Mehr Licht

The UK Law Reform Commission has released a 142 page consultation paper [PDF] regarding British law governing 'rights to light', ie a property right that "entitles a landowner to receive, usually through a window, enough of the natural light passing over a neighbour's land to enable the ordinary use of the building". It's of interest for Australian scholars of property and tort law.

The paper builds on the Commission's 2011 report as part of its 'Easements, Covenants and Profits à Prendre project' and reflects the High Court decision in HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch), [2010] 3 EGLR 15.

The Commission comments that rights to light raise issues that are more pronounced, in comparison with other easements and appear to have a disproportionately negative impact upon the potential for land development the development of land.

The Commission indicates that it has three key objectives -

• to introduce greater certainty and transparency into the law as it relates to rights to light, making disputes simpler, easier and quicker to resolve. 
•  to ensure that rights to light do not act as an unnecessary constraint on development. The availability of modern, good quality residential, office and commercial space is important to the success of increasingly dense, modern town and city centres, and to the economy more generally.
• to make sure that the important amenity value of rights to light remains protected under the law. 

The consultation paper has eight chapter, with an overview of the current law in Chapter 2.  In Chapter 3 the Commission discusses how rights to light can be created through the doctrine of prescription, where a building or room has benefited from light passing over a neighbour's land for a long period. It provisionally proposes that rights to light should in  future no longer be capable of acquisition by prescription. Chapter 4 considers the test for when a person who benefits from a right to light can bring a legal claim on the basis that his or her light has been obstructed, ie at what point an obstruction becomes actionable in the law of nuisance. Chapter 5 addresses remedies for the infringement of a right to light – principally injunctions (for example, an order that the construction of a building cease, or that it be demolished) and damages.  Chapter 6 discusses the availability of injunctions and their role  in negotiations as a powerful bargaining tool. The Commission provisionally proposes introduction of a notice procedure designed to introduce greater clarity into rights to light disputes. Chapter 7 focuses upon how rights to light can be brought to an end, particularly the extinguishment of rights to light by abandonment.

Four provisional proposals are as follows

• in the future it should no longer be possible to acquire rights to light by prescription
•  introduction of a new statutory test to clarify the current law on when courts may order a person to pay damages instead of ordering that person to demolish or stop constructing a building that interferes with a right to light. 
• introduction of a new statutory notice procedure, which requires those with the benefit of rights to light to make clear whether they intend to apply to the court for an injunction (ordering a neighbouring landowner not to build in a way that infringes their right to light), with the aim of introducing greater certainty into rights to light disputes. 
•  the Lands Chamber of the Upper Tribunal should be able to extinguish rights to light that are obsolete or have no practical benefit, with payment of compensation in appropriate cases, as it can do under the present law in respect of restrictive covenants. 

The proposal for prospective abolition (ie future acquisition of rights to light by long use) would have no impact on rights to light already acquired by prescription.

The Commission notes three other areas of the law for comment. The first is the test for when an obstruction of light constitutes a nuisance and is therefore actionable. The current test is based on an early twentieth-century case and depends upon the use to which the property benefiting from the right to light is put, and the effect of the obstruction of light upon that use and on potential future uses. The second area is damages. Under the current law the damages that may be awarded instead of an injunction are calculated on the basis of the amount for which the owner of the right to light would have released the right, thereby allowing a development that would otherwise constitute an actionable interference to proceed. This "negotiation basis" of assessing damages can take into account the profits that the proposed development will make.  The paper considers arguments regarding retention of the "negotiation basis" of calculating damages and  alternative options, commenting that it is not clear whether the current law is causing practical problems. The third area is the law of abandonment. A right to light is abandoned where there is an intention on the part of the owner of the right to give it up permanently. In some instances this intention may be clear (eg shutting up a window with bricks and mortar) but in other scenarios the law may be more difficult to apply.

Questions

'The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation' by Lisa Burton, Nicola McGarrity and George Williams in (2013) 36 Melbourne University Law Review 415-469 comments that

The Australian Security Intelligence Organisation Legislation (Terrorism) Amendment Act 2003 (Cth) is the most controversial piece of anti-terrorism legislation passed by the Commonwealth Parliament. The Act created a system of warrants that permit the Australian Security Intelligence Organisation to question and detain non-suspects for the purposes of gathering intelligence about terrorism offences. This regime is subject to a sunset clause and will expire in July 2016, unless renewed by Parliament. This article provides a comprehensive overview of the process by which warrants are issued and the powers conferred by them. It finds that the regime is insufficiently tailored to its purpose of protecting Australians against terrorism. In light of this, and evidence about how the powers have been used, the article concludes that these extraordinary questioning and detention powers should not be renewed without significant amendment.

