1st Amendment

Jack M. Balkin (Yale University - Law School) has posted 'The First Amendment is an Information Policy' by Jack Balkin in (2013) 41 Hofstra Law Review, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that

we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory frameworks, programs, technologies and practices.

Using the examples of democratic protests in the Middle East and the controversy over WikiLeaks, the essay explains how free speech values are implicated in knowledge and information policies, in the design of digital networks and in the maintenance of infrastructure.

Around the world today, the fight over free speech is a fight over knowledge and information policy, and, in particular, how the infrastructure that makes free speech possible will be designed and implemented. Although the First Amendment is a crucial information policy for democracy, it is only one information policy among many. It needs the assistance of an infrastructure of free expression to make good on its promises. We must design democratic values into the infrastructure of free expression if we want an infrastructure that protects democracy.

Balkin comments that

It is not an exaggeration to say that modern states are informational states: states that recognize and solve problems of governance by collecting, analyzing, and distributing information. Knowledge and information policy is at the heart of government today.

Knowledge and information policy is about far more than the protection of free expression. Modern governments provide social services and benefits to their citizens, like social security, Medicare, and veterans’ pensions. This requires vast data processing systems to compile statistics and distribute benefits. Modern citizenship requires data processing in order to distribute the benefits of citizenship, and this leads to the creation of vast government databases, which, in turn, creates the need for privacy regulation, another important information policy. Governments also invest heavily in public education because it is crucial to democratic citizenship. Governments subsidize the production of information, like agricultural and weather information, as well as geographical data. And, especially in the United States, governments subsidize most basic scientific research.

You might think that information states must tend toward democracy. But it is not so. East Germany had an enormous information collection apparatus—the Stasi—but it certainly was not democratic. Today, China’s knowledge and information policies are designed to keep the Chinese Communist Party in power while growing China’s economy.

The big choice we face today is between democratic information states and authoritarian information states. Different countries lie on a spectrum between these two ideal types.

Authoritarian information states are information gluttons, information misers, and information monopolists. They try to collect as much information as they can, but they do not share it with their people. They try to monopolize control over information in order to serve the interests of those in power.

Democratic information states, by contrast, are information gourmets, information philanthropists, and information decentralizers. They collect only the information they need for governance, and they do not keep information secret any longer than necessary. They not only willingly share information with their citizens, they also create information and knowledge for their citizens to use and enjoy. Democratic information states try to ensure that their citizens have ample opportunities for education; they promote access to knowledge and information in order to form public opinion and to keep government officials in check. Democratic information states also decentralize the production of knowledge and information because this promotes democratic self-government.

Many people are optimistic that the Internet and the digital age will make authoritarian government increasingly difficult if not impossible. I am not so sure. In fact, as I will describe shortly, it is possible for authoritarian states to use the Internet and digital technologies to create digital versions of authoritarian information states. More troublingly, it is also possible that the Internet will tempt democracies like the United States to adopt increasingly authoritarian knowledge and information policies out of fear of terrorism and in order to protect interests in intellectual property.

Justice Hugo Black gave a pretty good account of a knowledge and information policy for a democracy. In a 1945 case called Associated Press v. United States, he argued that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, [and] that a free press is a condition of a free society.” “Diverse” means that we should decentralize information production and information distribution. No one entity should control knowledge production, many people must participate in creating information, and it should be widely distributed. “Antagonistic” means that knowledge production should be structured to allow the clash of different viewpoints, and to encourage dissent and innovation. Therefore, governments should protect and foster institutions, like the press, universities, and scientific research, that can check facts, produce new forms of knowledge, and help guarantee the quality and salience of information. Associated Press involved an agreement by newspapers to limit access to information to their members and create barriers to entry by other news organizations. The members of the Associated Press argued that as members of the media, they had a First Amendment right to do so.

Justice Black disagreed. The Associated Press was using its monopoly power to stifle competition in the gathering and dissemination of news. Justice Black argued that the same values that prevented the government from restricting the flow of information also gave it the right to regulate powerful private interests when they interfered with “the widest possible dissemination of information from diverse and antagonistic sources.” As Justice Black put it, “[i]t would be strange indeed . . . if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom.” Justice Black explained:

Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.

Today we live in a world of large and powerful corporations that shape and control the production and flow of knowledge. Many of these players now use the First Amendment to challenge regulation of their business models and to limit competition in the marketplace of ideas. Justice Black’s opinion in Associated Press reminds us that the First Amendment protects speech, not incumbent business models.

Government regulation that decentralizes control over innovation and knowledge production does not necessarily violate the First Amendment and may even be required to promote its central values. As Justice Black put it, “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.”

There are two big ideas that I want you to take away from this Essay. The first is that it is important to think in terms of knowledge and information policy. Think about our valued individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

We usually talk about the First Amendment not as a policy but as an individual right. But I also want you to see it as an integral part of knowledge and information policy. Why? Because many parts of information policy cannot easily be cashed out in terms of individual rights. You do not have an individual right to have the government create public libraries. The Constitution did not require the early Congress to subsidize newspaper delivery. You do not have an individual right to government decisions about how much to invest in science in fiscal year 2011. You do not have an individual right to have fiber optic cable brought to your neighborhood, or to have particular frequencies of the electromagnetic spectrum sold at auction, handed out in the form of licenses, or made into a commons for spread-spectrum technologies. These are policy choices. They are decisions about institutions and technological design. And they are crucial to your practical ability to speak in a digital world.

The second big idea is that individual freedoms of speech, press, and assembly require an infrastructure of free expression. That infrastructure includes technologies of communication, policies that promote innovation and diffusion of knowledge, the institutions of civil society that create knowledge and help ensure its quality, and government and private investments in science, education, and communications technology.

WEF Privacy Waffle

The World Economic Forum, which you'll be reassured is "committed to improving the state of the world", has released a document - produced by the cheerleaders at Boston Consulting - titled 'Unlocking the Value of Personal Data: From Collection to Usage' [PDF] regarding "an ongoing multistakeholder dialogue on personal data".

"Key messages" from that dialogue, which emphasise privacy as a commodity rather than human right (and broadly reflect the unwillingness of stakeholders such as Microsoft to move to global best practice) are

• The world has changed, which creates new opportunities but also risks [no surprises there, albeit the Bostons are relying on buzzwords such as "hyperconnected" rather than dead pronouncements that the "world is flat"]

• A new approach to personal data is needed that is flexible and adaptive to encourage innovation, but also protects the rights of individuals. Notice and consent need to be reconsidered to be equipped for this changing world.

• Key aspects of this new approach include:

– Shifting from governing the usage of data rather than the data itself

– Context is key in a world of increasing shades of grey. Black and white solutions won’t work

– New ways to engage the individual, help them understand and provide them the tools to make real choices based on clear value exchange

• A number of potential ways forward emerged from the dialogue:

– The importance of establishing an updated set of principles and the means to uphold them in a hyperconnected world

– Technology can be part of the solution

– allowing permissions to flow with the data and ensuring accountability at scale

– Need to demonstrate how a usage, contextual model can work in specific real world application

The WEF indicates that

Our world is changing. It is complex, hyperconnected, and increasingly driven by insights derived from big data. And the rate of change shows no sign of slowing. Nor does the volume of data show any sign of shrinking. But, the economic and social value of big data does not come just from its quantity. It also comes from its quality – the ways in which individual bits of data can be interconnected to reveal new insights with the potential to transform business and society. Fully tapping that potential holds much promise, and much risk. By themselves, technology and data are neutral. It is their use that can both generate great value and create significant harm, sometimes simultaneously. This requires a rethink of traditional approaches to data governance, particularly a shift from focusing away from trying to control the data itself to focusing on the uses of data. It is up to the individuals and institutions of various societies to govern and decide how to unlock the value – both economic and social – and ensure suitable protections.

