Copyright and privacy

'Data Protection vs. Copyright' by Lee A. Bygrave in Dan Jerker B. Svantesson & Stanley Greenstein (eds.) Internationalisation of Law in the Digital Information Society: Nordic Yearbook of Law and Informatics 2010-2012 (Copenhagen: Ex Tuto Publishing, 2013) 55-75 considers 

changes in the relationship of copyright and protection of personal data brought about by the evolution of technological-organisational measures for enforcing copyright in the digital world. It assesses the impact of such measures on privacy and related interests in light of data protection legislation and case law of the Court of Justice of the European Union. 

Bygrave concludes

This paper has shown how the tension between copyright and data protection has gradually shifted focal point over the past fifteen years. Whereas a decade ago that focal point was the rollout of DRMS, it subsequently became piracy surveillance. With this shift, the tension between copyright and data protection flowed over into the relationship between IPR-holders and ISPs. However, some of the heat in the latter relationship is dissipating.

We see in the USA clear manifestation of this dissipation with the recent agreement between five major ISPs (AT&T, Comcast, Time Warner Cable, Verizon and Cablevision) and the RIAA and MPAA to set up a Center for Copyright Information (CCI) that operates a Copyright Alert System (CAS). The initiative establishes a ‘graduated response’ scheme for IPR enforcement whereby end-users suspected of engaging in copyright infringement are to receive a series of warnings to stop their apparently illicit behaviour and, in the event of recalcitrance, face more serious sanctions. Of particular importance is that this sort of scheme presupposes a relatively cordial relationship between ISPs and IPR-holders—copyright enforcement becomes a shared effort between allies rather than adversaries. This is not to suggest that ISPs have or will embrace this alliance with wholehearted enthusiasm. The agreement forged in the USA was the result of considerable pressure being applied not just from IPR-holders but also from government. Further, ‘it is a very soft agreement that gives ISPs near total discretion’. Yet it also reflects nascent corporate convergence of network providers and content providers—the merger of Comcast and NBC Universal being a case in point.  In some jurisdictions, though, ISPs are in any case being forced to cooperate pursuant to legislatively mandated graduate response schemes—the case, for instance, in South Korea, New Zealand, UK and France.

These developments are likely to lead to a realignment of the relative strength of copyright and data protection in the years ahead. Besides the fact that graduated response schemes help to ‘normalise’ surveillance on the Internet, they weaken the privacy-protective role that ISPs have (incidentally or intentionally) played. Even in countries that have not (yet) embraced such schemes, moves are afoot to weaken barriers to piracy surveillance which arise from data protection law. The Norwegian Parliament, for example, is currently considering a legislative bill aimed at circumventing the limitations imposed by data protection law on piracy surveillance. The bill proposes, inter alia, removing such surveillance from the licensing requirements of the Personal Data Act and providing a specific legal footing for it pursuant to proposed new provisions in the Intellectual Property Act of 1961.

Yet advocates of strong data protection can continue to take some comfort in the fact that DPI-based surveillance schemes seem still not to be widely used in the service of IPR enforcement, at least in Europe and the USA; piracy surveillance’ there continues to be ‘over the top’ rather than carried out by ISPs as part of their network management. While ISPs commonly use DPI-based ‘traffic management practices’ to regulate P2P traffic on their networks, these practices appear not to be harnessed to specifically target copyright infringement. This is due to a combination of economic and legal factors. Especially important has been the lack of any compelling commercial incentive for ISPs to conduct DPI for purposes other than management of their own network traffic, combined with disjuncture between most ISPs’ business interests and those of IPR-holders.

Moreover, DPI use going further than what is necessary for their own operational needs risks stripping ISPs of their immunity from legal liabilities as intermediaries: in the words of Marsden, DPI is ‘something of a Pandora’s box — if they [ISPs] look inside, all liabilities flow to them, from child pornography to terrorism to copyright breaches to libel to privacy breaches’. The proportionality principle as applied in the SABAM suite of cases is yet another restraining factor, at least in Europe.

However, as pointed out above, the barrier erected by that suite of cases against DPI surveillance is far from insurmountable. If OTT surveillance fails to deliver satisfactory results for IPR-holders, they will probably bring their considerable resources to bear on legislators to introduce statutory, DPI-based control schemes. Such schemes are likely to pass judicial muster by the CJEU and ECtHR if their statutory framework meets the ‘rule of law’ requirements flowing from, inter alia, ECHR Articles 8(2) and 10(2), and does not require ISPs to bear the bulk of additional costs involved. That cost reduction will undoubtedly weaken ISPs’ resistance to introducing such a framework. Their resistance, at least as an industry group acting in unison, will further decrease if, as is probable, more of them have entered into the business of content production. Civil society groups campaigning for privacy and data protection are accordingly likely to fight their coming battles over DPI with significantly less ISP support.

Risk metrics and airport security

'Cost-Benefit Analysis of Australian Federal Police Counter-Terrorism Operations at Australian Airports' (ARC Centre of Excellence in Policing & Security Working Paper 2013) by Mark G. Stewart and John Mueller [PDF] is a paper that crunches some numbers about security theatre,  recommends the standard nostrums of identity imaging (ANPR, cards, CCTV and so forth) and can be read subversively in debunking fashionable hyperbole from particular politicians and agencies.

The authors comment that

The terrorist attacks of 11 September 2001 highlighted the vulnerabilities of airports and aircraft. Further attacks in 2002, 2007 and 2009, have led to major government reforms in passenger processing and airport access. The security of Australian airports has also followed this trend, with an increased police presence. However, limited consideration has been given to the costs of these measures, compared to benefit. This Working Paper identifies the factors to be considered in such cost-benefit analyses and the authors outline their preliminary findings. The scope for further research is highlighted, particularly in relation to risk analysis and cost.

The authors state that

Much research on aviation security focuses on airplanes due no doubt to the events of September 11 2001 and to the more recent attempts to bomb U.S. bound flights in 2002, 2006 and 2009. However, Elias (2010) notes that an airport has ‘unique vulnerabilities because it is unsecured’. There is little information about whether airport security satisfies a cost-benefit assessment, or how airport policing can be made more effective. The Australian Office of Best Practice Regulation, U.S. Office of Management and Budget, and other regulatory agencies strongly recommend risk and cost-benefit assessments of major programmes. A risk and cost-benefit assessment quantifies risk reduction of security measures, losses from a successful attack, threat likelihood, probability that attack is successful, and cost of security measures. This allows costs and benefits of security measures to be compared and optimal security measures to be selected. This Working Paper seeks to assess the risks and cost-effectiveness of Australian Federal Police (AFP) airport counter-terrorism (CT) policing designed to protect airport terminals and aircraft from terrorist attack. 