The authors conclude -

The coercive questioning and detention powers conferred on ASIO by the Special Powers Regime are extraordinary. There is no precedent for such powers either in Australia or in other like nations. In 2003, after protracted debate, the Commonwealth Parliament concluded that these powers were necessary to protect Australia against the threat of terrorism. The Regime was accepted as an exceptional measure, and the inclusion of a sunset clause demonstrates that parliamentarians believed that it would be temporary. Ten years on, the Special Powers Regime can no longer fall back on these justifications. Today, a different question must be asked — whether there is a basis for the Special Powers Regime becoming a permanent feature of Australia’s legal landscape. This article has sought to answer this question by examining the legislative framework, in particular, the issuing criteria and the nature of the powers, as well as the actual use made of the powers.

The most extraordinary aspect of the Special Powers Regime is the power of detention. By this, we mean both the power to issue a Detention Warrant and also the power for a Prescribed Authority to direct the detention of a person subject to a Questioning Warrant. This power challenges the general rule that Australians should only be detained as a result of a finding of criminal guilt by a judicial officer. For this reason, the power should not be accepted unless there is clear evidence that it is necessary to protect the community from terrorism. It is not enough to say that ASIO will exercise restraint and only request a Detention Warrant if it believes that the circumstances necessitate it. The rule of law requires that legislation tightly constrain executive discretion. However, nowhere in the ASIO Act does it require the Issuing Authority to be satisfied that issuing a Detention Warrant is necessary to protect the community. At the very least, the issuing criteria should be amended to include such a requirement. This, together with the existing additional detention criterion, should be exposed to the scrutiny of the Issuing Authority, rather than left to the judgement of the Attorney-General alone.

However, practical considerations suggest that the detention power should be repealed rather than merely amended. Since 2002, 16 Questioning Warrants have been issued. In none of these cases was it regarded as necessary for a person to be detained. This suggests that other provisions of the ASIO Act, such as the secrecy offences, are sufficient to prevent a person from, for example, alerting another person involved in a terrorist act to an ongoing investigation. Further, 37 people have been charged with terrorism offences since 2003. The fact that no Detention Warrant has been issued in respect of any of these people suggests that the detention power is not necessary for terrorism investigations or prosecutions. If this is the case, then there is no need to renew the detention power again in 2016.

The statistics also indicate problems with the Questioning Warrants regime. A statistical breakdown of the 16 Questioning Warrants indicates that there is no correlation between the issue of such warrants and terrorism prosecutions. If Questioning Warrants are not intended to aid prosecutions, what function are they intended to serve? The answer to this is, ostensibly, to enable ASIO to gather intelligence necessary to protect Australia against the threat of terrorism. However, at no point are either the Attorney-General or the Issuing Authority asked to consider whether the questioning of an individual is actually necessary to achieve this end. We do not argue in this article that Questioning Warrants should be repealed, though certainly there is a good case that can be put to that effect. At the very least, the criteria for issuing a Questioning Warrant should be amended to require that questioning a person will substantially assist with the collection of intelligence that is reasonably believed capable of preventing a terrorism offence or enabling the prosecution of an offence. This, and the existing criterion that a Questioning Warrant may only be issued if other methods of intelligence gathering would be inadequate, should also be exposed to the scrutiny of the Issuing Authority.

The issue of repeat Questioning Warrants also poses a very real problem, albeit one that has seldom materialised. In our opinion, the criteria for such a warrant should be modified such that they establish a significantly higher threshold than for the issue of a Questioning Warrant in the first place. This would go some way towards reducing the possibility of ASIO using repeat warrants as means of harassment.

