Secrecy and National Security

'Oversight of National Security Secrecy in the United States' by Stephen Schulhofer - forthcoming in Secrecy, National Security and the Vindication of Constitutional Law (Edward Elgar Publishing, 2013) edited by David Cole, Federico Fabbrini and Arianna Vedaschi argues that

Some secrecy in national security matters is appropriate and inevitable, but unilateral executive control over decisions whether to impose secrecy is not. Executive control over sensitive information presumes a unique executive expertise. Yet the executive branch is not the sole repository of the relevant knowledge and experience. Congress has considerable national security expertise, and courts have solid institutional capacities to elicit expertise. In any case, information-access judgments demand an appreciation for the value of both secrecy and transparency, and the ability to make fine-grained judgments that accommodate both. Yet national security officials are predisposed to abhor transparency. Courts offer not only the obvious advantage of independence from self-interested incentives, but also the rarely noticed point that they are superior in some essential forms of expertise.

This paper ... examines the expertise and incentives of executive, legislative and judicial officials, and uses that framework to assess possible approaches to oversight of decisions to impose secrecy. It deploys that perspective to propose a framework for effective oversight of executive branch judgments about access to national security information.

Schulhofer comments that -

In a constitutional system, the legislature is expected to play an active role in formulating policy, and the courts are expected to play an active role in protecting individual rights. But nonetheless, where issues affecting national security are concerned, executive officials in virtually all constitutional democracies typically exercise unchecked power to conceal information that is essential to the effective exercise of those legislative and judicial functions. In its actual practices, the United States (US) largely conforms to this pattern of de facto executive dominance, even though its formal laws grant substantial power to regulate secrecy to Congress and the courts.

Although some secrecy in national security matters is appropriate and inevitable, unilateral executive control over decisions whether to impose secrecy is not. American law provides five separate processes for overriding executive secrecy judgments. Along with semi-independent review within the executive branch and oversight by Congress, three distinct bodies of law grant a checking function to the courts: the Classified Information Procedures Act (CIPA, applicable in criminal cases), the state secrets privilege (SSP, applicable in civil suits), and the Freedom of Information Act (FOIA, a statute that creates a free-standing cause of action to demand disclosure of information held by the government). These five systems differ considerably in the degree to which they involve deference to the executive, or – in contrast – active, independent judgments about the need for secrecy. American law thus provides broad scope to compare competing approaches. In addition, where American adversary procedures for the review of executive-branch secrecy are at their height (in CIPA), they permit full-fledged representation by security-cleared counsel, a more vigorous checking capability than appears possible through the ‘special advocate’ approach favored in the UK. This chapter describes these American oversight systems and assesses them by focusing on the expertise and incentives of the participants in each. Executive control over sensitive information presumes a unique and highly specialized executive expertise, a notion not only touted by the intelligence community but widely accepted by members of Congress, judges and the general public. Yet this common conception involves a mixture of truth, hyperbole, misunderstanding and myth. The executive branch is not the exclusive repository of the knowledge and experience necessary to make sound judgments about when to maintain secrecy in national security affairs. Congress has considerable expertise in military, foreign policy and intelligence matters. While judges typically do not, courts have solid institutional capacities to elicit expertise. Nor is national security expertise the only proficiency required. Information-access judgments demand an appreciation for the value of both secrecy and transparency. Members of Congress and judges may not have deep familiarity with the former, but they thoroughly understand the latter. National security officials, in contrast, are predisposed by training and experience to abhor transparency; in this crucial expertise they are markedly deficient. Courts therefore have an indispensable place in a sound system for making information-access decisions. They offer not only the obvious advantage of independence from self-interested incentives, but also the rarely noticed point that they are in fact superior in some essential forms of expertise.

In one domain of American practice, criminal cases governed by CIPA, US courts routinely provide active oversight of classification decisions, an experience that demonstrates the capacity of the CIPA model to afford a fully adversarial and yet workable judicial check. This chapter builds on this adversarial judicial model and integrates it with a more robust legislative role, in order to propose a framework for effective oversight of executive branch judgments about access to national security information.

Section 1 describes the existing executive secrecy apparatus. Section 2 examines the present structure of legislative and judicial oversight, and Section 3 assesses the extent to which Congress and the courts currently are able to prevent unjustified secrecy. As Sections 2 and 3 show, these outside institutions have considerable legal powers, but they now operate under self-imposed informal constraints; their willingness to thwart improper secrecy is episodic and feeble. Section 4 develops an oversight framework more consonant with constitutionalism – a framework that combines robust national security safeguards with maximum feasible transparency and accountability.

Silent Numbers

The Australian Senate Standing Committees on Environment and Communications References Committee has released its underwhelming report [PDF] regarding the inquiry into The feasibility of a prohibition on charging fees for an unlisted number service.

The Coalition majority on the Committee has two recommendations, essentially disregarding submissions from other than Telstra -

1 that the Telecommunications Act 1997 not be amended to prohibit the charging of a fee for an unlisted (silent) number on a public number directory. 

