National Offender Register

The national Government is undertaking a rapid consultation regarding a proposal - nothing like an election coming up - for a National Public Register of Child Sex Offenders, aka the National Public Register.

The short consultation document accompanying the announcement two days ago states

 A National Public Register would make certain information about registered child sex offenders available on a central, searchable public website. For example, the website could include a convicted offender’s name, aliases, date of birth, photo, physical description, general locality, general nature of offending and period of registration. 

A National Public Register would be hosted by the Australian Criminal Intelligence Commission, with offender information provided by Australian law enforcement agencies. 

How are convicted child sex offenders currently registered? 

The Australian Child Protection Offender Reporting Scheme requires convicted child sex offenders to keep police informed of their whereabouts and other personal details for a period of time after they are released into the community. Child sex offenders are registered under state and territory offender registration legislation. The period of registration ranges from 8 years to life registration and is generally based on the seriousness of the convicted offence(s) and other considerations such as multiple or repeat offending. 

The Australian Criminal Intelligence Commission hosts the National Child Offender System, which allows Australian law enforcement agencies to record and share registered child sex offender information for case management purposes. Information about registered child sex offenders on the National Child Offender System is not available to the public. 

Some Australian jurisdictions have expanded their non-public registration of child sex offenders to publicly release offender information in limited circumstances. For example, the Western Australia Community Protection website provides information to the public about dangerous and high risk sex offenders. South Australia Police publish information about registered child sex offenders who have failed to report to the police, have provided false or misleading information to the police, and who are missing. 

Why is a national approach needed? 

There is no nationally consistent approach to public registration of child sex offenders. Except in jurisdictions with limited public registration, parents, families and other concerned individuals are currently not aware if the people living in their communities and potentially having unsupervised contact with their children are convicted child sex offenders. 

This lack of consistency and transparency means parents, employers and other concerned citizens are not able to make informed decisions and take effective precautions to protect children from sexual abuse and exploitation. 

Establishing a National Public Register is intended to enhance community safety and protect children from sexual abuse by deterring offenders, raising public awareness and enabling concerned citizens to be more vigilant about the potential risks posed by offenders in their communities. 

A consistent national approach is critical to ensure nationwide community protection by preventing child sex offences from occurring and protecting children from harm. The Australian Government encourages all Australian jurisdictions to support a nationally consistent approach to public registration of child sex offenders. 

Consultation process 

The Australian Government will consult all Australian jurisdictions and key non-government stakeholders to gather feedback on the preliminary model for a National Public Register. Key questions for consultation are at [below]. 

The consultation process will help to ensure a National Public Register is practical to implement and effective in improving community safety and protection. If you wish to participate in the consultation process on a National Public Register, please email childexploitation@homeaffairs.gov.au prior to 11 January 2019. 

Following the consultation process, the Australian Government will work with all Australian states and territories to finalise the model for a National Public Register, on the basis of feedback received.

The 'Preliminary model for consultation' is

 A National Public Register would make certain information about registered child sex offenders available on a public website. The model for a National Public Register will depend on feedback and outcomes from the consultation process. To facilitate discussion, a preliminary model for a National Public Register is outlined below. 

Types of offenders

• Registered child sex offenders (i.e. convicted of serious, multiple or repeat child sex offences and subsequently registered under the Australian Child Protection Offender Reporting Scheme) would appear on a National Public Register post-sentence. 

• Information about child sex offenders would appear on a National Public Register for the period of time the offender is registered under legislation. 

• Information about juvenile child sex offenders would not be made public while the offender remains under the age of 18. 

Public information

• All information on a National Public Register would be available to any member of the public on a searchable public website. 

• Information on a National Public Register could include an offender’s name, aliases, date of birth, photo, physical description, general locality (for example, postcode), general nature of offending and period of registration. 

• All information would be quality assured and vetted by Australian law enforcement agencies prior to publication, to ensure it is accurate, does not identify victims of child sexual abuse and is consistent with any existing non-publication court orders.

Legislation

• Legislation in all jurisdictions may require amendment to enable information about registered child sex offenders to be published on a National Public Register. 

Systems

• The Australian Government would fund the development of the National Public Register ICT solution, hosted by the Australian Criminal Intelligence Commission.  

• Information about registered child sex offenders would be extracted from the National Child Offender System to the public-facing website.

Timeframes 

• The Australian Government is committed to progressing the development of a final model for a National Public Register as a priority. 

• Timeframes for implementing a National Public Register are dependent on the need for legislative reform and development of the ICT solution.

The 'Key questions for consultation' are

•  Does your organisation support public registration of registered child sex offenders? 
• What legislative, systems and resourcing implications would a National Public Register have on responsible agencies? 
• What are the timeframes associated with any required legislative and systems changes? 
• What are the legal implications associated with a National Public Register? 
• What are the privacy implications associated with a National Public Register? 
• What is required to ensure data quality and accuracy of information on a National Public Register? 
• Are the types of offenders proposed to appear on a National Public Register (i.e. registered child sex offenders) appropriate? 
• Are there exceptional categories of offenders that should be exempted from publication on a National Public Register? 
•  Is the proposed length of time for publication of information about a child sex offender on a National Public Register appropriate?
• What categories of information about registered child sex offenders should be published on a National Public Register? 
• What categories of information about registered child sex offenders should be excluded from publication on a National Public Register? 
• How should the effectiveness of a National Public Register be assessed? 
• Are there other options that should be pursued for publication of child sex offender information?

Perspectives on such an initiative include 'Australian police officers' perceptions of sex offender registries' by Martine Powell, Andrew Day, Mairi Benson, Jim Vess, and Joe Graffam in (2014) 24(1) Policing and society 120-133, 'What impact do public sex offender registries have on community safety?' by Sarah Napier, Christopher Dowling, Anthony Morgan, and Daniel Talbot in (2018) 550 AIC Trends and; Issues in Crime and Criminal Justice 550, Kristina White's 2018 'Registering Public Fear: An Analysis of the New Zealand Child Sex Offender Government Agency Register' paper, 'Community perceptions of a public sex offender registry introduced in Western Australia' by S Caroline Taylor in (2017) 18)3) Police Practice and Research 275-290, and 'An Evaluation of the Impact of Australia's First Community Notification Scheme' by Laura Whitting, Andrew Day and Martine Powell in (2017) 24(3) Psychiatry, Psychology and Law 339-355.

DTC Genomics

The FDA has issued a warning to consumers regarding untested claims about direct to consumer (DTC) pharmacogenetic services.

DTC, aka recreational genomics, is matter on which colleague Dr Bonython and I have written several times, for'Privacy, Personhood, and Property in the Age of Genomics' in (2015) 4(3) Laws 377, 'Beyond the corporeal: Extending propertisation of body parts to derivative information' in (2016) 23(3) Journal of law and medicine 688 and 'Direct to consumer genetic testing and the libertarian right to test' in (2018) 44(11) Journal of medical ethics 787

The FTC states

 Consumers are increasingly embracing direct-to-consumer genetic testing to better understand their ancestry or individual risk for developing diseases. Health care providers are using genetic testing to help inform decisions about their patients’ health, health risks and more. Further, we are seeing significant activity in the field of pharmacogenetics, which is the process of understanding what, if any, role genetics plays in a patient’s reaction to drugs. The use of some drugs can be aided by pharmacogenetic testing; there is sufficient scientific evidence demonstrating a relationship between certain drugs and genetic variants. For example, the blood thinner clopidogrel (Plavix) has a boxed warning that indicates health care providers should consider an alternative therapy for patients with specific genetic variants.

