Apps

In the US the Federal Trade Commission has announced that Goldenshores Technologies, LLC - provider of the Android Flashlight App Developer Settles FTC Charges It Deceived Consumers ‘Brightest Flashlight’ App Shared Usthe “Brightest Flashlight Free” app - has settled charges of deceiving customers about collection and use of geolocation information.

The free Brightest Flashlight app was marketed to users of Android mobile devices, on the basis that the device could be used as a flashlight. The FTC indicates that the app has been downloaded tens of millions of times. The Commission alleged that the Goldenshores privacy policy "deceptively failed to disclose" that the app transmitted users’ precise location and unique device identifier to third parties, including advertising networks. The FTC also alleged that Goldenshores deceived consumers by presenting them with an option to not share their information, even though it was shared automatically (rendering the option meaningless).

 “When consumers are given a real, informed choice, they can decide for themselves whether the benefit of a service is worth the information they must share to use it,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “But this flashlight app left them in the dark about how their information was going to be used.” 

In its complaint, the FTC alleges that Goldenshores’ privacy policy told consumers that any information collected by the Brightest Flashlight app would be used by the company, and listed some categories of information that it might collect. The policy, however, did not mention that the information would also be sent to third parties, such as advertising networks. 

Consumers also were presented with a false choice when they downloaded the app, according to the complaint. Upon first opening the app, they were shown the company’s End User License Agreement, which included information on data collection. At the bottom of the license agreement, consumers could click to “Accept” or “Refuse” the terms of the agreement. Even before a consumer had a chance to accept those terms, though, the application was already collecting and sending information to third parties – including location and the unique device identifier. 

The settlement  prohibits the defendants from misrepresenting how consumers’ information is collected and shared and how much control consumers have over the way their information is used. It also r

equires the defendants to provide a just-in-time disclosure that fully informs consumers when, how, and why their geolocation information is being collected, used and shared, and requires defendants to obtain consumers’ affirmative express consent before doing so.   

The defendants also will be required to delete any personal information collected from consumers through the Brightest Flashlight app.

Copyright and the 'dead rat' approach

From Hansard reporting of the Government's response to the Australian Law Reform Commission report on copyright

Senator Smith (Western Australia) (14:57): 

My question is to the Attorney-General, Senator Brandis. Can the Attorney-General advise the Senate of the Australian Law Reform Commission recommendations in relation to copyright law reform? 

Senator Brandis (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:57):

The Australian Law Reform Commission has just completed a major inquiry into copyright and the digital economy. It provided the final report to the government on Monday. The ALRC inquiry is the most significant review of the Copyright Act since the act came into operation in 1968, and has attracted strong interest with over 850 submissions. The government wishes to thank those who contributed to the work of the inquiry by making submissions. The inquiry examined whether exceptions and statutory licences in the Copyright Act are adequate and appropriate in the digital environment, and whether further exceptions to copyright should be recommended. Among other things, the ALRC was asked to consider whether further exemptions should recognise a fair-use exception in relation to copyrighted material. The ALRC has made a number of recommendations arising from the inquiry. It has recommended the introduction of a flexible fair-use exception as a defence to copyright infringement. It has also recommended retaining and reforming some of the existing specific exemptions and introducing certain new specific exemptions; amending the act to clarify the statutory licensing scheme; limiting the remedies available for copyright infringement to encourage the use of orphaned works; reforming broadcasting exemptions and amending the act to limit contracting-out terms. The government will be responding to the ALRC report in the new year. 

Senator Smith (Western Australia) (14:59): 

Mr President, I have a supplementary question. Why is the appropriate protection of intellectual property rights important to Australia's creative industries? 

Senator Brandis (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:59): 

Australia's creative industries are not just a vital part of our culture but a thriving sector of our economy. In 2011, PricewaterhouseCoopers estimated that the creative industries in Australia were worth $93 billion, which is around 6.6 per cent of GDP. The industries employ 900,000 Australians or about 8.8 per cent of the workforce, which makes them Australia's seventh largest industry—bigger than construction and bigger than retail. It is important that, just like other workers out in our economy, those who make our great films and record our great albums are entitled to the fruits of their efforts. Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due and the Australian government will continue to protect them. (Time expired) 

Senator Smith (Western Australia) (15:00): 

Mr President, I ask a further supplementary question. Can the Attorney-General indicate the government's approach to the protection of intellectual property? 

Senator Brandis (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (15:00): 

Yes, I can. I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms. The principles underlying intellectual property law and the values which acknowledge the rights of creative people are not a function of the platform on which that creativity is expressed. The principles did not change with the invention of the internet and the emergence of social media. So in this changing digital world, the government's response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property.

The European Commission has meanwhile launched a short public consultation regarding copyright. The 36 page consultation paper Public Consultation on the review of the EU copyright rules states that

Over the last two decades, digital technology and the Internet have reshaped the ways in which content is created, distributed, and accessed. New opportunities have materialised for those that create and produce content (e.g. a film, a novel, a song), for new and existing distribution platforms, for institutions such as libraries, for activities such as research and for citizens who now expect to be able to access content – for information, education or entertainment purposes – regardless of geographical borders. 

This new environment also presents challenges. One of them is for the market to continue to adapt to new forms of distribution and use. Another one is for the legislator to ensure that the system of rights, limitations to rights and enforcement remains appropriate and is adapted to the new environment. This consultation focuses on the second of these challenges: ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity. 

In its "Communication on Content in the Digital Single Market"1 the Commission set out two parallel tracks of action: on the one hand, to complete its on-going effort to review and to modernise the EU copyright legislative framework with a view to a decision in 2014 on whether to table legislative reform proposals, and on the other, to facilitate practical industry- led solutions through the stakeholder dialogue "Licences for Europe" on issues on which rapid progress was deemed necessary and possible.

The "Licences for Europe" process has been finalised now4. The Commission welcomes the practical solutions stakeholders have put forward in this context and will monitor their progress. Pledges have been made by stakeholders in all four Working Groups (cross border portability of services, user-generated content, audiovisual and film heritage and text and data mining). Taken together, the Commission expects these pledges to be a further step in making the user environment easier in many different situations. The Commission also takes note of the fact that two groups – user-generated content and text and data mining – did not reach consensus among participating stakeholders on either the problems to be addressed or on the results. The discussions and results of "Licences for Europe" will be also taken into account in the context of the review of the legislative framework. 

As part of the review process, the Commission is now launching a public consultation on issues identified in the Communication on Content in the Digital Single Market, i.e.: "territoriality in the Internal Market, harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform". As highlighted in the October 2013 European Council Conclusions "Providing digital services and content across the single market requires the establishment of a copyright regime for the digital age. The Commission will therefore complete its on-going review of the EU copyright framework in spring 2014. It is important to modernise Europe's copyright regime and facilitate licensing, while ensuring a high level protection of intellectual property rights and taking into account cultural diversity". 