They conclude

If the annual threat probability at all airports in Australia is less than 1% (or one in a hundred) the BCR [benefit to cost] for airport CT policing is significantly less than one, and the security measure consequently fails to be cost-effective by a considerable margin. However, a threat probability of 50% (or one attack every two years) would yield a BCR of 15.8 and airport CT policing would be cost-effective under that condition, and $1 of cost would buy $15.80 in benefits. Table 3 shows that airport CT policing would also be cost-effective when the annual threat probability exceeds 5% or one attack every 20 years - that is, it would have to be solely responsible for deterring, foiling, or protecting against one threat every twenty years for the security measures to be cost-effective. It also needs to be kept in mind that many threats against the aviation industry would be deterred, foiled or prevented by other (non airport) police and security measures (as well as by public awareness and response, etc.). ... The co-benefit of CT airport policing may well exceed $25 million per year, particularly if CT airport policing is able to utilise number plate recognition capability, passenger photograph identification and other measures to apprehend people with outstanding criminal issues. If a security measure also enhances the passenger experience, there would be an additional co-benefit, dramatically improving the measure’s cost-effectiveness. ....

This Working Paper sets out the basic principles of risk and cost-benefit analysis. These principles are applied to airport CT policing provided by the AFP. The results are preliminary, and based on our ‘best estimates’ using publicly sourced material, and are a starting point for this type of risk analysis. The preliminary results show the combinations of risk reduction and threat probability that allow airport CT policing to be cost-effective. For example, airport CT policing is costeffective if it reduces risk by approximately 25% and that the probability of an attack at any airport in Australia exceeds 5% per year. The co-benefits of airport CT policing - such as reduction in crime and reassurance to the travelling public - can be considerable, and will dramatically improve the costeffectiveness of airport CT policing. Further work should focus on more comprehensive threat scenarios; the layers of airport security, interactions and interdependencies; analysis of operational data on effectiveness of airport CT policing; and improved cost data, including co-benefits. The scope could be broadened to encompass all airport police, their rates of crime deterrence and prevention, and propose how airport policing may be made more effective/efficient by the use of other security measures, for example, number plate recognition capability and passenger photograph identification ID.

Send policemen, guns and money, in other words ... and stop along the way to follow up the authors' citation of their  ‘The Price is Not Right: The U.S. spends too much money to fight terrorism’ in (2011) 58(10) Playboy 149-150. Personally I preferred Mueller's Atomic Obsession: Nuclear Alarmism from Hiroshima to Al-Qaeda (Oxford University Press, 2010)

Patents

Catching up with GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102, with the Federal Court of Australia Full Court allowing the appeal of GlaxoSmithKline Australia Pty Ltd against a second interlocutory judgment restraining GSK from marketing its Children's Panadol 1-5 Years with an alternative syringe that GSK acknowledges is a “design-around” for the device marketed by Reckitt for delivery of its Nurofen analgesic. The preceding judgment is Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 2) [2013] FCA 736.

The FCAFC found that the alternative syringe did not infringe the patent of Reckitt Benckiser Healthcare (UK) Ltd.

The Court also found that the balance of convenience tilted in favour of GSK, as there was no reasonable option available in supplying the apparatus without the bottle neck liner and that there was a strong public interest in consumers having the option to choose between Children’s Panadol 1-5 years with a safe dispensing system and other paediatric analgesics.

TPP and digital romanticism

As I prepare for a consultation - or 'consultation' - about the controversial TransPacific Partnership Agreement (aka TPP or TPPA or TRIPsplus or TRIP++) it's interesting to see the core paras on the TPP in the latest DFAT annual report [PDF] -

Trans-Pacific Partnership Agreement Progress in the negotiations accelerated in 2012–13 with TPP trade ministers confirming the commitment to finalise a comprehensive, regional agreement by the end of 2013, if possible. Through the five negotiating rounds, the department led Australia’s contribution to the conclusion of a number of chapters setting out disciplines for TPP parties. 

The TPP has the potential to eliminate tariffs and other barriers to trade in key Australian export markets and streamline trade processes across the TPP membership, including through adoption of common rules of origin and reduction of production costs. During the year, the department pressed for unprecedented levels of services, investment and government procurement commitments from TPP partners and drew attention to greater opportunities for facilitating trade via electronic transmission. 

In April 2013, current parties to the agreement—Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam—agreed by consensus to admit Japan to the initiative. As Australia’s second largest export market, Japan’s entry is important and now means that the TPP countries will account for 38 per cent of global GDP. The department conducted domestic consultations on the TPP negotiations, holding stakeholder briefings in mainland capital cities and in the margins of negotiating rounds.

And that, folks, is where it ends.

I attended the public consultation in Sydney last week, where regrettably we received little more information than an indication of the TPP chapter headings and an indication that the Government expects to have negotiations completed by the end of this year, presumably followed at short order by a brisk scrutiny by a Senate committee before the Agreement becomes law. It is unlikely that the scrutiny will result in unwinding of particular features of the agreement.

The report features a nice photo of happy TPP negotiators, glossed thus -

The DFAT TPP team is a group of highly skilled and experienced negotiators from the department’s Office of Trade Negotiations. They work with experts from other Australian government agencies on what is a comprehensive ‘21st century’ trade agreement, with 29 chapters under negotiation. The 11 countries currently participating in the TPP negotiations are of differing sizes and levels of economic development, including the United States, Vietnam and Brunei. This makes navigating the dynamic and complex negotiating environment an enormous challenge. Japan’s entry to the negotiations in July 2013 will bring membership to 12 countries and represent over 34 per cent of Australia’s total two-way trade. Overcoming the sensitivities of individual countries and ensuring a strong outcome for Australia requires an in-depth knowledge of both the issues under negotiation and the countries at the table.

Lead negotiators draw on their trade, legal and economic expertise and their backgrounds in the department, as well as experience in the other government agencies and the private sector. The TPP team works closely with posts and holds regular public and private consultations with business, state government and other stakeholders across the country. 

Participating countries in the negotiations take it in turns to host meetings that involve over 500 delegates participating in as many as 12 parallel negotiating sessions over a two-week period. A unique feature is that the negotiators take up to a day out of their schedule to engage with business and other stakeholders to listen to their views on the content of the agreement.

There's a different perspective in 'Counter-commodification: The economy of contribution in the digital commons' by Andreas Wittel in (2013) 19(4) Culture and Organization 314.

Wittel states that

This is an article about digital production and the crisis of capitalism. It is about production in the digital commons and its implications for the building of alternatives to a commodified world. As digital production is at the very heart of cognitive capitalism, the digital commons is not just any other disruption of the process of commodification. This is the field of a fierce struggle over the future of the Internet and the future of capitalism itself. It is potentially the moment which moves back the frontiers of measurement, value and quantification towards qualities, values and an expansion of the gift economy. For this potential to unfold, it is vital that those who are giving, sharing, and contributing for the benefit of humanity are supported by global policies that enable them to do so. They have to be supported because their gifts are not based on reciprocity and the obligation to return the gift. This is an argument about the future of digital labour. The article concludes that this could be achieved through a global basic income scheme

Property and Flourishing

'Ownership and Obligations: The Human Flourishing Theory of Property' by Gregory S. Alexander in (2013) 43 Hong Kong Law Journal 451 comments

The thesis of this brief paper is straightforward, although not uncontroversial: The moral foundation of property, both as a concept and as an institution, is human flourishing. In the remainder of my remarks I will explain what I mean by human flourishing, as I use the term, and I will distinguish human flourishing from welfare as that term is commonly used today by economists and legal analysts. I will then briefly illustrate the approach through an example. 