Today, we are warning the public about the FDA’s concerns with pharmacogenetic tests whose claims have not been reviewed by the FDA. Specifically, we are warning consumers about many such genetic tests being marketed directly to consumers or offered through health care providers that claim to predict how a patient will respond to specific medications. Tests that make such claims that have not been evaluated by the FDA and are not supported by prescribing recommendations in the FDA-approved drug label, may not be supported by scientific and clinical evidence, and may not be accurate.

In our safety communication, a collaboration between the FDA’s Center for Devices and Radiological Health and Center for Drug Evaluation and Research, we note our concern about health care providers and patients inappropriately selecting or changing drug treatment based on the results from insufficiently substantiated genetic tests, which could lead to potentially serious health consequences for patients. For example, a patient may change the dose of their medication for a particular condition or disease based on the results of an unproven genetic test, which may result in inadequate care or worsening illness.

We are aware that these types of genetic tests are promoted to predict how a person will respond to specific medications used to treat conditions such as depression, heart conditions, acid reflux and others. They may claim that a specific medication may be less effective or have an increased chance of side effects due to a patient’s genetic variations or indicate that the health care provider can or should change a patient’s medication based on results from these tests.

For example, the FDA is aware of genetic tests that claim results can be used by physicians to identify which antidepressant medication would have increased effectiveness or side effects compared to other antidepressant medications. However, the relationship between DNA variations and the effectiveness of antidepressant medications has never been established. Moreover, the FDA is aware that health care providers have made changes to patients’ medication based on genetic test results that claim to provide information on the personalized dosage or treatment regimens for some antidepressant medications, which could potentially lead to patient harm.

It is important to note that there are some drugs whose use can be aided by the results of pharmacogenetic information. In those cases, there is scientific evidence to support relationships between the genetic variant and how a patient responds to a drug, which has been reviewed by the FDA. The FDA-approved labeling for such a drug and genetic test provide health care providers with adequate information on how to use genetic information reported by the genetic test to manage medication treatment using the drug.

For example, the FDA has evaluated and authorized for marketing, tests that alert patients to drug metabolizing enzymes, such as for warfarin sensitivity. Another example is the direct-to-consumer genetic variant test authorized for marketing yesterday, which is intended to provide information regarding genetic variants that may play a role in the metabolism of some medicines. However, we have required that the test label make clear that it is not intended to provide information on a patient’s ability to respond to any specific medication. Furthermore, health care providers should not use the test to make any treatment decisions, without additional testing. This application was granted with limited indications and is subject to special controls.

On 31 October the FDA stated

Today, the U.S. Food and Drug Administration permitted marketing, with special controls, of the 23andMe Personal Genome Service Pharmacogenetic Reports test as a direct-to-consumer test for providing information about genetic variants that may be associated with a patient’s ability to metabolize some medications to help inform discussions with a health care provider. The FDA is authorizing the test to detect 33 variants for multiple genes..

“This test is a step forward in making information about genetic variants available directly to consumers and better inform their discussions with their health care providers. We know that consumers are increasingly interested in genetic information to help make decisions about their health care,” said Tim Stenzel, director of the Office of In Vitro Diagnostics and Radiological Health in the FDA’s Center for Devices and Radiological Health. “This test should be used appropriately because it does not determine whether a medication is appropriate for a patient, does not provide medical advice and does not diagnose any health conditions. Consumers should not use this test to make treatment decisions on their own. Any medical decisions should be made only after discussing the results with a licensed health care provider and results have been confirmed using clinical pharmacogenetic testing.”.

Pharmacogenetics is the process of understanding what, if any, role genetics plays in a patient’s reaction to drugs. The Personal Genome Service test analyzes DNA from a self-collected saliva sample, and the report describes if a person has variants in certain genes that may be associated with a patient’s ability to metabolize some medicines..

The 23andMe Personal Genome Service Pharmacogenetic Reports test is not intended to provide information on a patient’s ability to respond to any specific medication. The test does not describe an association between the detected variants and any specific drug nor whether a person will or will not respond to a particular drug. Furthermore, health care providers should not use the test to make any treatment decisions. Results from this test should be confirmed with independent pharmacogenetic testing before making any medical decisions..

The FDA’s review of the test determined, among other things, that the company provided data to show that the test is accurate (i.e., can correctly identify the genetic variants in saliva samples) and that it can provide reproducible results. The company submitted data on user comprehension studies that demonstrated that the test instructions and reports were understood by consumers. The test report provides information describing what the results might mean, what the test does not do and how to interpret results..

The FDA reviewed data for the test through the de novo premarket review pathway, a regulatory pathway for novel, low-to-moderate-risk devices that are not substantially equivalent to an already legally marketed device. Along with this authorization, the FDA is establishing criteria, called special controls, which set forth the agency’s expectations in assuring the test’s accuracy, clinical performance and labeling. For this category of device, the FDA established six special controls, including a labeling requirement that a warning statement must be included noting that the consumer should not use the test results to stop or change any medication. These special controls, when met along with general controls, provide reasonable assurance of safety and effectiveness for this test.

Meretricious Services

'Contracts Against Public Policy: Contracts For Meretricious Sexual Services' by Angus Macauley in (2018) 40(4) Sydney Law Review 527 comments

The law has historically held that contracts for the provision of meretricious sexual services — providing sexual services for reward — are contrary to public policy and are therefore void and unenforceable. In Ashton v Pratt (No 2) [2012] NSWSC 3 (16 January 2012), Brereton J held that this was still the position in 2012. However, this article posits that Brereton J’s holding was arguably incorrect, being premised upon: (a) a misapplication of the principles to be applied in determining whether a contract is contrary to public policy, and whether public policy requires that contract be unenforceable; and (b) an incorrect appreciation as to the present dictates of public policy in this area. Seismic changes to the legislative and social landscape in New South Wales (‘NSW’), particularly over the past 30 years, have heralded a substantial departure from the 18th and 19th century position as to the relative immorality of providing sexual services for reward. As such, at least in some contexts, and at least in NSW, greater social harm now arises from maintaining the historical prohibition on the enforceability of such contracts, as opposed to permitting such contracts to be curially enforced. 

Macauley argues

 Ms Ashton brought a claim against the estate of the late Mr Richard Pratt, the successful businessman and chairman (until his death) of packaging and logistics giant Visy Industries. Ms Ashton’s claim revolved around a central allegation that in November 2003, in consideration for her not returning to the escort industry but providing services (non-exclusively) to Mr Pratt as his mistress, Mr Pratt orally promised to Ms Ashton to: (a) settle $2.5 million on trust for each of her two sons; (b) pay her an annual allowance of $500 000; (c) pay her an annual allowance of up to $36 000 for the purposes of rent or, alternatively, buy her a house in the eastern suburbs of Sydney; and (d) pay her $30 000 annually for expenses, particularly travel expenses. Subsequent to these oral promises, Mr Pratt did pay to Ms Ashton not insubstantial sums of money, and partly purchased for her a car and other items. However, the promises alleged by Ms Ashton largely went unfulfilled. Upon Mr Pratt’s death in April 2009, he had not settled any money on trust for Ms Ashton’s children, nor had he paid anything to Ms Ashton after early 2005. 

