PSO breach

The Ballarat Courier reports that a Victorian Protective Services Officer (PSO) has been fined $500, placed on a six-month diversion plan and ordered to write a letter of apology to the victim after accessing and sending personal details of his brother's old flame "for a laugh".

He had pleaded guilty to disclosing information when not authorised to do so.

Concerns regarding 'undertrained, undersupervised and overauthorised' PSOs - transport personnel with policing powers - have been noted elsewhere in this blog. The offender was on duty at Ballarat Railway Station  in July last year when he encountered his brother's friend.

Back at the police pod at the railway station, [the offender]'s colleague logged into the police database to conduct checks on individuals they had spoken to.

After asking his colleague to search the woman, police documents state [the offender] took a photo of her personal details, telling the officer he was only "sending it to his brother for a laugh".

[His] colleague challenged him, suggesting it was inappropriate, and later reported the security breach to police.

[The offender] was interviewed on July 22 and made to surrender his phone, where the picture of the private information was saved. 

The Ballarat Magistrate was reportedly satisfied that the offender's actions were not sinister or calculated, but ordered him to resign from his position. "It does show a foolish failure to understand and comply with regulations in respect to accessing this private data".

Optus enforceable undertaking

Optus has entered into an enforceable undertaking with the OAIC under s 33E of the Privacy Act 1988 (Cth), acknowledging that it failed to take reasonable steps to secure the private information and personal security of some300,000 customers in three separate incidents last year.

The weakness of the response is a reminder of concerns regarding mandatory retention of metadata, including  the likelihood that retention will result in data breaches and the ineffectiveness of bureaucratic responses to such breaches

In the first incident Optus released the names, addresses and mobile phone numbers of about 122,000 Optus customers in the White Pages online directory without the consent of those customers. Much of that information was also published in print editions of the White Pages. The failure was attributed to a "coding error". The third incident related to Optus "deliberately" leaving the management ports of customer-issued modems open, incorrectly assuming that they were only accessible by Optus staff for network management purposes. Optus additionly issued 197,000 Netgear modems and 111,000 Cisco modems to its customers with factory default settings, including user default names and passwords in place.

A benchmark is provided by ACMA's imposition last year of a $10,200 penalty on Telstra over disclosure of silent numbers, discussed in my 'Paying For Pain? Damages, Determinations and other payments for privacy breaches' in the latest Privacy Law Bulletin. In earlier data breaches the personal information (including names, addresses, usernames and passwords) of approximately 734,000 customers were accessible online in 2011; a mailout of approximately 220,000 letters with incorrect addresses occurred 2010.

ACMA indicated that Telstra contravened the Telecommunications Consumer Protections Code (TCP), which requires connectivity providers have 'robust procedures' to ensure that personal information of customers is protected from unauthorised use or disclosure. Telstra had failed to comply with directions over a previous code breach.

One metric for the formal value of privacy – or for regulatory capacity – is provided by matching the $10,200 maximum penalty to the 15,775 customers whose details were available for 15 months during 2012 and 2013.

The new Optus undertaking states

In each case, there was a failure by Optus to detect the incidents; the incidents were brought to Optus' attention by third parties. This resulted in Optus experiencing substantial delays in taking action to contain each incident, which also prolonged the duration of the risk to affected individuals

The security measures in place "were not reasonable to protect the personal information that Optus held, particularly in relation to the White Pages incident".

The undertaking requires Optus to:

• Complete a set of reviews and certification;
• Provide copies of those reviews and certifications to the OAIC;
• Implement any recommendations and rectify deficiencies identified in those reviews and certifications; and
• Provide a report by an independent third party to the OAIC certifying that the specified actions have been completed.

The Optus vice-president of corporate and regulatory affairs offered the standard rhetoric, stating that "Optus takes privacy and security very seriously".

Leviathan

The bracing 'Intellectual Property's Leviathan' by Amy Kapczynski in 77 Law and Contemporary Problems 131 comments

Neoliberalism is a complex, multifaceted concept. As such, it offers many possible points of entry into my primary field of study, that of intellectual property (IP) law. We might begin by investigating tensions between IP law and a purely economic conception of neoliberalism, for example.1 Or we might consider whether or how IP law might be “insulated from democratic governance” while also being rapidly assembled.2 In these few pages, I want to focus instead on a different line of inquiry, one that reveals the powerful grip that one particular neoliberal conception has on our contemporary imaginary: the neoliberal conception of the state. Today, both those who defend robust private IP law and their most prominent critics, I will show, typically describe the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and perilously corruptible and corrupt.

This depiction of the state as a neoliberal Leviathan has become commonsensical. I will not here attempt to defend an alternative account of the modern state, but I do want to suggest grounds to suspect that this neoliberal image does not serve us well. For example, as I will show, neither side in the current debates over IP sustains an image of the state as irredeemably neoliberal because a capable, flexible, and responsive state is essential to each side’s competing vision of the good life. Insofar as our theories require a decent state, it seems important to be able to describe one and to offer an account of the conditions that might sustain it. Moreover, there is some evidence in the domain of information policy that the modern state can be capable and efficacious, as well as open to democratic claims-making.

In the domain of IP scholarship, and undoubtedly also beyond, we need a serious, curious engagement with the state of the modern state. That engagement ought not ignore evidence that the modern state is vulnerable to ineptitude, and can be commandeered to achieve undemocratic aims. It should insist, instead, that we better understand the conditions in which this is more or less likely to be true. Ultimately, the field of IP law needs a postneoliberal imaginary of the state, not because we are sure that we can bring such a state about but because we cannot bring it about if we assume it away.

Kapczynski concludes -

The capable state is a concept that we seem to be unable to live without, though this is admittedly not the same thing as showing that such a state does or could exist. There are, however, empirical reasons to resist the notion that the state is incapable of playing a major and positive role in information policy, and not just because the state must be involved in any such scheme, including that of creating exclusion rights. Might it be that the modern state is in fact better at directly promoting innovation than it is at creating private property rights that are well-configured do the same? After all, the same state that gave us the “Mickey Mouse” Copyright Term Extension Act, which lengthened copyright protection by two decades, not only prospectively but also retroactively (to better incentivize Walt Disney, God rest his soul?), has also funded agencies like the National Institutes of Health, the National Science Foundation, and (more ominously), Defense Advanced Research Projects Agency, which are widely credited with the foundational advances that made the networked information age and the biotech age possible. Governments today fund not only blue sky research, but also “mission-oriented research,” with particular goals in fields like health and energy, where their role is critical not because possible applications are distant in time, but because their social value is hard to internalize even in the presence of private intellectual property rights, or because the private sector is more risk-averse than is government. It is in some sense no surprise that all of this is not well-profiled in recent debates about information policy and private IP law, particularly in the United States. After all, as Erik Reinart has recently put it:

[S]ince its founding fathers, the United States has always been torn between two traditions, the activist policies of Alexander Hamilton (1755-1804), and Thomas Jefferson’s (1743-1826) maxim that ‘the government that governs least, governs best.’ . . . With time and usual American pragmatism, this rivalry has been resolved by putting the Jeffersonians in charge of the rhetoric and the Hamiltonians in charge of policy.