The punitive impact of the coercive questioning regime is exacerbated by restrictions on the procedural safeguards provided to a person subject to a warrant. First, the ASIO Act empowers a Prescribed Authority to restrict a person’s access to a lawyer of his or her choice. Other provisions, such as that allowing ASIO to monitor communications between a lawyer and his or her client, undermine the efficacy of legal representation and advice. Secondly, there is a blanket prohibition on disclosure of information about a warrant — including even the fact that a warrant has been issued. The presumption underlying these restrictions is that any communications by a person subject to a warrant — whether to a lawyer or someone else — are potentially dangerous. At times, this means the onus is effectively shifted to the person subject to the warrant to prove that communications do not pose a risk to national security; at other times, the presumption is not rebuttable.

There may well be situations in which such restrictions are appropriate. However, these are likely to be the exception rather than the norm and the restrictions should be narrowed to reflect this. Otherwise, the restrictions are disproportionate and unnecessarily hinder access to legal representation and advice. There should, for example, be a requirement of exceptional circumstances before the right to a lawyer of one’s choice is restricted. The same rule should apply to the monitoring of communications between the subject of the warrant and his or her lawyer. The secrecy provisions which restrict disclosure of information about a warrant should be amended for similar reasons. Communications between the subject of a warrant and his or her family, friends, employers or medical professionals should only be restricted where there is evidence to conclude that disclosure may pose a risk to national security. As they stand, these restrictions are disproportionate to the Regime’s purposes and mean that the use of the powers is shrouded in an undue degree of secrecy.

The question of whether — and to what extent — individual rights and freedoms can be restricted in times of emergency is one of the most challenging to have faced Western democracies. An even more difficult question faces us today. A decade on from the September 11 terrorist attacks, this state of emergency has become the norm; there is no end in sight for the ‘war on terror’. Therefore, Australia must start considering and answering the question of what its anti-terrorism laws should look like for the long term. Is it prepared to accept the ASIO Special Powers Regime as an ‘ordinary’ part of the legal framework? The Regime makes substantial inroads into fundamental human rights. Intelligence agencies are given unprecedented powers to detain non-suspects. These powers might be acceptable if they were required to protect Australia from a terrorist act. However, as this article has demonstrated, they have rarely been used and the need for them over the longer term has not been made out.

Against Agamben

'How I learned to stop worrying and use the legal argument: A critique of Giorgio Agamben’s conception of law' by Leila Brännström in (2008) 5 No Foundations: An Interdisciplinary Journal of Law & Justice 22-49 comments that

Giorgio Agamben’s Homo Sacer. Sovereign Power and Bare Life (1998 [1995]), and State of Exception (2005 [2003]) are, among other things, efforts to explore the deep structures shaping contemporary tendencies in the development of law and politics.1 Agamben offers us the diagnosis that we live in a ‘permanent state of exception’ – a situation in which law cannot be distinguished from lawlessness. He also suggests a prescription; we ought to look beyond law and reach for a realm of human activity ‘uncontaminated’ by law. He warns us that if we do not overcome law, we risk the ‘juridico-political’ system transforming itself into ‘a killing machine’, thus causing an ‘unprecedented biopolitical catastrophe’ (Agamben 1998, 188; Agamben 2005, 86).

In this article, I will argue against both Agamben’s diagnosis and his prescription. One of the troubles with his line of reasoning, the one that I will focus on, is its deadlocked and overly formalistic understanding of how law operates and of how it might be used and transformed. Surely Agamben insightfully points out certain dangerous trajectories in contemporary law and politics, but I believe that the rigid way in which he analyses law and politics forecloses the most promising ways of responding to and acting upon the problems that he outlines.

There is a more general rationale for scrutinizing Agamben’s analysis of law and of the state of exception and the implications of his analysis. Agamben’s understanding of law as a mechanism that puts limitations to our political potential and imagination and his conviction that law cannot be used for emancipatory purposes, is shared by many engaged in the field of critical legal and social studies who assume that exposing the repressive character of law and legal practices is the only possible way of conducting critical studies of law. Such an assumption is problematic as it overlooks the possibility to raise legal arguments and to engage in legal practices for pursuing emancipatory politics, a possibility that in many cases would be both forceful and productive. Sometimes, as in Agamben’s case, these assumptions are built on a perception of law as a machine whose workings, effects and possibilities are given beforehand – once and for all. The objectification of law, in turn, induces fear and aversion which often leads to political, social and legal analyses that suffer, like Agamben’s analysis does, from an overemphasis on, and an overestimation of, the legally authorized power of the state which nourishes the persisting, but misleading, idea that the major threats to our freedom and to a better future are to be found in repressive state-practices.