This consultation builds on previous consultations and public hearings, in particular those on the "Green Paper on copyright in the knowledge economy", the "Green Paper on the online distribution of audiovisual works" and "Content Online". These consultations provided valuable feedback from stakeholders on a number of questions, on issues as diverse as the territoriality of copyright and possible ways to overcome territoriality, exceptions related to the online dissemination of knowledge, and rightholders’ remuneration, particularly in the audiovisual sector. Views were expressed by stakeholders representing all stages in the value chain, including right holders, distributors, consumers, and academics. The questions elicited widely diverging views on the best way to proceed. The "Green Paper on Copyright in the Knowledge Economy" was followed up by a Communication. The replies to the "Green Paper on the online distribution of audiovisual works" have fed into subsequent discussions on the Collective Rights Management Directive and into the current review process.

There's a more confronting analysis in ‘A Fundamental Critique of the Law-and-Economics Analysis of Intellectual Property Rights’ by Andreas Rahmatian in (2013) 17(2) Intellectual Property Law Review 191.

Rahmatian comments that 

The economic analysis of law and legal institutions, or the law-and-economics movement, originally a distinct North American phenomenon that emerged in the 1960s, has become a widespread tool for a certain conceptualisation and understanding of legal problems. Prominent representatives of the law-and-economics approach especially regard intellectual property as a ‘natural field for economic analysis of law’. Since its inception, this form of analysis has been met with suspicion, as it was felt that law-and-economics tried to take over other social sciences and establish a kind of ‘economics imperialism’. This criticism has to be taken seriously because the law-and-economics analysis does not only reconceptualise otherwise dissimilar fields of knowledge in a rather unrecognisable way to the ‘home-grown’ researchers of the other fields, it also alters, deforms, or even destroys the object of research because it has a strong normative element, even where it presents itself as purely descriptive or (which amounts to the same) “positive.” This is particularly true of intellectual property law as the research object of an economic analysis because all areas of law have developed their long-standing and highly elaborate methodology and do not need a new one, developed for an entirely different discipline, to describe their objects of research. The purpose of an economic analysis can only be a change of current legal institutions and decisions according to perceived superior economic considerations, so every law-and-economics analysis is ultimately normative. Otherwise, it would be superfluous for economists because they take legal institutions (e.g., the legal institutions of contract and property, or regulatory rules) for granted when they seek to explore market phenomena and economic behaviour, and it would be superfluous for lawyers because they have their own conceptual and scholarly frameworks of legal institutions and decisions. 

The law-and-economics approach, seeking to belong to economics as well as to law but arguably belonging to neither, engrafts economic research methods on law; it wants to provide a scientific theory to predict the effect of legal sanctions on behaviour, whereby these sanctions are conceptually simplified as prices because people are supposed to respond to sanctions in the same way as to prices. Economics then claims to have mathematically precise theories (e.g., price theory, game theory) and empirical methods for the analysis of the effects of prices on behaviour. The ways of modelling, also mathematical modelling, are controversial within economics itself,  but the complexities of human economic behaviour and of the causes and effects of human endeavours require a simplification through modelling which enables scientific findings. In economics, that can often lead to the development of a mathematical equation whereby the economist has to admit that he will never be able to determine the numerical values of the parameters in such a formula. Reductionist models are necessary to manage the complexities of reality and to gain a better understanding, but if the model simplifies so extremely such that the connection with reality can hardly be made out, the scientific exercise is worthless for the purpose of legal policy. Unlike “pure” economists, adherents of the law-and-economics approach appear to be far more insouciant in this regard. Furthermore, an economic analysis of the law influences the object of the examination, the law itself, or at least the perception of the law. One can illustrate the problem of some approaches of the law and economics analysis with a slightly exaggerated example: A researcher wants to study the social behaviour of rats interacting with each other, but, to simplify the complexities of that behaviour for a greater chance of making scientifically verifiable empirical observations, he takes one single rat, kills it according to the devised scientific model for simplification purposes, and then describes the rat’s behaviour with earnest scientific accuracy as motionless, perhaps assisted by the empirical methods of statistics and econometrics. The economic analysis of intellectual property law often provides good examples for such a “dead rat” approach. 

The following discussion is a fundamental critique of the application of the law-and-economics analysis to intellectual property law from a lawyer’s viewpoint. Economists have also raised concerns,most notably Coase:

Since the people who operate in the economic system are the same people who are found in the legal or political system, it is to be expected that their behaviour will be, in a broad sense, similar. But it by no means follows that an approach developed to explain behaviour in the economic system will be equally successful in the other social sciences. In these different fields, the purposes which men seek to achieve will not be the same, the degree of consistency in behaviour need not be the same and, in particular, the institutional framework within which the choices are made are quite different. It seems to me probable that an ability to discern and understand these purposes and the character of the institutional framework (how, for example, the political and legal systems actually operate) will require specialized knowledge not likely to be acquired by those who work in some other discipline. Furthermore, a theory appropriate for the analysis of these other social systems will presumably need to embody features which deal with the important specific interrelationships of that system.

Coase’s view is important here since he became the originator of the prevailing law-and-economics theory of property. The following is not a rejection of an economic method for the analysis of economic phenomena which presuppose, or have been created by, the law, such as supply and demand on the market, which requires at least contract and property rights (or intellectual property rights) for its functioning. But it is a rejection tout court of the remodelling of legal institutions and decisions in accordance with certain scientific methods and paradigms developed in (and for) economics, and of the claim that a corresponding analysis could yield any epistemic value for the law and a normative standard of efficiency for future legal policy. The critique also disagrees with the idea that we are supposed to have an “economic theory” of property rights, of crime and punishment, of privacy, and so on. 

Law-and-economics seems to take the worst of both worlds. Economics tends to be descriptive and seeks to ascertain rules of patterns of economic behaviour, which, usually after modelling and a partial analysis,  may be expressed in mathematical equations. A necessary consequence of this scientific approach is a plurality of different models for different aspects of the economy and/or different, also contradicting, models and outcomes in relation to one distinct phenomenon. This unavoidable plurality of models and theorems alongside one another is characteristic of economics but is discarded in the law-and-economics analysis. The reason is sociological. As one of the most important protagonists of the law-and-economics movement candidly stated, a motivation for the emergence of the law-and-economics approach was “that many law professors have lost interest in the traditional undertakings of legal research”. But the law-and-economics researchers are for the most part still lawyers. Law, unlike economics, does not entertain a plurality of different scientific approaches and models but provides authoritative answers and decisions, either by a lawgiver in statutes, by judges in judgments, or, in addition, particularly in Civil Law countries, prevalent opinion by eminent legal academics. Law-and-economics renounces the plurality of economics and takes the authoritative singular approach of law and, at the same time, uses the arguably unsuitable scientific methods of economics since they were developed for economic, not legal, problems. While unsuitable and wrong approaches are cut to size within the multitude of equal methods and models in economics, or can be reviewed in appeals in law, the law-and-economics analysis seems to be an authoritative method with no established mechanism of review or criticism. Although it sometimes embraces mathematics and statistics to reinforce its scientific credibility, it rather appears to be a method based more on unchallengeable ideological belief than on falsifiable science. However, because of this effectively non- plural approach in law-and-economics, this critique can confine itself to the Chicago School of Law-and-Economics as the principal and most relevant approach and can ignore possible other versions of law-and-economics methods as negligible variants, at least from a “classical” lawyer’s perspective. 