This pragmatic accommodation may have a dangerous aspect, if it intersects with neoliberal trends in a way that brings about a state that is less empowered and less worthy of our respect. It would not be surprising if there were a selffulfilling dimension to the neoliberal image of the state. If common wisdom suggests that the state is an inertial Leviathan, will the best young minds want to labor in its service? And if skepticism about the abilities of the state leads us to relegate it largely to facilitating the functions of the market, would it be a surprise if this new state were more susceptible to capture?

In these few pages I can do no more than generate some doubt about the neoliberal image of the state that enjoys such currency in contemporary IP literature and beyond. But I hope I have done that. What is needed in IP scholarship—as elsewhere in legal studies—is a postneoliberal conception of the state, but one that is attuned to the fact that some aspects of the contemporary state in fact resemble the nightmarish neoliberal image. A call to bring the state back in is not a call to dislodge the generative new work being done on the commons, but rather to suggest that there is today no viable form of a prepolitical commons, and that theorists of the commons need to make space in both their accounts of the commons, and in their articulations of the political domain that they wish to bring into being, for a postneoliberal image of the state. Can we conceive of—even if we cannot easily achieve—a state that is capable of constraining the proliferation of exclusion rights in information and that can support social ordering beyond markets? Is it possible to imagine a state that could temper the tendencies of certain market formations to promote ghastly inequality, environmental collapse, and political corruption of the first rank? If the answer is no, then we should fear grievously for our collective future. In that case, the market and the commons will not be able to save us from the neoliberal Leviathan, and the future of ideas will be bleak indeed.

PhotoID

The Urban Institute has released a report [PDF] by Gregory B. Mills and Christopher Lowenstein on Assessing the Merits of Photo EBT Cards in the Supplemental Nutrition Assistance Program.

The authors comment

In seeking to reduce the trafficking of electronic benefit transfer (EBT) cards in the Supplemental Nutrition Assistance Program (SNAP, formerly the Food Stamp Program), states are considering—and some have implemented—the use of photo EBT cards. These personal identification number (PIN)-protected EBT cards include an imprinted photograph of the SNAP case’s head of household. Massachusetts adopted a statewide photo EBT policy in fall 2013, and Maine has more recently sought to expand a one-county pilot project statewide. Though states are given the authority to implement such policies under the Food and Nutrition Act of 2008, the statute also requires that “the State agency . . . establish procedures to ensure that any other appropriate member of the household or any authorized representative of the household may utilize the card.”

States’ use of photo EBT cards in SNAP has sparked controversy. These policies place in direct conflict two principles: the desires of state government agencies and taxpayers to uphold program integrity, and the statutory rights of SNAP household members and their designated representatives to use program benefits without being subjected to additional scrutiny in the retail marketplace. The US Department of Agriculture’s Food and Nutrition Service (FNS), the federal agency that administers SNAP, has sought through its regional offices to ensure that the photo EBT procedures and practices of state agencies and food retailers adequately protect clients’ rights to full benefit access and equal customer treatment. Client advocacy organizations contend that photo EBT policies undermine program participation by imposing undue procedural burdens upon households legitimately entitled to SNAP benefits and by re-stigmatizing program use by clients in food retail establishments. Representatives of food retailers indicate that checkout clerks typically refrain from checking the photo on the EBT card, relying on the PIN to protect against unauthorized card use.

This brief examines the extent of trafficking of EBT cards in SNAP, the efforts in place to monitor and deter trafficking behavior by clients and retailers, the proposals introduced in state legislatures to implement photo EBT cards, and the photo EBT initiatives implemented since 2008. A case study is presented of the Massachusetts experience with its statewide photo EBT policy, more than one year following rollout. The available information on the costs of the Massachusetts policy is compared to the potential benefits that may result from reductions in trafficking.

What emerges from this review is the absence of a compelling logic model to suggest that photo EBT cards might meaningfully reduce card trafficking, given that such trafficking involves the complicity of individuals and retailers for whom a photo on the card will not act as a deterrent. The cost estimates of operating a photo EBT policy, weighed against the limited expectation of altering the behavior of would-be traffickers, suggest strongly that photo EBT cards are not a cost-effective approach to combat trafficking. This assessment is strengthened by evidence from Massachusetts that retailer clerks generally do not check the photos on the cards. Moreover, it is evident that many participants who are subject to the state’s photo EBT card requirement have encountered difficulty with the state agency’s procedures for obtaining a photo card and with the grocery checkout practices of some food retailers that have prevented participants from accessing their program

Senate report on the TIA Act

The 140 page Senate Legal and Constitutional Affairs References Committee Comprehensive revision of the Telecommunications (Interception and Access) Act 1979 report - hot on the heels of passage of the mandatory metadata retention Bill - states that

The committee's inquiry has spanned 15 months. During that time, the committee received much evidence highlighting the need for urgent and comprehensive reform of the Telecommunications (Interception and Access) Act 1979 (TIA Act) including substantial comment on the matter of mandatory data retention. During the later stages of the committee's inquiry, the government announced that it would be introducing a mandatory telecommunications data retention regime.

Although the issues of comprehensive reform of the TIA Act and mandatory data retention are not mutually exclusive, to the extent possible, they have been considered separately to ensure that adequate consideration is given to both matters. This majority consensus report details the need for reform of the existing TIA Act. Separate additional remarks on the matters of data access and data retention are provided by the committee Chair, the government members of the committee and the opposition members of the committee.

The referral

1.1 On 12 December 2013, the Senate referred the following matter to the Legal and Constitutional Affairs References Committee for inquiry and report by 10 June 2014: Comprehensive revision of the Telecommunications (Interception and Access) Act 1979 (the TIA Act), with regard to: a) the recommendations of the Australian Law Reform Commission For Your Information: Australian Privacy Law and Practice report, dated May 2008, particularly recommendation 71.2; and b) recommendations relating to the Act from the Parliamentary Joint Committee on Intelligence and Security Inquiry into the potential reforms of Australia’s National Security Legislation report, dated May 2013.

1.2 The Senate later extended the reporting date – to 27 August 2014, 29 October 2014, 3 December 2014, 12 February 2015 and 18 March 2015.2 As a result of the introduction of the Abbott Government's Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 and its referral to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry and report by 27 February 2015, the Senate again extended the reporting date of the inquiry to enable the committee to consider the government’s proposed data retention policy and the findings of the PJCIS.

Background to the terms of reference

1.3 As the terms of reference indicate, the committee was required to comprehensively review the Telecommunications (Interception and Access) Act 1979 (TIA Act) having regard to recommendations made by two other bodies—the Australian Law Reform Commission (ALRC) in its report, For Your Information: Australian Privacy Law and Practice, and the PJCIS, in its report of the Inquiry into Potential Reforms of Australia's National Security Legislation. These earlier inquiries are briefly discussed below.