At first instance, Brereton J held that Mr Pratt had made the above promises to Ms Ashton in November 2003.[2] Notwithstanding, his Honour dismissed Ms Ashton’s claims. His Honour’s primary reason for rejecting Ms Ashton’s claim for breach of contract was that the parties had not, by their conduct, intended to give rise to legal relations. However, Brereton J also held in obiter dicta that had any legally binding contract come into existence, such a contract, being one for the provision of meretricious sexual services, would have been contrary to public policy and, therefore, illegal and unenforceable.  This holding equally defeated (among other reasons) Ms Ashton’s claim in estoppel, as that doctrine did not afford a means for circumventing the dictates of public policy. 

On appeal, Brereton J’s orders were upheld. Relevantly, the New South Wales (‘NSW’) Court of Appeal deliberately refrained from commenting on the holding that any contract between Ms Ashton and Mr Pratt on the terms alleged was contrary to public policy and unenforceable. This reflected the fact that Mr Pratt’s representatives did not place any reliance on appeal on Brereton J’s holding in this regard, consistent with the approach taken at trial (where Mr Pratt’s representatives did not plead that any contract was unenforceable for being contrary to public policy, nor was any such submission advanced by Mr Pratt’s representatives, notwithstanding that Brereton J drew the matter to the parties’ attention and invited submissions on the issue). 

Despite historical precedent in support of the conclusion reached by Brereton J, it is contended that his Honour’s obiter dicta remarks as to the unenforceability of contracts for meretricious sexual services were arguably incorrect. Whatever may have been the position historically, in the 21st century, public policy does not appear to demand that contracts for the provision of sexual services for reward be ineluctably held to be unenforceable. This is true at least in NSW, and potentially is the same in other states and territories in Australia with a similar legislative landscape relating to prostitution and the operation of brothels (namely, the Australian Capital Territory (‘ACT’), Queensland and Victoria). This article posits that in Ashton (No 2), Brereton J’s conclusion was premised upon: (a) a misapplication of the principles that determine whether the enforcement of a contract is contrary to public policy, and when public policy can legitimately subordinate private rights in the name of the public interest; and (b) an incorrect determination, in the present day, and in light of the changes to the legislative and social landscape that had occurred over the past 30 years, that public policy in NSW still demanded that contracts for the provision of sexual services for reward be held unenforceable. When these matters are accounted for, real doubt is cast over the conclusion reached by Brereton J. 

Indeed, contrary to the conclusion arrived at by Brereton J, and at least in NSW, it is argued in this article that contracts for meretricious sexual services are not innately contrary to public policy. As such, courts in NSW should enforce and grant relief in respect of those contracts, at least so far as actions are brought on them by the service provider for breach of contract or to recover remuneration (and other benefits promised) for sexual services rendered. This position may also prevail in the ACT, Queensland and Victoria. However, it is beyond the scope of this article to examine closely each of these jurisdictions and their legal frameworks concerning the commercial supply of sexual services, which varies and includes, in some states, licensing regimes, a point that may affect the reasoning that applies to the position as it exists in NSW. Accordingly, this article focuses on the position in NSW, with only passing reference made to these other states. 

Whether public policy prevents the enforceability of such contracts beyond the above circumstances is less clear, and is an issue further explored below. However, at a minimum, it is draconian to maintain the historical prohibition on the enforceability of such contracts in response to a suit brought by the service provider for breach of contract for services rendered. Maintaining the prohibition in such circumstances condones the exploitation of such persons and is a disproportionate and unjust response to any perceived immorality associated with the provision of sexual services for reward. As such, in light of the current legislative and social landscape in NSW, the maintenance of the historical prohibition sees greater social harm done than arises from a limited recognition of the enforceability of such a contract. 

This article is divided into the following sections. Part II of this article traverses the law concerning the meaning of ‘public policy’, how that policy is to be ascertained, and the circumstances that need to exist so as to justify public policy rendering unenforceable an otherwise lawful contract. Part III then analyses the historical head of public policy regarding contracts that promote sexual immorality, either directly (for example, contracts for the provision of meretricious sexual services or prostitution) or indirectly (for example, contracts facilitating prostitution). Part IV examines the reasoning in Ashton (No 2) in light of the matters raised in Parts II and III. Part V concludes the article.

Cartels

'The Rise and (Potential) Fall of U.S. Cartel Enforcement' (University of Florida Levin College of Law Research Paper No. 19-3) by Vivek Ghosal and D Daniel Sokol comments 

Government enforcement against collusion, now viewed by the Supreme Court as the “supreme evil” in antitrust, has gone through various phases of enforcement in the U.S. There have been periods in which cartels have been able to collude more or less effectively given various institutional tools at the disposal of the government. By analyzing enforcement and prosecutions data over a long time horizon 1969-2016, this article examines the attributes of cartel enforcement over time and the changing use of tools to assist with detection and punishment. We provide a comprehensive description of critical cartel enforcement events and institutional developments from 1890 to the present. Our examination of the data includes a detailed descriptive analysis which tends to reveal three broad phases of U.S. cartel enforcement and prosecutions. The most recent data indicate a marked decline in the number of prosecutions, but sharp increase in per capita penalties. We also conduct regression-based estimation of the potential quantitative impact of the key institutional innovations to foster detection and prosecutions. Base on the raw data as well as our estimation, we comment on the potential factors that may be driving lower prosecutions in the more recent years. Finally, we briefly compare some key data between U.S. and European Commission cartel prosecutions to examine potential dynamic interlinkages.

Reidentification

'Feasibility of Reidentifying Individuals in Large National Physical Activity Data Sets From Which Protected Health Information Has Been Removed With Use of Machine Learning' by Liangyuan Na, Cong Yang, Chi-Cheng Lo,Fangyuan Zhao, Yoshimi Fukuoka and Anil Aswani in (2018) 1(8) JAMA Network Open e186040 comments

Policymakers have raised the possibility of identifying individuals or their actions based on activity data, whereas device manufacturers and exercise-focused social networks maintain that sharing deidentified data poses no privacy risks. Wearable device users are concerned with privacy issues, and ethical consequences have been discussed. There are also potentially legal requirements from the Health Insurance Portability and Accountability Act (HIPAA) on the privacy of activity data. One key unresolved question is whether it is possible to reidentify activity data. A better understanding on the feasibility of such reidentification will provide guidance to researchers, health care providers (ie, hospitals and physicians), and policymakers on creating practical privacy regulations for activity data. 

Reidentification of data is not just theoretical but has been demonstrated in several contexts. For instance, demographics in an anonymized data set can function as a quasi-identifier that is capable of being used to reidentify individuals. Reidentification is also possible using online search data, movie rating data, social network data, and genetic data. However, a key feature in these examples is a type of data sparsity, specifically, a large number of characteristics for each individual, which leads to a diversity of combinations in such a way that any particular combination of the data is identifying. For example, individuals’ movie ratings are highly revealing because of the many permutations of likes and dislikes. As another example, the particular genetic sequence combinations (and especially single-nucleotide polymorphisms) of a single individual are unique and capable of identifying that individual. 