2 that the Australian Communications & Media Authority produce relevant material for telecommunications users that explains where their personal information is published and how it may be made private.

The Coalition senators comment that -

As the Australian Law Reform Commission stated in its report, For Your Information: Australian Privacy Law and Practice, privacy is a recognised human right and generally should take precedence over a range of other countervailing interests, such as cost and convenience. The ALRC also recognised however that privacy rights will clash with a range of other individual rights and collective interests.

The committee acknowledges the concerns raised by submitters that the charging of a fee for an unlisted number in the national public number directory may interfere with elements of their right to privacy. Furthermore, the committee appreciates that in addition to privacy being an individual right, people who have experienced domestic violence or who would be placed in a vulnerable position should their personal information become public are compelled to maintain their privacy. For these people even a modest charge to have an unlisted number could prove a barrier to their protection.

The committee also agrees with comments made by Telstra that for now there remains public interest in maintaining a nationally available public telephone directory to assist people maintaining communication. The White Pages has been published for a considerable period of time and is relied upon by many people for its information. Indeed the committee particularly notes the statistics provided by the Australian Communications & Media Authority that 88% of all Australians have used; either the electronic or hardcopy White Pages or Directory Assistance services in the past 12 months. The inclusion of the production of a public telephone directory in Telstra's Carrier License Conditions is indicative of its importance to the Australian public.

The committee is pleased that Telstra has agreed to formally implement a policy to waive the Silent Line fee for telecommunication users who face a demonstrated security threat. The empowerment of customer service agents to respond to an applicant's individual circumstances and apply the fee exemption where appropriate is also welcomed. The committee considers that these measures will help to ensure the privacy of those people who would be placed at risk if their personal information were to become public. The victims of domestic violence have a right to ensure their personal safety and this should not come at a cost to them. The committee acknowledges that through Telstra's announcement, the ability of victims to maintain their privacy free of charge is now available.

The committee agrees with comments made by Telstra that if it is compelled by its Carrier License Conditions to produce a national telephone directory, that it would be inconsistent for it to then also be compelled to support a government policy that could encourage users to remove themselves from that directory. Eventually this position would undermine the purpose and usefulness of the directory. The committee therefore considers that a nominal charge which has the effect of ensuring that most people do not unlist their number is beneficial to the directory and ultimately to the community.

The dissenting senators (Cameron, Bilyk and Ludlam) were more positive. They comment -

The genesis for this References inquiry was recommendation no. 72-17 of report no. 108 of the Australian Law Reform Commission on Australian privacy law and practice which recommended that: The Telecommunications Act 1997 should be amended to prohibit the charging of a fee for an unlisted (silent) number.

The Coalition Senators’ report found that the ALRC’s recommendation has widespread support from consumer and privacy advocacy groups as well as sections of the telecommunications industry. The Coalition Senators have chosen to ignore the evidence received and seek to protect the corporate interest of Telstra.

Of the 19 submissions [including one by myself], the only submission that advocated the continuation of unlisted (silent) line fees was made by Telstra. Their submission was focused on ensuring the continued profitability of Telstra, through the charging of unlisted (silent) line fees, and of Sensis, the subsidiary that is responsible for the production of the White Pages directory.

This was opposed by groups like the St Vincent de Paul Society, the Australian Communications Consumer Action Network, the Privacy Commissioner and Legal Centres from around Australia - all built on the work of the Australian Law Reform Commission. Their submissions were focused on concerns about privacy and safety. They also focused on ensuring that all telecommunications users are able to enjoy those two rights, regardless of their ability to pay, or meet complex eligibility requirements.

The claim by Coalition Senators that the prohibition of charging a fee for an unlisted number would undermine the purpose and usefulness of the national telephone directory does not withstand even basic scrutiny.

As it stands, 16% of fixed line users are currently paying a monthly fee to have their details removed from telephone directories. This has not had a deleterious effect on the use of telecommunications directories, which is still used by 88% of Australians in the past year.

Dissenting Senators have taken the view that citizens' right to privacy and personal safety are more important than a theoretical decrease in the usefulness of Telstra’s White Pages directory.

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Pharma Patents

'Patents Associated with High-Cost Drugs in Australia' by Andrew Christie, Chris Dent, Peter McIntyre, Lachlan Wilson and David Studdert in (2013) 8(4) PLoS ONE is an important work.

The authors comment that

Australia, like most countries, faces high and rapidly-rising drug costs. There are longstanding concerns about pharmaceutical companies inappropriately extending their monopoly position by “evergreening” blockbuster drugs, through misuse of the patent system. There is, however, very little empirical information about this behaviour. We fill the gap by analysing all of the patents associated with 15 of the costliest drugs in Australia over the last 20 years. Specifically, we search the patent register to identify all the granted patents that cover the active pharmaceutical ingredient of the high-cost drugs. Then, we classify the patents by type, and identify their owners. We find a mean of 49 patents associated with each drug. Three-quarters of these patents are owned by companies other than the drug’s originator. Surprisingly, the majority of all patents are owned by companies that do not have a record of developing top-selling drugs. Our findings show that a multitude of players seek monopoly control over innovations to blockbuster drugs. Consequently, attempts to control drug costs by mitigating misuse of the patent system are likely to miss the mark if they focus only on the patenting activities of originators.

