Pharma Payola

The Australian Competition and Consumer Commission (ACCC) has announced that it proposes to grant authorisation for the 17th edition  of Medicines Australia’s Code of Conduct for three years. Membership of Medicines Australia - which covers major pharmaceutical companies such as GSK - is voluntary. Members must adhere to the Code.

That ACCC indicates that

Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010. Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment.

Authorisation does not represent ACCC endorsement of a code. Rather, it provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Act.

The Code "regulates interactions between Medicines Australia’s pharmaceutical member companies and healthcare professionals such as doctors and pharmacists". The new edition provides a low level of disclosure regarding what I have elsewhere characterised as pharma payola, ie the drug companies providing a range of sweeteners to medical practitioners who might prescribe their products. Those sweeteners can have a substantial financial benefit. It is unclear whether they do induce prescribing of a particular product. However the sweeteners - and their non-disclosure - raise concerns. There is little reason to believe that the behaviour of GSK that attracted a significant penalty in the US is exceptional.

The ACCC indicates that it

considers that the Code results in public benefits by providing greater transparency around the relationships between pharmaceutical companies and healthcare professionals ...

However, the ACCC notes that community expectations of disclosure by the pharmaceutical industry have increased and continue to increase. In light of this, the ACCC considers Medicines Australia could go further in ensuring the Code meets these expectations now and in the future.

The ACCC encourages Medicines Australia to look for ways to address the concerns that have been raised during the ACCC’s consultation process. These include improving the accessibility of reports and the complaints process and considering disclosure of payments made to individual healthcare professionals.

Reluctance by Medicines Australia and some practitioners to embrace true transparency has resulted in criticism by health advocates, consumers and analysts. The ACCC notes that

In order to ensure that the Code continues to meet current community expectations the ACCC’s draft determination proposes to grant authorisation for three years, rather than the five years sought by Medicines Australia. During this authorisation period, Medicines Australia will be able to complete work it has already commenced on reviewing the Code and make any resulting changes.

The authorisation features the statement that -

Edition 17 of the Code incorporates amendments that are intended to:

• increase transparency around the interactions between pharmaceutical companies and healthcare professionals, third parties and patients – including requiring member companies to report on the sponsorship of healthcare professionals to attend or speak at educational meetings, and on any payments made to healthcare professionals to act on advisory boards or to provide consultancy services;

• increase the level of restriction on member companies regarding their interactions with healthcare professionals – including absolutely banning brand name reminders and the provision of prizes to healthcare professionals following competitions; and

• increase clarity regarding the application of the Code – for example, by removing separate Explanatory Notes to the Code and including those notes in the body of the Code’s text.

A significant number of interested parties have identified areas where the Code could be further improved. These include: a proposal that pharmaceutical companies disclose on an individual level payments made to healthcare professionals (consistent with developments in the US); improving the accessibility of the complaints process; and providing the educational event reporting tables in a more accessible format (such as Microsoft Excel).

The ACCC accepts that the Code provides a framework for interactions between pharmaceutical companies and healthcare professionals and that the Code is likely to result in public benefits including protecting the general public from inappropriate advertising, setting consistent standards for medical and promotional material and providing for greater transparency around the relationships between pharmaceutical companies and healthcare professionals.

However, the ACCC considers that it is important that the Code continue to reflect community expectations about the level of transparency of relationships between the pharmaceutical industry and healthcare professionals. In this regard, the ACCC raised the issue of disclosing payments to individual healthcare professionals in its consideration of edition 16 of the Code in 2009. The ACCC notes that Medicines Australia has since convened a transparency working group, inviting participation from consumer, healthcare professional and pharmaceutical industry groups, which will look into ways that payments at an individual level can be disclosed appropriately. Medicines Australia advises that this working group will report by December 2013.

The ACCC also notes that the ability for the public to make complaints and access and utilise the reporting tables is an important feature of increasing the transparency around the relationship of the industry with healthcare professionals.

Medicines Australia, in response to criticisms, had argued -

• it is not necessary to increase the quantum of fines. Medicines Australia submits that fines under the Code remain substantially higher than those in similar industry codes, that the effectiveness of the Code's sanctions in providing a deterrent effect is demonstrated by the increased level of compliance with the Code and that the TG Act provides for additional penalties (including fines and imprisonment) that can be imposed on pharmaceutical companies and individuals who contravene the provisions of the TG Act;

• it is not appropriate to require member companies to report on the sponsorship of individual doctors by name. Medicines Australia submits that it has already taken considerable steps to increase transparency, that it is committed to increasing transparency further and that there has been implementation issues in other jurisdictions which have required individual disclosure;

• there is already consumer and healthcare professional representation on the three Code committees;

• prohibiting brand name reminders will not reduce the level of competition between pharmaceutical companies since there are other avenues available to members to promote their products;

• an effective voluntary code that complements and extends beyond the reach of statutory regulation is of significant public benefit; and

• the proposed patient support program section of the Code does not require amendment, aside from the minor wording amendment suggested by the DHA. Medicines Australia has provided an amended version of the Code to incorporate this change.

What, we might ask, is so wrong about full disclosure of what Medicines Australia characterises as "sponsorship". We should be able to tell - and tell easily - what benefits practitioners are receiving from their 'sponsors'. If sweeteners - or signs of appreciation, love, care, devotion or a commitment to education practitioners - pose no concerns there is no reason why both the practitioners and pharma companies shouldn't be open. Given the past behaviour of GSK - a leading drug company -  we might appropriately be just a tad skeptical about assurances that all is well and all will be even better in future.

UK Patent Litigation Costs

The important 'Patent Litigation in the UK' (LSE Legal Studies Working Paper No. 12/2012) by Christian Helmers & Luke McDonagh reports on

a dataset that contains the complete set of patent cases filed at the courts in England and Wales during the period 2000-2008. The data cover all types of patent-related cases brought before the Patents County Court, the Patents Court at the High Court, the Court of Appeal, as well as the House of Lords/Supreme Court. We combine the detailed information on court cases with information on the patents in dispute as well as firm-level data for the litigating parties. We employ the dataset to analyze characteristics of the court cases, = litigating parties, as well as the contested patents. We also provide detailed discussion of the cases that were heard by the House of Lords/Supreme Court as well as of the costs involved in patent litigation before the courts in England and Wales. 

The authors comment that

Patent litigation has risen to dubious worldwide fame ever since the ‘global patent wars’ broke out between the giants in the information and communication technology (ICT) industry. Moreover, while the patent wars have clearly led to a surge in patent court cases in all major markets, it is also clear that the publicity surrounding these court battles has shed light on the fact that in some industries patent litigation is rapidly becoming a primary mechanism for moving issues of competition from the product market into the court room. Concern about the disruptive potential of patent litigation has also increased in recent years due to the increased participation in litigation of so-called ‘patent trolls’, sometimes referred to as ‘patent assertion entities’ (PAEs) or ‘non-producing entities’ (NPEs) (Bessen et al., 2011). The prominence of these cases in the eyes of the media has reinforced a broader public debate concerning innovation within the patent system and the role of litigation.