As part of the multiyear initiative Rethinking Personal Data, the World Economic Forum hosted an ongoing multistakeholder dialogue on personal data throughout 2012. This dialogue invited perspectives from the US, Europe, Asia, and the Middle East and involved representatives of various social, commercial, governmental and technical sectors, who shared their views on the changes occurring within the personal data ecosystem and how these changes affect the collective ability to uphold core principles. The dialogue also addressed key regional legislative and policy approaches, particularly the proposed European Commission Data Protection Regulation and the US Consumer Privacy Bill of Rights. The global dialogue centred on a set of foundational principles that are familiar across a broad range of cultures and jurisdictions.

The dialogue was based primarily on three clusters building on the 1980 Organisation for Economic Co-operation and Development (OECD) Privacy Principles:

• Protection and security

• Accountability 

• Rights and responsibilities for using personal data 

This document captures some of the key outcomes of the dialogue. It highlights areas that need to be resolved in order to achieve a sustainable balance of growth and protection in the use of personal data.

Protection and Security

Issues of protection, security and the overall stewardship of personal data remain central to the ecosystem. While the complexity of operating in a decentralized and distributed networked environment poses new challenges, ensuring data security remains crucial.

Accountability

Ensuring stakeholder accountability is a task that is increasingly challenging. Unlike the case 30 years ago, when the OECD principles were established, the questions of “Who has data about you?” and “Where is the data about you located?” are impossible to answer today. The challenge surrounding accountability focuses both on which principles to support as well as how to effectively uphold and enforce them, particularly given the lack of resolution on means of accountability. This contributes to a lack of trust throughout the ecosystem. However, technology itself has the potential to be part of the solution in ensuring accountability at scale through appropriate controls and auditing functionality. Privacy by Design which has been widely adopted around the world is key to ensuring privacy is proactively embedded into the technology itself.

Principles can serve as a global foundation for creating an interoperable, flexible and accountable framework for coordinated multistakeholder action. Codes of conduct, technological solutions and contract law can all help translate principles into trustworthy practices that enable sustainable economic growth.

Rights and Responsibilities for Using Personal Data

Participants from the public and private sectors shared a variety of perspectives on how the rights and responsibilities for using personal data might evolve. One common concern was that policy frameworks that constrain how data can be linked, shared and used (such as collection limitations, purpose specifications, and use limitations) are increasingly less effective and anachronistic in today’s hyperconnected world.

It was also pointed out that as data moves through different phases from collection, to usage and disposal, the weighting of the different principles may need to change. This approach is similar to how incremental advancements in the study of the human genome are being accomplished. Scientists explore and discover the human genome under one set of guidelines; a different set applies when those insights are put into action. The dialogue also addressed the changing role of the individual. Three subthemes emerged:

From transparency to understanding: There is a need for new approaches that help individuals understand how and when data is being collected, how the data is being used and the implications of those actions. Simplicity, efficient design and usability must lie at the heart of the relationship between individuals and the data generated by and about them.

From passive consent to engaged individuals: Organizations need to engage and empower individuals more effectively and efficiently. Rather than merely providing a binary yes-or-no consent at the initial point of collection, individuals need new ways to exercise choice and control, especially where data uses most affect them. They need a better understanding of the overall value exchange so that they can make truly informed choices.

From black and white to shades of gray: Context matters. Given the complexity of applications, the idiosyncrasy of individual behaviours and the speed of change, there is a need for flexibility to allow different approaches to using data in different situations.

To keep pace with the velocity of change, stakeholders need to more effectively understand the dynamics of how the personal data ecosystem operates. A better coordinated way to share learning, shorten feedback loops and improve evidence-based policy-making must be established.

The document is decorated with the inevitable examples of enthusiasm about e-health. All will be well, it seems, if we heed the advice from a handful of very large (and mainly US-based) corporations.

Harris on the Constitution

After the Corneloups and the Sheik it's delightful to see Freedom, Democracy and Accountability: A Vision for a New Australian Constitution by the superb Bede Harris, a scholar whose courtesy, integrity and insights has had a profound impact on my cohort.

The book comes with a Foreword by the Hon. Michael Kirby AC CMG.

The contents of the federal Constitution are a mystery to most people, yet it is in the Constitution that are found the rules of how our institutions function, and what powers they may exercise over us. In a time of increasing voter dissatisfaction with how government is conducted in Australia, this book explains how our Constitution works, and why it is in need of reform, covering issues such as how our electoral system can be made fairer, why the innate dignity of the person requires that fundamental freedoms be protected by a Bill of Rights, and how politicians can be made more accountable to Parliament. The book also examines issues such as federalism and an Australian republic, before discussing how civics education could be improved so as to produce citizens who are knowledgeable about their Constitution. The book ends with the full text of a proposed new Australian Constitution.

Harris' work includes 'A critique of the CCAAC Report of 2009 and the statutory guarantee of acceptable quality in the Competition and Consumer Act 2010 (Cth)' (2011) 19 Competition and Consumer Law Journal 152; 'A Model Australian Code Relating to Defective Goods' (2010) 3 Journal of Politics & Law 1; 'The Place of Indigenous Rights in the Bill of Rights Debate - A Rawlsian Justification' (2009) 13 Australian Indigenous Law Reporter 70; and 'The Bill of Rights Debate in Australia - A Study in Constitutional Disengagement' (2009) 3 Journal of Politics & Law 2.

One reason for a Bill  of Rights is to minimise abuses. A perspective is provided by Samuel  Gross in 'How Many False Convictions are There? How Many Exonerations are There?' in Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems (Routledge, 2013) edited by Huff & Killias.

Gross comments that

The most common question about false convictions is also the simplest: How many are there? The answer, unfortunately, is almost always the same and always disappointing: We don’t know. Recently, however, we have learned enough to be able to qualify our ignorance in two important respects. We can put a lower bound on the frequency of false convictions among death sentences in the United States since 1973, and we have some early indications of the rate of false convictions for rape in Virginia in the 1970s and early 1980s. These new sources of information suggest – tentatively – that the rate of false convictions for serious violent felonies in the United States may be somewhere in the range from 1% to 5%. Beyond that – for less serious crimes and for other countries – our ignorance is untouched. ... The very occurrence of false convictions is a reflection of our ignorance. If we know that a defendant is innocent, he is not convicted in the first place, and we are not likely to do better later on. The essence of the problem is that we are trying to count events we can’t observe. There are other unknown quantities in criminal justice: for example, the number of crimes that are not reported to the police. That one, however, can be estimated by a comparatively straightforward method, the victimization survey: a representative sample of the general population is contacted and asked how often members of their households were victimized in the past year, and in what manner (e.g., Rand and Catalano, 2007). This is an imperfect but serviceable tool. We don’t know the exact number of unreported robberies, rapes and assaults, but we can estimate approximately how many occur, and where, and who the victims are. We have no comparable estimates for false convictions.