They go on to comment that -

The prominence of patent owners other than the API originator in our findings may be surprising to some. We anticipated this result, although not its extent. What we did not anticipate, however, and which will surprise many, was the predominance of patent ownership among companies not engaged in the business of developing and marketing new top-selling drugs. It suggests that non-originator companies are investing substantial resources in follow-on innovations related to “blockbuster” drugs. Through sub-analyses it was possible to attribute a profile to one-third of these non-originators, with the largest sub-group being generic pharmaceutical companies. For two-thirds of this group, however, it was not possible, within the scope of the study, to know more about them beyond that they were companies in the pharmaceutical industry. More research is needed to better understand the identity of this group, the nature of their patenting activities, and what part those activities play in their business models. ...

Non-originators patented heavily in three areas: delivery mechanisms or formulations for the API; methods of treatment (different ATC class); and intermediates or different forms of the API. The focus of non-originators on intermediate and alternative forms is logical: they are likely to be exploring these compounds in preparation for manufacture of the API once the original patent on it expires. However, the reasons behind non-originators’ other areas of focus are less clear. The strategic value may be in providing leverage or bargaining power against the original patent holder should it seek to use its other associated patents to keep the non-originator out of the market after expiry of the original patent. The high levels of patenting activity we observed for both API originators and non-originators in the delivery mechanisms/formulations space, for example, points to this possibility. Qualitative research focused on non-originators’ motivations would be needed to determine whether these or other motivations explain the patterns of patenting activity we observed.

They conclude -

Commentary and policy discussions about inappropriate patenting behaviour, such as evergreening, have been centred on the originators of the drugs in question [5], [6], [8], [10], [11]. At one level, this is logical: as the owners of the original patent, they have the ability and incentives to extend their monopoly position. Implicit in this logic, however, is that mitigation of such behaviour by the originator will open the market to competitors and thereby drive efficiencies. The European Commission Inquiry put this view explicitly (para 461): “there have been no indications that patenting activities by generic companies, which are unlikely to hold a dominant position, would have negatively affected the possibility for generic or originator companies to enter the market” [26].

Our findings suggest that this account of patenting practices around high-cost drugs is too simplistic. It overlooks the substantial patenting activity undertaken by companies other than the originator of the high-cost drug, including generic manufacturers. Those other companies appear to be manoeuvring to stake out their own pockets of monopoly control for the period following expiration of the original patent on blockbuster drugs.

In the next few years, the original patents on a series of expensive drugs are due to expire. There is keen interest in how quickly greater access and efficiencies can be achieved [29]. Monitoring those important outcomes will demand attention to the behaviour of both the originators of those drugs and other companies scrambling to gain market control.

Licensing

Via the very readable IP Finance blog -

On May 1, 2013, the Global License publication released its annual list of the top 150 (in the past this was a lower number) licensors. According to Global License, the top 150 licensors account for around US$230 billion in retail sales of licensed products and information.

The top 10 licensors include:

1) Disney Consumer Products (US$39.3bn) (eg Mickey Mouse and Avengers);

2) Iconix (US$13 billion) (eg Umbro);

3) PVH Corp. (eg Tommy Hilfiger and Calvin Klein);

4) Meredith (US$11.2bn) (eg Better Homes and Garden);

5) Mattel (US$7bn) (eg Barbie);

6) Sanrio (eg Hello Kitty);

7) Warner Bros. Consumer Products (US$6bn) (eg Batman);

8) Nickelodeon Consumer Products (eg Dora the Explorer);

9) Major League Baseball (US$5.2bn); and

10) Hasbro (eg Transformers).

Other notables in the top 25 include Weight Watchers International, the Collegiate Licensing Company and Ralph Lauren.

The publication indicates that the Cancer Council of Australia is at rank 138, followed by the US Army (US$70m), described thus -