1.4 On 30 January 2006, the then Attorney-General, the Hon Philip Ruddock MP, referred 'matters relating to the extent to which the Privacy Act 1988 and related laws continue to provide an effective framework for the protection of privacy in Australia' to the ALRC for inquiry and report. In referring the matter, the Attorney-General requested that, among other things, the ALRC have regard to:

• the rapid advances in information, communication, storage, surveillance and other relevant technologies; 

• possible changing community perceptions of privacy and the extent to which it should be protected by legislation; and 

• emerging areas that may require privacy protection.

1.5 The ALRC presented its report, titled For Your Information: Australian Privacy Law and Practice, on 30 May 2008 making 295 recommendations. The primary focus of the ALRC's report was information privacy, however, the issue of privacy and telecommunications7 was considered in Part J of its report. In Part J the ALRC acknowledged 'the need for telecommunications regulation to respond to a convergent communications environment'8 but noted that as issues relating to convergence were beyond the scope of its terms of reference they should be considered separately. To that end, in recommendation 71.2 the ALRC called for a review of telecommunications legislation.

Recommendation 71.2 reads as follows: The Australian Government should initiate a review to consider whether the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth) continue to be effective in light of technological developments (including technological convergence), changes in the structure of communication industries and changing community perceptions and expectations about communication technologies. In particular, the review should consider: (a) whether the Acts continue to regulate effectively communication technologies and the individuals and organisations that supply communication technologies and communication services; (b) how these two Acts interact with each other and with other legislation; (c) the extent to which the activities regulated under the Acts should be regulated under general communications legislation or other legislation; (d) the roles and functions of the various bodies currently involved in the regulation of the telecommunications industry, including the Australian Communications and Media Authority, the Attorney-General’s Department, the Office of the Privacy Commissioner, the Telecommunications Industry Ombudsman, and Communications Alliance; and (e) whether the Telecommunications (Interception and Access) Act should be amended to provide for the role of a public interest monitor.

1.6 The Rudd Labor Government released its first stage response to the ALRC's report on 14 August 2009. The response committed the government to first reforming the 'privacy foundations' and to enhancing the role of the Privacy Commissioner. Reform would be 'technology neutral' to ensure the protection of personal information held in any medium. Although the first stage response addressed 197 of the ALRC's 295 recommendations, it did not address the matters set out in recommendation 71.2 or broader issues relating to reform of the TIA Act. Rather, the government stated that it would consider the remaining recommendations of the ALRC after the first stage response reforms had progressed. Legislation giving effect to the government's first stage response was enacted in November 2012.

The Parliamentary Joint Committee on Intelligence and Security—Inquiry into potential reforms of Australia’s National Security Legislation

1.7 In May 2012, the then Attorney-General (the Hon Nicola Roxon MP) requested that the PJCIS conduct an inquiry into a package of potential reforms to Australia's national security legislation. The package of reforms put to the PJCIS was comprised of 'telecommunications interception reform, telecommunications sector security reform and Australian intelligence community reform'. Along with the referral of the PJCIS inquiry, the Attorney-General's Department (the department) released a discussion paper that canvassed issues covered by the ALRC's report, including matters set out in Part J (which, as noted above, included recommendation 71.2).

1.8 The PJCIS tabled its report in June 2013 making 43 recommendations.

Recommendations 1–18 related to the TIA Act and recommendations 42 and 43 concerned data retention. These recommendations are listed at Appendix 1. It is noted by the committee that in February 2015 the PJCIS handed down its inquiry report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 which seeks to introduce a two year mandatory data retention regime in respect of telecommunications data (metadata) and implement recommendation 42 of the PJCIS's recommendations.

The current inquiry

1.9 The committee advertised the inquiry in The Australian newspaper on 5 February 2014. Details of the inquiry were published on the committee's website at www.aph.gov.au/senate_legalcon. The committee also wrote to over 110 organisations and individuals inviting submissions by 27 February 2014.

1.10 The committee received 46 submissions. Public submissions were published on the committee’s website and are listed at Appendix 2. The committee held six public hearings: on 22 and 23 April 2014, 21 July 2014, 26 September 2014 and 2 February 2015 in Canberra, and on 29 July 2014 in Sydney. The committee also took evidence in camera. A list of witnesses who appeared at the public hearings is at Appendix 3. The Hansard transcripts from the public hearings can be accessed on the committee’s website. ...

Scope and structure of the report

1.13 During this inquiry the committee sought to address the matters referred to it by examining issues raised since the reviews of the ALRC and the PJCIS. The committee took the approach that the recommendations of the ALRC's report relating to the TIA Act (including recommendation 71.2) were, to some extent, realised by the then Labor Government's referral of a review of potential reforms of Australia's national security legislation to the PJCIS committee. In that referral, the PJCIS was asked to examine many of the considerations set out in the ALRC's recommendation 71.2.

1.14 The committee notes the breadth of the recommendations of the PJCIS that related to the TIA Act: recommendations 1 to 18 related specifically to the existing provisions of the TIA Act; and recommendations 42 and 43 considered the broader policy issue of mandatory data retention. This committee notes that although the PJCIS did not reach a consensus view on mandatory data retention in its 2013 report, it recommended considerations that should be had if the government were persuaded to implement such a regime. The committee acknowledges that the 2015 PJCIS report into the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 examines issues relating to data retention with greater specificity and detail than does the 2013 report.

1.15 This report comprises three chapters. The current chapter outlines the inquiry process. Chapter 2 considers the need for reform to the TIA Act and chapter 3 discusses warranted access to telecommunications content.

1.16 The committee could not reach agreement in relation to access to data and mandatory data retention. The minority reports at the conclusion of this committee report outline committee members' views on these issues.

deCODE

'Large-scale whole-genome sequencing of the Icelandic population' by Daniel F Gudbjartsson, Hannes Helgason, Sigurjon A Gudjonsson, Florian Zink, Asmundur Oddson, Arnaldur Gylfason, Soren Besenbacher, Gisli Magnusson, Bjarni V Halldorsson, Eirikur Hjartarson, Gunnar Th Sigurdsson, Simon N Stacey, Michael L Frigge, Hilma Holm, Jona Saemundsdottir, Hafdis Th Helgadottir, Hrefna Johannsdottir, Gunnlaugur Sigfusson, Gudmundur Thorgeirsson, Jon Th Sverrisson, Solveig Gretarsdottir, G Bragi Walters, Thorunn Rafnar, Bjarni Thjodleifsson, Einar S Bjornsson et al.in (2015) Nature Genetics deals with

insights gained from sequencing the whole genomes of 2,636 Icelanders to a median depth of 20×. We found 20 million SNPs and 1.5 million insertions-deletions (indels). We describe the density and frequency spectra of sequence variants in relation to their functional annotation, gene position, pathway and conservation score. We demonstrate an excess of homozygosity and rare protein-coding variants in Iceland. We imputed these variants into 104,220 individuals down to a minor allele frequency of 0.1% and found a recessive frameshift mutation in MYL4 that causes early-onset atrial fibrillation, several mutations in ABCB4 that increase risk of liver diseases and an intronic variant in GNAS associating with increased thyroid-stimulating hormone levels when maternally inherited. These data provide a study design that can be used to determine how variation in the sequence of the human genome gives rise to human diversity. 