Private property ordinarily triggers notions of individual rights, not social obligations. After all, the core function of private property, at least according to conventional lore, is to insulate individuals from the demands of society both in its organised political form and its non-political collective form. Of course, the common law has long recognised limits on the exercise of property rights, limits that grow out of the needs of others in cases of conflicting land uses. The obvious example is the common law of nuisance, which courts developed using the ancient maxim sic utere tuo ut alienum non laedas (“use your land in such a way as not to injure the land of others”) as their guiding principle. But such limits on property rights are considered the exception, not the rule, the periphery rather than the core. The core image of property rights, in the minds of many people, is that the owner has a right to exclude others and owes no further obligation to them. On this view trespass is the paradigmatic cause of action in the law of property. Hence if another intentionally commits trespass upon my land after I have refused permission to pass across it, the trespasser is properly liable for punitive damages even though only trivial damage was done to my property. 

That image is highly misleading. The right to exclude itself, thought by many to be the most important twig in the so-called bundle of rights, is subject to many exceptions, both at common law and by virtue of statutory or constitutional provisions. For example, the common law requires landowners to permit police to enter privately owned land to prevent a crime from being committed or to make an arrest. 

More generally, property owners owe far more responsibilities to others, both owners and non-owners, than the conventional imagery of property rights suggests. Property rights are inherently relational, and because of this characteristic, owners necessarily owe obligations to others. But the responsibility, or obligation, dimension of private ownership has been sorely under-theorised. 

In this brief paper I shall outline a theory of property that emphasises the obligations that owners owe to others, specifically, to certain members of the various communities to which they belong. These obligations vary in different contexts and at different times. As society has grown more complex and more interdependent, the obligations have thickened. Capturing all of these obligations under one theoretical umbrella, one may speak of a social-obligation norm that the law does and should impose on owners. This norm, I want to stress, in inherent in the concept of ownership itself. This is an important point because it means that when the law, whether by way of statutes, administrative action, or judicial decisions, announces some restriction on an owner’s use of her land or building, insofar as that announcement restates what is already part of the social-obligation norm, it is simply a legal recognition of a restriction that is inherent in the concept of ownership rather than being externally imposed and engrafted upon the owner’s bundle of right. 

The basis of this norm is human flourishing. The social-obligation theory builds on the claim that the basic purpose of property is to enable individual to achieve human flourishing. The theory further builds on Amartya Sen’s famous insight that flourishing is a matter of what a person is able to do rather than what he has. That is, the well-lived life should be measured by a person’s capabilities rather than by a person’s possession or by the satisfaction of his subjective preferences. Before developing the social obligation of ownership, I must first explain the foundational norm of human flourishing a bit further.

Nudges and Do Not Track

'Why Not Privacy by Default?' by Lauren E. Willis comments

We live in a Track-Me world, one from which opting out is often not possible. Firms collect reams of data about all of us, quietly tracking our mobile devices, our web surfing, and our email for marketing, pricing, product development, and other purposes. Most consumers both oppose tracking and want the benefits tracking can provide. In response, policymakers have proposed that consumers be given significant control over when, how, and by whom they are tracked through a system of defaults (i.e., "Track-Me" or "Do-Not-Track") from which consumers can opt out. 

The use of a default scheme is premised on three assumptions. First, that for consumers with weak or conflicted preferences, any default chosen will be "sticky," meaning that more consumers will stay in the default position than would choose it if an affirmative action were required to reach the position. Second, that those consumers with a fairly strong preference for the opt-out position — and only those consumers — will opt out. Third, that where firms oppose the default position, they will be forced to explain it in the course of trying to convince consumers to opt out, resulting in well-informed decisions by consumers. 

This article demonstrates that for tracking defaults, these assumptions may not consistently hold. Past experience with the use of defaults in policymaking teaches that Track-Me defaults are likely to be too sticky, Do-Not-Track defaults are likely to be too slippery, and neither are likely to be information-forcing. 

These conclusions should inform the "Do-Not-Track" policy discussions actively taking place in the U.S., in the E.U., and at the World Wide Web Consortium. They also cast doubt on the privacy and behavioral economics literatures that advocate the use of "nudges" to improve consumer decisions about privacy.

China-Australia FDI

Two papers on Australia, China and foreign direct investment.

'Navigating Adroitly: China's Interaction with the Global Trade, Investment and Financial Regimes' (UNSW Law Research Paper No. 2013-68) by Ross P Buckley and Weihuan Zhou explores

who has most skilfully used the rules of the global economic regime — China, or the nations whose companies invest in her? We first analyse China’s adoption and implementation of WTO commitments in the auto industry and the cultural goods sector. We then consider the liberalisation of China’s foreign direct investment (FDI) scheme and China’s use of FDI as a vehicle to acquire foreign technology, while also restricting FDI to protect the domestic banking sector. Finally, we analyse China’s engagement with the international financial regime, particularly its exchange rate policy, and whether this too represents a strategic implementation of reforms. Based on these four case studies, we conclude that while the West initially dictated the terms of China’s interaction with the global economic system, over time China has deftly engaged with global rules so as to promote its own national interests. 

 'China and Foreign Direct Investment: Does Distance Lend Enchantment to the View?' by Leon Trakman in (2013) Chinese Journal of Comparative Law 1 focuses

on international investment law relating to China in general and to investor-state arbitration in particular. It has six key goals. First, it explores the extent to which China is subject to investor-state arbitration claims by inbound investors. Second, it considers the extent to which China’s investment treaty partners are involved in claims brought by outbound Chinese investors. Third, it discusses the significance of these two kinds of claims. Fourth, it evaluates the paucity of foreign direct investor claims against China, contrasted with growing claims by outbound Chinese investors against China’s treaty partner states. Fifth, it evaluates the assertion that China has failed to adequately liberalize its investment treaties and practices and has accorded limited protection to foreign direct investors. In responding to this critique, it emphasizes China’s history as a developing state with a struggling economy, its past dependence on Western colonial powers and its limited economic capacity, and its recent meteoric rise to being the largest inbound investor destination and the fifth largest outbound investor state. Sixth, the article critiques the assertion that China ought to liberalize its investment law and practice in the tradition of the West. In exploring this issue, it notes that the self-same Western liberal powers that promoted investment liberalization in past decades have increasingly limited such liberalization to protect their vulnerable economics from foreign investment. The article also questions whether China ought to be bound by free market norms that suited the West in the past century but may not suit China in the twenty-first century.