 The U.S. Army licensing program leverages the brand's values of pride, performance and personal development to build positive brand awareness and create multiple touch points for Americans to show support for the U.S. Army. The program consists of 120 licensees across categories including apparel, footwear, jewelry, personal accessories, paintball, sporting goods, consumer electronics, gift and novelty, collectibles, cutlery, health and beauty, and toys. Several new product launches and high growth programs will drive growth in 2012 and beyond. The brand finds best-in-class licensees to manufacture quality products that bear the Army marks. The U.S. Army translates well into licensed products across many categories, and a major win for the brand was expanding the brand's footprint in the sporting good space by adding a new airsoft gun line by Crosman Sports along with a fitness apparel partnership with Adidas. These licensed programs piggybacked on the success of the U.S. Army Paintball line to grow the brand in the sporting goods space. The Army went digital in 2012, by adding two consumer facing portals with Café Press and Zazzle. The Army made it a point to increase their presence at retail by signing on Global Tissue Group, one of the world's largest consumable companies, to create a line of consumer paper goods including paper towels. The brand has focused on reaching consumers in authentic categories that embody the equities of the Army, and an initiative for the brand was to expand in the toy/video game category. It is a goal to embody the characteristics of being a soldier, "strong in body and strong in mind", so the Army signed on Kidz Toyz to do a line of U.S. Army branded Walkie-Talkies, role play toys, binoculars and flashlights available at retail across the country. This category was strengthened with the further expansion of video game peripherals and accessories by CTA Digital. The camping/outdoor category is an area of tremendous growth for 2012 and beyond. The Army has taken on Bestway International as a licensee to manufacture a line of PVC inflatable airbeds for outdoor and indoor use, to allow consumers the chance to use the brand on the go. U.S. Army licensed products are available at major retailers across the U.S. including Walmart, Target, Toys "R" Us, Dick's Sporting Goods, The Sports Authority, J.C. Penney and K-Mart, among others key retailers. Several key programs drove growth in 2012. Eugene Textiles secured orders from JoAnn's, Hobby Lobby and Hancock for its line of U.S. Army branded fleece and cotton fabrics. Tippmann Sports established the U.S. Army brand as the second best-selling brand in the paintball category, right after its proprietary Tippmann brand, with product available at Walmart and virtually every major sporting goods retailer. Select-A-Vision launched a line of Army sunglasses at Wawa and Walgreens locations nationwide and for a second year in a row, with over $1 million in sales for the line. Additional U.S. Army program successes in 2012 included Jerry Leigh's T-shirt program at Target and Walmart, BioWorld's t-shirt program at Walmart, U.S. Army branded knives, axes and pens by Master Cutlery sold in sporting goods and specialty stores across the country (including Dick's Sporting Goods, Big 5 and Academy Sports + Outdoors) and MBI, Inc.'s line of jewelry sold via direct mail and catalogs. A new and exciting retail win is the partnership between Zappos and Authentic Apparel.

Salinger and other characters

'Copyright Law and the Management of J.D. Salinger's Literary Estate' by Kate O'Neill in (2013) Cardozo Arts & Entertainment Law Journal (Forthcoming) offers a - for me, unconvincing - critique of moral rights.

O'Neill argues that

J.D. Salinger’s death in 2010 provides an occasion to consider three related questions: (1) does domestic copyright law now protect Salinger’s personal interests; (2) if not, should it be amended or interpreted to do so; and, (3) if it does protect personal interests, should that protection be continuous throughout the full copyright term, or should it diminish or end at the writer’s death?

In answer to the first two questions, I argue that domestic copyright law does not and should not protect any author’s personal interests in privacy, publicity, or reputation. In answer to the third question, I recognize that uses of unpublished expression necessarily raises issues of privacy, publicity and reputation interests, as well as copyright, but I argue that protection of personal interests embodied in unpublished work should diminish or cease upon the author’s death.

The Article makes two basic points. First, in two copyright infringement cases, Salinger succeeded in establishing judicial precedents that rejected colorable defenses of copyright fair use. In both cases, the courts rejected fair use defenses despite Salinger’s inability to show any economic injury. Arguably, the decisions reflected solicitude for Salinger’s personal interests but, as a result, they blurred an important and valuable legal distinction between personal interests and copyrights. Conflating personal interests with copyright makes a copyright seem more sacrosanct than it should be in our domestic system – less a commercial interest and more an identity right. Conflating also effectively broadens the copyright holder’s exclusive rights because domestic copyrights are expressly limited by the fair use doctrine while personal interests are not.

Second, however tempting it may have been to conflate Salinger’s personal interests with his copyright during his life, the temptation should be strenuously resisted and the two precedents should not be followed. The distinction between personal interests and copyrights has important practical consequences for the management of Salinger’s literary estate going forward – and for the estates of other authors. Plainly, Salinger’s estate includes copyrights on published works. With his passing, we can hope that his trustees will distinguish between his personal interests while alive and his copyrights and, if they will not, the courts will be more inclined to permit fair uses.

Salinger’s unpublished works may be of even more interest than his published works. Domestic and international copyright laws clearly give Salinger’s trustees the exclusive right to publish or withhold these unpublished works. Precisely because Salinger did not choose to publish these works, and because some of them may contain incomplete or unpolished prose or intimate or embarrassing revelations, the trustees’ temptation to use copyright to protect his or their personal interests may be especially strong. If they refuse to license uses on reasonable terms, the appropriate scope of fair use will be critical to scholars, biographers, and others. The article concludes by examining how the fair use doctrine should apply to various types of unpublished works.