False convictions are not merely unobserved – like unreported crimes – but in most cases they are unobservable. The problem is not simply that we don’t know whether a particular prisoner is innocent. We also may not know whether he is HIV positive, but we can test him for that condition, or the prison population as a whole, or a random sample. We can’t do anything like that for false convictions, so we’re left with two strategies: (1) We can attempt to infer the frequency of false convictions without direct information, or (2) we can try to use the false convictions we do know about – exonerations – as a basis for estimates about the entire category.

He goes on to conclude -

So where does that leave us? I’ll summarize briefly:

• We know of at least 2000 exonerations in the United States since the beginning of 1989, and there have been many others that are not known to researchers – very likely more than those that are known. 

• These exonerations cannot be used to directly estimate the rate of false conviction because the great majority of erroneous convictions are never detected. 

• We do know, however, that 2.3% to 3.3% of death sentences in the United States since 1973 have ended in exoneration. This is not a complete count. Some innocent defendants who were sentenced to death have not been exonerated – mostly, I expect, defendants who have been removed from death row but remain in prison. 

• We also know that among convicted defendants in rape (and a few homicide) cases for which physical evidence was sent to the Virginia Department of Forensic Science from 1973 through 1987, at least 3.2% to 5% were innocent, and almost certainly quite a few more.

The information at hand is still very limited, and generalizations are difficult. There are strong theoretical reasons to believe that the rate of false convictions may be higher for murders in general, and for capital murders in particular, than for other felony convictions (Gross, 1998). The rape cases for which biological evidence was submitted to the Virginia Department of Forensic Science in the 1970s and 1980s may not be representative of rape cases in the United States generally, let alone other felony cases. We don’t know. 

Still, this is a start – considerably better than total ignorance. It’s enough to make some initial and tentative estimates. Marvin Zalman (2012) makes what he calls a very general “intelligence estimate” of the rate of false convictions in the United States, from 0.5%- 1.0% at the low end to 2% to 3% at the high end. In light of the new information from Virginia, my own tentative estimate would be a similar but somewhat higher range: 1% to 5% of convictions for serious felonies in the United States are erroneous. 

Is that a lot or a little? That depends on your point of view. If as few as 1% of serious felony convictions are erroneous, that means that perhaps ten- to twenty-thousand or more of the nearly 2.3 million inmates in American prisons and jails (Glaze, 2011) are innocent, and thousands of new innocent defendants are locked up each year. If the rate is higher, these numbers will go up. 

If as few as 1/10 of 1% of jetliners crashed on takeoff, we would shut down every airline in the country. That is not a risk we are prepared to take – and we believe we know how to address that sort of problem. Are 10,000 to perhaps 50,000 wrongfully imprisoned citizens too many? Can we do better? How? There are no obvious answers. The good news is that the great majority of convicted criminal defendants in America are guilty. The bad news is that a substantial number are not.

Hatespeech and Harangues

Reading Man Horan Monis v The Queen & Anor and Amirah Droudis v The Queen & Anor [2013] HCA 4, in which the High Court dismissed appeals regarding offensive letters to parents and relatives of Australian soldiers killed on active service in Afghanistan. Monis (aka Sheikh Haron) was said to have written those letters in 2007, 2008 and 2009, with Droudis aiding and abetting him.

The appellants were charged under s 471.12 of the Criminal Code (Cth), which prohibits the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, "menacing, harassing or offensive". Last year I noted that in Monis v R; Droudis v R [2011] NSWCCA 231 the Supreme Court of New South Wales, Court of Criminal Appeal determined that the offence of using a postal service to offend - within s 471.12 of the Criminal Code 1995 (Cth) - does not infringe upon the implied constitutional freedom of political communication.

The High Court dismissed appeals by Monis and Droidis from Supreme Court's decision. One appellant was charged with 12 counts of using a postal service in an offensive way and one count of using a postal service in a harassing way, and the other appellant was charged with eight counts of aiding and abetting in the commission of some of those offences.

In the District Court of New South Wales, the appellants had unsuccessfully sought orders quashing the indictment on the basis that s 471.12 was invalid because it was inconsistent with the implied constitutional freedom of political communication.

Tupman DCJ accepted that the term "offensive" could cover "legitimate political or governmental discourse or communication", holding that the purposes of s 471.12 are to -

• protect the "integrity of the post both physically and as a means of communication in which the public can have confidence"; 
• prevent breaches of the peace which might arise out of the receipt of an offensive communication; 
• prevent harm in the nature of wounded feelings, anger, resentment, disgust or outrage on the part of the recipient. 

Her Honour concluded that s 471.12 is reasonably appropriate and adapted to serve legitimate legislative ends and that it does so in a manner compatible with the maintenance of the system of government prescribed by the Constitution, thus meeting the criteria for validity enunciated by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25.

The Court of Criminal Appeal dismissed an appeal to that Court. By special leave, the appellants appealed to the High Court.

The High Court unanimously held that s 471.12 restricted political communication, but divided in assessing the purpose of s 471.12.

Three Justices (Crennan, Kiefel and Bell JJ) would have dismissed the appeals, holding that the section protects against the misuse of the postal service to deliver seriously offensive material into a person's home or workplace in a manner which is compatible with the system of representative and responsible government established by the Constitution. Three Justices (French CJ, Heydon and Hayne JJ) would have allowed the appeals, holding that the end pursued by the section is neither legitimate nor implemented in a manner that is compatible with the constitutional system of government. Heydon J commented that

Close examination of the implied freedom of political communication would involve analysis of these issues. That examination may reveal that it is a noble and idealistic enterprise which has failed, is failing, and will go on failing. That close examination cannot usefully take place until some litigant whose interests are damaged by the implied freedom argues in this Court, with leave if necessary, that the relevant authorities should be overruled. No endeavour of that kind was made in these appeals. Hence these appeals offered no occasion for close examination of the relevant questions. On the existing law, there is no alternative but to make the orders proposed by Hayne J – a result which, some may think, demonstrates how flawed that law is.

Section 23(2)(a) of the Judiciary Act 1903 (Cth) provides that where the High Court is equally divided in opinion, the decision appealed from shall be affirmed.

In Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors [2013] HCA 3 the Court considered claims by the Corneloups, noted here in a comment on The Corporation of the City of Adelaide v Corneloup & Ors [2011] SASCFC 84.

A majority of the High Court allowed an appeal against a decision of the Full Court of the Supreme Court of South Australia, which had held that a by-law made by the Corporation of the City of Adelaide (ie the Adelaide city council) infringed the implied constitutional freedom of communication on government and political matters. That by-law served to prohibit people from preaching or distributing printed matter on any road to any bystander or passer-by without permission, with for example restriction on action to

• preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to a designated area as resolved by the Council known as a “Speakers Corner” and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal, State or Local Government Election or during the course and for the purpose of a Referendum; ... 
• give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter, provided that this restriction shall not apply to any handbill or leaflet given out or distributed by or with the authority of a candidate during the course of a Federal, State or Local Government Election or to a handbill or leaflet given out or distributed during the course and for the purpose of a Referendum.

The Corneloup brothers were members of  the 'Street Church' and wished to preach in the streets, gaining some attention for loud ungenerous comments on people who did not share their faith and for picketing a rival church amid offensive comments about that organisation.