In contrast, physical activity data do not feature the type of data sparsity found in the above examples because health data from a single individual often exhibit high variability. For example, for heart rate, variability is a constant and expected feature in healthy and unhealthy individuals. However, this variability does not protect against reidentification. A previous study found that high temporal resolution data from wearable devices transform this variability into repeated patterns that can be used for reidentification. In response, commercial organizations have argued that aggregated sets of wearable device data (without the high resolution) cannot be reidentified. It was recently reported that location information from activity trackers could be used to identify the location of military sites. Although this is not strictly an example of reidentifying specific individuals, it is nonetheless an example of the potential loss of privacy attributable to sharing of physical activity data. As a result, many location data are no longer being shared by commercial organizations; however, to our knowledge, reidentification excluding location data has not been studied or demonstrated. 

The primary aim of this study was to examine the feasibility of reidentifying activity data (collected from wearable devices) that have been partially aggregated. In this article, we specifically considered aggregations of an individual's activity data into walking intensity at the resolution of 20-minute intervals. This intensity represents a substantial level of aggregation compared with the raw digital accelerometer data that were used for reidentification in a previous study. We further studied other different levels of aggregation (from 15-minute intervals to 24-hour intervals) in the same manner. 

The scenario that we envisioned is summarized in Figure 1, and we gave one specific scenario to better describe the threat model considered in this article. This scenario involves an accountable care organization (ACO), such as the Kaiser Permanente network, that has stored their patients’ demographic data, complete health records, and physical activity data, which were collected as part of a weight loss intervention conducted by the ACO. This intervention involved recording physical activity data using a smartphone, activity tracker, or smartwatch. This scenario also involved an employer who has access to the names, demographic information, and physical activity data of their employees. The employer has access to physical activity data because they were collected by a smartphone, activity tracker, or smartwatch during the employees’ participation in a wellness program in exchange for a discount on health insurance premiums. There is a potential danger to privacy when the ACO shares deidentified data with the employer if the employer is able to reidentify the data using demographics and physical activity data. We evaluated the feasibility of this scenario by attempting to match a second data set of physical activity data and demographic information to a first data set of record numbers, physical activity data, and demographic information. From the standpoint of machine learning, matching record numbers is algorithmically and mathematically equivalent to matching names or other identifying information

Consumer Law Research

''Who Calls the Tune? Stock Taking of Behavioural Consumer Protection in Europe' by Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito in Micklitz, Sibony and Esposito (eds) Research Methods in Consumer Law (Elgar, 2018) comments

For decades, consumer law has been the stepchild of the legal discipline, neither public nor private law, not classic but postmodern, not ‘legal enough’, ‘too political’, in short, a discipline at the margins, suffering from the haut goût and striving to change society through law for the ‘better’. Just like Atreyu, Frodo Baggins, Luke Skywalker, the Ghostbusters, Naruto Uzumaki, Dreamworks’ dragon trainer, and many others, consumer law is the underdog carrying the burden of saving the day. 

Times are changing. We are perhaps reaching the point at which the world comes to understand the real value of consumer law in a society that is dominated by and dependent on private consumption. Publishing houses and ever more numerous researchers from public and private law perspectives, working on national, European and international law are getting into what is no longer a new legal field. Now the time is ripe for a whole Handbook on Consumer Law Research which brings methodology to the fore. 

This first chapter pursues three aims: first, to embed consumer law research into the overall development of legal research since the rise of consumer law in the 1960s; secondly, to explain our choice to focus on the behavioural turn in consumer law research and present the range of contributions in this volume that engage with the upcoming strand of research; and thirdly, to explore how the recent attention to behavioural insights can be combined with a pre-existing body of doctrinal research and social legal research in consumer law, and outline avenues for further research. ... 

The development of the consumer or consumption society, the rise of consumer law and the emergence of consumer law research go hand in hand. The cautious move from a production to a consumption society started after the First World War. It was brutally interrupted through the Second World War, and regained pace in the after-war period all over Europe, while the US was 10 years ahead. The turning point of consumer policy – not yet consumer law – was the famous declaration of President John F. Kennedy on 13 March 1962, in which he outlined the basic rights of consumers. Much more obvious than the gradual transformation of the society were the scandals and crises that accompanied consumer law and policy from the beginning. Ralf Nader’s Unsafe at Any Speed, published only a year after the Kennedy Declaration, describes and analyses the construction and production deficits of the American car industry. His book not only gained cult status, but also stood as a paradigmatic monument for what was to turn into the constitutive driver of consumer law, namely, an endless chain of scandals, large and small. It suffices to recall Thalidomide, Glycol wine or Dieselgate, at the ‘upper’ level (protection of health and safety), or overpriced consumer credits, Schrottimmobilien (‘junk property’) or the subprime crisis at the ‘lower’ level (protection of economic interests). 

US Policy, OECD and the EU 

In the first decades of the consumer movement, politically associated with the change from the Democratic President Carter to the Republican President Reagan, the US set the tone with groundbreaking changes in the development of product safety law, consumer credit law and financial services, as well as consumer class actions and the mandate granted to the Federal Trade Commission to fight unfair and misleading advertising. The US channelled the new policy field via the Organisation for Economic Co-operation and Development (OECD) to Europe. Within the OECD, the newborn Consumer Policy Committee initiated a series of consumer policy documents in the 1970s and 1980s, largely inspired by the US innovations. Until the adoption of the Single European Act, European institutions, more precisely the European Commission, had a weak legitimacy resulting from the two consumer policy programmes of 1976 and 1981 adopted by the European Council with a thin legal basis in the Treaty. In the aftermath of the Single European Act, the European Commission discovered consumer policy and consumer law as a key instrument to complete the Internal Market Project. This was the birth of the confident consumer rhetoric (which later culminated in the ‘reasonably well-informed and reasonably observant and circumspect’ average consumer standard coined by the European Court)9 and its potential abuse.10 Before that date, consumer policy was largely in the hands of the member states, which developed their particular version of consumer law within the respective legal traditions and legal cultures. 

There was a type of competition between the OECD and the European Union (EU) Commission between the late 1970s and early 1980s. Backed by the new mandate in the Single European Act in 1985, the EU took over and became the main driver of consumer policy and consumer law ever since. The political debate on EU enlargement revitalised the institutional conflict between the EU and the OECD, at least for a short while. However, when the old member states decided to open the doors of the EU to the former communist states in Middle and Eastern Europe, the OECD lost its political influence. The enlargement allowed the EU to make accession of candidate states conditional on adjusting their legal systems. Since the 1970s, the former communist states had also experienced a move towards a consumption society – though much less developed than in the West – that left traces in their socialist legal systems. There was a particular variant of consumer law and policy in the communist states that never gained political attention in the enlargement process. The imposition of EU consumer law on the new member states led to the coexistence of the old socialist and the new democratic laws side by side, at best an amalgam of former socialist laws and legal cultures with the new consumer laws adopted before and after EU membership. 