The authors comment

The advent of high-throughput genotyping and sequencing has revolutionized the ability to investigate how diversity in the sequence of the human genome affects human diversity. Large-scale genotyping of common variants led to an avalanche of discoveries of variants associating with common and complex diseases. Now studies based on whole-genome and exome sequencing are beginning to yield rare variants associating with common diseases. They also provide unprecedented information about human sequence diversity and insights into the structure and history of human populations. Several large-scale sequencing projects are ongoing or in the planning stages, foremost among them the 1000 Genomes Project and the Exome Sequencing Project (ESP), which have already provided valuable information about human genome diversity and tools to use in genetic discovery.

Our efforts at studying the human genome and its impact on diseases and other traits have focused on the Icelandic population. Genetic studies of the Icelandic population benefit from a genealogy of the nation reaching centuries back in time, a founder effect and broad access to nationwide healthcare information. The transition from genome-wide association studies (GWAS) based on common SNPs on microarrays to those based on a vast number of rare variants identified by whole-genome and exome sequencing presents new opportunities and challenges.

Here we describe the insights gained from sequencing the whole genomes of 2,636 Icelanders. First, we describe the density and frequency spectra of sequence variants in relation to their annotation. Second, we examine the geographical variation in sequence diversity in Iceland. Third, we show how variants down to a frequency of 0.1% can be imputed into the genomes of individuals who are only genotyped on microarray platforms and how the phenotypes of first- and second-degree relatives can be incorporated into analysis using the genealogy. Finally, we provide three examples of how rare variants in these data can be mined for associations with an extensive set of phenotypes and one example of how these data can be used to analyze clinical problems.

Radbruch

'Radbruch’s Rechtsstaat and Schmitt’s Legal Order: Legalism, Legality, and the Institution of Law' by Mireille Hildebrandt in (2015) 2(1) Critical Analysis of Law is described as an article that

forages the fruits of Radbruch’s Legal Philosophy of 1932, taking into account his writings after the horrors of National Socialism in Germany. This contribution builds on the findings of my chapter concerning Radbruch’s inquiry into the origins of the criminal law, in Foundational Texts in Modern Criminal Law. In that chapter I present the rise of the sovereign state as a precondition for a Rule of Law that institutes a balancing act between the different powers of the state. In the current article I briefly present the rise of the Rule of Law in the course of the nineteenth and twentieth centuries, exemplified by the rise of the German Rechtsstaat, the French État de Droit and the Anglo-American Rule of Law. This provides the background for a discussion of the contribution that Radbruch’s antinomian concept of law can make to a better understanding of the difference between legalism and legality. I argue that a mistaken view on legality informs the prevalent confusion around the notion of the Rule of Law. The investigation is complemented with the introduction of a procedural conception of both law and the Rule of Law, taking the discussion beyond formal and substantial conceptions of both. Finally, I integrate an analysis of Schmitt’s keen attention to the institution of law, observing that legalism and legality align with different institutionalizations, different legal orders and different modes of existence of law and the Rule of Law.

 Hildebrandt comments

Radbruch’s legal philosophy is a complex refinement of a particular strand of neo-Kantian philosophy, which understands concepts such as law, state, punishment, or property as inherently value-laden concepts. Radbruch believes that such concepts can only be properly understood if they are related to the idea that informs them. Contrary to rationalist natural law thinkers this idea is not a universal value that can be defined outside the context of its inception. For Radbruch these concepts are Kulturbegriffe (cultural concepts) that describe a value-laden reality, and the task of the legal philosopher is to clarify the values that give meaning and significance to the reality they inform. Radbruch’s antinomian conception of law shows that law in a constitutional democracy is a fundamentally contradictory phenomenon that implies a reiterative balancing act between the values of legal certainty, justice and expedience. The shifting emphasis on either of these values is not arbitrary but operates on the nexus of the concept of law, the idea that gives direction to its interpretation, and on the societal needs these values serve. Radbruch’s postwar emphasis on justice as potentially overruling legal certainty has led some to interpret his postwar writings as a return to natural law and a change in his position. However, in his seminal text on the origin of criminal law of 1938 Radbruch already found that the arbitrary power of the pater familias to punish his serfs entailed that the jurisdiction within the household of the pater familias should be understood as a prelegal order, closer to administration than to law. In line with this, we should expect that insofar as absolute sovereignty allows for arbitrary rule, Radbruch would have qualified it as a non-legal order, even before his experience of Nazi brutality.

In this article, my aim is to uncover the added value of Radbruch’s understanding of law for contemporary debates on both law and the Rule of Law. First, I will briefly present the rise of the Rule of Law in the course of the nineteenth and twentieth centuries, exemplified by the rise of the German Rechtsstaat, the French État de Droit and the Anglo-American Rule of Law. This provides the backbone for my discussion of how Radbruch’s antinomian concept of law helps to better understand the difference between legalism and legality. In fact, I often find that legality is defined as legalism, and I believe this triggers the prevalent confusion around the notion of the Rule of Law. Building on, for instance, Waldron, I will argue that we need a procedural concept of both law and the Rule of Law, to get a better picture of the difference between legalism and legality, taking the discussion beyond the dichotomy of formal and substantial conceptions. Finally, to substantiate the pivotal role of procedure, I integrate an analysis of Schmitt’s keen attention to the institution of law, observing — however — that legalism and legality align with different institutionalizations, different legal orders and different modes of existence of law and the Rule of Law.

She concludes

It is clear that for Radbruch the artificiality of positive law is not a problem to be solved, but a consequence of the concrete incompatibility of the aims of the law, coupled with the fact that people will not agree on what should be the purpose of their society, collective or community. The artificiality is a productive, creative outcome of human adversity. The constructive nature of law - from Radbruch’s perspective - does not concord with a legal positivism that reduces law to the legal certainty of positive law (what Schmitt saw as the hybrid concoction of normativism and decisionism). On the contrary, the challenge to compatibilize the aims of positivity with those of justice and instrumentality is what triggers construction and reconstruction. This is an ongoing process and it cannot be taken for granted - as Radbruch testified after his experience of Nazi rule. At some point, the lawyer - whether judge or legislator - must acknowledge that the procedural enactment of legal code or case law fails to even aim for justice and legal certainty and instrumentality. At that point the lawyer is called upon to decide on the exception: to deny validity to what looks like positive law. Not because of her own moral preferences but because law has been separated from the values that enable us to qualify a statute or verdict as law.

