Retrospects

It's perhaps difficult for some undergraduate law students to recognise that the world predates Jusdtin Bieber. A corrective is provided in 'The information infrastructures of 1985 and 2018: The sociotechnical context of computer law and; security' by Roger Clarke and Marcus Wigan in (2018) Computer Law and Security Review.

Their incisive analysis states

This article identifies key features of the sociotechnical contexts of computer law and security at the times of this journal’s establishment in 1985, and of its 200th Issue in 2018. The infrastructural elements of devices, communications, data and actuator technologies are considered first. Social actors as individuals, and in groups, communities, societies and polities, together with organisations and economies, are then interleaved with those technical elements. This provides a basis for appreciation of the very different challenges that confront us now in comparison with the early years of post-industrialism.

 The authors comment

The field addressed by Computer Law and Security Review (CLSR) during its first 34 volumes, 1985–2018, has developed within an evolving sociotechnical context. A multi-linear trace of that context over a 35-year period would, however, be far too large a topic to address in a journal article. This article instead compares and contrasts the circumstances that applied at the beginning and at the end of the period, without any systematic attempt either to track the evolution from prior to current state or to identify each of the disruptive shifts that have occurred. This sacrifices developmental insights, but it enables key aspects of contemporary challenges to be identified in a concise manner. 

The article commences by identifying what the authors mean by ‘sociotechnical context’. The two main sections then address the circumstances of 1985 and 2018. In each case, consideration is first given to the information infrastructure whose features and affordances are central to the field of view, and then to the activities of the people and organisations that use and are used by information technologies. Implications of the present context are drawn, for CLSR, its contributors and its readers, but more critically for society. 

The text can of course be read in linear fashion. Alternatively, readers interested specifically in assessment of con- temporary IT can skip the review of the state in 1985 and go directly to the section dealing with 2018. It is also feasible to read about the implications in Section 5 first, and then return to earlier sections in order to identify the elements of the sociotechnical context that have led the authors to those inferences. 

The focus of this article is not on specific issues or incre- mental changes, because these are identified and addressed on a continuing basis by CLSR’s authors. The concern here is with common factors and particularly with discontinuities – the sweeping changes that are very easily overlooked, and that only emerge when time is taken to step back and consider the broader picture. The emphasis is primarily on social impacts and public policy issues, because the interests of business and government organisations are already strongly represented in this journal and elsewhere.

Producers

'Privacy and Data Management: The User and Producer Perspectives' by Wenhong Chen, Anabel Quan-Haase, Yong Jin Park in (2018) American Behavioral Scientist comments

 Drawing on diverse theoretical and methodological approaches, this special issue takes a fresh look at the various aspects of the messy gridlock of privacy practices from the user and the producer perspectives. On the one hand, we aim to advance privacy research at the individual level in terms of scope, typology, and implications. On the other hand, we advocate for greater attention to one of the most important, yet still underdeveloped, lines of inquiry in privacy research: the perspective of producers such as governments, corporations, and tech startups, especially looking at how corporations and entrepreneurs design and develop their privacy policies, practices, and strategies. Together, these articles have numerous implications for policy makers, industry, and community practitioners. 

At the 2018 World Economic Forum, German’s chancellor Angela Merkel stated, “Data will be the raw material of the 21st Century—the question ‘who owns that data?’ will decide whether democracy, the participatory social model and economic prosperity can be combined” (Chu, 2018). As data become the new oil of the 21st century, commercial use of personal data has become the core business model of many technology firms and the administrative use of private data an integral part of all levels of governance and national and international security. The ongoing Cambridge Analytica scandal and its aftermaths have drawn tremendous attention to privacy issues and current data management practices at corporate giants such as Facebook, Google, and Twitter. The lack of transparency, accountability, and regulatory frameworks have increased privacy concerns of citizens and shown the significant work ahead toward developing much needed regulations (Yang, Quan-Haase, & Rannenberg, 2016). 

