the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technology, and put market pressure on companies not to cooperate with law enforcement.
In practice, however, many of these avenues turn out to be limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn the citizen into a target. Citizens can extract promises from companies to push back against government surveillance on their behalf but have no recourse if these promises are not enforced.
By way of method, this essay adopts James Gibson's influential theory of affordances. Originating in psychology, and famous everywhere but law, affordance theory has evolved into a general method of inquiry with its own useful vocabulary and commitments. This essay hopes to leverage these concepts to lend structure to an otherwise haphazard inquiry into the capability of citizens to perceive and affect surveillance. The essay meanwhile contributes to affordance theory by insisting that law itself represents an important affordance.'Online Price Discrimination and Data Protection Law' (Amsterdam Law School Research Paper No. 2015-32) by Frederik J. Zuiderveen Borgesius comments
Online shops can offer each website customer a different price – a practice called first degree price discrimination, or personalised pricing. An online shop can recognise a customer, for instance through a cookie, and categorise the customer as a rich or a poor person. The shop could, for instance, charge rich people higher prices. From an economic perspective, there are good arguments in favour of price discrimination. But many regard price discrimination as unfair or manipulative. This paper examines whether European data protection law applies to personalised pricing. Data protection law applies if personal data are processed. This paper argues that personalised pricing generally entails the processing of personal data. Therefore, data protection law generally applies to personalised pricing. That conclusion has several implications. For instance, data protection law requires a company to inform people about the purpose of processing their personal data. A company must inform customers if it personalises prices.
'Modern fiduciary liability: the sick man of equity?' by JD Heydon in (2014) 20(10) Trusts & Trustees 1006–1022 comments
Some think that fiduciary liability has shrunk, is shrinking and should be shrunk further. In particular, it has been said that traditional equitable duties of skill and care are not fiduciary, and, indeed, are not even equitable. It has also been said that no positive duty can be fiduciary. The article contends that these trends conflict with established authority, are unsound in principle, and have undesirable effects in practice.
Czar Nicholas I of Russia is a potentate on whom history has not looked kindly. Almost no-one has ever stood to the right of him, and he has correspondingly few supporters. Every time he drifted into the pages of Tolstoy, the author let fly. Things have not improved since. Now his reputation is at its lowest. For President Putin has selected a portrait of his predecessor for visitors to gaze at as they wait in an antechamber before an audience. But he did utter one memorable phrase that provides the theme for this lecture.
In 1853 Czar Nicholas I had a celebrated conversation with Sir Hamilton Seymour, the British Ambassador to St Petersburg. He broached the ugly subject of dismembering the Ottoman Empire. He remarked: The affairs of Turkey are in a very disorganised condition. We have on our hands a sick man – a man gravely ill. It would be a grave misfortune if one of these days he slips through our hands, especially before the necessary arrangements are made.
These words were unfortunate, for the Czar soon after succumbed, in the prime of life, to an attack of influenza, shortly before his own Empire lost the Crimean War to a group of allies which included Turkey.
It was true that by the time the Czar spoke, the rulers of the Ottoman Empire had had to endure, almost every decade, the loss of some additional province in Europe, Africa, or Asia or some humiliating peace treaty or both. The process lasted another seven decades. Every so often the Sublime Porte would default on its loans from foreigners and enter a condition of national bankruptcy, as the process of entering new loans simply to pay the interest on continuing loans reached the conclusion which our own adoption of that technique may soon result in. The world called Turkey “the sick man of Europe”. Innumerable cartoons portrayed the sultan as emaciated, enervated, addicted to the hookah and the harem, clad in primitive looking robe and fez, worn out by vice. These judgments were short sighted. A regime which for centuries had kept both the Balkans and the Middle East under some not wholly inhumane control deserves respect. For there were frightful consequences for the world when the Balkans and the Middle East fell out of control. The sultans and their advisers asked themselves: Are we on a downward path to inevitable extinction? Or do these setbacks strengthen the Empire by making it more manageable?
In hindsight the second question can probably be answered “Yes”, even though the servants of the Empire were only getting it into a fit shape to fall into the hands of its gravedigger, Mustafa Kemal Ataturk.
Similar questions arise about modern fiduciary liability. For this conference, centred on trusts, they are crucial, because the trustee is the archetypical fiduciary. Is fiduciary liability so sick that its life will soon move peacefully to its close? Or will it, by becoming smaller, also become leaner and more effective? Or will its greedy and expectant heirs—contract, tort, restitution, and, most insatiably greedy of all, statute—, together with the agitation of their academic paladins, cause it to be torn apart by judicial violence?