The functioning of the patent system fundamentally depends upon the ability of patentees to enforce their rights, if necessary with the help of courts. In particular, the role of patents in the dissemination of information by requiring the disclosure of detailed technical information relies on enforceable patent rights in order to provide firms with the incentive to make this information publicly accessible. Patents are also designed to encourage transactions via licensing and assignment; there is no doubt that enforceability is crucial for enabling these transactions. In this regard, Bessen and Meurer (2005) suggest that the value of patenting springs entirely from the threat of litigation, rather than the taking of actual legal proceedings. Empirical evidence by Lanjouw and Schankerman (2004) supports this hypothesis for the US. At the same time, the recent global patent wars within the ICT industry, including the increased involvement of PAEs, have also shown the potential for patent litigation to become a disruptive force with respect to product market competition and innovation.

While the state confers the legal right to exclude third parties from the use of intellectual property (IP), the state does not directly enforce this right itself. Instead, right-holders are required to enforce their rights through the institutions established by the state for this purpose. This implies that right-holders are taskedwith monitoring every potential infringement of their rights. Once a potential infringement has been identified, right-holders must decide whether to seek remediation. Consequently, full legal action/proceedings will not be taken with respect to every infringement of an existing IP right. A decision to take legal action inevitably depends on an assessment of the benefits and costs associated with monitoring infringement and taking legal action. Factors determining whether the owner of a potentially infringed patent takes legal action include (Weatherall et al., 2009):

(1) the amount of sales foregone due to the existence of IP infringement;

(2) the degree of competitive disadvantage which accrues when a comparison is made with those enterprises that are able to free-ride on the R&D and marketing expenses of the right-holding firm;

(3) the potential for loss of goodwill and prestige with regard to a brand, if counterfeits are freely available; and

(4) the expense of monitoring the market and instituting legal proceedings.

Obviously, all of these factors are difficult to measure, not least because of the absence of the counterfactual. For example, the issue of what a product’s market share might have been in the absence of infringement is a difficult factor to measure accurately. The overall costs of undertaking litigation are due to a host of factors including:

(a) the effort undertaken in order to observe and assess potential incidences of infringement,

(b) the ability to identify the infringer(s),

(c) an assessment of whether the IP right is likely to stand up in court e.g. the validity of a patent, and

(d) the (substantial) direct and indirect financial costs of the litigation itself.

The complex interplay between these factors may explain why existing research as well as anecdotal evidence suggests that only a tiny proportion of patent disputes eventually end up in court (Greenhalgh et al., 2010). Furthermore, infringement of patent rights often occurs when firms are unaware of existing rights which they are in fact infringing. Alternatively, infringement may be undertaken wilfully, either for strategic purposes or because firms learn about the infringed patent only when the sunk cost for a research project has already been paid (Bessen and Meurer, 2006). In fact, Lemley (2008) suggests that firms in the IT and biotech industry in the US ignore existing patent rights on purpose in order to avoid wilful infringement. Cockburn and Henderson (2003) provide survey evidence collected from company IP managers. This research shows that only a third of respondents conduct a prior art search before starting new R&D or product development.

From the point of view of right-holders, owners of infringed rights may possess one or more of a variety of motives for taking litigation. Most importantly, a right-holder can seek to use litigation to exclude its competitors from using a patented technology. Alternatively, a right-holder can force its competitors to acquire a licence for the patent right. A law suit also provides the possibility for the negotiation and collection of settlement payments, which could be used toweaken a competing firm or could even be used to push smaller firms out of the market. Litigation may also be used for more strategic motives, such as the case of a dominant incumbent firm which threatens to sue smaller, actual or potential competitors to prevent market entry.

The existing empirical literature on patent litigation overwhelmingly uses US court data, supposedly because US data are relatively easily accessible. Much less is known about patent litigation in other jurisdictions. Given the in part substantial differences in the enforcement systems across countries, empirical findings for the US may not carry over directly to other jurisdictions. The aim of this article is to provide empirical evidence on the enforcement of patents within the UK, and the legal system of the Patents Court (PHC) of England and Wales in particular as it is the venue where the majority of patent litigation in the UK takes place.

Courts in the UK are widely regarded as ‘thorough’, a description which has given the UK courts an ‘anti-patent’ reputation. This reputation has led potential claimants in infringement cases to seek to avoid litigation in the UK, whereas potential defendants and other parties regard the UK as a propitious jurisdiction for challenging the validity of patents and/or claiming non-infringement (Moss et al., 2010). Legal procedures in the UK are also reputed for their costs (Weatherall et al., 2009; Burdon, 2010; see also Section 3.3), but the UK courts are also considered to be relatively fast-working. However, so far there is little factual empirical evidence supporting these claims. This article provides factual empirical evidence, based on a study of all patent cases filed at the Patents Court (PHC) from 2000 to 2008 as well as the Patents County Court (PCC) for 2007 and 2008.

Our analysis shows that patent litigation is extremely rare: we only observe 255 patent cases at the PHC over the nine-year period studied. While the media coverage on the patent wars and PAEs may create the impression that patent litigation concerns only the ICT giants and patent trolls, our data show that patent cases in pharma/chemicals are far more frequent and cases involving PAEs accounted for less than 6% of all cases. The concentration of litigation at the PHC in pharma/chemicals is also reflected in the share of pharmaceutical and chemical companies in the population of companies involved in litigation before the PHC. Our data show that a third of all litigating companies are in the pharmaceutical and chemical industry. Our data also reveal the number of foreign litigants by far exceeds domestic parties. Most patents are aged between six and ten years at the moment they are litigated. A comparison of the set of litigated patents with a matched sample of control patents that have not been litigated shows that litigated patents are considerably more valuable as measured by standard patent-value metrics. They are also broader and contain more references to prior art including the non-patent literature. About 43% of all court cases are filed alleging the infringement of a patent whereas around 31% of cases seek therevocation of a patent. Only about half of all cases proceed to final judgment. Among those cases that ended with a judgment, we find that the by far the most likely outcome is the revocation of a patent – regardless of whether the case was filed as an infringement or revocation action. This confirms the widely shared view based on anecdotal evidence that the PHC is likely to invalidate patents in court. We also have some evidence on the costs of litigation. Our data indicate that most cases involve total costs for both claimant(s) and defendant(s) at the order of £1 million to £6 million, which also confirms the view that patent litigation before courts in England and Wales is extremely costly.

The remainder of the article is organised as follows. Section 2 briefly discusses the available empirical evidence for the UK. Section 3 provides a thorough description of the legal system for the enforcement of patents in the UK. Section 4 describes the data used in Section 5 for the analysis of patent litigation in the UK. Section 6 provides a brief summary and conclusion.

The paper could be read in conjunction with 'The Direct Costs from NPE Disputes' (Boston University School of Law, Law and Economics Research Paper No. 12-34) by James Bessen and Michael Meurer.

They comment that

 In the past, “non-practicing entities” (NPEs), popularly known as “patent trolls,” have helped small inventors profit from their inventions. Is this true today or, given the unprecedented levels of NPE litigation, do NPEs reduce innovation incentives? Using a survey of defendants and a database of litigation, this paper estimates the direct costs to defendants arising from NPE patent assertions. We estimate that firms accrued $29 billion of direct costs in 2011. Moreover, although large firms accrued over half of direct costs, most of the defendants were small or medium-sized firms, indicating that NPEs are not just a problem for large firms.