The seven articles in this special issue represent a range of theoretical and methodological approaches surveying the changing landscape of privacy practices from both user and producer perspectives in the United States, Canada, and Hong Kong. Two of the seven articles focus on the producer perspective, while the remainder five articles examine privacy from an individual perspective. Together, the articles advance our understanding of privacy broadly and specifically show the need for both user and producer perspectives. A growing number of individuals around the globe use digital media technologies for information, communication, work, and entertainment. Digital media are the devices (e.g., computers, tablets, and mobile phones) and applications (e.g., Facebook, Twitter, and Skype) used to access, produce, consume, and exchange information in a digital form, especially for supporting social interactions and finding information (Quan-Haase, Wellman, & Zhang, in press). It is thus understandable that many studies have centered on the patterns, causes, and consequences of privacy practices from the perspective of individual users. Much of the scholarly literature has examined how a user’s gender, education, or digital skills have affected their privacy management. This literature has also looked at psychological, cultural, and contextual factors at the individual level that may affect privacy decisions and attitudes. Individual-level analysis clearly offer extremely valuable insights on the implications of individuals’ psychological and demographic attributes and interpersonal relationships for their privacy concerns, calculations, and tactics. Yet individual-level examinations often provide limited understanding about the power of state and corporate actors in how users’ data are collected, used, and shared. After all, individual users, if not organized through advocacy groups or social movements, may have limited influence on national or international privacy regulations as well as on corporate policies and practices. Textual analysis of privacy laws, regulations, and policies tend to miss the interactions among a web of actors in the negotiation of privacy as a key social contract that redefines the boundary of the public and the private. That is, privacy is a social negotiation among various actors and as such privacy research needs to examine how these various actors come together to understand privacy. 

Without discounting the importance of privacy research at the individual level, we argue in this special issue that it is equally important, if not more important, to take into account the producer perspective. Privacy and data management involve a web of multiple stakeholders in a complicated data ecosystem, which includes individual users, corporations, governments, policy makers, and nongovernmental organizations. One of the most important yet still underdeveloped lines of inquiry in privacy research is the perspective of producers such as governments, corporations, and tech startups. For example, often simply vilified or treated as a uniform entity without much to contribute to the debate, technology firms and startups deserve greater and more nuanced attention in the privacy scholarly literature. As a result, we do not know much about the producer’s perspective, that is, how businesses and entrepreneurs design and develop their privacy policies, practices, and strategies.

Beyond the Binary

The Australian Human Rights Commission is conducting a project that considers

how best to protect the human rights of people born with variations in sex characteristics — in the specific context of non-consensual medical interventions.

There are currently no Australian national guidelines or legislation regarding what the Commission characterises as "the management of people born with variations in sex characteristics in Australia". Legal scholars and some of those people might respectfully suggest that "management" is an inappropriate term.

The Commission states

 The aims of the project are to:

• identify key issues and obtain perspectives on current practice by consulting with various stakeholders, including individuals born with variations in sex characteristics, advocacy groups, medical professionals and representatives from federal, state and territory governments 

• evaluate the current approaches taken to medical interventions in Australia and other jurisdictions using a human rights-based framework 

• develop recommendations for a nationally consistent human-rights based approach to decision-making about medical interventions.

For this inquiry, the Commission uses the term ‘people born with variations in sex characteristics’ to refer to people born with bodies that do not align with medical norms for female or male bodies. This can include variations in sex chromosomes, hormones, reproductive organs and/or sexual anatomy. ‘Intersex’ is another term used to describe this population.

AAT Review

The Commonwealth Attorney-General Christian Porter announced on 27 July that that former High Court Justice David Callinan AC QC will undertake a statutory review of the Administrative Appeals Tribunal (AAT) in accordance with section 4 of the Tribunals Amalgamation Act 2015 (Cth).

The Administrative Appeals Tribunal (AAT) was amalgamated with the Social Security Appeals Tribunal, the Migration Review Tribunal and Refugee Review Tribunal on 1 July 2015.

Under s 4, the Attorney-General must cause a review of the operations of the amendments made under the enactment, commencing as soon as practicable three years after the Act's commencement. The Review must also consider any other related matter that the Minister specifies.

The Terms of Reference are

A review is to be commenced, in accordance with section 4 of the Tribunals Amalgamation Act 2015 (TA Act), to consider the operation of the amendments made by the TA Act to the Tribunal. 