In policy terms, I have used the particulars of Salinger’s copyrights to argue against the suggestions of some scholars and many authors that U.S. copyright ought to extend protection to what are loosely called “moral rights.” Put another way, the fundamental question is whether decency requires that Salinger’s literary estate be let alone, as he might have wished. I think not. I don’t think decency requires it anymore, and I’m sure the law should not. In our domestic culture, we do not have the right to dictate what others may find worth writing and learning about us. If we leave copyrighted expression behind after we die, then the expression should be regarded as artifact, not personhood, and the price we and our heirs pay for copyright protection for all of our fixed expression for 70 years after death is the public’s limited right to make fair use of the expression, whether we chose to exploit it or not during life.

'Fixing Copyright in Characters: Literary Perspectives on a Legal Problem' by Zahr Said in (2013) 35 Cardozo Law Review argues that

Scholars have long noted that copyright in characters is fraught with uncertainty and inconsistency. This Paper argues that an interdisciplinary approach sheds light on the doctrinal confusion. Literary history, theories, and texts demonstrate that the very factors that gave rise to characters’ centrality to modern literature may be the factors that make protecting them independently under copyright difficult. The more central characters become to works of literature, the less separable they will be from those works for the purposes of receiving independent copyright protection. Literary theories of reading also suggest that characters may fail to satisfy one of copyright’s fundamental requirements: fixation. Contemporary theories of reading practices hold that reader engagement is necessary in the mental process that “completes” characters. If this is true, then in a fundamental way, while texts may be fixed, characters, outside their texts, are not.

Literature exposes the reductive nature of the law’s treatment of characters, and its simplistic view of the proper scope and implementation of independent copyright protection. The Article concludes that copyright law would do well to take account of the ways in which literary texts and theories reveal characters to be much more complicated than copyright law currently contemplates. Although literary insights into character do not themselves require either expansion or contraction of protection — dependent as reforms are on policy concerns endogenous to copyright — they do fundamentally change the nature of the inquiry. These insights expand the law’s understanding of characters and highlight theoretical and doctrinal implications of the confusion currently stymieing character protection under copyright law.

Finally, this Article comes on the heels of several very high-profile cases. The issue itself — the scope and strength of copyright in literary characters — is one that remains vital in a landscape of cross-marketing, IP licensing, and sequel-driven literary and film franchises. In the past two to three years alone, major cases have been brought, or resolved, based on Harry Potter, The Hobbit, Betty Boop, Sherlock Holmes, and Holden Caulfield of The Catcher in the Rye. Yet other than two or three excellent student notes, scholarship in this area has not been sustained or focused on this topic in over two decades. A major rethinking of the doctrines in this area is necessary, and timely. This Article aims to launch a conversation that will help to revitalize the flagging scholarly discussion in an area that is of critical importance to the entertainment, publishing, and gaming industries, as well as a crucial source of livelihood for authors and creators.

Yeah, Yeah, Yeah

Normal administrative practice in Australian data breach territory, with the federal privacy commissioner launching an investigation into yet another Telstra data breach. Last week the mass media revealed that data about Telstra customers - thousands of customer names, telephone numbers and home and business addresses - had gone AWOL. The data showed up in a Google search as Excel spreadsheets.

The Privacy Commissioner has indicated that Telstra had briefed him about the incident - it's unclear whether that briefing was more detailed than featured in the pages of the Sydney Morning Herald - and informed him that the customer data was no longer online.

In the absence of  meaningful data breach legislation (the subject of a bungled consultation noted here) it is unclear whether Telstra will face anything more than public shaming - which it shrugs off - and a slap with a lettuce leaf from the Privacy Commissioner.

The Commissioner indicates that

Telstra is currently investigating the incident and have started to contact affected customers.  I have asked that Telstra provide me with further information on the incident, including how it occurred, what information was compromised and what steps they have taken to prevent a reoccurrence.

We might wonder about the effectiveness of those steps, given Telstra's history of data breaches (eg here) and the Commissioner's endorsement of past responses. Telstra executives have recurrently placed their hands on their hearts (presumably averting their eyes from the cash registers) and sworn that breaches "must not happen again" or stated that -

An incident like this is unacceptable. We take our privacy obligations very seriously and invest considerable time and resources in ensuring the privacy of our customers’ personal information.

Someone clearly isn't listening.

This month a Telstra spokesperson stated that

Like any customer of any company I have the expectation that my personal details are securely stored and not publicly accessible.

No doubt you all have the same expectations.

So when we learnt some of our customers’ details were publicly available we immediately convened a team to have access to the data removed and commence an investigation.

It is not acceptable, under any circumstances, for this to happen.

Telstra takes seriously the confidentiality of all its customers’ data – our customers trust us and we recognise the responsibility this trust means to get this right.

We have to do everything possible not to breach that trust.

We are still investigating what happened and the team worked round the clock last night looking through the data and trying to pinpoint how this actually happened.

While some of the information is generally available, such as names, addresses and telephone numbers and up to six years old, we are acutely aware of the possibility that some of the information may be sensitive to some.

We will take all steps to identify these customers and work with them on an individual basis. Additionally we will be contacting all customers whose information was inadvertently made available.

We take our customers’ privacy seriously; we have sophisticated tools and techniques and skilled people working on risks and privacy-related projects protecting the security of our customers’ information.