The Corneloups each commenced proceedings in the District Court of South Australia, seeking a declaration that the impugned provisions in the by-law were invalid. The District Court declared that parts of the impugned provisions exceeded the by-law making powers conferred on the Corporation by the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA). An appeal from the District Court's decision was dismissed by the Supreme  Court, which held that the impugned provisions were not invalid for want of compliance with the Local Government Act but infringed the implied constitutional freedom of communication on government and political matters. As one student is wont to comment, Lange matters.

By grant of special leave, the Attorney-General for South Australia (a party to the appeal in the Full Court) appealed to the High Court.

A majority of the High Court held that the Local Government Acts indeed empowered the Corporation to make the impugned provisions, which were a valid exercise of the council's statutory power to make by-laws for

• the good rule and government of the area, and 
• the convenience, comfort and safety of its inhabitants. 

The majority also rejected the contention that the impugned provisions were constitutionally invalid. Although the impugned provisions effectively burdened political communication, they did not infringe the implied constitutional freedom. The impugned provisions served a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

Unlisted Number Fee

The Senate Environment and Communications References Committee is conducting an inquiry into unlisted numbers, with its report due by 15 May 2013.

The terms of reference for the inquiry are:

The feasibility of a prohibition on the charging of fees for an unlisted (silent) number service, with particular reference to:

(a) recommendation no. 72.17 contained in report no. 108 of the Australian Law Reform Commission on Australian privacy law and practice;

(b) whether the payment of a fee unduly inhibits the privacy of telephone subscribers;

(c) the likely economic, social and public interest impact for consumers and businesses, carriage service providers and the White Pages directory producer, if the charging of fees for unlisted (silent) number services was prohibited;

(d) the implications of such prohibition for the efficacy of the national public number directory; and

(e) any other relevant matters.

The ALRC's recommendation no. 72.17 in its 2008 For Your Information: Australian Privacy Law and Practice report was

The Telecommunications Act 1997 (Cth) should be amended to prohibit the charging of a fee for an unlisted (silent) number on a public number directory.

The ALRC commented that

72.236 The Telecommunications Act provides that an unlisted number cannot be disclosed except in specified contexts.

The Act is silent on whether a fee can be charged for an unlisted number. The Carrier Licence Conditions (Telstra Corporation Limited) Declaration defines an unlisted number as a public number that is one of the following kinds: a mobile number, unless the customer and the carriage service provider that provides the mobile service to the customer agree that the number will be listed; a geographic number that the customer and the carriage service provider that provides services for originating or terminating carriage services to the customer agree will not be included in the directory; the number of a public payphone; or a number that, when dialled, gives access to a private telephone exchange extension that the customer has requested not be included in the directory.

72.237 Article 12.2 of the EU Directive Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector provides that a fee should not be charged for an unlisted number: Member States shall ensure that subscribers are given the opportunity to determine whether their personal data are included in a public directory, and if so, which, to the extent that such data are relevant for the purpose of the directory as determined by the provider of the directory, and to verify, correct or withdraw such data. Not being included in a public subscriber directory, verifying, correcting or withdrawing personal data from it shall be free of charge.

72.238 ACMA has noted that some stakeholders making submissions to it in relation to its Draft IPND Standard suggested that the imposition of a fee may impact on a consumer’s decision to choose to have an unlisted number. Consumers have queried whether such a fee contravenes the Privacy Act, and asked why a fee is imposed for an unlisted fixed line number, but not for mobile services.

72.239 In its submission to ACMA on the Draft IPND Standard, the OPC noted that: One of the stated objects of the draft standard (clause 5(d)) is that an individual ‘may choose whether his or her customer data is to be included in a public number directory’. A relevant question then is whether it is appropriate for individuals to be expected to pay for the right to make privacy choices. Charging a fee for a silent number or to make other choices may limit some individuals’ ability to make such choices freely, and thereby hamper their ability to control their own personal information. The effect that free silent listings may have on the number of individuals that appear in directories of public numbers may also need to be considered.

72.240 In DP 72, the ALRC expressed the view that, while charging for an unlisted number may not be a breach of NPP 8, it reduces an individual’s ability to control the use or disclosure of their personal information. Many people request an unlisted number because of safety concerns or because they do not wish to be contacted by telemarketers.

The ALRC therefore proposed that the Telecommunications Act be amended to prohibit the charging of a fee for an unlisted (silent) number on a public number directory.

Submissions and consultations

72.241 A number of stakeholders supported this proposal.

For example, the OPC submitted that: The Office receives a number of enquiries and some complaints from members of the public who object to the payment of a fee to exercise their choice of being unlisted in the public telephone directory. The Office takes the view that charging a fee for a silent number may affect individuals’ ability to make such choices freely, and thereby hamper their ability to control their own personal information. This may be particularly the case in regard to individuals on low or fixed incomes.

72.242 The Federation of Community Legal Centres (Vic) supported the proposal, and submitted that such an amendment would be consistent with the recognition in the Privacy Act that privacy is a human right and that persons asserting such a right should be able to do so with as little effort or inconvenience as possible. In particular, the proposed amendment recognises the needs of our clients who are experiencing or have experienced family violence, and who need to ensure, in as simple and effective a manner as possible, that the perpetrator is unable to contact them by telephone.

72.243 ACMA submitted that it understands that consumer expectations of the benefits of having an unlisted number go beyond the mere omission of the number from public number directories. For example, having an unlisted number has meant that a consumer’s CND is blocked and that their details cannot be disclosed from the IPND for publication in a public number directory or for use by a researcher in a research project. ACMA also suggested that individuals may not be aware of what exactly they are paying for by having an unlisted number. Further, it submitted that it is unclear what administrative costs the fee is intended to cover—particularly given there is no such fee for mobile phone services.

72.244 The DBCDE submitted that the proposal will have commercial implications for the White Pages and other telephone directories. Not charging for an unlisted number might result in a considerable increase in the proportion of residential telephone service users having unlisted numbers. If this were to occur, the number of entries in the printed and electronic White Pages and other telephone directories, and therefore their usefulness, would be reduced. It is possible that telephone directories could eventually become redundant, although this does not appear to have been the case in the European experience.

72.245 Telstra strongly objected to the proposal for a number of reasons. First, it noted that the ALRC had referred to the EU Directive Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector, but noted that the ALRC had not considered other comparable jurisdictions, such as the United States, Canada and Singapore, where customers are charged for unlisted numbers.

72.246 Telstra noted that while some individuals may want a silent line to reduce their telemarketing calls, the ALRC should acknowledge the impact of the introduction of the Do Not Call Register, existing protections against telemarketing under the Telecommunications Act and the Privacy Act, and that the White Pages Online site is protected from unauthorised downloads of data.

72.247 It was submitted that the Australian telecommunications market is fiercely competitive, and that consumers can choose a telecommunications service provider that does not charge for the service. Telstra submitted that there is no market failure which leads to a need for the price to be regulated or the fee removed.

72.248 Telstra submitted that the ALRC did not present any evidence to suggest that individuals’ safety is compromised by the charge for an unlisted number. It noted that a silent line is one aspect of an individual’s approach to the management of their security. In the period since July 2005, Telstra reported that it has received only three complaints with respect to the existence of a charge for silent lines. It submitted that this supports the view that customers see the value in the service and do not believe that the charge is too high or compromises safety.