What I will discuss here first is an outline of the law-and-economics modelling of property rights and intellectual property rights, which law-and- economics regards as following from traditional property rights (especially tangible property). This is correct, though for reasons of law and legal theory, that is, property theory, not as a result of economic theory devised by law-and-economics. Then I discuss the argumentation against a law-and-economics approach for a conceptualisation of intellectual property. The objections to a law-and-economics analysis of legal institutions and legal relations, and, consequently, to economic propositions with regard to legal reform, are threefold. First, the conditions and assumptions on which the proposed economic models rest are oversimplifying, distorting, incomplete and sometimes blatantly incorrect. Secondly, even if correct conditions and model criteria can be developed, they are still unable to translate legal institutions and legal relations into an economic abstraction as a true mirror image of the law and its actors because economic considerations are by definition largely irrelevant to the lawyer for a legal decision. Thirdly, the application of a law-and-economics approach to legal decision-making, either in the context of principally law enforcement (e.g., judicial decisions) or of law making (e.g. legal policy), can have questionable and morally reprehensible effects. All three objections are obviously interrelated, but they are discussed separately for more clarity. The first concern, the artificial assumptions for the design of economic models that seek to emulate legal institutions and relations, will also be presented with regard to the specific types of intellectual property rights individually: trademarks, where a law-and-economics method may be most acceptable, though often one may question its relevance; patents, where this method is more problematic; and, finally, copyrights, where the law-and-economics analysis is not just a “dead rat” approach, but rather seems to destroy this legal institution.

FOI and the making of sausages

In an aphorism that is frequently attributed to Bismarck, US writer John Godfrey Saxe reportedly quipped that “Laws, like sausages, cease to inspire respect in proportion as we know how they are made”. That respect for the sensibilities of the unenlightened is a feature of the Australian honours regime.

In Karen Kline v Official Secretary to the Governor-General andAnor [2013] HCA 52 the High Court has unanimously dismissed Kline's appeal regarding access under s 6A(1) of the Freedom of Information Act 1982 (Cth) to documents relating to the Australian Honours system.

Kline had made a request under the Act for access to certain categories of documents held by the first respondent, the Official Secretary to the Governor-General of the Commonwealth of Australia. The categories of documents related to two nominations by the appellant of a person to the Order of Australia. The award of honours in Australia and elsewhere has been criticised on occasion as a matter of a 'magic circle', with opaque decision-making about who gets the state's indicia of esteem being construed as a matter of rewarding the well-connected - or merely importunate - alongside rewards for people who are truly worthy (and whose rewards legitimate the baubles given to sundry captains of industry and retiring politicians.

Section 6A(1) of the Act provides that the Act does not apply to any request for access to a document of the Official Secretary, unless the document "relates to matters of an administrative nature". The Official Secretary refused Kline's request, informing her that no documents relating to matters of an administrative nature had been identified, although she could be provided with copies of her two nomination forms.

Kline applied for review by the Australian Information Commissioner of the Official Secretary's decision. The Commissioner, in ‘B’ and Office of the Official Secretary to the Governor-General [2011] AICmr 6, affirmed the decision to refuse access. Kline appealed to the second respondent, the Administrative Appeals Tribunal, which in Kline and Official Secretary to the Governor-General [2012] AATA 247, affirmed the decision of the Official Secretary.

On appeal, the Full Court of the Federal Court in Kline v Official Secretary to the Governor-General [2012] FCAFC 184, upheld the Tribunal's decision. Kline then, by special leave, appealed to the High Court.

The High Court held that documents relating to the Governor-General's substantive powers and functions were excluded from disclosure by operation of s 6A(1) of the Act. The exception of a class of documents which related to "matters of an administrative nature" referred to documents concerning the management and administration of the office resources of the Official Secretary, or the provision of logistical support, which the Official Secretary was required to disclose.

Accordingly the documents sought by Kline were excluded from disclosure by s 6A(1) of the Act.

The HCA indicated that relevant criteria for the making of awards in the Order were already available to the public and that the Official Secretary accepted that any documents relating to review processes, if such documents existed, would be publicly available without recourse to the Act.

How are the honours sausages made, with apologies to Saxe? The judgments are not especially enlightening and we will presumably have wait for a Crossman, Ponting or Annan.

In Kline v Official Secretary to the Governor-General [2012] FCAFC 184 the Federal Court stated

The evidence was that from at least 1994 onwards, the actual approval of the Order has been made by the Governor-General, but the list of those appointed or awarded in the Order is, as a matter of courtesy and information, laid before the Sovereign. 

In more detail, when a nomination for the making of an appointment and award in the Order of Australia is received by the Australian Honours and Awards Secretariat (part of the Honours and Awards Branch of the Office of the Official Secretary to the Governor-General), the nomination is registered, an acknowledgement sent to the nominator, and then Secretariat staff conduct further research and contact relevant referees, both those suggested by the nominator and those sourced directly by the Secretariat. The purpose of the research is to confirm and verify information supplied by the nominator and to provide additional information that may be relevant to the Council, for its consideration. Once research is completed, nominations are presented to the Council for consideration. Papers are sent to the Council before the meetings which are held twice a year. The outcome of a nomination can either be an appointment or award recommended, no appointment or award recommended or deferral of the nomination for consideration at a later meeting. The Council makes recommendations for appointments and awards to the Governor-General as Chancellor of the Order of Australia. Once the Governor-General has considered and decided those to be appointed or awarded in the Order, congratulatory letters are sent to the successful recipients. Each Australia Day and on the Queen’s Birthday an honours list is gazetted in the Commonwealth of Australia Gazette and the awards are publicly announced. There was evidence that the Secretariat staff used a manual to assist them in their work.

In the US 'Politics and the Public’s Right to Know' (Notre Dame Legal Studies Paper No 1465) by Lloyd Hitoshi Mayer comments that -

In the United States it is taken for granted that members of the public should have access to information about their government. This access takes many forms, including the ability to obtain copies of government documents, the ability to attend meetings of government officials, and the related obligations of government officials to document their activities and to reveal certain otherwise private information about themselves. This access also is often limited by countervailing concerns, such as the privacy of individual citizens and national security. Nevertheless, the presumption both at the federal level and in every state is to provide such access. 