What has happened is unacceptable, I apologise and assure everybody that we’ll find out exactly what has happened here and do everything we can to make sure this does not happen again.

The Commissioner indicates that his investigation is a reminder to businesses about the importance of "ensuring appropriate levels of security are in place to protect the personal information they hold". The message, alas, is likely to be read as "yeah, yeah, yeah".

We might look instead at ACMA's criticism of Telstra - highlighted here - and even hope that there will be action under the telco regulation regime or that the Government will proceed with meaningful data breach legislation rather than a statute enshrining flagellation with a lettuce leaf.

'The New American Privacy'

'The New American Privacy' by Richard Peltz-Steele in (2013) 44(2) Georgetown Journal of International Law argues that

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.

Peltz-Steele comments that -

Thinking about privacy is in vogue now in academic circles around the world. Unexceptionally, U.S. scholars and advocates have been eager to systematize diffuse musings and reconstruct privacy as rational and sturdy scaffolding for law and regulation. Exceptionally, U.S. policymakers must fit this reconstructed privacy into an existing superstructure of civil and economic liberties. That superstructure has been molded and in places made rigid by the same social developments that shaped U.S. constitutional law in the twentieth century. The problem is more one of legal architecture than of public will, and U.S. researchers such as Helen Nissenbaum and Daniel Solove are laying the groundwork to tackle the project.

Professor Solove posited a sixteen-category taxonomy of information activities that can harm data subjects. He theorized that if privacy harms can be clearly articulated, then lawmakers can work back to define and disincentivize the information practices that result in those harms. Among the potentially injurious activities, and key areas of policy discussion in the information age, are oft hand-in-hand surveillance and secondary use. Both were at issue, for example, in the recent uproar over Google’s privacy policy revision, by which Google dropped information-sharing barriers across its various platforms, such as search engine, electronic mail, and location mapping. This “surveillance” of user activity allows Google to construct profiles of its users with a level of intimate familiarity that makes some uncomfortable. Searches for information about sexual fetishes or venereal diseases are not the kind of data a user might wish to have associated with her or his personal identity and home and electronic addresses.

Amplifying qualms over surveillance is the fear of secondary use (and tertiary use, etc.), that is, the use of information for purposes unrelated to its initial harvesting. A user might not object to Google’s use of location mapping to enhance search results for a “florist.” But the user might be surprised and uncomfortable when an advertising bot a week later proposes a dating service upon the perceptive gamble that the twenty-year-old who sought a florist in August would soon be in the market for a new romantic partner. The situation is not much improved by knowing that the aforementioned intimate details are part of the same data profile. Google itself is not in the data brokering business at present, but surveillance and secondary use may result in painful and invasive privacy violations with real social and financial consequences when intimate personal profiles are sold wholesale for unrestricted downstream applications—say, to a potential employer or insurer. Professor Nissenbaum posited a more elaborate theory of “contextual integrity” that examines the context in which privacy is implicated relative to the norms that animate the information use. Her complex and thoughtful taxonomy defies easy summary. To oversimplify nevertheless, she outlined four constructs that define context: the role of the actor in context, such as journalist; the activity in context, such as news reporting; the social norms that govern in the context, such as the use of quotation marks to indicate a subject’s own words; and the values that operate in the context, such as objectivity. Nissenbaum further outlined four parameters of informational norms: context, such as a newspaper’s front page; actors, that is, the identity of the information senders, the receiver, and the data subject; attributes of the information, such as the physical appearance of a data subject; and most importantly, transmission principles, including customary and articulated constraints on information transmission, such as a reporter’s promise of non-attribution.

The analytical trigger in the Nissenbaum approach is a change in the context of information use, as determined by a change in the constructs that define context. A change—say the journalist decides to use a deep-background interview with a corporate whistleblower to put words in the mouth of a fictional character in a screenplay—requires that the new use be tested for consistency with the original parameters of informational norms. The deep-background agreement, a transmission principle in the initial disclosure of information, contemplated no use of the data subject’s words, regardless of the speaker. For that and various other reasons, contextual integrity is compromised. Lawmakers may choose to define an invasion of privacy according to such a compromise of contextual integrity.

Solove’s and Nissenbaum’s creative approaches point to similar results because both are merely tools to articulate existing value systems. A public library’s database of patron checkouts furthers free intellectual inquiry and efficient management of a shared resource. Thus transfer of personal information for national security investigations (surveillance), or sale of data for commercial profiling (secondary use), violates privacy rights, whether framed as an aversion of injurious consequence or as a compromise of contextual integrity. Within any one cultural tradition, be it American, French, or another, the proper employment of each approach aids in the detection of a violation of social norms. The violation then may or may not be used to demarcate a violation of law or civil rights.