Since Agamben argues that Guantánamo Bay Naval Base (hereinafter ‘Guantánamo’) – where men and boys who were captured in Afghanistan and elsewhere have been imprisoned since January 2002 – is the locus par excellence of the new state of exception, I will take his characterization of the situation of the detainees at the Naval Base – abandoned by law and dwelling in a state of exception – as the point of departure for fleshing out what Agamben means when he talks about law and the permanent state of exception. The choice of Guantánamo as the starting, and the focal, point is also motivated by the fact that the raising of legal arguments, which is dismissed by Agamben as a constructive form of political action, seems to be one of the best ways of opposing the state of affairs at Guantánamo.

While many have described Guantánamo as a place where law is absent, ‘a legal black hole’ (Steyn 2004), ‘a lawless enclave’ (Hafetz 2006), ‘a prison beyond the law’ (Margulies 2004), et cetera, it has also been accurately pointed out that the situation at the the naval base has been created and sustained through legal regulations and measures. In the following, I will first sketch the coinciding lawlessness and legal rule that govern the life of the detainees at the Naval Base, which make Agamben’s portrayal of Guantánamo as a place where law and lawlessness are simultaneously present and indistinguishable from one another, seem plausible. Next, however, I will argue that when looked at closer Agamben’s characterization of the state of law at Guantánamo turns out to be based on an ahistorical and reductive understanding of law which leads to fatalistic conclusions about the fate of law at Guantánamo and elsewhere. After that I will discuss the possibilities of contesting the situation of the detainees at Guantánamo, and of engaging in political struggles in general by way of asserting legal rights and using legal arguments and strategies.

Twitterdata

'The Politics of Twitter Data' (Alexander von Humboldt Institut fur Internet & Gesellschaft Discussion Paper No. 2013-01) by Cornelius Puschmann and Jean Burgess [PDF]

approaches Twitter through the lens of “platform politics” (Gillespie, 2010), focusing in particular on controversies around user data access, ownership, and control. We characterise different actors in the Twitter data ecosystem: private and institutional end users of Twitter, commercial data resellers such as Gnip and DataSift, data scientists, and finally Twitter, Inc. itself; and describe their conflicting interests. We furthermore study Twitter’s Terms of Service and application programming interface (API) as material instantiations of regulatory instruments used by the platform provider and argue for a more promotion of data rights and literacy to strengthen the position of end users.

In discussing 'Data Rights and Data Literacy' the authors comment that

Contemporary discussions of end user data rights have focused mainly on technology’s disruptive influence on established copyright regimes, and industry’s attempts to counter this disruption. Vocal participants in the digital rights movement are primarily concerned with copyright enforcement and Digital Rights Management (DRM), which, so the argument goes, hinder democratic cultural participation by preventing the free use, embellishment, and re-use of cultural resources (Postigo, 2012a, 2012b). The lack of control that most users can exercise over data they have themselves created in platforms such as Twitter seems a in some respects a much more pronounced issue. Gnip’s CEO Jud Valeski frames the “owners” of social media data to be the platform providers, rather than end users, a significant conceptual step forward from Twitter’s own characterization, which endows the platform with the licence to reuse information, but frames end users as its owners (in Steele, 2011). Valeski’s logic is based on the need to legitimise the data trade - only if data is a commodity, and if it is owned by the platform provider rather than the individual users producing the content, can it be traded. It furthermore privileges the party controlling the platform technology as morally entitled to ownership of the data flowing through it.

Driscoll (2012) notes the ethical uncertainties surrounding the issues of data ownership, access, and control, and points to the promotion of literacy as the only plausible solution:

Resolving the conflict between users and institutions like Twitter is difficult because the ethical stakes remain unclear. Is Twitter ethically bound to explain its internal algorithms and data structures in a language that its users can understand? Conversely, are users ethically bound to learn to speak the language of algorithms and data structures already at work within Twitter? Although social network sites seem unlikely to reveal the details of their internal mechanics, recent ‘code literacy’ projects indicate that some otherwise non-technical users are pursuing the core competencies necessary to critically engage with systems like Twitter at the level of algorithm and database. (p. 4)