Now, however, a number of public debates raise the issue of whether this right to know should extend beyond government-government and private-government interactions to also reach private-private interactions that indirectly attempt to influence government officials. For example, should the right to know extend to public identification of "bundlers" who successfully encourage others to make substantial campaign contributions? Similarly, should the right to know require the public disclosure of all significant funders for election-related spending done independently of candidates and political parties? Should the right to know also extend to significant funders behind grassroots lobbying efforts? 

This Article explores these questions. Part I briefly describes the history of the public’s right to know in the United States. Part II explains and critiques the reasons commonly asserted to support the public’s right to know, considering whether they in fact support a right to know about government-related activities and actors on the part of the public, including when it comes to private-private political interactions. Finally, Part III considers the extent to which the public’s right to know should extend to certain specific types of private-private interactions that have political ramifications.

Age

And for people who need a reminder that old age is just around the the corner, the Productivity Commission has released a research paper [PDF] on An Ageing Australia: Preparing for the Future.

The report

examines the effects of ageing on economic output (underpinned by changes in population, participation and productivity) and the resulting implications for government budgets were current policy settings to be maintained.

The Commission argues that

• Australia's population will both grow strongly and become older. Such slow but profound shifts in the nature of a society do not elicit the same scrutiny as immediate policy issues. The preferable time to contemplate the implications is while these near inevitable trends are still in their infancy. 
• Population ageing is largely a positive outcome, primarily reflecting improved life expectancy. A female born in 2012 will on average live for an estimated 94.4 years. A male born in 2012 will on average live for an estimated 91.6 years. Population growth and ageing will affect labour supply, economic output, infrastructure requirements and governments' budgets. 
• Australia's population is projected to rise to around 38 million by 2060, or around 15 million more than the population in 2012. Sydney and Melbourne can be expected to grow by around 3 million each over this period. 
• The population aged 75 or more years is expected to rise by 4 million from 2012 to 2060, increasing from about 6.4 to 14.4% of the population. In 2012, there was roughly one person aged 100 years old or more to every 100 babies. By 2060, it is projected there will be around 25 such centenarians. 
• Total private and public investment requirements over this 50 year period are estimated to be more than fivetimes the cumulative investment made over the last half century, which reveals the importance of an efficient investment environment. 
• Labour participation rates are expected to fall from around 65 to 60% from 2012 to 2060, and overall labour supply per capita to contract by 5%. 
• Average labour productivity growth is projected to be around 1.5% per annum from 2012-13, well below the high productivity period from 1988-89 to 2003-04. Real disposable income per capita is expected to grow at 1.1% per annum compared with the average 2.7% annual growth over the last 20 years.
• Collectively, it is projected that Australian governments will face additional pressures on their budgets equivalent to around 6% of national GDP by 2060, principally reflecting the growth of expenditure on health, aged care and the Age Pension. 
•  Major impending economic and social changes can create the impetus for new reform approaches not currently on the policy horizon, eg

• design of the Age Pension and broader retirement income system might be linked to life expectancy after completion of the current transition to 67 years in 2023.

• Using some of the annual growth in the housing equity of older Australians could help ensure higher quality options for aged care services and lower fiscal costs. 

• Wide ranging health care reforms could improve productivity in the sector that is the largest contributor to fiscal pressures. Even modest improvements in this area would reduce fiscal pressures significantly.

At the other end of the continuum the Commission has released a discussion paper on Childcare and Early Childhood Learning, given the Government's stated commitment to -

establishing a sustainable future for a more flexible, affordable and accessible child care and early childhood learning market that helps underpin the national economy and supports the community, especially parent’s choices to participate in work and learning and children’s growth, welfare, learning and development. 

The paper indicates that

The market for child care and early childhood learning services is large, diverse and growing, and it touches the lives of practically every family in Australia. Almost all children in Australia participate in some form of child care or early learning service at some point in the years before starting school. In 2012, around 19,400 child care and early learning services enrolled over 1.3 million children in at least one child care or preschool programme (comprising around 15,100 approved child care services and 4,300 preschools). The Australian Government is the largest funder of the sector, with outlays exceeding $5bn a year and growing. It is important that this expenditure achieves the best possible impact in terms of benefits to families and children as well as the wider economy.

The child care and early learning system can be improved because: • families are struggling to find quality child care and early learning that is flexible and affordable enough to meet their needs and to participate in the workforce • a small but significant number of children start school with learning and developmental delays • there are shortfalls in reaching and properly supporting the needs of children with disabilities and vulnerable children, regional and rural families and parents who are moving from income support into study and employment • services need to operate in a system that has clear and sustainable business arrangements, including regulation, planning and funding • there is a need to ensure that public expenditure on child care and early childhood learning is both efficient and effective in addressing the needs of families and children.

In undertaking the inquiry the  Commission is to use evidence to report on and make recommendations about  -

1) The contribution that access to affordable, high quality child care can make to: a) increased participation in the workforce, particularly for women b) optimising children’s learning and development.

2) The current and future need for child care in Australia, including consideration of the following: a) hours parents work or study, or wish to work or study b) the particular needs of rural, regional and remote parents, as well as shift workers c) accessibility of affordable care d) types of child care available including but not limited to: long day care, family day care, in home care including nannies and au pairs, mobile care, occasional care, and outside school hours care e) the role and potential for employer provided child care f) usual hours of operation of each type of care g) the out of pocket cost of child care to families h) rebates and subsidies available for each type of care i) the capacity of the existing child care system to ensure children are transitioning from child care to school with a satisfactory level of school preparedness j) opportunities to improve connections and transitions across early childhood services (including between child care and preschool/kindergarten services) k) the needs of vulnerable or at risk children l) interactions with relevant Australian Government policies and programmes.

3) Whether there are any specific models of care that should be considered for trial or implementation in Australia, with consideration given to international models, such as the home based care model in New Zealand and models that specifically target vulnerable or at risk children and their families.

4) Options for enhancing the choices available to Australian families as to how they receive child care support, so that this can occur in the manner most suitable to their individual family circumstances. Mechanisms to be considered include subsidies, rebates and tax deductions, to improve the accessibility, flexibility and affordability of child care for families facing diverse individual circumstances.

5) The benefits and other impacts of regulatory changes in child care over the past decade, including the implementation of the National Quality Framework (NQF) in States and Territories, with specific consideration given to compliance costs, taking into account the Government’s planned work with States and Territories to streamline the NQF.

6) In making any recommendations for future Australian Government policy settings, the Commission will consider options within current funding parameters.