The productive nature of artificial, positive law, however, does not, in itself, protect individual citizens against injustice. Even if artificial law is explained in terms of the choices that must be made when justice and legal certainty, or justice and instrumentality, or legal certainty and instrumentality are incompatible in concrete situations, we need institutional arrangements to see to it that reasonable choices are made. We need to make sure that such incompatibility is not used as an argument to push for an agenda that allows for decisions with a bias against vulnerable adversaries or, simply, for decisions biased to protect the interests of already privileged groups. This requires a situation établie with effective countervailing powers, checks and balances, and equitable procedures. Contrary to Schmitt’s suggestion, this situation établie cannot be understood and preserved on the basis of its concrete reality; to be sustainable it requires keen attention to the normative framework it embodies and the backing of sovereign power. Norm, decision and institution are mutually constitutive or interdependent. On top of that, to qualify as law, their interplay should vouch for the ends of justice, legal certainty and the law’s own instrumentality, in all modesty.

Disasters

The Information Amendment Act 2015 (NT) amends the Territory's Information Act and seeks to

establish a clear legal basis for the collection, use and disclosure of personal information in the event of a disaster or an emergency that might occur inside or outside of the Territory.

The Act is consistent with provisions in the state privacy legislation and with provisions in the Privacy Act 1988 (Cth) that deal with the collection, use and disclosure of personal information during a declared emergency or disaster.

The Commonwealth statute requires that

•  there must be a reasonable belief that the individual is involved in the emergency or disaster 
• information must only be collected for a permitted purpose related to the emergency or disaster 
• there are limits on the entities that the information can be disclosed to
•  these entities (agencies, organisations or persons) must be directly involved in providing specific services, such as repatriation, medical, health, financial or other humanitarian assistance.

Responsibility

'“Society Owes Them Much”: Veteran Defendants and CriminalResponsibility in Australia in the Twentieth Century' by Arlie Loughnan in (2015) 2(1) Critical Analysis of Law comments 

Criminal responsibility now forms the subject of a rich vein of socio-historical scholarly work. But finding concrete ways to grasp the social dimension of criminal responsibility has proved challenging. This article presents one way of examining the social dimension of responsibility practices in criminal law: taking a social, rather than a traditional, or typical, legal unit of analysis, it presents a study of returned service personnel charged with serious offenses after returning home to Australia. I argue that, premised on veterans as a distinct social category, ex-soldiers are accorded special status in criminal adjudication and sentencing practices — as “veteran defendants.” The special status of “veteran defendants” has two substantive dimensions: “veteran defendants” as über-citizens, civic models or exemplars, to whom gratitude is owed and who generate responsibility in others involved in the adjudication and evaluation process, on the one hand, and legal persons with “diminished capacity” who have impaired or reduced responsibility for crime, on the other hand. These two substantive dimensions of the specialness of “veteran defendants” are underpinned by a formal quality of “veteran defendants”—that they are “see-through subjects,” both more known and more knowable than other defendants. In the Australian context, there is a historical interplay between the two substantive dimensions of the specialness of “veteran defendants,” with the latter becoming more prominent over time.

 Loughnan states

Criminal responsibility is experiencing something of a “moment” in historicized studies of law. Socio-historical scholarship on criminal responsibility, which has developed in part in critical dialogue with the legal-philosophical scholarship that still dominates the field, has now come to form a vibrant domain in its own right. Like other work in the sociohistorical scholarly tradition, this scholarship subjects criminal responsibility principles and practices to analysis in light of the substantive social, political and institutional conditions under which these principles and practices are given life. This approach has generated (and continues to generate) deep insights into criminal responsibility. Scholars working in the socio-historical tradition chart the dynamic relationship between ideas about criminal responsibility and the development of the modern state, the changing coordination and legitimation requirements of criminal law into the current era, the role of the police power, and the influence of Enlightenment liberalism on the structures and operation of the criminal law. These accounts reveal the complex and non-linear ways in which individual responsibility for crime has become the central organizing principle of the criminal law in the current era.

In order to build on existing socio-historical scholarly work on criminal responsibility, this article explores the social dimension of responsibility for crime, and presents one way in which it might be examined in concrete terms. By the social dimension of responsibility for crime, I refer to the way in which criminal responsibility practices refract (rather than reflect, in a straightforward or direct way) social norms around responsibility. As their name implies, socio-historical (and critical) scholars are particularly interested in the social dimension of responsibility for crime. As Nicola Lacey argues, criminal responsibility is an idea which is “located within a social practice” of holding individuals to account, and the “social, intellectual and institutional environment within which legal ideas emerge” influences the way legal rules are developed and applied. Alan Norrie suggests that, in criminal law, individual responsibility is always intermixed with social responsibility for wrong-doing. Finding concrete ways to examine the social dimension of criminal responsibility practices has not proved straightforward, however. As Lacey notes, in relation to conceptual accounts of criminal responsibility, the connection between the account and broader social ideas and institutions “too often slips out of view.” And for socio-historical scholars, who are aware of the significance of “the social” in criminal responsibility, translating this awareness into specific research projects has proved challenging.

How might we move beyond invocation of the significance of the social dimension of criminal responsibility, to examine it in concrete ways? One way to explore the social dimension of responsibility for crime is to adopt social (or, at least, more selfevidently social) rather than legal units of scholarly analysis. By this, I suggest taking a unit of analysis that differs from traditional legal units of analyses, which, typically, concern acts that can be committed by anyone. While there are multiple examples of “social” units of analysis that might be of interest in socio-historical and critical legal study, it is notable that socio-historical scholars typically borrow standard doctrinal or theoretical units of analysis for socio-historical inquiry (all defendants convicted of violent offenses, or child sexual assault, for example). There is, however, a good reason to adopt different units of analysis—it opens different ways of thinking about criminal responsibility. Studying a social category or group cuts across familiar legal categories and presents a way of tapping broader currents of meaning around responsibility.

For the empirical study presented in this article, I adopt the social category of exsoldiers or war veterans. Ex-soldiers are a particularly apt social group for the study of criminal responsibility for two main reasons. First, they are a distinctive and privileged group, and, in the Australian context, enjoy a high profile. Over the course of the twentieth century, war has loomed large on the Australian social landscape, and it has proved to be important in Australia’s self-understanding, both popular and scholarly. War has played a crucial role in development of Australian national identity, and was integral to the project of nation building in the period after the end of the colonial era. Australian experiences of war in the twentieth century - World War I (WWI), World War II (WWII), Korea, Vietnam, and Iraq and Afghanistan - and other military engagements - such as East Timor - have varied significantly. But, despite declining numbers of active military personnel, fewer military casualties and scant public support for war or overseas deployment of Australian troops, the social status of returned service men (and women) has remained high. Second, veterans are a particularly apt social group for the study of criminal responsibility because, as former agents of the state, they bring the state into the criminal courtroom in distinctive ways. In the modern era of “mass soldiering in an age of total war,” soldiers are a group set apart from others, licensed to kill on behalf of the state which otherwise enjoys a definitional monopoly on violence. This complicates the standard criminal law dynamic of “state versus individual” and opens the way for different, and more complex, responsibility dynamics to appear.