Proto-copyright

'The 'Capricious Privilege': Rethinking the Origins of Copyright Under the Tudor Regime' by Rebecca Curtin in 59 Journal of the Copyright Society of the USA (2012) 391 contributes to -

the revision of thinking on the origin of author’s copyright by examining the first grant of a printing privilege to an author in the sixteenth century, not with a focus on its value to the author, the humanist scholar Thomas Linacre, but rather on its value to Henry VIII’s regime. The privilege, which applied to a Latin grammar, served Henry VIII’s initiative to foster humanist scholarship in England. The privilege represents early recognition of the power of monopolies in printing rights to incentivize the creation of particular texts. The printing privilege arose when a convergence of factors began to change the economics of book printing, as both supply and demand for printed books increased. Humanist luminaries, like Erasmus and Linacre, created demand for new content from living authors. Yet, the patronage system that largely compensated these authors drove down the prices they were able to get for the sale of their manuscripts to printers and burdened them with obligations to patrons. A close-grained history of Linacre’s privilege, and new evidence in support of dating the privilege before 1517, suggest that Henry VIII used the privilege as a tool, costless to the fisc, to make the publication of Linacre’s Latin grammar textbook more profitable to the author, and thereby to promote an English brand of the New Learning that would increase the prestige of the crown. The advancement of learning has been at the core of Anglo-American copyright since its origins.

Curtin concludes -

Given the benefits on both sides, it is somewhat surprising that Linacre’s privilege did not create a large trend of authorial grants. As noted above, the printer’s privilege became the common form of the privilege. Authorial grants, however, continued to be made occasionally well into the seventeenth century. The kinds of works awarded authorial privileges varied widely, but, like the Progymnasmata, they tended to be basic teaching texts of some kind. Leo Kirschbaum has gathered many instances, including grants to: Thomas Cooper in 1563 for an English dictionary; Arthur Golding in 1605 for any of his works “considered to be beneficial to the church and commonwealth;” Minsheu in 1611, for the Guide into Tongues; Fynes Morison in 1617 for his Itinerary; Samuel Daniel in 1618 for his History of England; George Wither in 1623 for his Hymns and Songs of the Church; and Francis Holyoke in 1635 for a dictionary he compiled. These works all have in common a wide audience and a basic teaching function. The grant to Golding for works “beneficial to the church and commonwealth” would seem to sum up the initiative: the use of the author’s privilege was not for the “capricious” show of favor, but, intended at least, for the public good.

The benefit of the common good was the ancient basis for the authority of the Crown to create monopolies. When a printing privilege was struck down in court for the first time, it was precisely because the court could not understand how the monopoly, which was in playing cards, could be pro bono publico. Creatively, it was argued in favor of the patentee that cards themselves were damaging to the public because of the time and money wasted in gambling, and, therefore, limiting the right to print them to one man would reduce the supply of cards and therefore benefit the public, as the Queen intended. The defense for pirating the cards, however, successfully rebutted that argument by drawing attention to the basic functioning of a monopoly:

The Queen was deceived in her grant; for the Queen, as by the preamble appears, intended it to be for the weal public, and it will be employed for the private gain of the patentee, and for the prejudice of the weal public; moreover the Queen meant that the abuse should be taken away, which shall never be by this patent, but potius the abuse will be increased for the private benefit of the patentee, and therefore ... this grant is void jure Regio.

Without a credible argument that the monopoly would benefit the common weal, the privilege failed. The nature of the privilege as a legal instrument, strictly speaking, was never “capricious” as a matter of law, not even when exceptionally applied to authors. The privilege granted to Linacre was consistent with the common law underpinnings of monopoly grants. Linacre’s privilege clearly had as its goal the fostering of Classical education and the encouragement of the New Learning — a goal that benefited both the Crown and the common weal — and put the advancement of learning at the core of copyright’s origin in England.

Restitution

'Gain-Based Relief for Invasion of Privacy' by Sirko Harder in 1(1) Dictum: Victoria Law School Journal (2011) argues that

 In many common law jurisdictions, some or all instances of invasion of privacy constitute a privacy-specific wrong either at common law (including equity) or under statute. A remedy invariably available for such a wrong is compensation for loss. However, the plaintiff may instead seek to claim the profit the defendant has made from the invasion. This article examines when a plaintiff is, and should be, entitled to claim that profit, provided that invasion of privacy is actionable as such. After a brief overview of the relevant law in major common law jurisdictions, the article investigates how invasion of privacy fits into a general concept of what is called ‘restitution for wrongs’. It will be argued that the right to privacy is a right against the whole world and as such forms a proper basis of awarding gain-based relief for the unauthorized use of that right.

Records

'Lawyers on the Record: Criminal Records, Employment Decisions and Lawyers' Counsel' by Georgina Heydon, Bronwyn Naylor, Moira Paterson & Marilyn Pittard in 32(2) Adelaide Law Review (2011) comments that

 The increased use by employers of criminal records checks is occurring within the context of a complex and uncertain legal framework. Our research explores this issue from the perspective of lawyers, their understanding of existing laws and the advice which they give their clients on both sides of the employment decision-making process. We identify uncertainty about the operation of relevant laws - spent convictions, anti-discrimination and privacy laws - and discuss law reform options.

They conclude

Overall, the law reform proposal which is most likely to resolve many of the issues identified is the proposal for uniform spent conviction laws. However, whilst this is essential reform in the area, it is not sufficient. Where a record is not covered by spent conviction legislation because the ten-year time period has not passed, the record may still be taken into account by employers, even where that record is irrelevant to the job to be performed. Further, it will not offer protection to many job applicants in the states where there is not prohibited discrimination on the basis of irrelevant criminal record. Anti-discrimination legislation does not uniformly protect job applicants round the nation. Anti-discrimination laws should be amended as a matter of priority.

Whilst some of the privacy reforms outlined may assist job applicants, the issue of consent not being freely obtained (in the context of a desire to successfully obtain the job) is not addressed. More generally, human rights are increasingly becoming part of the political discourse in Australia and will have an impact on the ways in which employers can inappropriately use criminal histories to exclude ex-offenders from employment. The survey revealed that 53.1% of respondents did not advise employer clients in relation to criminal record checks at all whilst about a third (32.7%) advised their employer clients once or twice a year on this issue. It was only a small minority (14.3%) who advised clients three to ten times a year. The infrequent attention to this issue in legal practices with an employment law focus, we suggest, is not due to its lack of significance — the data on the extent of use of criminal checks suggests it is important. Rather, employers may not regard the question of using criminal records as requiring legal advice — they may assume there is a right to ask job applicants routinely for their criminal history information. By way of contrast, legal practitioners acting for employees tended to deal with this question more. Even so, more than 40% of labour law practitioners never dealt with this employee issue, suggesting that persons with a criminal record do not seek advice because they select their employment opportunities to minimise the need to expose their history to potential employers. In other words they ‘self select’ and do not place themselves in those job markets where employers will ask about their past. 

The fundamental issue is that potentially valuable employees are being excluded from employment by reference to what may be an irrelevant element of their history. The case studies cited in the introduction to this article illustrate the disproportionate significance of a criminal record for an otherwise-satisfactory employee. This is inherently unfair; it also imposes unnecessary costs on employers, the state and society more broadly. 

Employers may feel that they are entitled to access criminal history and related information because historically this has been accepted at common law. The unprecedented availability of such information in the Internet age, with no limit to how far back in time information can be accessed, has fed the increased demand. However the impact on society of ever-increasing numbers of excluded people must be faced. Lawyers in this study clearly reflected acceptance of (or resignation to) employer access and ambivalence about whether unfettered access should be allowed. We argue that this is a question which must now be tackled.