In the current state, the ability of individual users to effectively interact with “their” Twitter data hinges on their ability to use the API, and on their understanding of its technical constraints. Beyond the technical know-how that is required to interact with the API, issues of scale arise: the Streaming API’s approach to broadcasting data as it is posted to Twitter requires a very robust infrastructure as an endpoint for capturing information (see Gaffney & Puschmann, to appear). It follows that only corporate actors and regulators -  who possess both the intellectual and financial resources to succeed in this race - can afford to participate, and that the emerging data market will be shaped according to their interests. End-users (both private individuals and non-profit institutions) are without a place in it, except in the role of passive producers of data. The situation is likely to stay in flux, as Twitter must at once satisfy the interests of data traders and end-users, especially with regards to privacy regulation. However, as neither the contractual nor the technical regulatory instruments used by Twitter currently work in favour of end users, it is likely that they will continue to be confined to a passive role.

Patents

Pending digestion of today's judgment in Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 ( gene patenting) and this week's decision in Research Affiliates LLC v Commissioner of Patents [2013] FCA 71 (business methods) I'm reading 'The Case against Patents' by Michele Boldrin and David Levine in (2013) 27(1) Journal of Economic Perspectives 3-22 [PDF] which argues

The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless productivity is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity. Both theory and evidence suggest that while patents can have a partial equilibrium effect of improving incentives to invent, the general equilibrium effect on innovation can be negative. A properly designed patent system might serve to increase innovation at a certain time and place. Unfortunately, the political economy of government-operated patent systems indicates that such systems are susceptible to pressures that cause the ill effects of patents to grow over time. Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it. However, if that policy change seems too large to swallow, we discuss in the conclusion a set of partial reforms that could be implemented.

Business as usual from those authors (a previous version is noted here), who conclude -

In 1958, the distinguished economist Fritz Machlup in testimony before Congress famously said: “If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.” A proposal to abolish patents may seem “pie in the sky.” Certainly, many interim measures could be taken to mitigate the damage caused by the current system: for example, properly enforcing the standard that patents should only be granted for non-obvious insights; requiring genuine disclosure of working methods in patents (the opposite of certain recent “protectionist” proposals to institute secret patents); and allowing an “independent invention” defense against claims of patent infringement. But why use band-aids to staunch a major wound? Economists fought for decades - ultimately with considerable success - to reduce restrictions on international trade. A similar approach, albeit less slow, should be adopted to phase out patents. Because policy proposals are often better digested and metabolized in small bites, here is our list of small reforms that could be easily implemented.

1) Patents are time limited, which makes it relatively easy to phase them out by phasing in ever shorter patent durations. This conservative approach also has the advantage that if reducing patent terms indeed has a measurable effect on innovation, the process can be reversed.

2) Stop the rising tide that, since the early 1980s, has extended the set of what can be patented and has shifted the legal and judicial balance substantially in favor of patent holders.

3) Because competition fosters productivity growth, antitrust and competition policies should seek to limit patents when they are hindering innovation. This policy may be of particular relevance for high-tech sectors, from software to bioengineering, to medical products and pharmaceuticals.

4) Current international trade negotiations that affect patents often occur as part of either the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was signed in 1995 as part of the World Trade Organization negotiations, or as part of the World Intellectual Property Organization, an agency of the United Nations. The nature of these agreements and organizations is well indicated by the use of the propaganda term “intellectual property” in their titles. In both cases, these talks are often focused on how to prevent ideas from high-income countries from being used in low-income countries - what we would characterize as essentially a neo-mercantilist approach toward free trade in goods and ideas. We should be highly cautious about this agenda. Within a couple of decades, the “balance of trade in ideas” between the US and European economies and emerging economies in Asia might easily equalize or reverse. Engaging in “mercantilism of ideas” may seem favorable to certain large US firms now, but such rules may become costly to the US economy if they are applied to protect patents held in the future by producers in the now-developing Asian economies.

5) If the US economy is to have patents, we may want to start tailoring their length and breadth to different sectoral needs. Substantial empirical work needs to be done to implement this properly, although a vast legal literature is already pointing in this direction.

6) Patents should not be granted based only on technological insights, but should also take economic evidence into account. For example, if an invention is easy to copy or has a high fixed cost, then patent protection to provide an incentive for the inventor may be more suitable. Ultimately, patents should be awarded only when strictly needed on economic grounds, as spelled out earlier.