Crucially, Solove and Nissenbaum both reject what Solove termed “the secrecy paradigm” in favor of a contextual approach. This divergence from convention exemplifies the resemblance of these approaches to those of the DPD and proposed regulation in the EU. The secrecy paradigm, which is a controlling norm in trade secret law, posits that only secrets are legally protectable; information once disclosed is fair game in the public sphere. The DPD similarly rejected the deceptively simple dichotomy of the secrecy paradigm by persisting in the regulation of data use after a subject’s voluntary disclosure. The context of initial disclosure and the ongoing contexts of information use, including downstream injury, are defining features of both Solove’s and Nissenbaum’s analyses. Just as the DPD newly emphasized disclosure and consent for information practices when persons remain identifiable, Nissenbaum posited that factors such as notice, consent, and redaction may serve to maintain contextual integrity. In toughening the requirement of explicit consent and allowing a sort of consent revocation through the device of the right to be forgotten, the proposed regulation is only further consistent with the concepts of harm-aversion and contextual integrity.

Solove acknowledged that an approach to privacy predicated on extant values might require that the Supreme Court reconsider its commitment to the secrecy paradigm —which it might. In present jurisprudence under the U.S. Fourth Amendment, the font of constitutional privacy, the government can dip deeply into personal information held by third parties, such as banks and telephone companies, because the data are regarded as already disclosed. The concept carries over into the civil context where, for example, the secrecy paradigm is expressed through the tortious invasion of privacy requirement that information have been guarded as secret (like in trade secret law). Voluntary disclosure furthermore may manifest in tort through a defense of consent (to intentional torts) or comparative fault (to negligence torts). But in a recent case in which the Court, on narrow grounds, reproved the covert installation of a GPS tracking device, Justice Sotomayor hinted that a reconsideration of the dichotomy might be in the cards. The decision in general confirmed the Court’s willingness to adapt the Fourth Amendment to new technologies, and GPS tracking is plainly “surveillance” in Solove’s terms. Writing in concurrence, Justice Sotomayor acknowledged that GPS tracking can accumulate “a wealth of detail about [a subject’s] familial, political, professional, religious, and sexual associations,” and that such power is “susceptible to abuse” — which is to say, compromised contextual integrity may result in injury. She concluded: “[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

Magic Salves and Consumer Protection

Posts in this blog have noted concerns - eg here and here - regarding the NSW AntiVaccination Network (AVN), a small group of people whose enthusiasm seems to be inversely proportional to their grasp of hard science and who  - in my opinion - are somewhat indifferent to the harm potentially caused by their hostility to vaccination.

The AVN site is full of treats. It features a statement by controversial vitamin entrepreneur Matthias Rath and what a skeptic might consider to be other absurdities. Apparently the 1939-45 War was attributable to drug and oil cartels, Mr Hitler being much less important than the evil vendors of conventional medicine. (One of Rath's sites helpfully explains that "Wikipedia is a modern day propaganda tool for the status quo, namely the Oil and Drug Cartel" and that Jimmy Wales & Co are simply front men for the forces of darkness. Oh dear!)

Presumably it is an advance that in 2013 we are apparently relying on Big Pharma for causation rather than relying on the Illuminati, the Jesuits, the Bogomils, the Templars, women who take black cats for joyrides on broomsticks, the Rothschilds and other folk devils who have been blamed for revolutions, droughts, floods, earthquakes, financial panics, sour milk and toast falling butter-side down over the past 2,000 years!

The site has also featured an advertisement for a "safe, effective, natural" 'black salve' that supposedly has useful properties regarding the treatment of cancer and has been "used for over 2,000 years".

Given the irreverence of this post I will confine myself to noting that 'natural' is not the therapeutic be all and end all. Arsenic, lead, thallium, cobra venom and the toxins of the red back spider or blue-ringed octopus are all definitely quite 'natural' but generally less beneficial than the 'unnatural' vaccines that have saved millions of lives over the past century. Deadly nightshade, water hemlock, aconite and oleander are oh so very natural but perhaps not what you'd want mixed in with your muesli or forming part of the salad. These days we have a better way of ending an unhappy relationship: reach for the Family Law Act 1975 (Cth) rather than the poisoner's handbook or old wives' pharmacopeia!

The salve advertisement has attracted the attention of health advocates and resulted in action by the TGA, which has now issued a mandatory take-down notice under the Therapeutic Goods Regulations 1990 and associated Therapeutics Goods Advertising Code. That action is of interest for Australian competition/consumer law and health law students.

The notice includes the statement that

The Advertiser was not able to produce valid supporting evidence in relation to their claims, nor was there any referenced or highlighted medical evidence in the advertisement to support the representations. The advertisement promoted 'black salve' as a 'safe, effective, natural remedy ... used for over 2,000 years to treat skin cancers and other cancerous conditions, leading to a total remission of the disease.' The Delegate considered that, based on these statements, consumers would be entitled to expect that 'black salve' will cure them of cancer when, in fact, there is no credible, reliable clinical or scientific evidence to demonstrate that the product is effective in the treatment of any cancer. The Delegate found the advertisement was unverified, was not correct and raised unrealistic and unwarranted expectations of product effectiveness therefore in breach of sections 4(1)(b) and 4(2)(a) of the Code.