This article offers an analysis of the criminal legal treatment of men (all my cases concerned men) who, having been in the military, and, in some cases, having served in war, face serious criminal charges after returning home to Australia. The cases examined in this study span the period of the twentieth century (and the first years of the twentyfirst century). The cases comprise reported and unreported criminal trials, appeals and sentencing hearings, in which the defendant was identified as an ex-soldier.  Neither military justice cases nor civil cases are included in this study. My research indicated that there were a number of decisions in which the defendant’s military or war service was mere background to his or her trial or sentencing (such as when military or war service took place much earlier in the defendant’s life), and did not appear to have played a real role in evaluation of the defendant. This was the case even when the military service resulted in the defendant developing post-traumatic stress disorder (PTSD). In the majority of cases, however, military or war service was considered by the court to be relevant in some way: as my study reveals, military or war service has multiple effects in criminal adjudication and evaluation practices, and such effects vary over time and place. In some trials, military or war service relates to claims of mental incapacity, and thus to defenses that go to criminal responsibility. In some sentencing decisions, military or war service is considered in relation to (prior) good character, and interacts with other factors, such as age, guilty pleas, and remorse.

Premised on the status of veterans as a distinct social category, ex-soldiers are accorded special treatment in criminal adjudication and sentencing practices. To reflect this special status, I label them “veteran defendants,” a legal status arising from the social meanings of war, soldiers and soldiering. As I discuss in this article, the specialness of “veteran defendants” centers on the ex-soldier as a complex figure, simultaneously agentic and victim-like, courageous and vulnerable, both more and less than other defendants. I suggest that the special status of “veteran defendants” has two substantive dimensions: “veteran defendants” as über-citizens, civic models or exemplars, to whom gratitude is owed and who generate some form of responsibility in others involved in the evaluation and adjudication process, and as individuals with “diminished capacity” whereby “veteran defendants” have impaired or reduced responsibility for crime. These two substantive dimensions of the specialness of “veteran defendants” are underpinned by a formal (as opposed to substantive) quality of “veteran defendants”—as “see-through subjects,” both more known and more knowable to the criminal law than other defendants. There is a historical interplay between the two substantive dimensions of the specialness of “veteran defendants,” with the latter becoming more prominent over time, as over the course of the twentieth century, ideas about war, soldiers and soldiering have changed.

In this article, I present my study of “veteran defendants” in three parts. In Parts II and III, I discuss the two substantive dimensions of the criminal legal treatment of returned servicemen that I suggest capture the special status of the “veteran defendant” in criminal law—the idea of the individual veteran as an über-citizen and the idea of exsoldiers as legal persons with “diminished capacity.” In Part IV, I discuss the formal quality of “veteran defendants” that underpins each of these two substantive dimensions of specialness, “veteran defendants” as “see-through subjects.” I conclude with a brief discussion of the implications of my analysis for scholarly study of criminal responsibility

NZ Spooks

The New Zealand Inspector-General of Intelligence and Security, Cheryl Gwyn, has announced that she will commence an inquiry into complaints over alleged interception of communications of New Zealanders working or travelling in the South Pacific by the Government Communications Security Bureau (GCSB).

The complaints follow recent public allegations about GCSB activities. The complaints, and these public allegations, raise wider questions regarding the collection, retention and sharing of communications data.

“I will be addressing the specific complaints that I have received, in accordance with the Inspector-General of Intelligence and Security Act 1996. But there is also a clear need to provide as much factual information to the complainants, and to the wider public, as is possible.”

“For that reason, I have decided not only to investigate the complaints but also to bring forward and expand the relevant parts of my ongoing programme of review and audit of GCSB procedures and compliance systems. That review programme operates at a systemic level and doesn’t, of course, scrutinise or second-guess every day-to-day aspect of the GCSB’s operations: what it does allow for, as in this instance, is a focussed review of a particular area of GCSB or New Zealand Security Intelligence Service practice.”

“I have today notified the Acting Director of the GCSB of my inquiry and of my intention in this inquiry to provide as much information to the public on my findings as I can, withholding only that information that cannot be disclosed without endangering national security. The Director has assured me of the Bureau’s full co-operation.”

Corporations

Back to Berle and Means? 'How the Company Became an Entity: A New Understanding of Corporate Law' by Susan Watson in (2015) Journal of Business Law 120 argues 

for an entity-based understanding of the modern company, recognising capital was severed from the holders of shares with the advent of limited liability. This division was instrumental in the development of the modern company and was implicitly recognised in Salomon. The modern company is an entity created by statute comprising a capital fund normatively controlled by the board of directors. Shareholders’ ownership rights are so attenuated in the modern company that shareholders are significant only because collectively, or individually with a block of shares, they can exercise indirect control. The focus when regulating companies should therefore be on control.

Watson comments

Modern companies are descendants of, and share characteristics with, two earlier forms that existed prior to the general incorporation statutes of the mid-nineteenth century: the classic corporation and the old joint stock company. The combination of joint stock with the corporation, together with the statutory enablement of limited liability and the resulting requirement that corporate accounts be kept that distinguished capital, led to the severance between shareholders outside the company and capital inside the entity. Although the modern company and statutory limited liability existed from the middle of the nineteenth century, the consequences of and advantages of the modern corporate form were not fully recognized and exploited until the latter part of the nineteenth century leading to the inevitable concentration of economic power in the company. This agglomeration of capital was identified and correctly predicted to intensify by Berle and Means in 1932. However, attributing its cause to a separation of ownership from control has led to regulatory solutions being built around shareholder empowerment. In this article it is argued that instead the regulatory focus should be on control of the corporate fund.

Adam Smith, in The Wealth of Nations, argued that the joint stock company was a business vehicle of limited utility that would succeed only for a certain class of enterprise. The first section of the article shows how Adam Smith was initially correct in his predictions but ultimately wrong. The paper suggests this was because the corporate form itself changed with the general incorporation statutes of the mid nineteenth century. Limited liability and the separation of capital from shareholders meant that the modern company incorporated by registration was fundamentally different to the old joint stock company.

The second section of the paper is divided into four parts. The first part traces the prehistory of the modern company in more detail, contrasting the classic corporation with the old joint stock company. The second part sets out how the understanding of the development of the modern company incorporated by registration changed through the nineteenth century. Originally conceived of as an association of persons, a partnership incorporated by registration, understanding gradually shifted to the idea of a company as an artificial legal person that existed for some purposes, a type of quasicorporation. By the late nineteenth century in Salomon, the company was viewed as a real entity separate from its shareholders. The section shows how statutorily mandated company accounts that required the identification and maintenance of capital because of limited liability and which used double entry book keeping that separated shareholders from the capital they contributed, made this legal separation seem possible.