Public Goods

With thoughts of public interest (distinct from public curiosity) in mind it is interesting to see 'Common Good and Respect for Persons' (Sydney Law School Research Paper No. 13/91) by Wojciech Sadurski, arguing 

We need a “working” conception of the common good, i.e. a conception that does not rely on where one stands in various current political controversies about specific aims, purposes and measures of achieving them, including controversies reflected in debates about and within constitutional law. Such a “working conception” can be supplied by the idea of public reason as a characteristically liberal device of legitimacy in a pluralistic society: attempts to equate “common good” with a set of common actual first-order interests must fail. Public reason is justified by a principle of respect for persons who may or may not agree with the specific laws but who will likely feel they are “second class” citizens, thus deeply disrespected, if the law is based on grounds which are not endorsable by them. Hence, this paper explores a triangle of concepts: common good, public reason (as a working conception of common good), and respect for persons (as a justificatory argument for public reason). In the first part of this paper I discuss the concept of common good, and its relationship with public reason, and in the second part I discuss respect for persons as a justification for public reason. It is argued, in particular, that respect (as a justificatory value of public reason) should be seen as part of a constellation of values, of which freedom (understood through a presumptive evil of coercion) and political equality (understood in an outcome-based, agency-related sense), are of particular importance.

Profiling and Big Data

US prep service Kaplan reports that

The percentages of college admissions officers who say they have Googled an applicant (29%) or visited an applicant’s Facebook or other social networking page to learn more about them (31%) have risen to their highest levels yet, according to Kaplan Test Prep’s 2013 survey of college admissions officers. When Kaplan first began tracking this issue in 2008, barely 10% of admissions officers reported checking an applicant’s Facebook page. Last year, 27% had used Google and 26% had visited Facebook — up from 20% and 24%, respectively, in 2011. ....

Despite the growth in online checking, however, there’s been a dip — to 30% this year from 35% in Kaplan’s 2012 survey — in the number of admissions officers reporting that they’re finding something that negatively impacted an applicant’s admissions chances. And notably, in a separate survey of college-bound students, more than three-quarters said they would not be concerned if an admissions officer Googled them. In response to the question, “If a college admissions officers were to do an online search of you right now, how concerned would you be with what they found negatively impacting your chances of getting in?” 50% said they would be “Not at all concerned” while 27% said “Not too concerned.” Only 14% of students said they would be “Very concerned” while the remainder said they would be “Somewhat concerned.”

Alas, no indication of why they would or wouldn't be concerned.

The Kaplan media release states that “Many students are becoming more cautious about what they post, and also savvier about strengthening privacy settings and circumventing search” and that its survey  showed that

• 22% had changed their searchable names on social media, 
• 26% had untagged themselves from photos, 
• 12% had deleted their social media profiles altogether.

Kaplan's advice is for students to

run themselves through online search engines on a regular basis to be aware of what information is available about them online, and know that what’s online is open to discovery and can impact them ... Sometimes that impact is beneficial, if online searches turn up postings of sports scores, awards, public performances or news of something interesting they’ve undertaken. But digital footprints aren’t always clean, so students should maintain a healthy dose of caution, and definitely think before posting.

Meanwhile the Financial Times reports - nothing like more promo from a subject - that

Nearly 900m internet users were tracked by hundreds of third-party internet and advertising companies when they visited pornographic sites this summer.

The claim is made by 'tracking blocker' Ghostery, described by the FT as "a company that monitors online tracking" and that is lauded on Ghostery's site as "a Web tracking blocker that actually helps the ad industry", consistent with ownership by Evidon, formerly known as “The Better Advertising Project.”

The FT states that

Those tracking details can include information about the URL of the site, how long a person stays on the site and how many clicks they make there. ...

Privacy advocates fear that details about visits to adult-oriented sites could be incorporated into the vast dossiers that internet, advertising and data companies create about individuals, and are used to tailor the ads and content people see, among other purposes. Porn sites are estimated to make up at least 15 per cent of the internet.

A credit card company, for instance, could choose not to target ads to a person who frequently visits porn sites, judging them to be a higher risk customer. A gambling operation, meanwhile, could target more ads to people who spend hours visiting adult sites, considering them to have more addictive tendencies.

While some companies said that browsing behaviour from adult-oriented sites is not used to determine what ads people see, several internet and advertising companies’ privacy policies do not explicitly bar the practice. Regulations and the industry’s self-regulatory guidelines also do not prohibit the tracking or use of data related to a person’s interest or participation in adult entertainment.

'Big Data's Other Privacy Problem' by James Grimmelmann in Big Data and the Law (West Academic, 2014) comments that

Big Data has not one privacy problem, but two. We are accustomed to talking about surveillance of data subjects. But Big Data also enables disconcertingly close surveillance of its users. The questions we ask of Big Data can be intensely revealing, but, paradoxically, protecing subjects' privacy can require spying on users. Big Data is an ideology of technology, used to justify the centralization of information and power in data barons, pushing both subjects and users into a kind of feudal subordination. This short and polemical essay uses the Bloomberg Terminal scandal as a window to illuminate Big Data's other privacy problem. 

Grimmelmann notes that

We are accustomed to speaking about Big Data’s privacy concerns in terms of the surveillance it enables of data subjects.  Anyone high enough to take a tenthousand- foot view can see over fences. Take a wide-angle shot, zoom and enhance, and you have a telephoto close-up. But consider now the user of the Bloomberg terminal, zipping from function to function, running down a hunch and preparing to make a killing. Perhaps he correlates historical chart data for energy-sector indices with news reports on international naval incidents in the Pacific Rim. He pulls patterns out of after-hours trading data, checking them against SEC filings and earnings calls. He has a theory, about what happens when certain shipbuilders report their quarterlies—two usually-coupled bond funds briefly diverge—and he stands ready to pocket some cash the next time it happens by exploiting this informational advantage with overwhelming financial force. Tell him that someone has been watching every keystroke, and you will see the blood drain from his face. .....

There is another way of understanding the relationship between Big Data subjects and Big Data users. The fact that users also have privacy interests at stake complicates the project of protecting subject privacy. To understand the problem, it helps to understand something of the debate over how what to do about safeguarding those whose personal information has been hoovered up at terabyte scale.

For a time, it appeared that no restrictions on use might be necessary because there were no data subject privacy interests at stake. Deidentification was the watchword of the day: it was thought that some simple scrubbing—stripping a dataset of names, ranks, and serial numbers—would render these data driftnets dolphin-safe. And the database wranglers would have gotten away with it, too, if it hadn’t been for those meddling computer scientists. Personal information always contains something unique. It expresses its singularity even in an IP address, and a very modest grade of data has in it something irreducible, which is one man’s alone. That something he may be reidentified from, unless there is a restriction in access to the database. Although there is a lively dispute about where to draw the balance between the needs of the many (as data subjects) and the needs of the many (as research beneficiaries), it is by now painfully clear that some such balance must be struck.