72.249 Telstra noted that its unlisted number service is a commercial service offered by a privately-owned company, and that its investors expect a competitive return on their investment. It observed that it carries a consequent commercial, reputational and financial risk and incurs costs to provide and maintain the service. These costs include those of: employing personnel to enter and process data, maintaining information technology systems, and responding to customer requests; updating the database to avoid unauthorised disclosure; information technology and systems; and undertaking sophisticated verification procedures to reduce the mistaken release of silent line information.

72.250 It was submitted that the current fee is nominal. The fee has been maintained at a nominal GST-exclusive price of $2.66 per month for more than 12 years. Telstra has not increased this fee.

72.251 Telstra argued that the fee is targeted correctly to the users of the service, and that it is unreasonable that its customers or shareholders should be asked to subsidise the services for consumers who wish to take additional steps to protect their personal security. It argued that, if one of the arguments in favour of this proposal is to meet the needs of the financially disadvantaged, this is a matter for a government subsidy and not an appropriate basis on which to recommend that charging of a fee for an unlisted number on a public number directory should be prohibited.

72.252 Telstra’s carrier licence requires it to publish a public number print directory. It argued that the comprehensiveness of the White Pages directory is important to enable Telstra to comply with other statutory and regulatory obligations, such as the obligation to provide directory assistance services. As a result, its systems and processes are geared toward including a customer’s details in the White Pages directory and related products and services, to maximise the comprehensiveness of the White Pages directory.

72.253 Telstra also argued that the issue of charging for an unlisted number has been considered and rejected by appropriate regulatory bodies, including ACMA. It also submitted that the proposal ignores specific elements of the Terms of Reference for the current Inquiry, particularly the requirement that the ALRC consider ‘the desirability of minimising the regulatory burden on business in this area’.

ALRC’s view

72.254 As has been noted throughout this Report, privacy is recognised internationally as a human right. This also is reflected in the Preamble to the Privacy Act, which makes reference to human rights, and specifically to those guaranteed in the International Covenant on Civil and Political Rights.

72.255 The Preamble to the Privacy Act also refers to Australia’s obligations at international law ‘to give effect to the right of persons not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence’ and to protect ‘privacy and individual liberties’. While charging for an unlisted number is not a breach of NPP 8, it is a financial impediment to accessing a service that will help to protect privacy. A charge reduces an individual’s ability to control the use or disclosure of their personal information. This is particularly an issue for individuals on fixed or low incomes.

While the the EU Directive Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector provides that a fee should not be charged for an unlisted number, other jurisdictions do not prohibit the charging of fee. This is not, however, an argument against prohibiting the charging of a fee for an unlisted number. In DP 72, the ALRC cited the EU as an example of a jurisdiction that has chosen to prohibit the charging of a fee for an unlisted number, not in support of such a prohibition. The ALRC has not been able to find any information to suggest that the EU Directive has unreasonably disadvantaged European telecommunications service providers or has resulted in telephone directories becoming redundant.

The ALRC also acknowledges Telstra’s argument that the prohibition on charging a fee would prevent it from satisfying its licence conditions. A ban on a fee for unlisted numbers may result in less people choosing to be included in a public telephone directory. While the result of this recommendation may be that public number directories are less comprehensive, it would not prevent Telstra providing directory assistance services or producing a White Pages directory.

The ALRC notes Telstra’s arguments that it has received only three complaints with respect to the existence of a charge for silent lines, and that Telstra cites this as supporting the view that customers don’t believe that the charge is unreasonable or compromises safety. The OPC submitted, however, that it receives a number of enquiries and some complaints from members of the public who object to the payment of a fee to exercise their choice of being unlisted in the public telephone directory. The ALRC also is concerned about the needs of those who have experienced family violence, and who need to ensure that the perpetrator is unable to contact them. This is not a privacy protection for which an individual in such a situation should be charged.

Empathetic Animals

'Empathy with Animals: A Litmus Test for Legal Personhood?' by Carter Dillard in (2012) 19 Animal Law Review asks

Is there any relationship between the disposition of some humans to empathize with and respond to the interests of nonhuman animals, and the criteria we ought to use for determining who becomes a legal person? This brief essay argues that there is, by employing a thick conception of legal personhood, and suggests that criteria be used to determine who constitutes our legality in the future.

 Dillard comments that

In the movie Blade Runner, the earth is occupied by both humans and by artificial humans created to serve.  The artificial humans do not enjoy the same legal rights as the humans—they are not full legal persons. They are, however, almost physically indistinguishable from humans, and can only be identified though psychological evaluations in which they are closely monitored for physiological responses to the questions asked of them. In a famous scene, a subject is carefully questioned about how he would respond to seeing a turtle that is lying trapped on its back in the desert, baking in the hot sun.3 Only true humans are expected to react to the image with empathy, and to feel a strong and physiologically detectable impulse to save the creature. In this scene, the subject being questioned feels nothing and is therefore not human.

This is an odd way of thinking about things, considering the constancy with which humans willingly inflict suffering and death upon animals in factory farms, laboratories, hunting preserves, and abusive and neglectful homes. Presuming that those willing to inflict suffering and death upon animals also display less empathy - which at least one recent study might suggest - a good portion of humans alive today would be relegated to lesser status under Blade Runner’s test.

Yet, consider that being a legal person is a matter of degree rather than an all or nothing standard. The degree reflects which particular bundle of legal rights and duties one has (e.g., minors have different bundles than parolees, temporary residents, or corporations) such that each is to some lesser or greater degree a legal person. Persons convicted of animal cruelty - and especially those incarcerated for the crime - may lose many of their rights and much of their legal personhood, in part because they lacked empathy, or at least failed to respond and act upon it. They are indeed relegated to lesser status and, in some cases, excluded from society entirely.

Cruelty and the lack of empathy it entails are grounds not only for removing persons from full participation in the legal system, but also for preventing admission to the legal system by serving as a bar to immigration into the United States (U.S.). To the extent children are not full legal persons, not fully “admitted” to the system of full rights and duties that most adults enjoy, they too are first taught to empathize with animals, through our prevalent and mandatory humane education laws. Though compliance with the teaching is hardly a bar to admission, the intent is clear.

Whether it is empathy or some other concept we wish to assign as the placeholder, there appears to be some relationship between being other-regarding—that is, the empirically measurable capacity and disposition or tendency to place one’s self in another’s position (even or perhaps especially in the very different position of an animal) and alter one’s behavior in response—and the concept of legal personhood. This Introduction will touch upon that relationship, asking:

(1) whether a thick conception of legal personhood explains the link and whether, when we value legal personhood, we are really valuing empathy;

(2) whether legal systems (or “legalities”), which are presumably made up of legal persons, ought to then be made up of persons actually disposed, to some minimum degree, to empathize with others in their day to day lives; and

(3) what the foregoing would entail for basic constitutional principles in such a legal system.

The question addressed in this Introduction is not the commonly addressed question of whether animals are or should be legal persons, though by now it is well known that they display something similar to the empathy that humans display. The question addressed here is whether, to be consistent when applying the rationale we use to exclude animals from being legal persons, we must also limit legal personhood to certain humans in ways very different from the way we do now. While those interested in animal law may find an exploration of human personhood beside the point, rigorous thinking about humans’ role in the nonhuman world demands thinking about who we are as a species - and, more importantly - who we ought to be.