Espionage

The NY Times features a short Op Ed on corporate espionage, featuring the following paras about misbehaviour before the digital camera

In Placerville, Calif., a stockbroker named D. C. Williams took advantage of the latest high-tech telecommunications gear in an insider trading scam. The year was 1864. Mr. Williams, claiming to be in the stagecoach business, rented a room at a hotel called the Sportsman’s Hall, where the State Telegraph Company had offices. Sitting in his room, within earshot of the receiving equipment, Mr. Williams simply decoded the messages about business deals as they clattered in. When he tried to bribe the telegraph agent for exclusive access to news on an important mining lawsuit, the agent turned him in, and Mr. Williams was arrested. 

Or take the case of John Broady, an audacious wiretapper who in the mid-1950s set up an eavesdropping nest at an apartment in Midtown Manhattan. Working with a source inside the phone company, he set up equipment capable of tapping and simultaneously recording 10 phone lines in the area. Among Mr. Broady’s clients was the drug company Pfizer, which hired him to tap the phones of its own employees and those of a competitor, Squibb.

Mr. Broady was ultimately undone by an anonymous tipster, most likely someone inside his organization. Bizarrely, at his trial he claimed there was a nefarious Chinese angle to his scam — he said he’d used the equipment to spy on a rogue Chinese Air Force general who’d stolen millions from his government. Mr. Broady said that someone who wanted to stop the investigation had killed one of his own agents in Mexico. “I didn’t want them to knock me off, like they did my man,” he said, breaking down in tears. “I have a wife and kids.” The jury thought it was an act, and Mr. Broady received a two- to four-year prison sentence.

The Sacramento Daily Union for 13 August 1864 reported that

The San Francisco Bulletin has the following in connection with the operations of D. C. Williams, mentioned in the Union yesterday : 

Williams has been twice ia the employ of the State Telegraph Company, and was always suspected of bad faith, to say the least. He was in the employ of the Alta Telegraph Company during the early days of Washoe, and it is said that at that time be was in the habit of regularly taking copies of the dispatches from the office to a room near by, where they were made known to outside parties who were dabbling in stocks. This practice he is said to have carried on dally for a series of weeks, until the Alta line consolidated with that of the State Telegraph Company, when he obtained employment with the latter. It is a notorious fact that one of the operators in Washoe, at about the same time became a large owner of "feet" through stock operations which his knowledge of telegraph secrets enabled him to carry on. The criminal action of Williams, while exposed by the Alta line, was not suspected when the State Telegraph Company took him into their employ; but they soon began to "smell a rat," and although they could not prove that he divulged any of the business of the office, still they considered the evidence sufficient to discharge him. They became hard up for operators soon after and again engaged him, upon his promise to act in good faith, but they soon discovered thai he was again in stock speculations, and informed him that he must either drop stocks or leave the office. Williams chose the latter alternative, and turned stock broker. He went into the First Board, and soon became a leading spirit. From his utter recklessness and want of judgment, many were surprised that he existed as long as he did; but fortune seemed to favor him — surely it was not judgment — he was at one time supposed to be worth $80,000. His luck, however, deserted him, and be failed. His friends set him up again, upon his promise to do a safe, legitimate business; but the spirit of gambling had got possession of him and he was continually buying and selling 'short', until in a few months be was again bankrupt. Again and again did his friends assist him in this manner, but to no purpose; and at last, to retrieve his fortunes, he went to Washoe, and, from his course since he left here seems to be ready for any undertaking, however dishonorable, which promises to pay. 

Upon the first injunction decision in the Savage and North Potosi case, it will be remembered that he was at Washoe, and informed his friends here of the decision, and then demanded of the Telegraph Company to send a long dispatch that would have occupied their lines for several hours, giving his friends of course time to operate. The company refused to accede to Williams' modest request, and he sued them for $80,000 or thereabouts as damages! He has probably been telegraphing and corresponding with a number of firms here, with the understanding that he is to share in the profits of all speculations wherein he gives the evidence to warrant "pitching in". Pease & Grimm say that they know nothing of Williams' operations save what they have heard from others. The above letter they have never received. They say that they have always looked upon him as utterly unreliable, and have paid no attention to his dispatches or letters. Some time since Williams telegraphed to that firm to "sell short …" but they did not heed his advice at all. Had they done so they would have made a handsome thing. 

They afterwards received a letter from Williams, stating that he had sneaked into the office …. and that the stock must go down, but from a knowledge of his character they paid no heed to his advice. They say the only speculation ever existing between themselves and Williams was on Lady Bryan stock, and that was months ago. Williams sent to the firm to get bail for him, which they refused to do. 

His conviction is expected under a law which makes it a misdemeanor, punishable by imprisonment, to divulge or make use of any information which may be acquired from the telegraph office in a contraband manner, whether the party so offending is an employe of the company or not. The telegraph managers in this city say that had Williams succeeded in bribing the boy at Sportsman's Hall, and thus acquired the privilege of working the line in his stead, still the operators who received the messages at San Francisco could have detected the deception by the peculiar "click", which can be be easily recognized by the ear of a skillful operator at a distance of hundreds of miles as a man's handwriting can be by ocular inspection. A first-class operator can tell the "click" or writing of every operator on a long route, and recognize who it is that sends him messages.

Cow Bells and Kantians

'Cowbells in Rock Anthems (and Property in IP): A Comment on Justifying Intellectual Property' by Eric Claeys in San Diego Law Review (2012) reviews Merges' Justifying Intellectual Property.

This article contributes to a symposium issue on the Philosophical Foundations of Intellectual Property. In a popular Saturday Night Live skit, a famous record producer helps a rock band record a rock anthem by demanding maniacally that the band put more cowbell on the recording. This article reviews Justifying Intellectual Property (2011), by Robert Merges, in a similar spirit. 

Justifying Intellectual Property challenges contemporary IP scholarly sensibilities by arguing that IP is better justified on moral, rights-based foundations than on economic or other utilitarian foundations. The book provides an excellent moral defense of property rights in copyright and patent. It provides an excellent account of at least one set of rights-based foundations for IP, i.e. Lockean theory. It also provides an extremely helpful framework for explaining how rights-based foundations get implemented into specific IP doctrines. However, as the record producer could have used a little more cowbell on the rock anthem, so Merges could have used a little more property theory in his account of how IP law implements rights-based foundations in practice. This article illustrates its praises and criticisms using the damages-versus-injunction remedy question considered by the U.S. Supreme Court in eBay v. MercExchange (2006).

Forks and Food Politics

'Food Sovereignty Is a Gendered Issue' by Maggie Ellinger-Locke in 18(2) Buffalo Environmental Law Journal 2011 comments that

 “Food sovereignty is about ending violence against women.” This slogan of La Vía Campesina’s, an international movement of peasant farmers, offers a perspective on the power dynamics of the food system from farm to fork. Transforming power imbalances is the work of food sovereignty, or democratic control over the food system, and this article offers a way forward for policy makers, regulators, and eaters everywhere. 