The third part argues that the importance of Salomon rests in the recognition of the modern company as a real entity rather than a legal fiction that existed for some purposes, and that Salomon marked an extension, albeit an inevitable one, of the understanding of the modern company. It is argued that the significant difference between the resulting modern company and a classic corporation is that a classic corporation is a collective of people that is a legal person for some purposes, whereas a modern company is an entity that contains a fund. The final part of the section looks briefly at the development of the understanding of the company after Salomon. The next section sets out a new model of the company placing it as a type of organisation. In terms of form, it is argued that in the modern company capital contributed by shareholders is severed from those shareholders in the corporate entity. Shareholders hold shares that have rights attached to them but shareholders do not “own” the company in any meaningful sense. The modern company contains joint stock; a fund broadly defined to include intangibles such as brand and goodwill. That fund is under the control, at least in a normative sense, of the board of directors at the times when it meets. The final section sketches out some possible consequences of a new understanding of the corporate form.

Data Sales

Who gets the data when things go wrong? In the US retailer RadioShack is reportedly trying to auction its customer data - a mere 117 million customers - as part of its court-supervised bankruptcy. The data supposedly includes "consumer names, phone numbers, mailing addresses, e-mail addresses, and, where allowed, activity data".

Minor problem: RadioShack  has recurrently stated that it "will not sell or rent your personally identifiable information to anyone at any time".

RadioShack has made undertakings to its in-store and online customers that personal identifying information would not be sold, with signage for example indicating

The information you give us is treated with discretion and respect. We pride ourselves on not selling our private mailing list. From time to time, we may send you information from our company or from select, responsible companies that may join with RadioShack to bring you special offers

The  Tennessee and Texas governments, along with telco AT&T (for which RadioShack was a mobile phone service agent) have objected to the sale, variously arguing that the data isn't RadioShack's to sell or that it's grossly undervalued.

The proposed sale is reminiscent of dot com sales more than a decade ago, which resulted in tighter protection for information about minors (for example gathered through online toy sales) but not adults.

TPPA and Health

'Explaining China's Tripartite Strategy Towards the Trans-Pacific Partnership (TPP) Agreement' by Ming Du in (2015) 18(2) Journal of International Economic Law argues that

The emergence of mega-regional trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) threatens to fragment global trade governance in fundamental ways. An important question, yet so far under-explored, is how the rising powers currently being excluded from the mega- regionals, such as China, view this new development in global economic governance. This article intends to fill this gap in literature from a Chinese perspective. Specifically, this article addresses the following questions: why has China changed its initial suspicious attitude to a more neutral stance towards the TPP recently? What are the short-term and long-term effects of the TPP on China’s economic growth and geo-political influence? How will China deal with a myriad of challenges posed by the TPP going forward, be it in or outside the TPP? After the analysis of a range of relevant political, economic and legal factors, I submit that the Chinese government has adopted what I call a ‘tripartite strategy’ towards the TPP. What remains to be seen is whether this tripartite strategy provides the best roadmap for China’s further integration into the global economy.

'Trade Policy and Public Health' by Sharon Friel, Libby Hattersley and Ruth Townsend in (2015) 36 Annual Review of Public Health 325-344 comments 

Twenty-first-century trade policy is complex and affects society and population health in direct and indirect ways. Without doubt, trade policy influences the distribution of power, money, and resources between and within countries, which in turn affects the natural environment; people's daily living conditions; and the local availability, quality, affordability, and desirability of products (e.g., food, tobacco, alcohol, and health care); it also affects individuals' enjoyment of the highest attainable standard of health. In this article, we provide an overview of the modern global trade environment, illustrate the pathways between trade and health, and explore the emerging twenty-first-century trade policy landscape and its implications for health and health equity. We conclude with a call for more interdisciplinary research that embraces complexity theory and systems science as well as the political economy of health and that includes monitoring and evaluation of the impact of trade agreements on health.

Speech

'Corporate Speech and the First Amendment: History, Data, and Implications' by John C. Coates IV draws

on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.

Personal Property Securities

The report on the Review of the Personal Property Securities Act 2009 (Cth) deals with legislation aimed at establishing "a single, national set of rules for secured credit using personal property".

The intention is that the rules would "provide greater certainty for Australian businesses, credit providers and consumers", reducing the cost of secured finance and to making it easier for businesses and consumers to use their assets as security.

The Report thus considers:

• the effect of the reforms introduced by the Act; 
• the level of awareness and understanding of the Act; 
• the incidence and causes of non-compliance with the Act; 
• opportunities for minimising regulatory and administrative burdens including cost; and  opportunities for further efficiencies. 
• the scope and definitions of personal property; 
• the desirability of introducing thresholds; 
• the interaction of the Act with other legislation; and 
• other relevant matters. 

The Report includes "extensive recommendations on how to improve the Act, including simplification of the Act and of the register established by the Act".

The Reviewer states

A paradigm shift in our law 

The Personal Property Securities Act 2009 (the Act) revolutionised the law and practice of secured transactions in Australia. It established an entirely new regime for the creation, legal effect and enforcement of security interests in personal property. In doing so, it replaced a number of complex and fragmented sets of rules with a single set of rules that apply to security interests in personal property. The Act did not do this by simply standardising the rules for existing legal structures. Instead, the Act took an entirely new approach to secured transactions laws, based on principles that had been developed and implemented in a number of overseas jurisdictions, most notably in the United States, Canada and New Zealand. This approach largely ignores the form that parties choose for their transaction or even who has title to the property, and instead focuses on the transaction’s commercial substance to determine whether it should be treated as a security interest. This was a radical shift in approach for Australian law. 

Effect of the reforms 

The Replacement Explanatory Memorandum for the Act stated that the purpose of the Act was to provide “more certain, consistent, simpler and cheaper arrangements for personal property securities”. The clear feedback from submissions to the review is that much still needs to be done if the Act is to achieve these goals. The Act has improved consistency in Australia’s secured transactions laws, but submissions emphasised that the Act and the Register are far too complex and that their meaning is often unclear, and that the resultant uncertainty has not allowed the Act to reach its potential. Submissions maintained that much can be done to simplify the content of the Act, and that this would make the Act much more accessible to users and easier to work with. Simplifying the Act will help it to achieve its objectives, as simpler and clearer rules can lead to more predictable outcomes. More predictable outcomes would give financiers greater confidence in the Act and in their ability to take effective security interests under it. That, in turn, would assist borrowers to use their assets as collateral, and enhance their ability to raise cost-effective finance. 

What can be done? 

Much can be done to improve the Act. The Act is significantly longer than the corresponding legislation in other jurisdictions, and while some of that additional length is attributable to constitutional or other machinery provisions, much of it flows from the very prescriptive nature of some of the drafting, and from the inclusion of additional provisions that may be of only marginal benefit. The Act has also adopted a number of concepts and policy choices from overseas models without it being clear as to what extent those concepts and policy choices were appropriate for Australian business conditions. The Act will be much more effective as a piece of Australian legislation if these concepts and policy choices can be tested against Australian operating conditions and expectations, and modified where this is needed. There is no one single step that by itself will produce a major improvement to the Act. Rather, improvement needs to come from the making of many small changes. 