The next line of defense, implicit in the burgeoning discourse of Big Data boosterism, is that only incorruptible researchers who are pure of heart will be plowing through the piles of data in search of ponies. Epidemiologists are the poster children, perhaps because public health officials would never, ever jump to conclusions about poorly understood diseases sweeping through their communities. This ideal of a trusted elite priesthood of data analysts bears an uncanny similarity to National Rifle Association head Wayne LaPierre’s invocation of “good guys with guns.” When Big Data is outlawed, only outlaws will have Big Data. Actuaries and supply chain optimizers, perhaps, come close to this technocratic ideal. But Big Data today is probably better embodied by marketers and hedge-fund traders, two professions not known for their generous concern for human flourishing.

It is hard to feel sanguine about the Big Swinging Dicks who brought us the subprime financial Chernobyl or about ad men in the business of running A/B tests to optimize their manipulation of consumers’ cognitive biases. Any sufficiently advanced marketing technology is indistinguishable from blackmail. The global phishing industry shows what happens when confidence men scale up their scams. And all of this is to say nothing about Carnivore, Total Information Awareness, PRISM, EvilOlive, and the other ominously-named trappings of the National Surveillance State. Give the CIA six megabytes of metadata inadvertently emitted by the most honest of men, and it will find something in them to put him on the drone kill list. One might — as the Obama Administration asks — simply trust in the good faith and minimal competence of the Three Letter Agencies that brought us extraordinary rendition, COINTELPRO, and the Clipper Chip. Or, more realistically, one might question the wisdom of creating comprehensive fusion centers accessible to every vindictive cop with a score to settle.

Thus, since Big Data cannot be entirely defanged and its users cannot be entirely trusted, it becomes necessary to watch them at work. It seems like a natural enough response to the problem of the Panopticon. Subject privacy is at risk because Big Data users can hide in the shadows as they train their telescopes not on the stars but on their neighbors. And so we might say, turn the floodlights around: ensure that there are no dark corners from which to spy. We would demand audit trails—permanent, tamper-proof records of every query and computation.

But if we are serious about user privacy as well as about subject privacy, transparency is deeply problematic. The audit trails that are supposed to protect Big Data subjects from abuse are themselves a perfect vector for abusing Big Data users. Indeed, they are doubly sensitive, because they are likely to contain sensitive information about both subjects and users. The one-way vision metaphor of the Panopticon, then, is double-edged. Think about glasses. A common intuition is that mirrorshades are creepy, because the wearer can see what he chooses without revealing where his interest lies. Everyone is up in arms about the Google Glass-holes who wear them into restrooms. But the all-seeing Eye is a window to the soul. The Segway for your face is also a camera pointed directly at your brain that syncs all its data to the cloud. The assumption Glass users are making, presumably, is that no one else will have access to their data, and so no one else will be pondering what they’re pondering. But that’s what Bloomberg Terminal users thought, too.

This leaves meta-oversight: watching the watchmen. Audit trails don’t need to be public; access to them could be restricted to a small and specialized group of auditors. But this privacy epicycle introduces complications of its own. You have a security problem, so you audit your users. Now you have two security problems: you are committed to safeguarding and watching over not just your data, but your data about how your data is being used. Whoever looks through the logfiles will be able to gain remarkable insight into users’ methods and madnesses. Yes, the auditors will be looking for suspicious access patterns, but they’ll need to have access to the full, sensitive range of information. You wouldn’t want an insider trading scandal in which an auditor piggybacked on an analyst’s research, or a auditor who picks a favorite user and turns into a stalker. Your auditors, in other words, are also Big Data users, which means that they too will have to be audited. It’s watchmen all the way down.

Silence of the lambs

What's fascinating - and from a public policy perspective quite saddening - about recent controversies in Australia regarding privacy is the apparent indifference of the Office of the Australian Information Commissioner.

It is clear from discussion in the national parliament yesterday, in academic fora and in the mass media that there is both public interest and public concern regarding allegations that the Australian Signals Directorate (the intelligence agency formerly identified as DSD) has been sharing metadata about Australian citizens and other people.

I refer specifically to allegations, given that the apparent source of the information - Edward Snowden - is problematical and that the claimed willingness of the agency to share with its peers does not mean that sharing actually took place or (as I've noted recently) was illegal. Regrettably we haven't moved to an informed and nuanced discussion of national intelligence activity involving such legislation.

It is also clear that executives and journalists from News group - the same enterprise that features in daily revelations of impropriety through trial for criminal offences of senior journalists over privacy abuses in the UK - did not hesitate to publish personally identifiable information about peers at the ABC. That publication is a breach of the privacy of the ABC employees and should be condemned as such. (If News believes that there is a compelling public interest - as distinct from public curiosity - in identifying the remuneration of journalists it can presumably negotiate an agreement with its employees and disclose both their salaries and relationships with third parties.)

From a public policy perspective the indifference of the Office of the Information Commissioner to both controversies is sad.

The OAIC has not made a statement about the ABC data breach, presumably relying on the wholesale carve-out for media activity provided by s 7B of the Privacy Act 1988 (Cth). A concise statement condemning the publication and reminding all Australians of the need to respect privacy is quite within the OAIC's powers under that statute. A statement would reinforce the OAIC's moral authority, an authority that can be as effective as any punitive powers under statute and that does not require the deployment of vast resources. A few keystrokes and it is done. Done without any substantive concern regarding diversion of the OAIC's resources and done consistent with the OAIC's charter under the Act.

The OAIC has not made a statement about the Snowden allegations, presumably taking its cue from the Attorney-General's comment that Australian governments do not comment on 'intelligence matters'.  That formulaic disavowal is disingenous and erodes the trust on the part of the Australian community that should be given to activity by intelligence/law enforcement agencies that is legitimate, legal and - in a cold hard world - regrettably necessary.

It would be appropriate for the OAIC to acknowledge concerns regarding metadata, even if through a reminder to all Australians that information collection, processing and dissemination is situated within a legal framework.

The OAIC has instead been silent and remains silent. It is the silence of the lambs, the silence of a body that is apparently out of touch with community concerns or that views its role so narrowly as to preclude a public statement. Such indifference to community questioning of the privacy framework and of privacy values erodes the legitimacy of the OAIC, both within the community at large and within the Commonwealth bureaucracy.

The OAIC has not been silent in all areas. It has been quick to promote 'the easy stuff', in the grand bureaucratic tradition of mistaking events (ie meetings) for outcomes. If we look at its website for example we see a picture of privacy/data protection commissioners after recent meetings. The OAIC has time to publish corporate happy snaps. It does not have time to make a statement regarding matters at the heart of Australian privacy law. It has time to highlight speeches by advocates of open government. It is silent - without even the plaintive bleat of a docile timorous lamb - about a major data breach (no condemnation, no announcement that an own motion investigation is underway) and about claims that information has been collected and gone offshore, legally or otherwise.

Silence erodes respect for privacy and tacitly encourages the behaviour of the News executives.