IGIS

The latest annual report [PDF] of the Inspector General of Intelligence & Security (IGIS) indicates that

During 2012-13 I commenced five full inquiries:

• an inquiry into a complaint by an ASIO employee about the loss of their security clearance

• an inquiry into the attendance of legal representatives at ASIO interviews

• an inquiry into the use of weapons and selfdefence techniques in ASIS

• an inquiry into the analytic independence of assessments by ASIO, DIO and ONA

• an inquiry into the actions of Commonwealth agencies in respect of an Egyptian irregular maritime arrival who was placed in immigration detention and was the subject of an Interpol red notice.

The first inquiry is described thus -

Inquiry into a complaint by an ASIO employee about the loss of their security clearance

An ASIO employee lodged a complaint disputing the grounds upon which the Director-General of Security had issued them with a notice of intention to withdraw their security clearance. This decision would have the effect of terminating the complainant’s employment. After a preliminary review of ASIO’s records relating to this matter, I decided to inquire both specifically into the complaint made by the employee, and more broadly into matters relating to their management by ASIO.

In relation to withdrawal of the security clearance, I found that the decision to withdraw the employee’s clearance was not inappropriate.

Three recommendations were made in respect of ASIO’s staff management processes:

Two related to classified security vetting and risk management matters, which cannot be detailed in this report. ASIO has advised me that one recommendation has been fully implemented and the other is being actively progressed through the Australian Government Inter-Agency Security Forum.

The third recommendation concerned the creation and retention of performance appraisal records for ASIO staff. ASIO advised me that a new IT system was introduced in late 2012 which is intended to hold performance expectations and capability plans for every staff member. In early 2012, approximately 60 per cent of ASIO employees had documented performance expectation records. By the end of 2012-13, this figure had risen to 76 per cent.

In relation to 'analytic independence' IGIS states that -

Analytic independence of ASIO, DIO and ONA

During the reporting period I conducted an inquiry into the analytic independence of ASIO, DIO and ONA.

My office has previously conducted this type of inquiry in respect of ONA and DIO. This is the first such review of ASIO’s assessment activities, providing a baseline that will inform future inquiries.

The inquiry included: • examination of relevant agency policy and procedures • a self-assessment by each agency of their performance relating to assessment activities • examination of a selection of intelligence assessments and associated records • examination of staff surveys • an open letter inviting analysts to contribute to the inquiry.

The general picture of the independence of assessment activities across the three agencies is a positive one. There was no evidence of inappropriate pressure being placed on any of the agencies to reach a particular position.

While the overall finding is positive, the inquiry found inconsistent recordkeeping and source referencing in ASIO and DIO. The inquiry recommended improvement to policies, procedures and training in ASIO and DIO so that these agencies can consistently demonstrate that their assessments are free from interference or bias. Both agencies have accepted these recommendations.

DIO is expecting to implement a new electronic intelligence production system in July 2013. Provided that the new system is consistently utilised to capture records in the way in which it has been designed, there should be a significant improvement in DIO recordkeeping.

As a result of this inquiry, ASIO is developing a new policy on referencing and has made improvements to electronic records systems to make it easier for analysts to consistently record supporting documentation. Training for analysts has also been revised to incorporate methods for documenting the material that has been considered when making assessments.

The inquiry also noted that ASIO and DIO did not conduct formal reviews of key judgements to see whether there were any lessons that could be learnt and did not have written policies relating to the management of dissent. In response to this inquiry, both agencies have taken steps to formalise their processes for taking account of dissenting views and are considering possible mechanisms for the review of key judgements.

No recommendations were made with regard to ONA.

Inquiries underway at the end of the reporting period are characterised thus -

Inquiry into the attendance of legal representatives at ASIO interviews

ASIO cannot prevent an individual requiring the presence of their lawyer at a voluntary interview. Where an interviewee requires the presence of their lawyer, ASIO requests the contact details of the lawyer and their firm, as well as an undertaking of confidentiality. However, if interviewing officers assess that the presence of the lawyer is counterproductive to the conduct of the interview, they may inform the interviewee and, if appropriate, terminate the interview.

In last year’s annual report, I reported on a complaint by a state legal aid commission that a client had been denied the right to a legal representative during an ASIO visa security assessment interview. I noted that the complaint highlighted ASIO’s responsibility to clarify the role of any support person. In March 2013 I received a separate complaint alleging arbitrary decision making by ASIO officers in relation to the attendance of legal representatives at security assessment interviews. I conducted a preliminary inquiry into the new complaint, to identify if ASIO procedures had changed since my previous inquiry and to ascertain whether ASIO’s decisions were being carefully considered and documented in each instance, with sufficient notice of interview arrangements being given to interviewees. I identified some inconsistencies between ASIO records and those of the complainant, and some potential issues in relation to communication between ASIO and the Department of Immigration and Citizenship (DIAC) and consequently decided to initiate a full inquiry. The inquiry was ongoing at the end of the reporting period and will be reported in the 2013- 14 IGIS annual report.

Inquiry into the use of weapons in ASIS

It has now been almost ten years since the Intelligence Services Amendment Act 2004 was passed permitting the Minister for Foreign Affairs to approve the provision of a weapon or training in the use of a weapon or in self-defence techniques to a specified staff member or agent of ASIS, or the holder of a specific position in ASIS.

In April 2013 I commenced an inquiry into the provision of weapons and the training in and use of weapons and self-defence techniques in ASIS. This inquiry has not been prompted by any particular concern; rather, it was always intended that this provision be subject to close oversight by my office. The inquiry will review compliance by ASIS with the legislation and relevant guidelines and will examine: • authorisations • training • procurement, issuing, storage, transportation and carriage of weapons • reportable incidents. Further details of the inquiry will be included in the 2013-14 IGIS annual report

Inquiry into the matter of an Egyptian irregular maritime arrival

On 5 June 2013, the then Prime Minister wrote to me requesting that I conduct an inquiry into the matter of an Egyptian irregular maritime arrival who arrived in Australia in May 2012, was placed in immigration detention in Australia and was the subject of an Interpol red notice. The Prime Minister also requested that I consider and make recommendations more generally on the management by Australian agencies of persons seeking asylum who present complex security issues.

I commenced the inquiry on 6 June 2013 and notified relevant ministers and agency heads of the inquiry, as required by the IGIS Act. My letters to the Director-General of Security, the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship included a notice requiring that they produce relevant documents.

The purpose of the inquiry is not to establish whether the identified individual posed a threat to security but rather to look at whether the relevant agencies had, and followed, appropriate procedures to identify, assess and manage any such threat.

At the end of the reporting period the inquiry was at an early stage.