In recent years, the OECD is back in the game of inspiring EU consumer law as it has developed an interest in behavioural insights in general and consumer law in particular.13 Its Consumer Policy Committee in particular constitutes a forum where the Commission brings its own experience and from which it takes inspiration.

 The goes on to comment

A few years ago, one of us published a critical reflection on the state of legal scholarship in Europe and proposed an agenda for a European debate. A particularly pressing point was found in the ‘risk of herd behaviour in legal research’: herd behaviour implies that researchers choose to follow ‘hot topics’ and trends, often initiated by policymakers (eg the European Commission) instead of developing their own agenda. What is worse is that they do it without questioning the preconceptions on which these choices rest. … In many cases, the authors do not even bother to explain on whose shoulders they stand. The starting point of that reflection was the opposition between ‘doctrinalist’ and ‘multidisciplinarian’ approaches to legal scholarship and how the mainstream is dominating the research agenda. One of the proposals advanced on that occasion is of particular relevance for consumer law research, where the growing interest for the findings of behavioural sciences is a win for the multidisciplinarians, but takes place against a backdrop dominated by the doctrinalist approach and a lack of awareness of the long history of socio-legal research. Herd behaviour can be dangerous, but at the same time it is not necessarily bad, as long as the preconceptions and the intellectual context are disclosed. 

It takes a critical mass to make up a strand of scholarship. At the same time, the risk is that energies will be wasted in addressing problems that have already been studied for some time by others. Worse still, ignoring the relevant research produced in other research domains can lead to erroneous conclusions. The dilemma is when to accept and when to challenge the wisdom of the mainstream. In this regard, there is an important lesson to be learned from the behavioural movement. How the early work in psychology made its way to its successive applications in economics, in the social sciences and, finally, in its relationship with the law is a tale of integration between more and less established strands of research.44 The lesson it teaches relates just as much to the circulation of ideas in academia as it does to the substance of behavioural research. That is, as herds have leaders, it is important to understand what makes them leaders and to challenge them on their own grounds. In this way, highly original and critical research can be perceived as a constructive contribution to mainstream research. However, these leaders and their advocacy have to be placed in context and constantly questioned. This is the only way to keep the necessary distance from the field. 

It is concerning when scholars respond acritically to the stimuli coming from leaders, regardless of who these leaders are (for example, the European Commission, American legal scholars and Israeli cognitive psychologists). What is at least as concerning is scholars not responding to the stimuli coming from outside the mainstream (the truck approaching at high speed or the wolves hiding in the bushes are stimuli the herd members have to be aware of). As for any other social practice, a field of research is characterised by a specialised vocabulary and a shared understanding of why some research is part of the field and other is not. At some point, even the researcher most open to interdisciplinarity will consider some findings irrelevant for his or her own field. For example, while we can understand the importance of gravitational waves for research in physics, we candidly admit that it is hard for us to see how proof of their existence can possibly matter for consumer research. However, we cannot and do not want to exclude the possibility that someone will show us how gravitational waves are important for consumer research – perhaps with regard to consumer safety. 

New trends establish the conditions of admittance, but should not exclude strangers once these conditions are fulfilled, nor should they forget about previous research related to the very same subject though under a different branch of science. The establishment of behavioural economics and law and behavioural economics illustrate these points. 

The ability of behavioural scientists to influence the economic debate is particularly remarkable given how closed to other disciplines economics had become (which led some to refer to economic imperialism45). It took Kahneman and Tversky a lot of hard work over and above their initial findings about human decision-making to make the implications of their research so clear that economists could not ignore them. It took even longer for a Nobel prize in economics to be awarded to Kahneman for their joint work (by the time Tversky had died). In the long run, the endeavour was successful, as evidenced by the Nobel prize for economics awarded to Richard Thaler in 2017. How behavioural analysts were able to successfully influence economists thus becomes a source of inspiration for those trying to steer an academic debate in new directions. However, what is missing right from the beginning is the intellectual link to the founding fathers of social behaviour and socio-legal research, to E. Ehrlich, M. Weber and later M. Galanter, D. Trubek, V. Gessner, to name just a few leading figures.46 They revitalised socio-legal research from the 1960s onward.

Data Ownership?

'No One Owns Data' by Lothar Determann in (2018) 70(1) Hastings Law Journal 1-43 comments -

Businesses, policy makers, and scholars are calling for property rights in data. They currently focus on the vast amounts of data generated by connected cars, industrial machines, artificial intelligence, toys and other devices on the Internet of Things (IoT). This data is personal to numerous parties who are associated with the connected device, and there are many others are also interested in this data. Various parties are actively staking their claims to data, as they are mining the fuel of the digital economy. 

Stakeholders in digital markets often frame claims, negotiations and controversies regarding data access as one of ownership. Businesses regularly assert and demand that they own data. Individual data subjects also assume that they own data about themselves. Policy makers and scholars focus on how to redistribute ownership rights to data. Yet, upon closer review, it is very questionable whether data is – or should be – subject to any property rights. This Article unambiguously answers the question in the negative, both with respect to existing law and future lawmaking in the United States and the European Union, jurisdictions with notably divergent attitudes to privacy, property and individual freedoms. Data as such, that is, the content of information, exists conceptually separate from works of authorship and databases (which can be subject to intellectual property rights), physical embodiments of information (data on a computer chip, which can be subject to personal property rights) and physical objects or intangible items to which information relates (a dangerous malfunctioning vehicle to which the warnings on road markings or a computer chip relate). Lawmakers have granted property rights to different persons regarding works of authorship, databases, land, and chattels to incentivize investments and improvements in such items. However, this purpose does not exist with respect to data. Individual persons, businesses, governments and the public at large have different interests in data and access restrictions. These interests are protected by an intricate net of existing laws, which deliberately refrain from granting property rights in data. Indeed, new property rights in data are not suited to promote better privacy or more innovation or technological advances, but would more likely suffocate free speech, information freedom, science and technological progress. The rationales for propertizing data are thus not compelling and are outweighed by the rationales for keeping the data ‘open’. No new property rights need to be created for data.

'Marketplace of Ideas, Privacy, and Digital Audiences' by Alexander Tsesis in (2019) Notre Dame Law Review (Forthcoming) comments 

 The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy. 

Social media companies disseminate news, advertisements, political messages, while also capitalizing on consumers’ private shopping, surfing, and travel habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash-up and scrape enormous amounts of online and otherwise available personal data to micro-target audiences. By collecting and then processing psychometric data sets, commercial and political advertisers rely on emotive advertisements to manipulate biases and vulnerabilities that impact audiences’ shopping and voting habits. 

The Free Speech Clause is not an absolute bar to the regulation of commercial intermediaries who exploit private information obtained on the digital marketplace of ideas. The Commerce Clause authorizes passage of law to regulate internet companies that monetize intimate data and resell it to third parties. Rather than applying strict scrutiny to such proposed regulations as one would to pure speech, judges should rely on intermediate scrutiny to test statutes limiting the commercial marketing of data. 