Silence inhibits public consideration and understanding of questions about boundaries to privacy - in practice and principle - regarding national security.

It is silence that both can and should stop.

FDA and sugar

'Generally Recognized as Safe?: Analyzing Flaws in the FDA's Approach to GRAS Additives' by Laurie J. Beyranevand in (2013) 37(4) Vermont Law Review comments

Since the 1970s, consumers and advocates in the United States have questioned the safety of the list of substances considered “generally recognized as safe” (“GRAS”) by the Food and Drug Administration (“FDA”). Despite the directives that have pushed the agency to review and, in certain cases, reconsider the inclusion of certain substances on the list, the agency has failed to take any significant attempts at removing any substances for decades. In some instances, the agency has instead approached the issue as one that requires more consumer awareness about the inclusion of the substance in food and provided labeling information to allow the consumer to determine whether or not to purchase the product. In essence, the agency has placed the burden of ensuring safety in the hands of the purchaser. Many would suggest these efforts do not sufficiently address the underlying issues regarding the substances’ safety. This article traces the history of the GRAS provision, and considers whether the agency’s current approach to GRAS substances accurately reflects the legislative intent. Specifically, the article questions whether the agency’s current approach to removal requires a showing of general recognition of harm rather than a demonstration that there ceases to be a general recognition of safety of the substance, and discusses the practical effects of such an approach using sugar as an example. ....

Rather than revoking sugar’s GRAS status, which seems unlikely at present, the FDA could consider other regulatory options that may be less controversial and easier to implement. For example, it could define the conditions under which added sugars are GRAS and specify intended uses, as well as limits, in the same manner it has for other substances. Because sugar is one of the GRAS substances that can be added to foods with no restriction other than good manufacturing practices, the FDA could reconsider this policy and determine more precise requirements for GRAS use. Alternatively, the Agency could revoke sugar’s GRAS status for specific uses and at specific levels. This could accomplish the goal of reducing unnecessary added sugars in products that are not intended to be sweet. Finally, the Agency could consider labeling aimed at the target population of consumers for which it intends to reduce consumption. With this step, at least, the Agency would be utilizing its study regarding labeling information to address added sugars. 

As some suggest, one of the best justifications for the presence of even a small amount of harmful substances in food “is the exceedingly high cost of removing them completely.” In the case of sugar –– a valuable added substance that has a long history of use in the United States –– whatever course the FDA chooses is likely to be marked by controversy, administrative headaches, and regulatory action for which the Agency lacks funding. Regardless, these challenges should not prevent the Agency from fulfilling its mission to continue to ensure the safety of added substances in the American food supply.

Religion

John O. Hayward's spirited 'Religious Pretenders in the Courts: Unmasking the Imposters' comments

When courts decide First Amendment “Free Exercise” cases, they often are confronted with the daunting task of defining what exactly is a “religion.” This article examines how judicial definitions and interpretations of religious faith have evolved over many decades, including legal recognition of Wicca (modern day witchcraft) and Hare Krishna as “religions,” as well as courts steering clear of the issue whenever possible, for example, when faced with an adherent of the “Church of Body Modification” who claims her employer’s dress code violates her religion. It also explores how courts have sought to uncover deception and fraud hiding behind disingenuous invocations of religious belief, especially regarding marijuana use. Finally, it advances a definition of “religion” in the hope of advancing judicial appreciation and understanding of this age-old human phenomenon.

 Hayward notes that US

courts unfortunately are too often confronted with disingenuous invocations of religious faith. All too frequently many of these “religious pretenders” grow, distribute, or use marijuana and when apprehended, invoke the Free Exercise Clause as their defense. It is to several of these more prominent cases that we now turn. ...

Without doubt the “Great Pretender” of religious pretenders is the Neo-American Church, whose head is Chief Boo Hoo, which, in 1968, found one of its “primates” (analogous to a bishop) indicted in the District of Columbia for unlawfully obtaining and transferring marihuana (sic) and for the unlawful sale, delivery and possession of LSD.  In this commentator’s view, the Neo-American Church and its doctrines impugn the honesty and integrity of genuine religious institutions. So that readers may judge for themselves, the court’s description of the “church” is as follows:

The Neo-American Church was incorporated in California in 1965 as a nonprofit corporation. It claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area. There are some 300 Boo Hoos throughout the country. In order to join the church a member must subscribe to the following principles: 

"(1) Everyone has the right to expand his consciousness and stimulate visionary experience by whatever means he considers desirable and proper without interference from anyone; 

"(2) The psychedelic substances, such as LSD, are the true Host of the Church, not drugs. They are sacramental foods, manifestations of the Grace of God, of the infinite imagination of the Self, and therefore belong to everyone; 

"(3) We do not encourage the ingestion of psychedelics by those who are unprepared."

Building on the central thesis of the group that psychedelic substances, particularly marihuana and LSD, are the true Host, the Church specifies that "it is the Religious duty of all members to partake of the sacraments on regular occasions." [emphasis in original] 

A Boo Hoo is "ordained" without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a "spiritual crisis," administers drugs and interprets the Church to those interested. The Boo Hoo of the Georgetown area of Washington, D.C., testified that the Church was pantheistic and lacked a formal theology. Indeed, the church officially states in its so-called "Catechism and Handbook" that "it has never been our objective to add one more institutional substitute for individual virtue to the already crowded lists." In the same vein, this literature asserts "we have the right to practice our religion, even if we are a bunch of filthy, drunken bums." The members are instructed that anyone should be taken as a member "no matter what you suspect his motives to be." 

The court then proceeds to discuss how difficult it is to define “religion” but counsels that

Those who seek the constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them when participating in antisocial conduct that otherwise stands condemned. In a complex society where the requirements of public safety, health and order must be recognized, those who seek immunity from these requirements on religious grounds must at the very least demonstrate adherence to ethical standards and a spiritual discipline.

Thus the court announces that it won’t be hoodwinked into sanctioning illegal conduct simply by invoking a religious declaration. It reviews the “Catechism and Handbook” which contain some insightful revelations as to the true aims of this so-called church:

Reading the so-called "Catechism and Handbook" of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a "martyrdom record" to reflect his arrests. The Church symbol is a three-eyed toad. Its bulletin is the "Divine Toad Sweat." The Church key is, of course, the bottle opener. The official songs are "Puff, the Magic Dragon" and "Row, Row, Row Your Boat." In short, the "Catechism and Handbook" is full of goofy nonsense, contradictions, and irreverent expressions.  