Communications

The UK Law Commission has released a report on the Electronic Communications Code (Law Commission Report No 336), making recommendations as the basis of a revised Electronic Communications Code.

The Commission comments that

The Code was enacted in 1984 to regulate landline telephone provision. It sets out the regime that governs the rights of designated electronic communications operators to maintain infrastructure on public and private land. In modern times, it applies to the infrastructure forming networks which support broadband, mobile internet and telephone, cable television and landlines. This project focuses on private property rights between landowners and electronic communications providers; it does not consider planning.

Often, the rights to access private land are agreed with the landowner. However, where this does not happen, the operator has the power to apply to the court for an order to dispense with the need for agreement; where the court does this, it will also make a financial award in favour of the landowner. 

 The current Code has been criticised by courts and industry  as out of date, unclear and inconsistent with other legislation. The reforms proposed by the Commission are aimed at -

•  providing a clearer definition of the market value that landowners can charge for the use of their land, giving them greater confidence in negotiating and giving providers a better idea of what their network is likely to cost; 
• clarifying the conditions under which a landowner can be ordered to give a designated network provider access to his or her land, bringing more certainty to both landowners and providers and helping them to reach agreements more easily; 
• resolving the inconsistencies between the current Code and other legislation; 
• clarifying the rights of landowners to remove network equipment from land; 
• specifying limited rights for operators to upgrade and share their network equipment; and 
• improving the procedure for resolving disputes under the Code.  

The Commission recommends that -

• The revised Code should be drafted afresh; amendment of the current text will only add to its complexity and to legal difficulties. 
• The revised Code should be technology-neutral, providing a legal framework that is as appropriate to the laying of cables as to the siting of masts. 
• Landowners should continue to be paid a market price for the right to use land, but the revised Code should provide a definition of market value that is familiar to valuers and conforms to their professional standards. 
• Where a network operator wants to put equipment on land against the owner’s wishes, the legal test for the compulsory siting of equipment should be clear and compatible with human rights. 
• Operators should have limited automatic rights to share and upgrade their equipment, and should be able to assign rights to other operators. 
• There should be clear provisions about what happens to apparatus after an agreement with a landowner has expired; rights under the Code to keep apparatus installed require protection so as to ensure the continuity of networks, but where those rights have terminated, landowners should have clear rights to remove equipment. 
• Disputes arising under the Code should be heard within the tribunal system rather than in the County Court. It will be possible for the tribunal to grant interim access to land on terms that protect the landowner pending agreement or a final order.

Health Torts

The abstract of ‘Class Actions and Regulatory Failures – Medical Devices and the TGA’ by Wendy Bonython and Bruce Arnold presented at yesterday's Civil Law conference at Melbourne University

Class actions are increasingly serving as a vehicle for litigation in Australia by plaintiffs who have been affected by defects in medical appliances and pharmaceuticals, typically products from multinational corporations based in the northern hemisphere, and initially regulated by bodies such as the US Food & Drug Administration. To date, Australian litigation has focussed on the negligence of manufacturers; however in many instances it could be argued that regulatory failure was a contributing factor, given that gatekeepers such as Australia’s Therapeutic Goods Authority (TGA) have been described by critics as slow to recognise and act upon substantive indications from overseas of problems with particular products such as breast and hip implants and pharmaceuticals. Bureaucratic incapacity or indifference on the part of the gatekeepers means that consumers are likely to have suffered an injury whose direct financial cost outweighs the cost of running the particular agency. Are those gatekeepers immune from negligence action? Should they be immune?

In this paper, we consider the historical liability of statutory authorities in negligence, based on the public/private activity distinction, and whether it remains appropriate in the context of market regulators, such as the TGA, or whether regulators should be identified as defendants more often in class actions of this type. We provide figures that are useful in making sense of public policy conundrums and outline work in progress.

Somewhat of a change from my paper on 'A Privacy Tort? Phar Lap, Possum Pie, Prince Albert and the HCA' 

Leaks

Two US works on secrecy and leaks ....

'The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information' by David Pozen in (2013, forthcoming) Harvard Law Review argues that

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, fewer than a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This article challenges the standard account of this disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's "leakiness" is often taken to be a sign of institutional failure. The article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret-keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.

Posen comments that 

Ours is a polity saturated with, vexed by, and dependent upon leaks. The Bay of Pigs, the Pentagon Papers, warrantless wiretapping by the National Security Agency at home, targeted killings by the Central Intelligence Agency abroad: The contours of these and countless other government activities have emerged over the years through anonymous disclosures of confidential information to the press. Across the ideological spectrum, many Americans believe both that leaking “is a problem of major proportions” and that “our particular form of government wouldn’t work without it.” Episodically, leaks generate political frenzy. The country is in such a period at this writing. Mass releases of classified defense documents and diplomatic cables through WikiLeaks, followed by a series of news stories about some of the government’s most closely held national security programs, have unleashed a torrent of legislative and media responses, of recriminations and justifications. This “latest outbreak of leak panic” will soon fade; a new iteration will arrive in due course.

Our comprehension of leaking has not kept pace with our fascination. Even accounting for the secrecy that obscures its workings, the ratio of heat to light in commentary on the subject is extreme. Some valuable progress has been made. Journalists and ex-officials have chronicled the role of leaks in their work. Students of government and the press have limned leaks’ different forms and motivations. Legal theorists have considered their First Amendment implications. Yet for a variety of reasons, the literature reflects only a rudimentary understanding of leaks’ consequences, inside and outside government. More surprising, because the questions are more tractable, scholars have devoted scant attention to the constitutive elements of the leak, as a legal and bureaucratic concept, or to the policies the executive branch has developed to enforce relevant prohibitions. We know something about the phenomenology and constitutionality of leaks but next to nothing about how the government deals with them.

This Article begins to reveal that world. Drawing on a range of theoretical perspectives and original sources - interviews with journalists and executive branch officials, plus records requested through the Freedom of Information Act (FOIA) - it offers the first sustained account of the regulatory regime applicable to leaking. Superficially straightforward, this regime turns out to be an intricate ecosystem. At the most general level, the Article demonstrates that the story behind the U.S. government’s longstanding failure to enforce the laws against leaking is far more complicated, and far more interesting, than has been appreciated. More specifically, the Article argues that the executive branch has never prioritized criminal, civil, or administrative enforcement against leakers; that a nuanced set of informal social controls has come to supplement, and nearly supplant, the formal disciplinary scheme; that much of what we call leaking occurs in a gray area between full authorization and no authorization, so that it is neither “leaks” nor “plants” but what I will term pleaks that dominate this discursive space; that the executive’s toleration of these disclosures is a rational, power-enhancing strategy and not simply a product of prosecutorial limitations, a feature not a bug of the system; and that to appreciate these dynamics is to illuminate important facets of presidential power, bureaucratic governance, and the national security state in America today.

These claims require extensive elaboration. As a way into them, consider two features that mark the United States’ legal approach to unsanctioned disclosures of protected information. First, and most significantly, even though the Espionage Act of 1917 and other statutes broadly criminalize the gathering, receipt, and dissemination of national defense-related information and even though every modern president has decried the practice, an enormous amount of leaking to the press appears to occur and to go unpunished. The federal government has brought fewer than a dozen media leak prosecutions in the 96 years since the Espionage Act was enacted, six of them under the current administration. Available evidence suggests that civil and administrative sanctions are only marginally more common. Let us call this the punitive/permissive divide: The statutes on the books concerning leaks, and the political rhetoric associated with them, are so harsh, and yet the government’s actual treatment of the activity seems to have been so mild. There is a dramatic disconnect between the way our laws and our leaders purport to condemn leaking and the way they condone it - a rampant, pervasive culture of it - in practice.