Breach of sections 4(2)(b) and 4(2)(c) of the Code

The 'black salve' product was advertised both as a cure for cancer and as a legitimate alternative to 'Aldara' a conventional medicine. It was the Delegate's view that this comparison could mislead consumers into incorrectly believing that 'black salve' was a natural safe alternative which was more effective than conventional medicines and that the advertisement sought to give credibility to 'black salve' over clinically proven alternatives. The Delegate considered that statements made in the advertisement could lead to consumers inappropriately relying on 'black salve' to treat skin cancer to the exclusion of clinically proven conventional medicine and that the suggestion that 'black salve' will 'help people cure their own cancers' may lead to self-diagnosis and a failure to seek out proper medical attention for a potentially fatal disease. The Delegate found the advertisement was likely to lead to inappropriate treatment of a potentially serious disease and was misleading, therefore in breach of sections 4(2)(b) and 4(2)(c) of the Code.

Breach of sections 4(2)(d) and 4(2)(e) of the Code

It was the Delegate's view that the advertisement portrayed 'black salve' as a cure for cancer which would exploit a person's vulnerability when seeking an alternative to conventional cancer treatments, especially without diagnosis. The advertisement used language that, in the Delegate's view, would bring about fear or distress by making people fearful of the consequences if they did not use 'black salve' or, alternatively, if they relied on conventional medicine for treatment. The Delegate also found that promoting 'black salve' as a guaranteed safe alternative exploited the lack of knowledge that consumers have about the treatment of cancer and the different treatment modalities that may be required depending on the type of cancer diagnosis. For these reasons the Delegate considered that the advertisement breached sections 4(2)(d) and 4(2)(e) of the Code.

Breach of section 4(2)(f) of the Code

It was the Delegate's opinion that it would be inappropriate for consumers to rely on 'black salve' as a treatment for cancer (diagnosed or not) in preference to, or to the exclusion of, other conventional treatments. As there were no instructions surrounding the use of 'black salve' in the advertisement it was the Delegate's view that misdiagnosis by a consumer would cause greater harm to themselves and that by not seeking appropriate medical help, incorrect application of "black salve" could cause extensive, irreparable damage to their skin. The Delegate found the advertisement was likely to encourage inappropriate or excessive use of the product and therefore was in breach of section 4(2)(f) of the Code.

Breach of sections 4(2)(g) and 4(2)(h) of the Code

The Delegate found that the advertisement encouraged those consumers who may have eschewed conventional medical practice and who were seeking alternative curative measures to use the 'black salve' product. In the absence of any information to the contrary the use of the phrase 'total remission' was in the Delegate's view representing this product as a guaranteed treatment for cancer and that it would be effective in all cases, and was therefore in breach of sections 4(2)(g) and 4(2)(h) of the Code.

Breach of section 4(2)(i) of the Code

The advertisement promoted 'black salve' as a 'safe, effective, natural remedy' and that it was 'time-tested'. The advertisement does not mention that 'black salve' can cause harm or has any side effects, nor did it advise the consumer that 'black salve' can burn the skin (which may require medical attention) and can cause permanent scarring. The Delegate found therefore the advertisement to be in breach of section 4(2)(i) of the Code because it promoted the product as safe, without side effects and that no harm could come from its use.

Breach of section 4(5) of the Code

The advertisement compared 'black salve' with an 'S4' 'Prescription Only' medicine Aldara, stating that Aldara was 'dangerous and ineffective', that it caused 'serious systemic and fatal reactions' and was 'known to CAUSE cancer'. The advertisement stated that the author of the DVD entitled 'One Answer to Cancer' was 'almost killed by Aldara' which is a 'dreadful poison' that has 'ruined or cut (lives) short'. This promotion of 'black salve' was in the Delegate's view, misleading in comparison with the recognised conventional medicine Aldara because it stated that it was both harmful and ineffective in comparison with "black salve" and the advertisement therefore was in breach of section 4(5) of the Code.

The AVN site is accordingly to prominently feature the following retraction -

An advertisement promoting illegal therapeutic goods under the name "Black Salve", which we published on this website, should not have been published. In publishing the advertisement, we misled and abused the trust of consumers.

In the advertisement we unlawfully made claims that Black Salve is safe, and that it can be used as an effective treatment for cancers including skin cancer. We also claimed that cancer medicines are harmful and cause cancer, and are ineffectual.

A complaint about the advertisement was recently upheld by the Complaints Resolution Panel. We provided no evidence whatsoever to support the claims we made, and the Panel found that the claims were unlawful, misleading, and unverified and breached the Therapeutic Goods Advertising Code (Code).

The full text of the Panel's determination can be found at: www.tgacrp.com.au/complaints

The delegate of the Secretary for the purposes of regulation 9 of the Therapeutic Goods Regulations 1990 also found that the claims and representation in the advertisement were unlawful, inaccurate and misleading in breach of the Code.

The attention of consumers is directed to the safety information from the Therapeutic Goods Administration at: Black salve, red salve and cansema on the TGA website.