Legislative reforms are needed to address the substantial economic effects of massive, commercial agglomeration of data files containing histories, daily routines, medical conditions, personal habits, and the like. To address this logarithmically expanding cyber phenomenon, Congress should temporally restrict the retention and trade in private data. Internet intermediaries should not be immune from such a restriction on private data storage. For such a policy to be effective, safe harbor provisions shielding internet intermediaries should be modified to allow for civil litigation against internet companies that refuse a data subject’s request to remove personal information no longer needed to accomplish the transaction for which it was originally processed.

‘When Is Personal Data about or Relating to an Individual a Comparison of Australian, Canadian, and EU Data Protection and Privacy Laws’ by Normann Witzleb and Julian Wagner in (2018) 4 Canadian Journal of Comparative & Contemporary Law 293 comments

 The definition of 'Personal information" or personal data" is foundational to the application of data protection laws. One aspect ofthese defnitions is that the information must be linked to an identifiable individual, which is incorporated in the requirement that the information must be 'bout"or "relating to"an individual. his article examines this requirement in light of recent judicial and legislative developments in Australia, Canada and the European Union. In particular, it contrasts the decisions rendered by the Federal Court of Australia in Privacy Commissioner v Telstra Corporation Ltd and by the European Court offustice decisions in Scarlet Extended and Patrick Breyer v Bundesrepublik Deutschland as well as the new General Data Protection Regulation with Canadian law. This article also compares how the three jurisdictions deal with the vexed issue of lP addresses as personal information where the connection between the IP address and a particular individual often raises particular problems.

The authors argue

Data protection laws aim to protect personal privacy by regulating the collection, processing and transfer of "personal information" (Australia and Canada), "personal data" (European Union) or "personally identifiable information" (United States). While the definitions of these terms vary across jurisdictions, what they have in common is that they are of fundamental significance. Data that does not contain information about an identified or identifiable individual in the sense of the respective definition falls outside the scope of data protection laws. 

Differences in the definition of "personal information" have relevance not only for the application of domestic data protection laws but also affect data transfers between countries. Many domestic data protection regimes impose restrictions on the export of personal data to a third country, particularly if the data protection level in that country is weaker than the law of the exporting state. This is intended to prevent the bypassing of national data protection laws by the transfer of data to a third country without an adequate level of protection. However, even if the substantive data protection laws of a third country provide a comparable level of protection overall, a closer look at the scope of application of its data protection regime may also be necessary. If a third country adopts a narrower understanding of the term "personal data", that country's privacy laws will not apply to some data that would be protected by the laws of the exporting country. 

This article will analyse recent developments relating to these definitions in Australia and the European Union and provide a comparison with Canadian data privacy law. The article is prompted by an Australian appellate decision on the definition of "personal information" under the Privacy Act.' In its decision, Privacy Commissioner v Telstra Corporation Ltd,2 the Full Court of the Federal Court of Australia also considered relevant Canadian jurisprudence. In particular, it referred to the decision of the Federal Court of Appeal in Canada (Information Commissioner) v Canada (Transportation Accident Investigation and Safety Board). This article will also consider recent developments in the European Union and, in particular, the new General Data Protection Regulation (" GDPR") and two recent decisions of the European Court of Justice. The practical consequences of the differences between the terms will be explained using the example of the classification of Internet Protocol ("IP") addresses as personal information or as personal data, respectively.

Suicide and Australian Coroners

'Determining A Suicide Under Australian Law' by Stephanie Jowett, Belinda Carpenter and Gordon Tait in (2018) 41(2) UNSW Law Journal 355 comments

This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.

The authors argue

 Coroners’ findings contribute to national suicide statistics in Australia. Indeed, coroners are presently the only legal persons who make routine determinations of suicide so that it may be coded as such. As a result, the process by which coroners make determinations of suicide is critically linked with policymaking in public health and mental health, as well as planning and funding of suicide prevention strategies. Issues surrounding coronial determinations of suicide have been the subject of increased scrutiny and commentary in Australia since the Australian Senate’s report, The Hidden Toll: Suicide in Australia (‘The Hidden Toll’), revealed the extent of underreporting of suicides. As recently as 2014, a report by the Coronial Council of Victoria expanded on the ways in which the law relating to suicide contributes to that problem. It has been suggested that key reasons for underreporting are inconsistencies in coronial practices and a reluctance by coroners to make explicit findings of intent. 

Given that coroners are the only persons tasked with making routine legal determinations of suicide in Australia, the process by which coroners come to such a finding is an important yet relatively under-researched and under-analysed element of this process. To date, most research to investigate the process of suicide determination by coroners has focused on the output of coronial decision-making in the form of secondary analysis of coronial data. In contrast, this article examines the legislation, case law and secondary literature relating to suicide determinations in all Australian jurisdictions to determine precisely what law informs coroners in their suicide deliberations. 

As the first comprehensive review and analysis of the Australian law in this area, this article builds on recommendations made by the Coronial Council of Victoria and the Senate Community Affairs References Committee in their report, The Hidden Toll. It suggests that a major barrier to consistent and accurate suicide reporting is the lack of clarity in the law guiding coroners in their practice. Specifically, that the impediments to uniform approaches to determinations of suicide may be caused by practical barriers, including requirements to hold an inquest or make a definitive finding within the binary of suicide/not suicide, and interpretational barriers, including what constitutes a suicide and the applicable standard of proof. It concludes that a severely underdeveloped legal framework for the identification of suicide in Coroners Acts is compounded by a lack of definitional clarity, and a subsequent over-reliance on English coronial law and Australian criminal law, both of which rely on a standard of proof beyond that required within the coronial jurisdiction. It is recommended that clarification of the law as well as the publication of inquest findings would be a minimum required for Australian coronial law to develop in this area. 

To determine the law applicable in this area, the approach taken in this review is multifaceted. First, the Coroners Acts in each jurisdiction have been searched for any mention of suicide or intent as well as any sections relevant to when findings can be made and what they may contain. The websites of Coroners Courts have also been searched for any other sources of official guidance. Second, legal databases have been searched for case law relating to determinations of suicide under Australian law. Third, secondary literature has been reviewed in the form of scholarly academic literature as well as key coronial texts. Due to the difficulty of accessing inquests online, details from inquests have generally been included only where the case was raised in the literature. For this reason, emphasis is given to discussion of the law in selected inquests, such as Tyler Cassidy and Rebekah Lawrence.It is important to note that within Australia, inquests are notoriously difficult to access and search.[9] As a consequence of this, there exists no readily available pool of relevant case law, experience, and precedent related to findings of suicide for the coroners to access and apply within their own decision-making processes.

Weed

With quixotic ACT proposals to reshape drug law in mind it's interesting to see 'Life, Liberty, (and the Pursuit of Happiness): Medical Marijuana Regulation in Historical Context' by Lewis A. Grossman, a draft chapter from Choose Your Medicine: Freedom of Therapeutic Choice in American History and Law (Oxford University Press, Forthcoming).

Grossman comments 

The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use—delivery of a recreational high. After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States. The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present. This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice. With the exception of a single promising decision in 1975, courts have uniformly rejected arguments for medical marijuana access. But the 1996 passage of Proposition 215 in California triggered a tremendous wave of state measures legalizing medical cannabis, as well as a dramatic change in American attitudes about the issue. 