Maggie Ellinger-Locke goes on to comment that

According to the World Food Summit of 1996, food security exists when all people, at all times, have access to sufficient, safe, and nutritious food to meet their dietary needs and food preferences for an active and healthy life. La Vía Campesina, the Peasant Way, an international federation of peasant farmers, looked at this concept and saw limitations in its failure to address the power dynamics and imbalances within the food system, such as who controls how food is produced and distributed, and the question of power in turn implicates ender. This focus on power frames the question as one of food sovereignty rather than food security. Food sovereignty is defined as “the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems.”  Food sovereignty penetrates much deeper than food security and is the subject of this article. Moreover, the use of gender as a lens to understand the global food system, based on the similarities between patriarchy’s control over the agricultural system and its control over women’s bodies and reproductive capacity, creates a perspective that has not been sufficiently offered elsewhere. 

In 2008 in Maputo, Mozambique, La Vía Campesina held its fifth international conference called “Feeding the World and Feeding the Planet.” At this conference a policy letter was drafted called “An Open Letter from Maputo,” which included a call for a new program of action under the slogan “food sovereignty is about an end to violence against women.” That statement is the inspiration for this paper. The power of this statement is perhaps not immediately recognized, yet there is profundity in what it can offer. In not only building a food secure world, but also, by changing relationships on an interpersonal level between individuals sitting across a table, food sovereignty offers an alternative to our current food system and a more profound analysis of power than food security. Food sovereignty, literally people’s self-government over the food system, argues for a complete transformation of society, or nothing less than food revolution. This article demonstrates the key role that the set of practices known as food sovereignty can play in rebuilding democratic systems of food production. Food sovereignty is also a feminist issue and applying a gendered lens to the food system reveals the failings of food security as a goal for food system transformation. This article will examine the role of social movements, such as La Vía Campesina, in changing the framework governing food production, and advocates looking to these movements for leadership. 

As explained above, the economics and power dynamics of the current food system exacerbates hunger and poverty. Part II explores the relevant legal regimes that form the foundation of the current system. Part III explains the concepts of food security, the right to food, and food sovereignty; it will explore why food security is a limited concept and must be broadened to ensure democratic control over the food system. Part IV will explore gender and ecofeminism,15 explaining how a gendered lens can transform the way food is produced and distributed. Part V discusses some of the work that food sovereignty is accomplishing and suggests that these efforts provide a path forward for the current food system towards one organized around food sovereignty. And finally the conclusion, Part VI, explains how La Vía Campesina, which some claim to be the world’s largest social movement, offers the vision of how legal regimes must be guided by the principles of food sovereignty, and emphasizes the need for urgency in restructuring the global food system in light of the climate crisis.

Big Al's Afterlives

In The Hebrew University of Jerusalem v General Motors LLC [PDF] the US District Court (Central District of California) has held that Albert Einstein's postmortem publicity rights have expired.

The judgment follows permission by the court earlier this year for the University, as claimed holder of the rights, to proceed to trial against GM for the car manufacturer's use of Einstein's image - tanned, bare-chested, jeans and underdaks - in an advertisement.

The University gained the claimed rights in 1982 when Einstein's estate transferred all literary rights and property as required by Einstein's will. That will did not expressly refer to publicity rights and he does not appear to have gained any royalties from his persona although no right of publicity was expressly mentioned nor had he claimed any monetary compensation for the use of his persona during his lifetime.

The Court initially considered the duration of a postmortem right of publicity - a property right - recognised in the common law of New Jersey (Einstein's former domicile), as distinct from rights under Californian statute law (Cal. Civ. Code, s. 3344.1). I have noted elsewhere that some US states - primarily those with a strong film industry - have recognised personality/publicity rights through statute law. Most recognition under statute expires after 50 years; Californian protection ceases after 70 years and protection in Tennessee under the 'Elvis Law' is famously in perpetuity.

In the current dispute the duration of those rights in New Jersey has not been addressed through cases such as Estate of Presley v. Russen, 513 F. Supp. 1339, 1355 (D.N.J. 1981) and McFarland v. Miller, 14 F.3d 912, 917 (3d Cir. 1994). In Presley the federal district court held that “Elvis Presley’s right of publicity survived his death and became part of Presley’s estate” but indicated that the state legislature should determine the duration of the right question and that the national copyright statute (term of life plus 50 years) could provide guidance.

The Californian court was asked to identify what New Jersey's Supreme Court would determine as the postmortem duration under its common law right of publicity. The Californian statute restricts the right to California domiciliaries, indicating that "If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile". In that respect note the recent decision in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 1000 (9th Cir. 2012).

Bad news for the University, with Judge Matz holding that the Supreme Court would probably find that the right expired 50 years after the person transited to the great beyond. Matz held that

unless sound public policy and the weight of authority establish otherwise, it makes no sense to apply the California statute’s 70 year postmortem durational limit — which is part and parcel of the substantive right — to a right arising solely out of the New Jersey common law, and there is no legal principle requiring this Court to do so

The court found that the public policy objectives regarding intellectual property extend to personality rights. Accordingly it was probable that the NJ Supreme Court would seek a balance between community (eg freedom of expression) and personal interests in determining duration of the right in that state.

Einstein's persona

has become thoroughly ingrained in our cultural heritage. Now, nearly 60 years after his death, that persona should be freely available to those who seek to appropriate it is part of their own expression, even in tasteless ads

The Court endorsed commentary regarding

the need “to avoid descendants or heirs unto the nth generation reaping the commercial rewards of a distant and famous ancestor, a ‘favored bloodline’ concept out of step with a society that has abolished hereditary titles” and that at some point, the interests of free speech outweigh the interests of the heirs and “the person’s identity should enter the public domain as a part of history and folklore”.

Excessive postmortem duration would potentially restrict expression, to an inappropriate degree.

In the 57 years since Albert Einstein died, the means of communication have increased and so has the proclivity of people to use them frequently … New devices and platforms have been developed, including smart phones, personal computers, social networks, email, Twitter, blogs, etc. These technologies have caused a swift and dramatic, but still developing, impact on ordinary life. It has become a truism that their speed, their accessibility, and their popularity appear to have changed social norms regarding privacy and public expression. But it is not yet clear what this should mean for the protection of such rights as the right of privacy, the right of expression and the right of publicity. For example, on balance should the law increasingly protect people’s right of expression, now that we enjoy so many fora in which to broadcast our views? Similarly, should the law value the right of privacy less than before, given that many social media devotees, especially young people, are said to have little compunction about revealing intimate information about themselves? Conversely, should the law afford celebrities greater rights in controlling publicity about themselves, to protect against what appears to be a growing tendency of people to not just exalt but even to exploit the fame and celebrity of others? The Court does not profess to have answers to these questions, but what is clear is that since the full impact of these rapid changes remains uncertain, it would be imprudent to issue any ruling that strengthens (or at least lengthens) one right - that of the right of publicity - to the potentially significant detriment of these other rights.

Ethnobiological Prospects

The seven page 'Bioprospect Theory' by Jim Chen comments that

Conventional wisdom treats biodiversity and biotechnology as rivalrous values. The global south is home to most of earth's vanishing species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable the industrialized north to commit biopiracy. By contrast, the United States has characterized calls for profit-sharing as a threat to the global life sciences industry. Both sides magnify the dispute, on the apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation.

Both sides of this debate misunderstand the relationship between biodiversity and biotechnology. Both sides have overstated the significance of bioprospecting. It is misleading to frame the issue as whether intellectual property can coexist with the international legal framework for preserving biodiversity. Any lawyer can reconfigure intellectual property to embrace all of the intangible assets at stake, including raw genetic resources, advanced agricultural and pharmaceutical research, and ethnobiological knowledge.