The review shall consider:

• whether the objectives of the TA Act have been achieved; 

• the extent to which the Tribunal operates as a truly amalgamated body, and whether any existing levels of separation are necessary and appropriate; 

• whether the Tribunal is meeting the statutory objectives contained in section 2A of the Administrative Appeals Tribunal Act 1975, with particular regard to:

• the objective to promote public trust and confidence in the decision-making of the Tribunal, including: - the extent to which decisions of the Tribunal meet community expectations; and - the effectiveness of the interaction and application of legislation, Practice directions, Ministerial Directions, guides, guidelines and policies of the Tribunal;

 the degree to which legislation, processes, grounds, scope, and levels of review in, and from, the Tribunal promote timely and final resolution of matters; 

whether the Tribunal’s operations and efficiency can be improved through further legislative amendments or through non-legislative changes; and 

whether the arrangements for funding the operations of the Tribunal are appropriate, including ensuring consistent funding models across divisions.

The written report of the review is to be provided to the Attorney-General by 31 October 2018. 

Guns

'3D Printing, Policing and Crime' (Crime Justice and Social Democracy Research Centre Briefing Paper Series, 1. Crime Justice and Social Democracy Research Centre, Brisbane) by Angela Daly and Monique Mann states 

This CJRC briefing paper provides background information on the intersections of three-dimensional (3D) printing technology, policing, and crime. It focuses on the opportunities and challenges of this technological innovation. Specifically, this report canvasses the role of 3D printing as a tool, as a source of evidence, and as a potential threat for police agencies and wider public safety. The emergence of 3D printed firearms is discussed in depth, and an overview of case studies where 3D firearms or firearm parts have been located and investigated by police is included. Finally, the legal and enforcement models implemented to address 3D printing technology to date in different jurisdictions are reviewed.

Worth reading

Regulation

Regulatory Monitors' by Rory van Loo in Columbia Law Review (Forthcoming) comments

Like police officers patrolling the streets for crime, the front line for most large business regulators — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police officers in criminal law enforcement, they have paid limited attention to the structural role of regulatory monitors in civil law enforcement. 

This Article is the first to chronicle the statutory rise of regulatory monitors and to situate them empirically at the core of modern administrative power. Since the Civil War, often in response to crises, the largest federal regulators have steadily accrued authority to collect documents remotely and enter private space without any suspicion of wrongdoing. Those exercising this monitoring authority within agencies administer the law at least as much as the groups that are the focus of legal scholarship: enforcement lawyers, administrative law judges, and rule writers. Regulatory monitors wield sanctions, influence rulemaking, and create quasi-common law. Moreover, they offer a better fit than lawyers for the modern era of “collaborative governance” and corporate compliance departments, because their principal function — information collection — is less adversarial. Yet unlike lawsuits and rulemaking, monitoring-based decisions are largely unobservable by the public, often unreviewable by courts, and explicitly excluded by the Administrative Procedure Act (APA). The regulatory monitor function can thus be more easily ramped up or deconstructed by the President, interest groups, and agency directors. A better understanding of regulatory monitors — and their relationship with regulatory lawyers — is vital to designing democratic accountability not only during times of political transition, but as long as they remain a central pillar of the administrative state.

'The Trouble with Counting: Cutting through the Rhetoric of Red Tape Cutting' by Jodi L Short in (2018) 103(1) Minnesota Law Review comments

With the issuance of Executive Order 13,771, which requires agencies to repeal two regulations for every one they propose, regulation counting has become a cornerstone of deregulatory policy in the Trump Administration. This article situates the “2-for-1” Order in a larger intellectual project that has long sought to demonstrate that the sheer quantity of regulations is causally related to declines in macroeconomic outcomes like U.S. employment and competitiveness. Regulation counting studies have provided political momentum for deregulatory policies like 2-for-1, and they will undoubtedly be used in the administration’s attempts to rationalize those policies and agency decisions made pursuant to them on judicial review. This article seeks to forestall such attempts by demonstrating that regulation counting studies do not, and cannot, rationalize deregulatory policies like EO 13,771 because they are, themselves, irrational and empirically unsound. It also explores the implications of the turn to regulation counting for the broader dialogue on regulatory reform. I argue that regulation counting starkly illustrates the limits of both cost-benefit analysis and progressive new governance regulatory reforms.