IGIS initiated five preliminary inquiries into matters raised in complaints -

• a complaint by an AIC employee in receipt of an adverse security assessment, which would have the effect of terminating their employment. I closed this preliminary inquiry after determining that there had been no unreasonable action by any AIC agency

• an allegation of detriment to a member of the public arising from an interview by ASIO

• an anonymous complaint about lack of action by ASIS management on allegations of misconduct

• a complaint about delay following an Archives Act 1983 request for access to ASIO files

• a complaint by a refugee advocacy service alleging arbitrary decision making by ASIO officers in relation to the attendance of legal representatives at security assessment interviews. I closed this preliminary inquiry after deciding that the matter could be more appropriately considered under the powers and protections of a full inquiry

Payola

Another settlement in US investigations regarding pharmaceutical payola, this time involving Johnson & Johnson.

The federal Justice Department has announced that

Global health care giant Johnson & Johnson (J&J) and its subsidiaries will pay more than $2.2 billion to resolve criminal and civil liability arising from allegations relating to the prescription drugs Risperdal, Invega and Natrecor, including promotion for uses not approved as safe and effective by the Food and Drug Administration (FDA) and payment of kickbacks to physicians and to the nation’s largest long-term care pharmacy provider. The global resolution is one of the largest health care fraud settlements in U.S. history, including criminal fines and forfeiture totaling $485 million and civil settlements with the federal government and states totaling $1.72 billion.

A billion here, a billion there, it starts to add up.

Justice indicates that -

J&J Subsidiary Janssen Pleads Guilty to Misbranding Antipsychotic Drug

In a criminal information filed today in the Eastern District of Pennsylvania, the government charged that, from March 3, 2002, through Dec. 31, 2003, Janssen Pharmaceuticals Inc., a J&J subsidiary, introduced the antipsychotic drug Risperdal into interstate commerce for an unapproved use, rendering the product misbranded. For most of this time period, Risperdal was approved only to treat schizophrenia. The information alleges that Janssen’s sales representatives promoted Risperdal to physicians and other prescribers who treated elderly dementia patients by urging the prescribers to use Risperdal to treat symptoms such as anxiety, agitation, depression, hostility and confusion. The information alleges that the company created written sales aids for use by Janssen’s ElderCare sales force that emphasized symptoms and minimized any mention of the FDA-approved use, treatment of schizophrenia. The company also provided incentives for off-label promotion and intended use by basing sales representatives’ bonuses on total sales of Risperdal in their sales areas, not just sales for FDA-approved uses.

In a plea agreement resolving these charges, Janssen admitted that it promoted Risperdal to health care providers for treatment of psychotic symptoms and associated behavioral disturbances exhibited by elderly, non-schizophrenic dementia patients. Under the terms of the plea agreement, Janssen will pay a total of $400 million, including a criminal fine of $334 million and forfeiture of $66 million. Janssen’s guilty plea will not be final until accepted by the U.S. District Court. ...

In a related civil complaint filed today in the Eastern District of Pennsylvania, the United States alleges that Janssen marketed Risperdal to control the behaviors and conduct of the nation’s most vulnerable patients: elderly nursing home residents, children and individuals with mental disabilities. The government alleges that J&J and Janssen caused false claims to be submitted to federal health care programs by promoting Risperdal for off-label uses that federal health care programs did not cover, making false and misleading statements about the safety and efficacy of Risperdal and paying kickbacks to physicians to prescribe Risperdal. ...

In its complaint, the government alleges that the FDA repeatedly advised Janssen that marketing Risperdal as safe and effective for the elderly would be “misleading.” The FDA cautioned Janssen that behavioral disturbances in elderly dementia patients were not necessarily manifestations of psychotic disorders and might even be “appropriate responses to the deplorable conditions under which some demented patients are housed, thus raising an ethical question regarding the use of an antipsychotic medication for inappropriate behavioral control.”

The complaint further alleges that J&J and Janssen were aware that Risperdal posed serious health risks for the elderly, including an increased risk of strokes, but that the companies downplayed these risks. For example, when a J&J study of Risperdal showed a significant risk of strokes and other adverse events in elderly dementia patients, the complaint alleges that Janssen combined the study data with other studies to make it appear that there was a lower overall risk of adverse events. A year after J&J had received the results of a second study confirming the increased safety risk for elderly patients taking Risperdal, but had not published the data, one physician who worked on the study cautioned Janssen that “[a]t this point, so long after [the study] has been completed … we must be concerned that this gives the strong appearance that Janssen is purposely withholding the findings.”

The complaint also alleges that Janssen knew that patients taking Risperdal had an increased risk of developing diabetes, but nonetheless promoted Risperdal as “uncompromised by safety concerns (does not cause diabetes).” When Janssen received the initial results of studies indicating that Risperdal posed the same diabetes risk as other antipsychotics, the complaint alleges that the company retained outside consultants to re-analyze the study results and ultimately published articles stating that Risperdal was actually associated with a lower risk of developing diabetes.

The complaint alleges that, despite the FDA warnings and increased health risks, from 1999 through 2005, Janssen aggressively marketed Risperdal to control behavioral disturbances in dementia patients through an “ElderCare sales force” designed to target nursing homes and doctors who treated the elderly. In business plans, Janssen’s goal was to “[m]aximize and grow RISPERDAL’s market leadership in geriatrics and long term care.” The company touted Risperdal as having “proven efficacy” and “an excellent safety and tolerability profile” in geriatric patients.

In addition to promoting Risperdal for elderly dementia patients, from 1999 through 2005, Janssen allegedly promoted the antipsychotic drug for use in children and individuals with mental disabilities. The complaint alleges that J&J and Janssen knew that Risperdal posed certain health risks to children, including the risk of elevated levels of prolactin, a hormone that can stimulate breast development and milk production. Nonetheless, one of Janssen’s Key Base Business Goals was to grow and protect the drug’s market share with child/adolescent patients. Janssen instructed its sales representatives to call on child psychiatrists, as well as mental health facilities that primarily treated children, and to market Risperdal as safe and effective for symptoms of various childhood disorders, such as attention deficit hyperactivity disorder, oppositional defiant disorder, obsessive-compulsive disorder and autism. Until late 2006, Risperdal was not approved for use in children for any purpose, and the FDA repeatedly warned the company against promoting it for use in children.

In previous writing about the drug version of payola I've noted concerns regarding inducements by pharma companies to doctors and institutions. The Justice statement indicates that

The government’s complaint also contains allegations that Janssen paid speaker fees to doctors to influence them to write prescriptions for Risperdal. Sales representatives allegedly told these doctors that if they wanted to receive payments for speaking, they needed to increase their Risperdal prescriptions.

In addition to allegations relating to Risperdal, today’s settlement also resolves allegations relating to Invega, a newer antipsychotic drug also sold by Janssen. Although Invega was approved only for the treatment of schizophrenia and schizoaffective disorder, the government alleges that, from 2006 through 2009, J&J and Janssen marketed the drug for off-label indications and made false and misleading statements about its safety and efficacy.

