is nothing new, but it is important for anthropologists to encourage policymakers and legislators to explore their complicated genesis as (politicized) relationships of inequity rather than accepting the simple reductionisms of racism and culturalism. 

Having said that, the Irish case is illustrative of new ways in which the old story of race continues to be told. It is new in that race no longer has to be enunciated – indeed, politics dare not name it. In this post-race era there are many forms of difference (cultural, moral, ethnic, etc.), which, in usual and unusual ways, come to act as an alibi for race. Old threads are rewoven in new ways to achieve the same result. The issue of space and the potent imaginaries which surround the relationship of people to national territory is one such thread. Arendt demonstrated at the end of World War II that assumptions of naturalized boundedness hint at the transgressive nature of crossing boundaries and permit xenophobic states to criminalise unwanted immigrants (1951: 160-170.), (see also Malkki, 1995b). She recognized however, that the state is paradoxically necessary to guarantee the inalienable Rights of Man (1951: 292). Yet, legal scholars now question whether the promise of protection offered in the Universal Declaration of Human Rights, the 1951 Convention on the Status of Refugee and the 1967 New York Protocol, has been eroded through EU-facilitated legislature such as the Asylum Procedures Directive, the above-mentioned Schengen Accord, Dublin Convention, and Dublin Regulation. Costello, for example, argues that “developed countries, led by the EU, continue to develop policies which deflect asylum seekers elsewhere, while paying lipservice to refugee protection (Costello, 2005: 35). In the case at hand for example, the Constitutional protections and rights afforded Irish citizen children are displaced by the state’s interest in immigration control, a Constitutional situation Bhabha characterizes as “citizenship deficit” (Bhabha, 2003; Bhabha, 2004). While not advocating an open-door policy, Bhabha declares that excluding a child from citizenship “should ... be a last resort option, chosen only when overwhelming consideration of state security or public interest require it, but not as a convenient subsidiary instrument of defective immigration control” (Bhabha, 2003). In the contemporary asylum context, where the migrant body heightens the tension of mobility and sovereignty as perhaps never before, citizen- ship has become a central device by which the law distinguishes between those subject to it and served by it from those who are strangers (Galloway, 1999). The concomitant erosion of institutional protections for “the stranger” endangers human life, and calls for our careful attention to state policy and praxis. Among these threads of old and new, Foucault’s well-known analysis of an array of state practices and discourses aimed at producing “docile” bodies to better order and control populations remains pertinent. In Discipline and Punish he maps what he calls “essential techniques” that meticulously inscribe “a political anatomy.” (Foucault, 1979: 139). In the Irish case, statistics, notions about health and contagion, sexuality and reproduction as well as techniques of surveying, mapping, and census, were directed towards rendering legible the bodies of black, non-citizen mothers, and in the process, demonstrating that the government had them and the “crisis of immigration” under its control. 

The electoral success of anti-immigrant platforms across the EU suggests that the approach of the Irish government is not unique among its EU partners. In a similar vein, as Aretxaga has noted for the post-September 11th context, “[s]tate officials deploy this legibility to create their own fictions of reality. These fictions of the state then turn into nightmares animated by utopian visions of efficiency and technological and bureaucratic control” (Aretxaga, 2003). Thus, in a telling moment of political insecurity the Irish state drew on a fiction of abuse it had been nurturing for quite some time. Dramas of the abuse of Irish hospitality, phantasms of excessive/instrumental fertility, and the spectre of a proliferation of immoral and unworthy character were phenomenologically animated by the bodies of black immigrant mothers, thereby naturalizing a new trope of exclusion and providing the government with an alibi for the kind of xenophobic intervention this Amendment exemplifies. 

Yet, it would be a mistake to dismiss the racialized imaginaries and praxes of belonging represented in a “Yes” vote for this Amendment as ideologically right- wing. This Amendment is instructive precisely because it demonstrates how the protean qualities of racialized imaginaries are easily adapted to both populist and elite ends. In this sense, it is salutary to note how state and populist tracings of exclusion intertwine to support each other, thereby circumscribing who is included in the moral community. It shows that there are no simple oppositions between the platforms of right-wing/anti-immigrant politicians like LePen (France) and Fortuyn (The Netherlands) and the kinds of populism I discuss above. LePen, for example, appeals to xenophobes and the disenfranchised alike. Among many important lessons, this Amendment demonstrated that voters are greatly concerned about tracing belonging, about who can and cannot “be Irish”. The manner in which this issue was resolved suggests that perhaps the more seminal question is “what does being Irish in the New Ireland mean”? As scholars, we must be attentive to the ways that modernizing discourses camouflage both new (moralist, culturalist, etc.,) and old (skin-based) racisms. It is for us to unravel the threads of exclusionary politics and its accompanying policy and legislation, especially, perhaps, when such solutions appear neither racist nor exclusionary, but the rational response of a dutiful government.