The real challenge lies in directing biodiversity conservation and intellectual property toward appropriate preservation and exploitation of the biosphere. Commercial development aids biodiversity primarily by overcoming perverse economic incentives to consume scarce natural resources that may turn out to have greater global, long-term value. We continue to debate these issues not because we are rational, but precisely because we are not.

Indeed, legal approaches to biodiversity and to biotechnology are so twisted that they represent an extreme application of prospect theory. Losing supposedly hurts worse than winning feels good. The law of biodiversity and biotechnology appears to reverse this presumption. Biodiversity loss is staggering and undeniable. Humans are responsible for the sixth great extinction spasm of the Phanerozoic Eon. By contrast, gains from bioprospecting are highly speculative. Even if they are ever realized, they will be extremely concentrated. There is no defensible basis for treating ethnobiological knowledge as the foundation of a coherent approach to global economic development.

In spite of these realities, the global community continues to spend its extremely small and fragile storehouse of political capital on this contentious corner of international environmental law. Global economic diplomacy should be made of saner stuff. The fact that it is not invites us to treat the entire charade as a distinct branch of behavioral law and economics: bioprospect theory.

Mobile Retina Scanning

''eyePhones': A Fourth Amendment Inquiry into Mobile Iris Scanning' by Christopher Rutledge Jones in 63(925) South Carolina Law Review (2012) considers: mobile retina scanning

MORIS, or Mobile Offender Recognition and Information System, is a small device that attaches to a standard iPhone and allows the user to perform mobile iris scanning, fingerprinting, and facial recognition. Developed by BI2 Technologies, this device was recently made available to law enforcement agencies in America. This article discusses the Fourth Amendment implications arising from the use of such a device, and asks whether a reasonable expectation of privacy exists in one's irises while in public spaces. The article explores past Supreme Court Fourth Amendment jurisprudence regarding the use of technology to enhance senses, abandonment, and the plain view doctrine in an attempt to determine when mobile iris scans would and would not be allowed by the Fourth Amendment. The article also undertakes a state-specific analysis, asking whether the South Carolina Constitution offers any additional protection against the use of mobile iris scanners. Finally, the article raises a number of concerns regarding mobile iris scanners (and MORIS in particular), and offers suggestions for addressing the concerns.

Jones comments

Imagine for a moment that an American police officer is on duty, patrolling a neighborhood as he has done many times before. As he rounds a corner, he takes notice of someone casually walking down the street, not engaging in any illegal or suspicious behavior. Although seemingly innocuous, however, the pedestrian does match the description of a suspect in a recent armed robbery that took place nearby. The officer, believing he may have spotted this suspect, pulls over and stops the pedestrian. After speaking with him for a few minutes, the officer reaches for his belt and retrieves a smartphone. He asks the pedestrian if he would consent to having his picture taken, in a sense. The pedestrian, either knowing he has nothing to hide or not wanting to arouse suspicion, agrees, and the officer captures the image - except the image he has captured is not an ordinary photograph. It is a high-resolution image of the pedestrian’s eye. The smartphone, in a matter of seconds, analyzes and processes the image, compares the pedestrian’s identity to an online database of previously captured images, and returns the results to the officer.

Now, depending upon your point of view - and perhaps also on the result of the hypothetical encounter (whether the pedestrian is in fact the robbery suspect the officer is seeking) - this interaction between the police officer and the pedestrian involves either a fantastic new tool for law enforcement, which will help to keep our streets safer from criminals by denying them the ability to present false identification and escape capture, or an unnerving, Orwellian device that facilitates intrusion into one’s constitutionally protected right to privacy, only an incremental step removed from the “big brother” state imagined in fiction. However, the interaction described above is not a chapter from George Orwell’s 1984 or a scene from Minority Report. And, despite any discomfort or misgivings one may have about the hypothetical scenario, the device the officer used to confirm or refute the pedestrian’s involvement in the recent robbery is currently on the market, and is being increasingly utilized by police departments across the country, along with a number of other users. Personal beliefs aside, however, the legal legitimacy of this technology ultimately depends on whether the officer’s conduct infringed on the pedestrian’s Fourth Amendment rights against illegal search and seizure.

Jones notes that

Iris scanning, while still a relatively new form of identification when compared to other methods such as fingerprinting, is beginning to gain traction via a number of different uses throughout society. For example, in 2005, the John F. Kennedy Airport in New York implemented a pilot program that utilized iris scanners in order to allow preregistered passengers to circumvent the standard customs procedures and to quickly proceed through the airport. In 2011, the TSA announced plans to implement a nearly identical program to expedite security checks, although the scope of the TSA effort is not yet clear. The New York Police Department already scans the irises of all arrestees to track them through the court system and prevent their escape. Additionally, the Justice Department is partnering with the National Sherriff’s Association to implement similar programs in jails across the country in an effort to prevent escapes. In 2010, the Department of Homeland Security began testing the effectiveness of using iris scanners at a border patrol station to track illegal immigrants, and the United States military has used iris scanners in Iraq and Afghanistan to build a database of almost four million residents. Despite its relatively limited use at present, iris scanning technology is gaining acceptance in an increasing number of settings, and is poised to spread considerably over the next few years.

MORIS, or Mobile Offender Recognition and Identification System, is the technology at the focus of this Note. MORIS is manufactured by BI2Technologies. The device is a 12-ounce attachment to the now ubiquitous iPhone, and allows an officer in the field to perform not only an iris scan, as described in the hypothetical, but also facial recognition and fingerprint comparisons, all remotely with no additional equipment required. BI2Technologies’ marketing brochure for MORIS claims that the device is “ideal for identifying” sex offenders, illegal immigrants, gang members, individuals with outstanding warrants, parolees, and probationers. It is available only to government agencies and officials, and as of mid-2011, roughly forty law enforcement agencies had ordered approximately one thousand units. Currently, BI2 has official endorsements for its line of products from the National Association of Triads (NATI) and the National Sheriff’s Association. ...

Having made the case that the use of MORIS would not likely be considered by the Supreme Court to be a violation of the Fourth Amendment, this Part of the Note will address potential concerns that systems such as MORIS raise in a realworld environment.

One major concern regarding the widespread use of an iris scanning system is that it could be used to capture people’s iris data without their knowledge or consent. MORIS, according to BI2 President and CEO Sean Mullin, apparently requires the cooperation of its subject in order to capture a useable image.  However, while MORIS currently requires the device to be relatively close to the subject in order to obtain a useable image, even newer cameras allow for an image to be taken up to six feet away, and as technology progresses, so too will the range of the iris scanners.

A related concern that privacy advocates may have with MORIS is the potential of capturing iris information from citizens who ultimately have no criminal record and are of no real interest to police. The makers of MORIS claim that a user’s iris information is deleted immediately if no match is found in the database; however, without oversight by an independent organization, there is no way to confirm this assertion. Additionally, there are no laws currently in place to ensure that this policy is not changed sometime in the future, resulting in the accumulation of private information to which the police have no valid interest.