Second, the courts have indicated that while the government has expansive legal authority to prosecute employees who leak, it has minimal authority to stop reporters who receive leaks from broadcasting what they learn, either through ex post penalties or prior restraints. In all cases, it seems, the government would have to prove a reporter’s actions threatened grave, immediate harm to national security interests. (It is hard to be sure because the government has never indicted one.) Let us call this the source/distributor divide: The First Amendment has been understood to provide so little protection for the leaker and yet so much protection for the journalist who knowingly publishes the fruits of the leaker’s illicit conduct and thereby enables the very harm - revelation of sensitive information to the public and to foreign adversaries - that the leak laws were designed to combat. In other areas of criminal law, downstream users of illegally obtained material are not similarly insulated from liability.

As a descriptive or diagnostic matter, the literature has pointed to several factors to explain the existence of these features. The leak laws are so rarely enforced, it is said, because the Justice Department finds it so difficult, at the investigatory stage, to identify culprits and so difficult, at the adjudicatory stage, to bring successful cases without divulging additional sensitive information. Courts and prosecutors have privileged journalists over leakers, it is said, because of the former’s special First Amendment status and the latter’s consent to nondisclosure as a condition of employment. Throughout these discussions, the comparison is often drawn to the United Kingdom’s notorious Official Secrets Act. Whatever else might be true of our legal and political regime for regulating leaks, virtually everyone agrees the United States would never abide such a sweeping criminal prohibition.

As a normative or justificatory matter, few have celebrated this “disorderly situation.” Many believe it to be regrettable if not outrageous. National security hawks and opposition members of Congress routinely call for legislative strengthening of the leak laws and more vigorous executive enforcement, including against members of the media. Civil libertarians have assailed the last two administrations’ “war” on leaking and sought federal shield legislation for journalists and enhanced doctrinal protections for their sources. The most thoughtful and influential defenses of the status quo—by Alexander Bickel, Jack Goldsmith, and Geoffrey Stone—are self-consciously ambivalent. They do not attempt to idealize or even rationalize the punitive/permissive and source/distributor divides, so much as to highlight the factors confounding any effort to strike an optimal balance in this area between national security needs and other democratic and constitutional goods. These analyses are also spare. They rely on discrete case studies and high-level constitutional theory to identify relevant values, precedents, and tradeoffs; they do not make any systematic inquiry into patterns and practices of leaking or enforcement or into the functional and strategic dimensions of the leak-law regime.

This Article aims to show why our “disorderly situation” cannot be understood without such inquiry and to explicate a more satisfying logic, a richer model, that better accounts for the seemingly incoherent law of leaks. The core claim is that the status quo, although ritualistically condemned by those in power, has served a wide variety of governmental ends at the same time as it has efficiently kept most disclosures within tolerable bounds. The leak laws are so rarely enforced not only because it is difficult to punish violators, but also because key institutional players share overlapping interests in vilifying leakers while maintaining a permissive culture of classified information disclosures.

The executive branch is where most of the action takes place. With respect to the punitive/permissive divide, commentators have widely assumed the executive would prefer to bring more cases, and then looked to constraints on realizing that preference. By concentrating on barriers to prosecution, these accounts overlook the ways in which powerful actors benefit from leak-law violations, as well as the ways in which leaking may be punished in the absence of a criminal proceeding, or indeed any formal sanction. The executive’s “leakiness” is often taken to be a sign of institutional failure. It may be better understood as an adaptive response to key external liabilities - such as the mistrust generated by presidential secret-keeping and media manipulation - and internal pathologies - uch as overclassification and fragmentation across a sprawling bureaucracy - of the modern administrative state. Once these affirmative interests in leaking are identified, the source/distributor divide also begins to look a little less puzzling. To criminalize leaking at the publication stage, as well as the transmission stage, would not only raise difficult First Amendment concerns but also risk compromising the government’s instrumental use of the press.

Part I of the Article reviews the legal landscape and the available evidence on how leaks are used and punished. Part II first details the shortcomings of constraint-based rationales for the government’s permissiveness, and then advances an alternative explanatory theory grounded in the executive branch interests served by leakiness. These interests include preserving ambiguity as to the origins of unattributed disclosures and therefore the communicative flexibility of top officials, signaling trustworthiness, facilitating richer internal information flows, pacifying constituencies for transparency in Congress, the media, and civil society, and mitigating the classification system’s political and deliberative costs. Part III further fleshes out this account by uncovering and assessing the informal enforcement model that the executive appears, behind closed doors, to have applied to leaking. Part IV returns to the source/distributor divide and to the recent uptick in prosecutions and draws out additional evaluative and descriptive implications—including the surprising insight that the U.S. and U.K. legal regimes on leaks have, at least in their observable aspects, substantially converged.

Before proceeding further, several notes are in order. Throughout the pages that follow, the focus is on the U.S. federal executive branch and its information control practices relating to national security, broadly defined to include many matters of foreign policy. Some of the Article’s arguments may well carry over to other types of leaks, to other types of institutions, to subnational levels of government, maybe also to other mature democracies. At points, I will briefly discuss possible extrapolations. But national security leaks raise a number of distinct concerns and have always driven the legal conversation. Their treatment by the world’s dominant military power will, I trust, be of sufficient interest to many.

The heart of the Article is the positive analysis in Parts II and III and the window it provides into the regulation of leaking. While I hope in Part IV to draw some fruitful linkages to broader

questions in democratic, constitutional, and security theory, and while I hope more generally to facilitate normative projects of varied stripes, the Article is principally concerned with demonstrating how leaking works. The overriding aim is to provide an explanation (not a justification) for this regulatory regime in terms of the intersecting desires, beliefs, and constraints of presidents, political appointees, civil servants, legislators, journalists, and the institutions they populate. Although I cannot directly establish the intentions of many of these actors or rule out evolutionary factors—for instance, a natural tendency for the leakier components of government to gain in relative political power and thereby to propagate their disclosure norms—the Article tries to the extent possible to provide microfoundations for its theory, to specify mechanisms that reduce leakiness to the individual level.

Some pieces of the analysis were informed by roughly two-dozen interviews I conducted with current and former officials who have worked on top secret issues across the executive branch, as well as by my own experiences in government. Most of these officials served in a legal capacity. Almost all of the interviews were “on background,” which is to say the interviewees asked not to be identified and I agreed. The unsettling brand of methodological mimesis that results - this is an Article about anonymous government sources that itself relies on anonymous government sources—is not lost on me. I would have preferred to conduct interviews on the record and yet, like so many journalists and several scholars before me, I soon learned that few were willing to discuss anything interesting under those ground rules. Minimizing validity concerns, however, all points drawn from the interviews are consistent with the publicly available evidence, including the returns from my own FOIA requests, which I cite throughout. The interviews proved more confirmatory than revelatory. They deepened but did not transform my understanding of this evidence.

A final caveat: While I try in this Article to shine light on an opaque corner of the law, I certainly do not mean to suggest that I have fully uncovered, much less “solved,” the inner workings of the leak regime. The phenomenon of leaking is sufficiently heterogeneous and complex as to resist monolithic characterization. Perhaps the most generalizable contribution the Article aims to make is to point the way to new conceptual, theoretical, and empirical approaches to studying the subject.