The chapter recounts this history in light of the special legal, political, and rhetorical challenges medical cannabis advocates have faced. First, many officials have opposed the legalization of medical marijuana, regardless of whether it offers therapeutic benefits, because of the public health harms and moral degradation they associate with the use of pot. Second, marijuana’s designation as a Schedule I substance under the Controlled Substances Act of 1970, and the DEA’s rejection of multiple citizen petitions to reclassify it, has placed extremely high obstacles in the way of researchers interested in scientifically assessing marijuana’s therapeutic efficacy. Third, federal government policies have lagged behind public preference and state law. Finally, medical marijuana supporters have had to negotiate an invaluable but fraught relationship with advocates for comprehensive marijuana legalization. The perspectives and goals of these two groups have overlapped and conflicted in fascinating and unexpected ways.

AgData

'What’s behind the ag-data logo? An examination of voluntary agricultural data codes of practice' by Jay Sanderson, Leanne Wiseman and Sam Poncini in (2018) 1 International Journal of Rural Law and Policy comments

In this article, we analyse agricultural data (ag-data) codes of practice. After the introduction, we examine the emergence of ag-data codes of practice and provides two case studies: the American Farm Bureau’s Privacy and Security Principles for Farm Data and New Zealand’s Farm Data Code of Practice. The case studies illustrate that the aims of ag-data codes of practice are inextricably linked to consent, disclosure, transparency and, ultimately, the building of trust. We go on to highlight the commonalities and challenges of ag-data codes of practice. In terms of commonalities, we consider that they are self-regulatory and voluntary; are principle-based; have a communicative function; and have attitude and behaviour change as key objectives. In terms of the challenges of ag-data codes, we argue that the key challenges are the need for an appropriate and agile ag-data normative framework; implementation and evaluation of ag-data codes; issues around trade mark-based logos; and evaluation of ag-data codes of practice. We conclude that while ag-data codes of practice may help change practices and convert complex details about agdata contracts into something tangible, understandable and useable, it is important for agricultural industries to not hastily or uncritically accept or adopt ag-data codes of practice. There needs to be clear objectives and a clear direction in which stakeholders want to take ag-data practices. Ag-data codes of practice need credible administration, accreditation and monitoring. There also needs to be a way of reviewing and evaluating the codes in a more meaningful way than simple metrics such as the number of members.

 The authors argue

Voluntary agricultural data (‘ag-data’) codes of practice have emerged since 2014. In part, their emergence is because of the increasing realisation of the potential benefit and value of ag-data, with many decisions and processes along the whole agri-food supply chain – from paddock to plate – being data enabled and data driven. Ag-data is collected and used for many purposes, including improving productivity and profitability. There is a myriad of different data collected from farms: machinery data that improves safety and efficiency of farm machinery; personal data of purchasing and finance history; and agronomic and agricultural data. In this article, our focus is on agricultural data. 

Ag-data is collected by sensors on tractors and drones and used for many purposes, including providing multi-spectral imagery, and showing crop health and moisture content. Software can aggregate and deploy ag-data to increase yields, improve farm profitability and sustainability, and ensure regulatory compliance and consumer satisfaction. Further uses of ag-data are found in supply chain logistics and in the ability to better respond to and manage issues such as crop or animal stress. Ag-data can also be linked from farm and packaging to transport and sales; assisting with food safety, healthy and ethical choices and differentiating markets and allocating resources. 

While the potential benefit and value of ag-data is immense, a major hurdle to realising the benefits is the tension between those who provide the data (ie, farmers and producers) and those who collect the data (ie, agribusiness and third parties). This tension limits the potential benefits of ag-data because, in large part, it results in problems of access and use of ag-data; fundamentally, farmers and producers do not trust agribusinesses with their data. A study identified that this lack of trust in the way agribusinesses deals with ag-data was identified as a major concern of Australian producers, with 56 per cent of respondents having no or little trust in agribusiness maintaining the privacy of their data.  Further evidence of a lack of trust between producers and agribusiness was found by the American Farm Bureau Federation, who, in 2016, conducted a survey of over 400 farmers and found, for example, that 77 per cent of those polled were concerned about which entities can access their ag-data. 

If digital agriculture and data are to transform agri-food networks, then trust around ag-data access and use needs to be fostered.  To this end, a range of initiatives are currently being investigated and implemented, including education and awareness programs, data co-operatives and other collaborative models.  Most notably, since 2014, voluntary ag-data codes of practice have emerged to not only help develop ‘good’ agdata practices but also to build trust in the way ag-data is managed.  Broadly stated, ag-data codes of practice act beyond legal mandates (ie, government legislation) and attempt to both harness the benefits of ag-data and protect producers’ privacy and security. More specifically, data codes tend to focus on the   key areas that give rise to mistrust: consent, disclosure and transparency around ag-data practices. For example, under the New Zealand Farm Data Code of Practice (‘NZ Farm Data Code’), organisations agree to disclose their practices and policies around data rights, data processing and sharing, and data storage and security. In the US, the American Farm Bureau Federation’s Privacy and Security Principles for Farm Data (‘Principles for Farm Data’) sets out data principles for agricultural technology providers including that ‘access and use of farm data should be granted only with the affirmative and explicit consent of the farmer’.  And the EU Code on Agricultural Data Sharing by Contractual Agreement (‘EU Code’) attempts to define key concepts and sets out general principles for sharing agricultural data including that ‘[t]he collection, storage and usage of the collected agricultural data can only occur once the data originator has granted their explicit, express and informed permission via contractual arrangement’.  Other countries (eg, Australia) are also contemplating the introduction of an ag-data code of practice. 

But are ag-data codes of practice a good idea? 

The aim of this article is to analyse the effect and usefulness of ag-data codes of practice. The next section examines the emergence of ag-data codes of practice and then discusses two case studies: the American Farm Bureau’s Principles for Farm Data and New Zealand’s NZ Farm Data Code. The case studies illustrate that ag-data codes of practice are inextricably linked to consent, disclosure, transparency and, ultimately, the building of trust. The section that follows highlights the commonalities and challenges of ag-data codes of practice. The article concludes with several observations, most notably that while ag-data codes of practice may help change practices and convert complex details about ag-data contracts into something tangible, understandable and useable, it is important not to uncritically accept or hastily adopt ag-data codes of practice. There needs to be clear objectives and a clear direction in which stakeholders want to take ag-data practices. In other words, stakeholders need to be sure about what they are trying – and able – to achieve with their ag-data codes of practice. There also needs to be a way of reviewing and evaluating the codes in a more meaningful way than simple metrics such as the number of members: for example, it is necessary to know something about whether the codes raise awareness and education around data practices, and whether they have encouraged changes in attitudes and behaviour. Ag-data codes need credible administration, accreditation and monitoring. Only with such added safeguards, will ag-data codes of practice have a chance of success.

Surveillance

'The Metal Eye: Ethical Regulation of the State’s Use of Surveillance Technology and Artificial Intelligence to Observe Humans in Confinement' by Jennifer A. Brobst in Californian Western Law Review (Forthcoming) comments

This article addresses the dual interests of privacy and the need for social interaction as a right of personal autonomy in choosing the balance between them. This is a right in need of protection in the face of new technology, including artificial intelligence, which has enabled constant state surveillance of individuals. Those most at risk of a deprivation of this right -- persons in state institutional confinement, including those in prisons, nursing homes, or involuntarily committed in mental institutions -- provide an important context for examining this potential infringement, because there is a particularly strong concurrent state interest to surveil to maintain order and security. The historical development of common law and federal constitutional protections of the rights of persons in confinement is examined next to the emergence of state constitutional amendments guaranteeing a right of privacy. In addition, mental health research has added to the policy development in this area, as seen in research regarding the impact of solitary confinement.