7) We advocate returning to the rule prior to the Bayh–Dole Act of 1980 according to which the results of federally subsidized research cannot lead to patents, but should be available to all market participants. This reform would be particularly useful for encouraging the dissemination of innovation and heightening competition in the pharmaceutical industry.

8) In several industries, notably pharmaceuticals, it would be useful to rethink all of the government policies that bear on incentives for invention. The broad point is that there are a number of ways to reduce the risks and cost of developing new drugs, rather than just trying to ratchet up patent protection.

In general, public policy should aim to decrease patent monopolies gradually but surely, and the ultimate goal should be the abolition of patents. After six decades of further study since Machlup’s testimony in 1958 has failed to find evidence that patents promote the common good, it is surely time to reassess his conclusion that it would be irresponsible to abolish the patent system. The patent system arose as a way to limit the power of royalty to award monopolies to favored individuals; but now its primary effect is to encourage large but stagnant incumbent firms to block innovation and inhibit competition.

DaoDa

Past posts have been critical of the World Futures journal, a publication that is associated with Ervin Laszlo (the savant notable for notions of communicating with the dead - or undead - via valve radios) and that has featured problematical articles regarding dowsing (supposedly demonstrating that "the mind's ability to communicate information from across the solar system is much faster than the speed of light"), remote healing, remote sensing, precognition and so forth.

The latest issue - 69(1) - features 'Evolution of Intelligence and the Human Fifth Dimension' by Shing Yiu Yip, an echo of the quantum mysticism evident in work by Laszlo and Dhall, with for example all entities apparently having a shared 'memory' through the cosmic Akashic Field.

Yip explains that

“Information” has been postulated by the Daoist theory of Qi-energy fields system to be encoded and inherent in the Qi-energy complex (Qi) since the beginning of time. This became the origin of intelligence when it was passed onto humankind. This abstract entity is extended as a concept of “quantum information/intelligence” (QI) when correlated with quantum physics. Human psychic power, spread over interconnected biological to cosmic spatial fields, would constitute a new Fifth Dimension, woven into the fabric of space and time. This would create a psycho-bionomic model of the universe.

DaDa, it seems, is alive and well, in academia.

The SMH has concurrently run an item on Australian psychics, including the comment that

In the United States, the psychic services industry is worth $US2 billion annually. Here in Australia, half the population believe in some form of psychic power, such as extrasensory perception, according to a 2009 Nielsen survey.

Global financial uncertainty has prompted a "big rise" in the number of mediums, says Australian Psychics Association president Simon Turnbull. "People want to feel assurance and mediums provide that reassurance."

We meet in the brown-brick apartment near Sydney Airport he shares with 11 cats. Why so many? "It used to be 13, but two died," he says.

The pale-skinned Turnbull, 62, says he is telepathic and a "remote viewer" who can see far-away places such as Wagga Wagga or Jupiter without leaving his office.

The Association started in 1983 with about 50 psychics and now has close to 1600 members, he says, a third of whom speak with the dead. "It's a quest for God," he says. ...

His Japanese-born wife, Hiromi, arrives with mugs of tea. After she has left the room, he says, "She's psychic, but she's more on the admin side." Anyone can learn to talk with dead people if they have sufficient motivation, he says.

To test this theory, Good Weekend signs up for a short lesson with the 2013 Australian Psychic of the Year. Signs on her office door, above a skateboard shop in Sutherland, read, "Debbie Malone, spirit medium, psychic, clairvoyant" and, "We welcome Visa, MasterCard and eftpos."

Presumably there are psychic rules that require clairvoyants and other people who chat with the dead to  rely on EFTPOS rather than advising fund managers about which shares will fall, which will rise, which horse will win the Melbourne Cup and where the next disaster will hit an insurer.

Inside, hundreds of toy fairies squat on shelves and nest in an elaborate "fairy tree". Malone, 49, who describes herself as a "sceptical medium", is wearing a necklace with silver pendants saying "Believe" and "You are never alone". Sometimes, Malone says, she sees spirits fly out of her bedroom television. "Would you like a cake?" she asks, proffering a Portuguese tart.

No indication whether the tart is home made ... it might be a tad inconvenient if spirits flew out of the tv while she was watching MasterChef.

She teaches people on weekends to speak with spirits, for $200 including light refreshments. "Psychics are the new rock stars, they're the new thing," she says.

To speak with the dead, you must first be relaxed and quiet, she says. Today's lesson is in psychometry, or the ability to "read" an object and its owners by touching it.