'The Implausibility of Secrecy' by Mark Fenster comments that

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events - among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters - undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources - each of these constitutes a path out of the government’s informational clutches. As a result, permanent, long-lasting secrecy of any sort and to any degree is costly and difficult to accomplish.

This article argues that information control is an implausible goal. It critiques some of the foundational assumptions of constitutional and statutory laws that seek to regulate information flows, in the process countering and complicating the extensive literature on secrecy, transparency, and leaks that rest on those assumptions. By focusing on the functional issues relating to government information and broadening its study beyond the much-examined phenomenon of leaks, the article catalogs and then illustrates in a series of case studies the formal and informal means by which information flows out of the state. These informal means play an especially important role in limiting both the ability of state actors to keep secrets and the extent to which formal legal doctrines can control the flow of government information. The same bureaucracy and legal regime that keep open government laws from creating a transparent state also keep the executive branch from creating a perfect informational dam. The article draws several implications from this descriptive, functional argument for legal reform and for the study of administrative and constitutional law.

Fenster concludes that

Deep, long-lasting secrecy proves quite difficult to accomplish in practice. The formal legal limits on secrecy, as well as the informal means by which information flows out of the state, perform the crucial service of making the state more visible. We should not, however, mistake this movement of information for “transparency,” or even for a step towards a gloriously transparent state. As I have argued elsewhere, we can never achieve a perfectly visible government—and, in fact, we would not even want one if it were achievable. The concept of “transparency,” like the concept of “secrecy,” assumes the law’s ability to control information, an assumption belied by decades of frustrating experience with open government laws.  Both concepts are implausible.

This is no reason to despair. Here, I note three implications of this implausibility for understanding and responding to government secrecy— recognizing it as a political practice subject to political accountability, conceding law’s limits as a means to control information, and developing legal reforms that can hasten official disclosure.

First, secrecy is, paradoxically, a very public issue, and one for which excessively secretive officials can be held politically accountable. As Vice President Cheney has himself noted, secrecy can both fail, revealing the information it sought to hide, and be exposed and criticized as an undemocratic practice. In the “leaky city” of the nation’s capitol, Cheney wrote in an essay published three years after Iran-Contra, no secret stays buried too long, and no president’s failed cover-ups go unpunished. Indeed, the Minority Report itself conceded that President Reagan was forced “to pay a stiff political price” not only for his appointees’ illegal actions in Iran-Contra, but also for their secrecy and attempted concealment of the program. The more secrets, and the deeper they are kept, the greater the risk that the President takes in keeping them—a risk that can prove effective as an alternative to formal laws and legal proceedings in disciplining the executive branch. Such political costs cannot replace the formal legal limitations on secrecy that open government laws (not to mention, for criminal conspiracies and perjury, criminal laws) provide, but they serve as a mechanism by which the informal limits on secrecy can punish wrongdoers.

This understanding of secrecy as a tool whose use has potential political costs suggests a more foundational informal check on information control. If “the cover up is worse than the crime,” as the conventional wisdom teaches about Watergate, then secrecy appears to have an ethical dimension based upon a widely-shared, intuitive distinction between legitimate and illegitimate secrecy. Although it lacks precise meaning, the concept of “transparency” functions as a nearly universal liberal democratic value, as is the notion that some secrets are too dangerous to a nation and society to warrant disclosure. Partisans might disagree about whether an individual instance of secrecy is excessive, but in doing so they must frame their arguments in widely-acknowledged and –used terms. The NEPDG episode illustrates this well: NEPDG’s policy development process appeared absurdly secretive, as opponents and even members of the administration noted, and its secrecy provided the administration no political benefit and likely exacted political costs.  The more significant and pervasive secrecy that followed in the Bush administration’s post-9/11 anti-terrorism campaign, which the NEPDG episode launched and rehearsed, proved more temporarily effective at controlling information. But information about many of the administration’s programs, from the torture of prisoners and detainees to the warrantless wiretaps of domestic communications, ultimately leaked to the public over the course of the administration’s second term. By the end of the Bush presidency, the administration - and especially Vice President Cheney - had become quite politically unpopular, at least partially because of the seemingly unethical nature of its excessive secrecy. Barack Obama explicitly included open government as a platform in his 2008 campaign, in part to contrast himself with the Bush-Cheney White House. The first implication of secrecy’s implausibility, then, is that it reveals the political nature of information control, and it demonstrates how politics serves both as a key motivation to use secrecy and as a crucial check on its overuse. It also reveals the necessity of these informal means of secrecy, and the importance of avoiding draconian leak laws  and excessive prosecution of those who do leak.

A second implication of secrecy’s implausibility is the shift it suggests for the study of secrecy and transparency away from a binary, black-and-white conception of the state as either open and transparent or closed and opaque. As Part V illustrated in its description of historic covert operations, events that are kept in deep secrecy become known as their details leak out over time, whether through formal or informal channels. Most events exist in a gray world of partial secrecy and partial disclosure, where even information about events whose existence the government denies is available from open sources, and where even events about which the government has made broad disclosures remain somewhat secret and mysterious. Government information is not subject to control via an on-off switch; instead, it appears incrementally over time, both around and in spite of the literal and figurative black marks of government efforts to control its spread.

Third, and as a consequence of the shift from a binary understanding of secrecy and disclosure, legal reform should focus on temporal commitments to disclosure that force the state to recognize the decreasing value of once secret information and require the state, as a default duty, to release documents after a certain interval. This would formalize and hasten a process that is likely to occur in any event. Laws and regulations have moved in this direction, albeit with varying degrees of success. These include the mandatory declassification of most documents after a certain time period under the current Executive Order establishing the classification system,  and the staged release of presidential documents under the Presidential Records Act.

The fact that neither commitment has proven entirely successful suggests (as ever) the stubborn tendency of the administrative state and the constitutional privilege granted to the executive to resist the disclosure of information. Recall, however, the formal and informal means that enable a President and executive branch to control information in certain circumstances for a period of time. This authority, whose logic is entrenched in the Constitution, will not disappear. If they are properly implemented and enforced, time-based reforms can help compel the regular release of records and force the executive branch to recognize disclosure’s inevitability. Law can neither perfect secrecy nor cure its excesses, but - working in a manner consistent with secrecy’s implausibility and the difficulty of information control - it might ameliorate some of its ill effects.

Suing Public Authorities

‘The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law’ by Dan Priel in (2013) 47(1) Law & Society Review 169–198 argues that

The scope of negligence liability of public authorities in English law has undergone significant changes in the Post-World War II period, first expanding and then, from the mid-1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal “tests,” but rather by tying it to changes in the background political ideology. My main contention is that political change has brought about a change in the law, but that it did so by affecting the scope of the political domain, and by implication, also the scope of the legal one. More specifically, I argue that Britain’s Post-War consensus on the welfare state has enabled the courts to expand state liability in accordance with emerging notions of the welfare state without seeming to take the law into controversial territory. When Thatcher came to power, the welfare state was no longer in consensus, thus making further development of legal doctrines on welfarist lines appear politically contentious. The courts therefore reverted back to older doctrines that seemed less politically charged in the new political atmosphere of the 1980s .