Another particularly relevant concern that can be raised concerning iris scanning technology, along with any system of suspect identification, is the accuracy of the technology used, and the potential error rate involved with use of the system. According to John Daugman, who pioneered the iris mapping algorithms embedded in MORIS’s software, the theoretical false match rate under real-world conditions is around 1 in 4 million. In addition, BI2Technologies has claimed the system has a “virtual zero error rate,” and that “3.12 billion cross-matches [have been performed] without one false match.” In addition to the low theoretical error rate of the matching algorithms, the MORIS system, upon finding a match to a subject’s iris, will return a picture of the purported match, allowing the officer to confirm or deny the system’s match to an even greater degree of certainty. If the above claims of accuracy are true and translate to actual error rates in the field, then MORIS could prove to provide a relatively low risk of false matches.

Perhaps a more salient concern about the MORIS system lies not in its matching capabilities, but in the method of data transmission that the system employs. As MORIS is an attachment to a consumer smartphone, the system uses existing cellular networks to transmit to, and receive data from, the central database that it searches for a match. As such, the data is vulnerable to interception by hackers and identity thieves. In addition to intercepting the signal to and from the phone, criminals could take advantage of the iPhone’s operating system to hack into the phone itself and retrieve data. Another potential vulnerability is the fact that the database to which the MORIS system connects is accessible on the internet, which leaves it open to attack from traditional hackers who target computer systems as opposed to cell phones.

The final major concern with MORIS, as with any system or procedure adopted by police, is the potential for abuse through selective use, or profiling. Although this concern exists apart from MORIS in particular, the potential invasion of privacy facilitated by this system calls for a heightened awareness of, and active prevention against, such abuse.

Queer Kids

'Fear of the Queer Child' by Clifford Rosky in 61(3) Buffalo Law Review (2012) 1-56 considers

the fear of the queer child -  the fear that exposing children to homosexuality and gender variance makes them more likely to develop homosexual desires, engage in homosexual acts, deviate from traditional gender norms, or identify as lesbian, gay, bisexual, or transgender. This fear is thousands of years old, but it has undergone a remarkable transformation in the last half-century, in response to the rise of the LGBT movement. For centuries, the fear had been articulated specifically in sexual terms, as a belief that children would be seduced into queerness by adults. Since the 1970s, it has been reformulated in the more palatable and plausible terms of indoctrination, role modeling, and public approval.

Since the earliest days of the LGBT movement, advocates have responded to this fear by insisting that it is empirically false - that sodomy laws have “nothing to do” with children, that marriage laws have “nothing to do” with schools, that children raised by lesbian and gay parents are “no different” than children raised by heterosexual parents - and above all, that children’s sexual orientation and gender identity are fixed early in life and cannot be learned or taught, chosen or changed. In recent years, this empirical strategy has begun to falter, as advocates run up against the inherent vagueness, incompleteness, and unpredictability of empirical data. To break through this strategic impasse, this article highlights a growing vanguard of scholars, lawyers, and judges who are developing a normative challenge to the fear of the queer child. It argues that the state has no legitimate interest in encouraging children to be straight or discouraging them from being queer, because it may not presume that queerness is immoral, harmful, or inferior - in children or in anyone else. The state must adopt a neutral stance toward children’s straightness or queerness, without attempting to promote one set of desires, behaviors, or identities over the other.

Rosky argues that

This Article is about the fear of the queer child. This is not just the fear that exposing children to homosexuality will “turn” them homosexual, or “cause” them to “become” homosexual, whatever that means. It is that, but it is more than that - more capacious, more varied, more refined. It is the fear that exposing children to homosexuality and gender variance makes them more likely to develop homosexual desires, engage in homosexual behaviors, deviate from traditional gender norms, or identify as lesbian, gay, bisexual, or transgender. This is the fear of the queer child.

As David Halperin writes, “We can only defuse these fears if we are willing to analyze them, to understand them, to figure out where they come from.” Taking up Halperin’s call, this Article historicizes the fear of the queer child in the name of dispelling it. It shows that although this fear is thousands of years old, it has been wholly transformed in the last fifty years. For centuries, the fear had been articulated almost exclusive in terms of seduction - as a claim that children could be initiated into queerness by engaging in homosexual activity with adults. Evidence of this belief can be found in many times and places, but it became an especially prominent social, legal, and political justification for anti-LGBT policies in the modern era.

During the 1970s, opponents of LGBT rights reformulated the fear of the queer child in response to the rapid mobilization of the LGBT movement. Rather than falling back on the age-old fear that children could be seduced into queerness, opponents of LGBT rights introduced more palatable and plausible claims of indoctrination, role modeling, and public approval. The indoctrination fear is that LGBT people will actively recruit and proselytize children into queerness, in a deliberate attempt to augment the population of queers. The role modeling fear is that children will learn to imitate queerness by identifying with influential LGBT figures, such as parents and teachers. The public approval fear is that through the judicial and political recognition of LGBT rights, the state and society will send a message to children that queerness is “okay” - an “alternative lifestyle” that is morally and legally equivalent to straightness, a path that children should feel free to follow.

Since the earliest days of the LGBT movement, advocates have responded to these fears by insisting that they are empirically false - based upon myths, misunderstandings, perhaps even lies. They have claimed that sodomy laws have “nothing to do” with children, that marriage laws have “nothing to do with schools,” and that children raised by lesbian and gay parents are “no different” than others. Tying these claims together, they have argued that children’s sexual orientation and gender identity are fixed early in life and cannot be taught or learned, chosen or changed, or otherwise influenced by external factors.

The trouble with the LGBT movement’s empirical paradigm has long been apparent. It is defensive - worse still, it is apologetic. It attacks the empirical premise that queerness could be contained, but it fails to challenge the normative premise that queerness should be contained. If only for the purpose of argument, it entertains the troubling assumption that queerness is immoral, harmful, or inferior, and thus, that the state may legitimately discourage children from becoming queer.

To be sure, this paradigm’s vice is also a virtue: It permits both sides of the struggle over LGBT rights to save face. By focusing on the empirical questions of how children become queer, LGBT advocates have sought to bracket the normative question of whether children should become queer. They have calculated that they can win more social, legal, and political victories sooner by invoking the empirical data about on children’s sexual and gender development, without calling upon voters, judges, and politicians to place any normative value upon children’s queerness. This Article examines how the LGBT movement managed to arrive at this tactical impasse, and it offers an alternative paradigm for moving beyond it. If we do not learn the history of this fear, we may be imprisoned within it - condemned to repeat our empirical challenges to exhaustion, without confronting the fear’s normative premise that all things being equal, children are better off straight.

The Article has five parts. Part I provides a theoretical backdrop by defining how the Article deploys the terms “fear,” “queer” and “child.” Parts II and III provide a historiography of the fear. Part II explores the premodern origins and modern rise of the fear, while Part III examines the fear’s reconceptualization in the contemporary period. This historical narrative sets the stage for the Article’s normative challenge in two ways: First, it forges a link between the opposition’s claims of seduction, indoctrination, role modeling, and public approval, which might otherwise appear to be logically distinct from each other. By showing how the opposition’s kinder, gentler themes emerged from much older, harsher claims about the sexual transmission of queerness, this history discredits the former by historical association with the latter. Second, this narrative helps explain why the LGBT movement has struggled so mightily - and yet, so cautiously - to show that the fear of the queer child is empirically false.