As part of the global resolution, J&J and Janssen have agreed to pay a total of $1.391 billion to resolve the false claims allegedly resulting from their off-label marketing and kickbacks for Risperdal and Invega. This total includes $1.273 billion to be paid as part of the resolution announced today, as well as $118 million that J&;J and Janssen paid to the state of Texas in March 2012 to resolve similar allegations relating to Risperdal. Because Medicaid is a joint federal-state program, J&J’s conduct caused losses to both the federal and state governments. The additional payment made by J&J as part of today’s settlement will be shared between the federal and state governments, with the federal government recovering $749 million, and the states recovering $524 million. The federal government and Texas each received $59 million from the Texas settlement.

ACMA as super-regulator?

ACMA's latest annual report [PDF] states that -

The ACMA continues to operate in the context of unprecedented and fundamental internet-driven change. We are doing so consistent with our corporate tagline, which sums up our intent to communicate, facilitate and then regulate.

But it seems unlikely that any new agreed order or commercial equilibrium in media and communications will emerge any time soon. Within our complex networked economy and society, there is a broadening challenge for the regulator. The traditional regulator’s role has been to mitigate risks or harms as citizens manage their communications and media experience, by imposing obligations or providing assistance. We see that in the evolving digital economy and networked society, new risks, harms and innovations are likely to require the regulator to respond with increasing flexibility.

The kicker is in the next paragraph

We also see the strategic need for the development of a single coherent regulatory framework in Australia for media and communications. Our analysis, set out in numerous papers released over the last two years, points to the logic of bringing together all the various elements of media and communications under the umbrella of a single regulatory agency that can deliver timely, ‘fit-for-purpose’ outcomes—a body with a broad remit, empowered with a scalable set of powers and a culture that allows it to operate flexibly in a range of modes and pervasive relationships. The ACMA stands ready to meet that challenge.

In an environment where jobs are being slashed, ACMA (along with the Mounties and Captain America) stands ready to meet the call!

Unsurprisingly there's no reference to the Finkelstein Inquiry recommendation of a more modest regulator.

Brainwashing

In Gallagher v McClintock [2013] QSC 292 the Supreme Court of Queensland has refused to make orders for an injunction in a dispute about claims of brainwashing.

A church member was banned by the Yeppoon Wesleyan Methodist Church Board from church attendance after writing and distributing 'warning pamphlets' stating that the pastor was unqualified for his position and was implementing an entirely new concept of Christianity involving brainwashing.

Gallagher - described by McMeekin J as someone who "seems a sincere man of senior years" -  failed in his bid for an interlocutory injunction to remove the ban.

Gallagher sought orders requiring-

(i) That the applicant be allowed “to pass freely without let or hindrance into the Sanctuary of the Yeppoon Wesleyan Methodist Church”; 

(ii) That the Board’s “edict of suppression” of the applicant’s “spoken and written word” be disallowed and quashed; 

(iii) That the applicant be afforded “every assistance and protection of which he may stand in need”.

The Court refused to make orders for the injunction on the grounds that there was no serious question to be tried.

McMeekin J comments that

It is worth observing that the legislative provisions relied on by Mr Gallagher for his “right of free speech” do not assist him. 

There is no section within the Australian Constitution which entitles a person to freedom of speech, nor is it enforced by the Bill of Rights of 1688. The specific section referred to by the applicant applies to the proceedings of parliament. It is commonly known as ‘parliamentary privilege’. It is a protection afforded to politicians to allow for open debate. The protection has now been codified in the Parliamentary Privileges Act 1987 and does not extend to the general public. 

That is not to say that there is no freedom of speech in our community or that the Constitution does not have a part to play in the preservation, at least, of freedom of political communication. 

What Mr Gallagher asserts is a right to enter someone else’s property and distribute pamphlets there. Freedom of speech has nothing to do with it. 

In my view Mr Gallagher cannot point to any right of his that is infringed by the respondents. Hence I cannot see that there is any serious question to be tried. 

That finding is sufficient to dispose of the application. Absent some colourable right there can be no basis for an injunction: Lenah Game Meats at [11] per Gleeson CJ; [60] per Gaudron J; [90]-[91] per Gummow and Hayne JJ. 

n case I am wrong on that point I will make some brief comments on the remaining issues. 

Given the absence of any enforceable right it is not really sensible to speak of damages. None could ever be awarded and indeed none is sought. 

The balance of convenience does not favour the imposition of an injunction. While it is evident that Mr Gallagher wishes to worship at the respondent’s Church it is not evident why. He disagrees with the approach of the Pastor. He is at odds with the members of the Board. It is a reasonable inference to draw that those members have been chosen as representatives of the congregation. Mr Gallagher’s actions, no matter how well motivated, are disrupting and disturbing the manner of worship of the other members of the congregation. It is evident that Mr Gallagher has every intention of continuing his outspoken approach. 

Mr Gallagher has not pointed to any harm that he would suffer in the interim if he was obliged to worship at some other Church. Given that he does not accept the preaching of Pastor McClintock at the Yeppoon Wesleyan Methodist Church he might well find the approach of the several other Christian churches in the area more congenial. 

The apparent reason for Mr Gallagher’s refusal to attend another church is that he suspects that other Christian churches are taking the same approach and it is God’s will for him to take a stand. Mr Gallagher may be right but I would think it at least reasonable to visit other congregations to determine if the practice they adopt is more compatible with his beliefs. 

For present purposes Mr Gallagher has failed to show that the balance of convenience favours the grant of an injunction in the terms that he seeks.

Patent Jurimetrics

'Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?' by Mark A. Lemley, Su Li and Jennifer M. Urban offers 

the first comprehensive look at how a district judge’s experience affects decisionmaking in patent cases. We find that that there is a strong, statistically significant relationship between a judge’s experience and case outcome: more experienced judges are less likely to rule for the patentee. Notably, the relationship exists for rulings finding noninfringement; judicial experience had no relationship to the likelihood a judge would find a patent invalid. The relationship appears to hold across judges, rather than to be driven by the rulings of particular judges. Beyond individual judges, some technologies (biotechnology, mechanics) are associated with more patentee wins, while patentees are less likely to win computer hardware and software cases. Some district courts (Delaware, New Jersey) are more likely to find patents infringed. By contrast, perhaps surprisingly, we find no significant relationship between litigation in the Eastern District of Texas and a judge’s ruling for or against the patentee. Finally, we find that suing on multiple patents is associated with an increased likelihood that at least one patent will be found to be infringed.

Our results challenge what has been an implicit assumption in the literature and discussion that particular districts are biased in a particular direction, driving forum shopping. And they test for the first time the implicit assumption in the literature, in calls for specialized patent trial courts, and in the Patent Pilot Program, that experience with patent cases at the trial level will lead to different — usually assumed to be “better” — outcomes from what we see from generalist courts. Our results suggest that there is a difference, but that “better” may be in the eye of the beholder. They suggest some sort of learning effect among district court judges across the country, and that patentees benefit from litigating before inexperienced judges, at least on issues of infringement. Depending on the reason for this effect, adoption of a specialized patent trial court might help accused infringers but not patentees, raising broader questions about patent reform and how to measure the value of an expert court.