She hands me a brown felt hat, which is dusty and floppy and has a hole torn in the front. "Don't try too hard. Don't think about it. Write down what you see," she says. I close my eyes and see an old man with a small head in a country town. Perhaps he once worked as a stock agent.

As it turns out I'm not even close. The hat's owner was a cross-dressing roustabout who has gone missing in Rockhampton, Malone says. But she is encouraging. "You have made a connection."

Grounding Cyberspace

A nice response by Daniel Castro and the Information Technology and Innovation Foundation to Barlow's silly 1996 Declaration of the Independence of Cyberspace -

A Declaration of the Interdependence of Cyberspace 

Libertarians of the Virtual World, you gray-bearded detractors of government and sovereignty, we too come from Cyberspace. On behalf of the future, we ask you of the past to leave us alone. Your declaration of independence rings false, and your stale principles are a threat to progress. 

The Internet has no elected government, nor is it likely to have one, but this does not mean it is not governed. The Internet is ruled, as are all technologies, not only by the norms and beliefs of its users, but also by the laws and values of the societies in which they live. 

You allege that government has had no role in the Internet, and for this reason it has no claim to the Internet today, but this accusation is founded on nothing more than ignorance and superstition. Government labs and government-funded research programs gave birth to the Internet's essential technologies, and government policies continue to guide the development of important Internet innovations today. 

You denounce legitimate authority and tell us we must choose anarchy or face tyranny. Your claim is nonsense. Liberty does not diminish in the presence of collective action but rather flourishes in vibrant and well-organized societies.

You have no moral basis to declare the Internet a no-man's land of anarchy and lawlessness. The rights of man do not end where the Internet begins, nor should governments relinquish their duty to govern at the borders of cyberspace. 

You declare that the rights of humans to determine the fate of that which their minds create are null and void on the Internet. Casting aside the Universal Declaration of Human Rights, you proudly proclaim that any ideas or property you can steal from others should be yours to reproduce and distribute freely in cyberspace. We reject the fiction that the Internet gives you the freedom to disregard basic human rights of property, expression, identity and movement. The rights to life, liberty and property are natural to man and preserved by the societies we build and the governments we elect. 

You claim to be advancing society on the Internet through a new social contract devoid of government influence, yet you have often dismissed or ignored the problems we face today. While many problems can be solved through self-governance, many others require government action. The governments of the world, not merely your virtual personas, have been at the helm of most initiatives to provide more universal access to the Internet, to foster digital literacy, and to limit digital crime. 

All around the world you are trying to fend off the hand of government even when it governs legitimately. At times government may overstep its authority or exercise it imprudently, and we must cry out when it does, but that does not mean all government is unwelcome. When we fear tyranny, we must expose it in all its forms. Tyrants are no more likely to appear in the halls of government than in the committees of technical standards bodies. 

We do not want an Internet governed by the nations of the world, but neither do we want an Internet divorced from government. We seek a balance that recognizes both the rights of the individual and the benefits to the community of well-ordered systems. 

Legitimate political institutions derive their power justly from the consent of the governed, and these same institutions have legitimate authority on the Internet. While you denounce legitimate authority as tyranny, we seek to use this power to build our utopia of a world with universal digital access, an economy transformed by data and digital processes, and an Internet where criminals are accountable for their misdeeds. 

We too want to build a world that all may enter without privilege or prejudice accorded by race, economic power, military force or station of birth, but we want to build this world in both our cities and our networks. 

You claim that the Internet is distinct from the rest of the world and that the laws of man should cease where the physical meets the virtual. These anti-government sentiments place you in the same position as those previous lovers of anarchy and lawlessness whom history has shown to be enemies of a free, progressive and prosperous society. 

Your declaration has failed because the strength of the Internet does not come from the ability of a small group of individuals to separate themselves from the rest of us but by allowing all members of our global community to come together online to create and share, to work and to play. It is the voluntary cooperation of individuals, businesses and governments that has created the Internet that we know today. Thus the greatest asset of the Internet is not its independence but its interdependence. 

We reject your declaration of independence and take up a new call for interdependence among sovereign nations and peoples. We will work together in common cause so that no one can arrest our progress. 

We will create a civilization of both bits and steel. May it be more humane, fair and prosperous than the world we have made before.