The court mentions that this supposed church has attributes of religion but only for tactical purposes and that the overall effect of all the evidence and the catechism is “agnostic, showing no regard for a supreme being, law or civic responsibility.”   It remarks that its seal is a three-eyed toad with the name of the Church at the top and across the bottom is the Church motto: "Victory over Horseshit!"  The court doubts whether the Neo-American Church is a religion within the First Amendment and states that the defendant Kuch “has totally failed in her burden to establish her alleged religious beliefs.”  At this point the court could rule that based on the evidence, the Church is not a “religion” for First Amendment Free Exercise purposes, but declined to do so. Instead it took the position that assuming for the sake of argument that the Church is a genuine religion, its practices must still comply with the law.  While the First Amendment protects religious beliefs, actions done pursuant to religious beliefs must conform to the law.  The court then provides some vivid examples:

Mormons were not permitted to practice polygamy.  Nor would the Constitution protect the practice of religions requiring infanticide, the killing of widows [suttee], or temple prostitution, as some religions have done in the past.  

After rejecting defendant’s arguments that since peyote is allowed in religious activities, to deny her use of marijuana would violate Equal Protection,   the court held that “the Neo-American Church is not an establishment of religion and the defendant did not sustain her burden of demonstrating that her religious beliefs require her to ingest psychedelic drugs.”  Furthermore, the court held that the “statutes under which she stands indicted are in aid of a substantial government interest and have a rational and constitutional basis. These laws, enacted to preserve public safety, health and order, will be enforced.”  Thus rightly ended the Neo-American Church’s pretense that it was a religious establishment exempt from compliance with anti-drug laws.

Documentation

'Undocumented Migrants and the Failures of Universal Individualism' (Temple University Legal Studies Research Paper No. 2013-36) by Jaya Ramji-Nogales comments

 In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Amnesty International’s “Immigrants’ Rights are Human Rights Campaign” declares that “[a]ll immigrants, irrespective of their legal status, have human rights.” The American Civil Liberties Union claims that “[n]umerous international human rights documents firmly establish the principle that no human being can be outside the protection of the law or ‘illegal’ [and] that discrimination and abuse based upon immigration status is a violation of human rights.” Human Rights Watch goes so far as to suggest that “a human rights framework strongly supports a program of earned legalization for undocumented immigrants in the US.” Even Eric Holder, the U.S. Attorney General, stated recently that “creating a pathway to earned citizenship for the 11 million unauthorized immigrants in this country . . . is a matter of . . . human rights.”In a similar vein, legal scholars have noted that “irregular migrants are entitled to the full range of human rights” and that “[m]ost human rights are guaranteed irrespective of an individual’s immigration status; they are a function of a person’s status as a human being, not as a citizen of a particular state.” 

The assumption underlying these pronouncements is that international human rights law affords undocumented migrants substantial protection against the mistreatment, exploitation, and abuse they face in their host countries. They even suggest that the undocumented are recipients of specific rights under international human rights law, such as the right to non-discrimination based on immigration status and the right to regularize their status. In reality, the human rights framework’s protections of the undocumented are far less robust than these statements suggest. That is the problem this article takes up in greater detail. 

It is understandable, given human rights law’s claims to universalism and individualism, that those seeking to assist migrants would turn to the human rights framework as a source of protection. The international treaties that comprise the current human rights regime were drafted as a response to the mass atrocities perpetrated during the Second World War. The international community set up this new legal structure to ensure that states would no longer be able to arbitrarily deny rights to people within their territory or control; instead, rights would attach to each individual by virtue of their humanity. The protections available within the human rights canon were to be universally applicable and reflective of shared universal human values. 

These were noble and ambitious claims. But has human rights law lived up to its promises? This article uses the case study of undocumented migrants to evaluate the project of universal individualism. On paper, many human rights protections apply to all humans, whether or not they have lawful immigration status. But it is extremely difficult for migrants to exercise these substantive rights when they can be discriminated against based on their immigration status and deported at any time. These vulnerabilities must first be addressed so that undocumented migrants have the ability to claim other rights. International human rights law provides insufficient protection against deportation and discrimination against undocumented migrants, safeguarding instead sovereign interests in territorial control. Rather than protecting the vulnerable against sovereign abuses, universal individualism has entrenched existing power imbalances. The perspective of undocumented migrants is not adequately reflected in the ostensibly shared universal values manifested in current human rights law. These failures of protection raise larger questions about the universal individualist approach to human rights. This article begins with a systematic critique of the failures of universal individualism. The false universalism of the current human rights project erases certain forms of suffering from popular discourse. These claims to transcendent universalism imply that human rights law is apolitical thereby disguising the political choices that determine its content. Human rights law’s narrow focus on the individual obscures larger questions of structural inequality. The individualist approach presents an atomistic conception of society that overlooks the importance of social ties and group-based identities. 

After setting out this critical framework, the article describes who undocumented migrants are and which rights and values they might prioritize if the universalist approach were to include their voices. It next explores the contested content of four such rights: the right to territorial security, the right to procedural due process in deportation proceedings, the right to non-discrimination based on immigration status, and the right to family unity. The latter right is the most widely available to undocumented migrants, though still limited; the first is unavailable in any forum. This is problematic because it is exactly the lack of territorial security that renders undocumented migrants vulnerable and unable to protect themselves against exploitation and abuse. 

This article next briefly discusses why the universal individualist approach to human rights has failed to protect undocumented migrants. It suggests that, contrary to common perception, human rights law may actually reinforce sovereign interests and exacerbate the harmful effects of globalization on vulnerable populations. This section begins with a critical history of the relationship between human rights and sovereignty, highlighting the evolution of the universal individualist approach over time. It then focuses on the interaction of globalization and human rights, illustrating the role of global economic inequity in creating migration flows, and explaining how the universal individualist approach furthers this distributive inequality. In the world of social justice, universal individualism in the form of international human rights law has become the hegemon. Efforts to protect vulnerable populations begin and end with human rights. Particularly in legal scholarship, strategies to ameliorate the situation of vulnerable groups outside the scope of human rights law focus on how that law might be extended to cover these groups. Given the failures of universal individualism, this paper suggests instead other approaches outside of or alongside international human rights law that might more effectively protect undocumented migrants and other vulnerable populations. 

Using the criticisms of universal individualism as a roadmap, this article provides three alternative approaches to protecting vulnerable populations. It first lays out ways in which the existing human rights structure could be reformed to minimize the shortcomings of the universal individualist approach. It next presents a state-based approach to social change, discussing methods through which migrant-sending states can work individually and in coalition with other states to protect their nationals in migrant-receiving states. Finally, the paper suggests a social movements approach to protecting undocumented migrants, in the form of counter-hegemonic transnational networks. It ends with a call to examine critically the universal individualist approach to human rights, and to envision alternative ways to protect vulnerable populations by engaging more broadly with global structural injustice. 

The aim of this article is not to work within existing systems to create social change, but to push readers to reimagine what is possible when it comes to protecting undocumented migrants. Even the imaginations of those who seek to protect undocumented migrants are currently impoverished by the strictures of the international human rights framework that governs most social change efforts. This paper is thus an attempt to liberate the discourse around undocumented migrants from the dominant human rights hegemon.