Stakeholder input 

The work of the review has relied very heavily on input from stakeholders. The review sought the views of stakeholders through two rounds of submissions, and four consultation papers. In all, the review received 88 submissions and 83 responses to the consultation papers, from stakeholders such as industry organisations, individual businesses, law firms and law societies, government organisations representing business, consumer and privacy interests, and members of the academic legal community. Their views underpin the recommendations in this report. 

Recommendations for change 

The outcomes of the review as they relate to the Act and the Register are set out in Chapters 4 to 9 of this report. Those Chapters group the many issues by topic. The discussion of each issue consists of an explanation of the issue, consideration of the feedback received from stakeholders, and my recommendations in relation to it. For convenience, all the recommendations are also listed separately at the end of this report, in Annexure E. There was a strong consensus in the views of stakeholders on the great majority of issues. There were a number of issues, however, on which stakeholders were more divided, often because of differing philosophical starting points or competing policy preferences. My recommendations on those issues reflect what I believe, after careful consideration, to be the appropriate balance of the competing perspectives. I was not in a position to make a properly–informed recommendation on a small number of questions, mostly as the result of a lack of information. In those cases, I have instead recommended a path that Government could follow in order to reach an appropriate resolution of the issue. 

Implementation will be critical 

Making major changes to legislation of this complexity is itself a complex task. Care will need to be taken to ensure that the changes do not inadvertently upset existing rights, to ensure that the amended Act is internally consistent, and to ensure that the detail of the drafting is effective to respond to the concerns that it is designed to address. I make some recommendations on these matters in Chapter 10. 

A fresh education campaign 

The reforms introduced by the Act will only realise their objectives if the people that it affects are aware of it, and understand how it affects them. Government went to considerable efforts to raise awareness of the Act around the time that the Act was passed, but general awareness of the Act appears to have remained low, and the complexity and unfamiliarity of the content of the Act have meant that many do not know how to work with it. My anecdotal understanding is that there is now a higher level of awareness of the Act, especially among small businesses, but that more can still be done to ensure that businesses and consumers that are affected by the Act are aware of it. I believe that the recommendations in Chapters 4 to 9 will help to make the Act simpler and clearer, and so much easier to understand and work with. The Act will always be a complex piece of legislation, however, and its implications for businesses and consumers will not always be straight-forward. In addition to increasing public awareness of the existence of the Act, Government should also take steps to increase understanding, among both businesses and the legal community, of the detailed effects of the Act. I make some recommendations on these matters in Chapter 10 as well.

Data Breach Compensation

US retailer Target is reported to agreed to establish a US$10m fund for victims of the 2013 data breach, which exposed details of around 40 million customers.

Victims will need to fill out a claim form covering whether they used a credit or debit card at a Target store in the U.S. between 27 November and 18 December 2013 and whether they have reason to believe that their information was compromised as a result of doing so.

The fund gives effect to a settlement in a class-action lawsuit.

The settlement requires Target to -

• maintain a “written information security program” that it monitors and evaluates with metrics, 
• establish a process for responding to security risks, and 
• create a formal program to train Target employees on data security. 

Losses covered by the claim form include -

• unauthorized/unreimbursed charges, 
• fees for hiring someone to correct a credit report, 
• late and declined payment fees, 
• costs for monitoring accounts or replacing important documents post-breach,
• up to two hours of “lost time” (billable at $10 per hour). 

In practice the requirement for “reasonable documentation that the claimed losses were actually incurred and more likely than not arose from the Intrusion" will limit the pool of claimants.

The New York Times states

The retailer estimated recently that it had already accrued $252 million in expenses related to the data breach as of the end of January, a figure it said would be partly offset by an expected $90 million in insurance payouts. That estimate was based on the prospect of settling many lawsuits, Target said. 

Target faces further claims from three of the four major credit card companies, and is likely to face action from the fourth, it said in an annual filing on March 13. State and federal agencies, including the state attorneys general, the Federal Trade Commission and the Securities and Exchange Commission, are also investigating the breach, and may seek to impose fines and other penalties, according to Target.

Editing Embryos

Three calls to restrict the use of genome-editing tools to modify the DNA of human embryos.

In 'Don’t edit the human germ line' Edward Lanphier, Fyodor Urnov, Sarah Ehlen Haecker, Michael Werner and Joanna Smolenski in Nature comment

It is thought that studies involving the use of genome-editing tools to modify the DNA of human embryos will be published shortly.

There are grave concerns regarding the ethical and safety implications of this research. There is also fear of the negative impact it could have on important work involving the use of genome-editing techniques in somatic (non-reproductive) cells.

We are all involved in this latter area of work. One of us (F.U.) helped to develop the first genome-editing technology, zinc-finger nucleases (ZFNs), and is now senior scientist at the company developing them, Sangamo BioSciences of Richmond, California. The Alliance for Regenerative Medicine (ARM; in which E.L., M.W. and S.E.H. are involved), is an international organization that represents more than 200 life-sciences companies, research institutions, non-profit organizations, patient-advocacy groups and investors focused on developing and commercializing therapeutics, including those involving genome editing.

Genome-editing technologies may offer a powerful approach to treat many human diseases, including HIV/AIDS, haemophilia, sickle-cell anaemia and several forms of cancer. All techniques currently in various stages of clinical development focus on modifying the genetic material of somatic cells, such as T cells (a type of white blood cell). These are not designed to affect sperm or eggs.

In our view, genome editing in human embryos using current technologies could have unpredictable effects on future generations. This makes it dangerous and ethically unacceptable. Such research could be exploited for non-therapeutic modifications. We are concerned that a public outcry about such an ethical breach could hinder a promising area of therapeutic development, namely making genetic changes that cannot be inherited.

At this early stage, scientists should agree not to modify the DNA of human reproductive cells. Should a truly compelling case ever arise for the therapeutic benefit of germ­line modification, we encourage an open discussion around the appropriate course of action.

'A prudent path forward for genomic engineering and germline gene modification' by David Baltimore, Paul Berg, Michael Botchan, Dana Carroll, R. Alta Charo, George Church, Jacob E. Corn, George Q. Daley, Jennifer A. Doudna, Marsha Fenner, Henry T. Greely, Martin Jinek, G. Steven Martin,Edward Penhoet,Jennifer Puck,Samuel H. Sternberg,Jonathan S. Weissman, Keith R. Yamamoto, in Science argues that

A framework for open discourse on the use of CRISPR-Cas9 technology to manipulate the human genome is urgently needed.

The authors go on to recommend

• Strongly discourage clinical application of this technology at this time. 
• Create forums for education and discussion 
• Encourage open research to evaluate the utility of CRISPR-Cas9 technology for both human and nonhuman model systems. 
• Hold an international meeting to consider these issues and possibly make policy recommendation. 

That's consistent with the International Society for Stem Cell Research policy statement on human germline gene editing, which calls for a ban on clinical application of human germline gene editing technology but is less restrictive on laboratory activity.

The ISSCR

calls for a moratorium on attempts at clinical application of nuclear genome editing of the human germ line to enable more extensive scientific analysis of the potential risks of genome editing and broader public discussion of the societal and ethical implications.