Part IV indicates that the time may be ripe to consider new strategies, because the LGBT movement’s empirical challenges have begun to falter. While the fear of seduction has been largely marginalized and discredited, the fears of indoctrination, role modeling, and public approval are still commonplace, and seem less amenable to the LGBT movement’s empirical challenges. After decades of studies, debates over children’s sexual and gender development remain significantly unsettled, and they will not be definitely resolved in the foreseeable future. Rather than relying only on the claims that queerness cannot be influences by teachers, parents, or governmental policies, LGBT advocates should consider liberating themselves from the data by exploring a challenge to the fear’s normative premises.

Part V sketches a theoretical framework in which the normative challenge could be developed. It begins by acknowledging that even in the days of Anita Bryant, there were already activists and scholars who asked, “so what if children grow up to be queer?” Rather than claiming that children’s sexual and gender development cannot be influenced, they have insisted that the possibility of a child’s queerness is not morally or legally relevant. In the new millennium, this claim has been taken up by a handful of legal scholars, lawyers, and judges, reflecting a broader shift in cultural attitudes toward children’s queerness. Borrowing from a page from Lisa Duggan’s Queering the State, this Part theorizes these new claims under the banner of “No Promo Hetero.” It insists that the state must adopt a neutral position vis-à-vis children’s straightness and queerness, because it has no legitimate basis for presuming that children are better off straight.

Lex Informatica

'The Internet at 20: Evolution of a Constitution for Cyberspace'  by Henry Perritt Jr. in 20 William & Mary Bill of Rights Journal (2012) 1-69  comments that -

The Internet’s “constitution” is not expressed in a single document. Instead, it comprises the open architecture inherent in the Internet’s technological protocols together with a collection of government policies, legislative enactments, and judicial decisions that seek to protect the basic architectural philosophy, ensure space for entrepreneurial freedom, and guard against the abuse of economic or political power.

This Article looks back over the Internet’s first twenty years, highlighting the crucial legal decisions by the executive, legislative, and judicial branches that have led to the Internet’s success, and which now frame its constitution. I participated in many of these decisions and wrote more than a dozen law review articles and reports suggesting directions for public policy and law. This Article uses this foundation to consider the future, focusing on major legal controversies, the resolution of which will define the Internet’s third decade — either strengthening or undermining its constitution.

In discussing traffic analysis - a basis of recent Australian mandatory traffic data retention proposals -  Perritt comments -

Transactional data about communications, not involving access to content, enjoy a less protected position than content in the combinations of legal controls adopted by Congress. Less protection for such data flows from the reasoning of the Smith case - that little expectation of privacy for such data exists because the data are disclosed to and used by third-party service providers. Even if that proposition is correct for dialed telephone numbers, it is not true for the inferences that may be drawn from large quantities of data about patterns of communication available from modern telecommunications networks. Traffic analysis of IP packets to and from a particular target can reveal a blueprint of the target’s human associations. It can reveal subject matter interests through analysis of web browsing. Analysis of geographic information from cell phone connections can detail target movements, minute by minute.

Advances in technology facilitate such traffic analysis because they facilitate acquisition of transactional data, as from IP packet headers, and they also facilitate machine analysis of patterns revealed by the acquired data. In many cases, traffic analysis may actually be more valuable to law enforcement and intelligence agencies than the content of a handful of messages. Traffic analysis may also be more revealing about the private conduct and thoughts of a target than content.

Suppose a criminal intelligence agency acquires information about every cell phone call made or received by a target for a period of six months. Through relatively inexpensive and widely available techniques, the agency can collect information on the date and time of every call made or received and the other telephone number to or from which a call is attempted or established. Call-duration data is also available. By analyzing the patterns of cell phone communication by the target, the monitoring agency could determine, for example, that the target communicates at least daily with a suspected drug dealer and, regularly, on a weekly basis, with another individual in the target’s hometown. From these data the agency could infer that the target is himself a drug dealer, or at least a drug user, and also could infer that the individual with whom the target communicates weekly is a good friend or, possibly, someone with whom the target has a romantic involvement.

A foreign intelligence agency might obtain data on a target, which could reveal that the target has regular communication with a particular telephone number in Iran and places many calls to different individuals in a geographic area with a substantial Muslim population. From these data the foreign intelligence agency might infer that the target is involved in raising money for an activity directed from Iran, or that the target is involved in organizing some form of collective activity related to Iran. At the very least, these inferences might constitute sufficient probable cause to allow the agency to obtain a judicial order for acquisition of the content of these communications.

The overall effect is analogous to physical surveillance of the target - following the target everywhere and identifying all the people with whom the target communicates face to face.

A newer form of traffic analysis is potentially even more useful and even more intrusive: monitoring a target’s web browsing. Information about every web address (URL) visited by a target is readily collectible by intercepting IP traffic to and from the target’s IP address under a Pen/Trap order, which does not require probable cause. Alternatively, and at far less cost, a criminal intelligence or a foreign intelligence agency can obtain much of the same kind of information by obtaining records maintained by search engines, such as Yahoo! and Google, which would reveal every web page a user/target searches for. Because most web browsing involves regular resort to search engines to find the URL for web pages of interest, data from search engines represent a substantial subset of web-browsing activity. Analysis of this type of traffic not only reveals other people with whom a target has communication, but is analogous to a type of physical surveillance - entirely impracticable to effectuate - which would have someone looking over the target’s shoulder as the target browses newspapers, magazines, or possible selections in a bookstore. It is thus closer to revealing the target’s interests and thoughts, even if the target never chooses to reveal these to anyone else.

Here lies the problem: the usefulness of the new kinds of traffic analysis that the technologies of surveillance and target communication make possible is enormous. It should not be difficult to convince legislators and judges that there is a compelling need to engage in these newly productive types of surveillance, especially when the surveillance can be justified as necessary for the “War on Terrorism.” But the risks to personal liberty, and to the personal autonomy that lies at the core of liberty, while unprecedented, are likely to be overlooked when framed within legal concepts developed under the impact of past technologies to distinguish areas in which people have a “reasonable expectation of privacy” from areas where they do not.

Furthermore, legislative and judicial decisions about striking the right balance between surveillance and privacy tend almost always to assume that the government will maintain the confidentiality of everything that it collects. In fact, experience shows that individual government officials and agents do not necessarily respect confidentiality obligations. The investigation of the Vice President’s office with respect to disclosing the identity of CIA agent Plame, FBI Director J. Edgar Hoover’s use of wiretap conversations to undermine the credibility of Martin Luther King, the role of FBI executive Mark Felt as Deep Throat in the Watergate controversy, FBI leaks about an individual suspected for a time of being the Atlanta Olympics bomber, and many other instances demonstrate that when even the most secretive government agencies have explosive information about individuals, the temptation to leak it is strong.

Consider further what would be in the information pool subject to possible leaks if widespread traffic analysis is performed, either monitoring e-mail communications and cell phone communications or monitoring web browsing. The patternmatching tools are imprecise, and it is inevitable that someone engaging in perfectly innocuous activities would occasionally come under suspicion. Heightened suspicion means that more data would be collected and more attention paid to it. And minimization does not work very well in these new contexts. So communications and web browsing associated with suspect persons or subjects would be accompanied by data on other matters of a sensitive nature to the target, albeit unrelated to national security threats or to criminal activity, obviously including sexual relationships or interests that the target legitimately would not want exposed to others. The temptation to leak these kinds of traffic would be especially strong to a leaker who wants to injure the target, because the leaks would not jeopardize legitimate national security or criminal intelligence.