Surveilling Australian Feminism

'When the Personal Became Too Political: ASIO and the Monitoring of the Women’s Liberation Movement in Australia' by Evan Smith in (2018) 33(95) Australian Feminist Studies 45-60 comments

In the official history of the Australian Security Intelligence Organisation (ASIO), there is only one mention of the women’s liberation movement, amongst a collection of other social movements that emerged in Australia in the late 1960s and early 1970s, alongside the anti-Vietnam War and Aboriginal rights movements. However, we know from files released by the National Archives of Australia that ASIO heavily monitored the women’s liberation movement in Australia, just as it did with most social and protest movements that existed at the time. Concerned about the crossover between the women’s liberation movement and other protest movements, ASIO were particularly worried about the entry of the various far left groups, such as Communists, Trotskyists and Maoists, into the women’s liberation movement, even though these groups were very much divided about the issue of women’s rights during this period. This article examines the ASIO files on the Australian women’s liberation movement and the anxiety that the authorities felt about the ‘threat’ of the personal becoming too politicised. 

In the volume of the official history of Australian Security Intelligence Organisation (ASIO) that deals with what Langley (1992) has described as the ‘decade of dissent’, 1965 to 1975, there is one mention of the Women’s Liberation Movement and ASIO’s surveillance of it. In his volume, Blaxland (2015) lists the Women’s Liberation Movement as just one of the social movements that were monitored by ASIO during the late 1960s and early 1970s, alongside the peace movement, and the movement for Aboriginal rights. Blaxland does not go beyond this mention, but we know from autobiographical works on the material history of ASIO, such as Anne Summers’ chapter in Meredith Burgmann’s Dirty Secrets anthology (2014 ), that the security services did extensively monitor feminists and the Women’s Liberation Movement during this period.   

ASIO were originally interested in the Women’s Liberation Movement because many of the activists first emerged from the organisations of the old and new left in Australia, the Communist Party of Australia (CPA) and the Union of Australian Women (UAW), as well as the Trotskyist Socialist Youth Alliance (SYA). A number of non-aligned feminist activists had also been politicised through the anti-Vietnam War movement, which ASIO heavily monitored. However, as the Women’s Liberation Movement grew in the early 1970s, ASIO’s perception of the movement changed. The threat of the Women’s Liberation Movement was not merely from its links to the Marxist (and anarchist) left, but also from its promotion of sexual liberation, which was seen as undermining traditional Australian values. Alongside an embryonic gay rights movement, the Women’s Liberation Movement challenged patriarchy and heteronormativity, arguing that ‘the personal was political’ (as articulated in a range of texts including Hanisch’s 1970 essay) and that all spheres of women’s life were to be liberated. Explaining its broad agenda, Curthoys (1992) wrote:

"The new movement demanded equality and justice for women more aggressively than had its predecessors; it developed a more thorough critique of existing society and the processes of male domination, and sought to empower women by changing their assumptions about themselves and their aspirations, dreams and abilities. It confronted questions of female sexuality in a direct manner somewhat shocking to the women’s organisations of previous decades."

As the Women’s Liberation Movement eschewed traditional forms of activist organisation, ASIO’s focus remained on monitoring the movement via the organisations of the left, as well as large public gatherings, meetings and demonstrations that the movement was involved in. After the election of Gough Whitlam in 1972 and influence of the Women’s Electoral Lobby (WEL) as an alternative reformist route for feminist politics, ASIO’s interest in the Women’s Liberation Movement lessened somewhat. By the late 1970s, ASIO had shifted its focus away from monitoring the movement and other movements of the ‘1968’ generation, which is reflected in the files from National Archives in Canberra getting smaller by the fourth volume that covers the period from 1972 to 1980. This article looks at the way that ASIO’s surveillance of the Women’s Liberation Movement changed over the 1970s, as the movement grew in stature and influence, before morphing into different strands of reformist, socialist and radical feminism in the late 1970s and early 1980s. It will demonstrate that the movement defied the conventional approach that ASIO took political surveillance, which had developed during the early Cold War period, focusing on the Communist Party and its front groups.