They conclude that

The more experience judges have with patent cases, the less likely they are to rule for patent owners. Our finding is a strong and highly significant finding, robust across districts, across time, and across areas of technology. It has potentially profound implications for patent law, where it might lead us to question the way we design patents, and for the broader project of judicial specialization, which may have unintended substantive consequences.

Printers

'3-D Printing and Product Liability: Identifying the Obstacles' by Nora Freeman Engstrom in (2013) 162(35) University of Pennsylvania Law Review Online comments that

Though just in its infancy, 3-D printing seems poised to transform the goods we buy, the products we use, and the world we inhabit. A question frequently raised about 3-D printing, though, is how product liability law will apply to 3-D-printed goods. Tackling that important and timely question, this Essay applies contemporary product liability law to defective products from home 3-D printers. The analysis reveals that if home 3-D printing really does take off, PL litigation as we know it may well, in large measure, dry up. And if it doesn’t, the technology threatens to unsettle the theoretical justification for product liability law’s development.

Engstrom suggests consequences if the dream of the printer in every home is even partially realized.

The first consequence is obvious and uncontroversial: many more individuals will make, in their kitchens and on their countertops, products that are complex, sophisticated, and dangerous. The second consequence is equally uncontroversial: over time, these hobbyist inventors will start selling some of the complex, sophisticated, and dangerous products they create, and certain individuals who purchase their creations will, unfortunately but inevitably, sustain injuries. The third consequence is, I think, surprising: in many instances, no one will be strictly liable for these injuries under current PL doctrine.

Injured by a 3-D-printed product, an individual would likely sue one (or more) of the following: ( a) the hobbyist inventor who created and sold the defective 3-D-printed product, ( b) the manufacturer of the 3-D printer that “printed” the defective item, and/or ( c) the “digital designer” who wrote the code that instructed the printer what to print. Yet, as I will show, even assuming that the product is unambiguously defective, a plaintiff will have trouble prevailing in a PL action against any one of these three possible defendants.

The first and most obvious potential defendant would be the hobbyist inventor who actually manufactured and sold the defective product. Here, though, exists a significant impediment. Strict product liability applies only to commercial sellers—those “engaged in the business of selling or otherwise distributing products.” Occasional or casual vendors, such as a child who makes and sells tainted lemonade or a housewife who makes and sells contaminated jam, fall outside strict liability’s scope.

On which side of the commercial–occasional divide will hobbyist 3-D inventors fall? The answer will depend on a number of particulars, including the relationship of the allegedly defective product to the hobbyist’s general business (if she even has a business), the frequency and volume of similar sales, and the existence and nature of any mass marketing. Certainly, someone who starts as a 3 -D hobbyist could become so wrapped up in her product’s creation and distribution that she could morph into a commercial seller for PL purposes. But if the hobbyist forswears advertising, keeps volumes low, and limits her product’s distribution, this “commercial seller” requirement, unless it’s relaxed, will limit liability.

Assuming a product liability suit against the hobbyist inventor is unavailing, a second potential defendant would be the company that manufactured the 3-D printer itself. But here, a likely insurmountable obstacle blocks recovery. To prevail in such a suit, the plaintiff will have to show not simply that the printer churned out a defective product, but, instead, that the printer was itself defective. And, it’s not enough that the printer was defective at the time it printed the troublesome item — it must have been defective at the time it left the printer manufacturer’s possession and control. If the plaintiff can’t make this showing, a product liability suit is probably a nonstarter.

The third possible defendant is, of course, the digital designer—the programmer who wrote the code that was fed into the printer to create the product at issue. Yet, here too, there are obstacles. Most importantly, just as strict liability law applies only to “commercial sellers” and implicates only those items that are themselves “defective,” it also applies only to “products”— defined by the Third Restatement as “tangible personal property.” And, though there’s some contrary authority, there are strong arguments that code does not qualify.

The digital designer will liken his code to information contained in books—and a number of cases hold that such content is not a “product” for PL purposes. The leading case is Winter v. G.P. Putnam’s Sons. There, two unlucky souls relied on inaccurate information contained in The Encyclopedia of Mushrooms to harvest and consume certain poisonous mushrooms. They became critically ill and sued, claiming, among other things, that the encyclopedia was a defective product. The Ninth Circuit disagreed. The book, the court reasoned, was fine. The book’s content was defective, but content is intangible, and intangible products, said the court, can’t give rise to product liability actions. Other courts have drawn a similar tangible–intangible line in actions involving videogames, shielding game manufacturers from liability.

To be sure, 3-D plaintiffs have some authority in their favor. For one, in Winter itself, the Ninth Circuit suggested in dictum that computer software could be considered a “product.” In addition, a number of courts have held that inaccurate information contained in navigational or aeronautical charts qualifies — and, reasoning by analogy, a digital design is arguably more like an aeronautical chart than a monograph or videogame. After all, both digital designs and aeronautical charts raise few delicate First Amendment concerns, and both are highly technical and instructional. Further, and more broadly, whether computer code qualifies as a product has not, so far, been widely considered or aggressively litigated, so there is ample room for argument and, thereafter, doctrinal development. Nevertheless, it’s important to recognize that this tangible–intangible distinction might end up being a significant barrier.

Further, even if digital designs are “products,” the plaintiff is hardly out of the woods. First, digital designers may not be “commercial sellers.” Especially if they are hobbyists who freely share their designs, they probably aren’t — returning us to the occasional seller–commercial seller problem considered previously. Second, digital designers are in some ways like architects, and courts have thus far refrained from imposing strict liability on these professionals. And third, to prevail under the Second Restatement, a plaintiff must, with various caveats, show that the defendant’s product “is expected to and does reach the user or consumer without substantial change.” Here, however, a digital designer’s “product” (its code) will arguably reach the end user only after undergoing substantial alteration, via the printing process itself. In a case that’s somewhat analogous — and might end up being important — Judge José Cabranes considered this point determinative. He refused to consider an architect’s design through the lens of PL because, even if the architect’s “working drawings, plans and specifications” qualified as a product for PL purposes, the design was utilized by the plaintiff (the building lessee) only after its transformation, via construction, “from designs drawn on paper into a large building suitable for [the plaintiff ’s] business.”  Digital designers will have at their fingertips a very similar argument.

Tax Privacy

'United States National Report on Tax Privacy' by Joshua D. Blank in Tax Secrecy and Tax Transparency - The Relevance of Confidentiality in Tax Law (Peter Lang, 2013) describes

the current tax privacy protections that apply to taxpayers in the United States and provides an overview of the policy considerations that have contributed to their enactment. The debate over whether tax privacy promotes individual tax compliance in the United States is as old as the income tax itself. In 1862, when Congress first instituted the income tax to pay for the Civil War, it required the names of taxpayers and their tax liabilities to be to be open to public inspection. Since then, Congress has repealed, enacted, and repealed again similar measures, each time after vigorous discussion of the relationship be-tween tax privacy and individual tax compliance. Today, tax privacy rules prohibit the US federal government from publicly releasing the details of any specific tax-payer’s tax return or audit history unless the taxpayer consents. But debate over this question resurfaces often, especially when the government seeks innovative ways to address the “tax gap,” or the difference between the amount of tax that tax-payers should pay and the amount that they actually pay voluntarily and on time, which was estimated at USD 345 billion annually in 2006.

Defenders of tax privacy have long contended that it encourages individual tax compliance because, without it, taxpayers would limit the information that they disclose to the government. Because the individual tax return contains so much sensitive personal information, defenders of tax privacy suggest that taxpayers might feel vulnerable to embarrassment or harassment if others could view it. As a result, many defenders of tax privacy have speculated that individual taxpayers will comply with the tax system only if they trust that their personal tax information “stops with the government.”

The contemporary tax-compliance literature, however, reveals palpable scepticism toward the taxpayer-trust theory of tax privacy. Many scholars have questioned the hypothesis that, in the absence of tax privacy, individuals would with-hold important personal information from the IRS. Several of these scholars have suggested that tax privacy no longer plays as critical a role in fostering tax compliance as it did in the past. By lifting the curtain of tax privacy, these scholars argue that public access to tax return information would cast “[m]illions of eyes” on tax returns, serving as an “automatic enforcement device.”

For over 150 years, the tax privacy debate has followed familiar patterns. Because neither side has offered a convincing prediction of taxpayers’ reactions to the threat of public disclosure of their tax returns, the question of whether tax privacy promotes individual tax compliance has swung back and forth between these two sides. Both sides have fixated on the question of how a taxpayer would comply with the tax system if she knew other taxpayers could see her personal tax return. Neither side, however, has addressed the converse question: How would seeing other taxpayers’ returns affect whether a taxpayer complies?

This Report probes that unexplored question and, in doing so, offers a new defence of individual tax privacy: that tax privacy enables the government to influ-ence individuals’ perceptions of its tax-enforcement capabilities by publicizing specific examples of its tax-enforcement strengths without exposing specific examples of its tax-enforcement weaknesses. The government publicizes specific examples whenever it reveals the details of any named individual’s tax controversy. Because salient examples may implicate well-known cognitive biases, this strategic publicity function of tax privacy can cause individuals to develop an inflated perception of the government’s ability to detect tax offenses, punish their perpetrators, and compel all but a few outliers to comply. Without the curtain of tax privacy, by contrast, individuals could see specific examples of the government’s tax-enforcement weaknesses that would contradict this perception. After considering this new defence of individual tax privacy in the context of deterrence and reciprocity models of taxpayer behaviour, this Report argues that the strategic publicity function of tax privacy likely encourages individuals to report their taxes properly and that it should be exploited to enhance voluntary compliance.

The remainder of this Report proceeds as follows: Parts 1(b) and (c) provide an overview of the historical development of tax privacy rules in the United States and the current law. Part 2 describes the ways in which the IRS receives data regarding taxpayers’ tax liabilities. Part 3 describes special information-sharing relationships between the IRS and particular institutions and individuals, including banks and lawyers. Part 4 describes the ways in which the IRS shares information with other government agencies at both the federal and state levels. Part 5 describes the ways in which the IRS shares information with the taxing authorities of other countries. Part 6 describes the tax return information that is accessible, and inaccessible, by the public under current law. In presenting this contrast, Part 6 reveals how tax privacy in the United States enables the IRS to publicize its tax enforcement strengths strategically. Part 7 describes private letter rulings and other special agreements between the IRS and specific taxpayers and public access to these arrangements. Finally, Part 8 discusses the consequences of infringement of tax privacy rules and illustrates these rules by applying them to a series of hypothetical situations.

Blank comments that

The IRS does not publish lists of taxpayers and their respective tax liabilities. If a taxpayer is involved in a public civil or criminal trial with the government over tax matters, the public may learn about the taxpayer’s return information. The government currently takes the position that, in these cases, it may publicly disclose in-formation that has become part of a public court record. Further, a taxpayer may enter into a civil settlement agreement with the IRS and, as part of the settlement, sign a waiver of the tax privacy protections described above. And if a taxpayer is delinquent in paying federal income taxes, the government may file a Notice of Federal Tax Lien on the taxpayer’s property, which publicly notifies the taxpayer’s creditors of the government’s claim.

At the state level, taxing authorities frequently publish the names of individual and business taxpayers are delinquent in paying taxes in excess of a specified threshold. Over half of the states in the United States have published the identities of businesses and individuals that have failed to pay outstanding tax liabilities on time. State taxing authorities most commonly use websites to publicize this information, such as Maryland’s “Caught in the Web” and South Carolina’s “Debtor’s Corner.” In most states, the mechanics of tax shaming campaigns are relatively simple. The state taxing authority identifies taxpayers who owe outstanding state tax liability in excess of a threshold amount. After there is no legal dispute as to the amount of outstanding tax liability, the Department of Revenue mails a “Notice of Pending Internet Posting” to these taxpayers warning them that if they do not make payment, their names and amounts of outstanding tax liabilities will be posted on the tax shaming website. State revenue agencies report that taxpayers have responded positively to the threat of public shaming, as they have paid millions of dollars in outstanding taxes in recent years.

Health Rights

The short 'Is There a Human Right to Private Health Care?' by Aeyal Gross in (2013) Journal of Law, Medicine & Ethics 138 comments that

Recent years have seen an increase in the turn to rights discourse within the context of access to health and specifically health care. Developments took place at both the national and global levels, with a significant increase in right to health litigation around the world. The social economic rights regime, is expected by many to address questions of social-economic justice. In the context of the right to health, it has the potential to assist in expanding equal access to health (and health care) and redressing disadvantage. But this article considers the tension between on the one hand the ability of the right to health to reinforce privatization and commodification of health care, by rearticulating claims to private health care in terms of human rights, and on the other hand its ability to reinforce and reinstate public values, especially that of equality, against the background of privatization and commodification. The article considers claims of access to private or semi-private health programs have been made using human rights arguments with success (Canada) and with failure (Israel) and focuses on the role of rights discourse and litigation at this intersection of the public and the private, while considering the role rights play in affecting health policy and health systems at this intersection. By looking at the case law I consider how introducing human rights to the area of public health care may be used not to expand equality, but rather to re-articulate claims to private health care as human rights claims: in both Canada and Israel there have been constitutional attack on legislation which attempted to prevent a shift from accessibility based on medical need, to accessibility based on the ability to pay.