Brobst argues

Law, humanity, and human nature reflect a mastery of negotiation between the individual’s need for both a private and a social life. Since its founding, state and federal government and their legal structures in the United States have been designed by and for humans to thrive as individuals in society, which, in turn, benefits government and society.  For example, the State Constitution of Louisiana provides that the purpose of government is to protect the individual, which will protect “the good of the whole” of society:

All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people.

Similarly, Patrick Henry spoke eloquently at the Convention of Virginia in 1788 of the need for a bill of rights and checks on federal government, asserting that “the power of a people in a free government is supposed to be paramount to the existing power.”  

As inventors continue to design technology to supplant human interaction or constantly monitor human behavior, the role of the state in protecting individual rights to autonomy in navigating privacy and social interaction requires a close examination.  Fortunately, in the United States, a hard-fought legal respect for the rights of the individual in a free society remains a steady, rational force, capable of moderating intrusive surveillance through the common law, as well as state and federal constitutional jurisprudence. 

In a mature society, the process of drawing the lines of privacy against state intrusion should look first to those who have the least power and social capital – persons confined by the state, such as prison inmates and those who are involuntarily committed. As the Supreme Court has repeatedly affirmed: “[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, society may not simply lock away offenders and let the state of nature take its course.”  Protected by common law and constitutionally-based duties of care to ensure a secure and safe environment, this population without much political power or voice is owed much by the State. Nevertheless, in a technological age of surveillance, the State has much greater opportunity to infringe on the rights of confined persons than it has on persons at liberty in the public sphere, thereby testing the bounds of basic individual rights. If those in state institutions—the most vulnerable or dangerous of us all, and arguably most in need of monitoring and observation—have a right to autonomy with respect to privacy and social interaction, then so do we all. 

If it were technologically possible, would the United States lawfully permit a residential facility – a prison, immigration detention center, mental hospital, or nursing home – to be run solely by remote technology, using artificial intelligence (AI) to subject confined persons to constant surveillance or completely replace human interaction with machine-based interaction? Can technology enhance the quality of human experience in confined settings or is reliance on such technology merely an expedient, harmful substitute for human supervision and social interaction? 

These questions are not dystopian or utopian speculation. In South Korea, the world’s first autonomous robotic prison guards, with AI capabilities that include use of surveillance technology and facial recognition software designed to assess a prisoner’s mental state, are being tested in facilities.  In Australia, the Technological Incarceration Project has tested a relatively inexpensive home detention system with constant AI presence that monitors verbal and facial cues and delivers a shock if the monitored person appears to be about to commit a violation. The European Union INDECT research project “for the security of citizens” is conducting a feasibility design for a constant surveillance system for automatic threat detection in public spaces, compliant with current national and international privacy laws:

The value that will be added by deployment of INDECT research outcomes is that existing systems would operate with less human intervention, which will lower the level of subjective assessment and the number of human mistakes. This means less staff will be required for supervision of surveillance activities (e.g.[,] monitoring of CCTV camera networks). This will result . . . in less opportunities for illegitimate use of such information, or for human error to result in violations of the rights of the individual. There will also be economic benefits, in terms of the reduced staffing requirements. Police officers could be freed up to carry out frontline policing tasks.

Surveillance in these contexts is linked to public security concerns, which must be moderated by civil liberties. In the realm of national security, the AI international arms race continues to place pressure on democratic nations to undermine their values and recognition of civil rights. Autonomous, untetheredAI technology that would be implemented to kill without human decision or control is already possible, although the Department of Defense under both Presidents Obama and Trump has restricted their military applications. The United Nations also continues to debate the need to restrict such weapons.  In the public-private sphere, technology companies, such as Google, have faced pressure to opt out of continuing to contribute their AI research to military purposes. Google’s contract with the U.S. Department of Defense reportedly “worked extensively to develop machine learning algorithms for the Pentagon, with the goal of creating a sophisticated system that could surveil entire cities.” 

In the United States, state and federal departments of correction and mental health facilities increasingly incorporate and rely on security technology to maintain order and ensure the safety of confined prisoners and patients. Prison guards use aerial drones to supervise and record the activities of prisoners. Psychiatrists conduct telehealth assessment and diagnosis of prisoners in multiple facilities from a single office computer. AI video alert systems monitor the hallways at night outside bedrooms in mental health facilities to identify potential physical assaults or self-harm. Several states statutorily authorize constant video surveillance of nursing home residents’ rooms, with their consent or that of their guardians.  Many of these measures cut costs by reducing the need for human staffing. 

For the public at large, privacy interests are embodied in common law and statutory law, with additional protections found in the shifting penumbra of constitutional rights. Those subject to state confinement also have constitutional and statutory privacy rights, as well as common law parens patriae protections, all requiring consideration of legitimate governmental interests. Rapidly changing technologies offer greater facility and breadth of surveillance, while the biology of the human species, with its essential mental and physical needs, remains relatively static, evolving gradually. The pressures of technological change place a toll on humanity’s well-being, particularly when the balance of personal and governmental interests does not sufficiently respect the realities of what level of autonomy our species inherently needs to thrive. 

Autonomy in navigating both privacy and social interaction are essential to human well-being and the fulfillment of human potential. As Justice Douglas observed, “[p]rivacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses.” Privacy and social interaction mutually reinforce each other, allowing a person to safely choose and resist social interactions. As psychological research demonstrates, humans despair from too much of either: from loneliness and isolation, and from lack of privacy and difficulty in creating a self-identity. 

Surveillance technology, including AI applications, presents new opportunities to undermine humanity’s basic need for autonomy, human social interaction, and privacy. It is not a disruptive technology, a technology which inadvertently happens to cause social disruption, but rather it is a technology designed to disrupt. From a cynical perspective, commercial and governmental interests seek to convince the public that loss of privacy is inevitable because technology too easily invades our privacy or because this invasion is needed to protect society from unseen attacks. They do so to financially profit from the sale and development of security technology or to better monitor and control individual behavior for political purposes. 

This is nothing new. When restricting state use of eavesdropping devices on the public to detect crime in Berger v. State of New York in 1967, the Supreme Court implied that profit motives foster technological innovation in spying: “Since 1940 eavesdropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control.” More recently, sociologist Barry Glassner noted just prior to the 9/11 terrorist attacks: “The short answer to why Americans harbor so many misbegotten fears is that immense power and money await those who tap into our moral insecurities and supply us with symbolic substitutes.” According to Glassner, symbolic substitutes are the bogeymen of commercial and media alarm, manipulating anecdotal incidents and statistically unsupported risks to further powerful interests at the expense of societal interests. Surveillance technology manufacturers admit as much: “Every unfortunate event we hear about, whether it’s cyber-related or just flat out terrorism, these are drivers for our business. It’s unfortunate that they are and that they happen, but they do drive this industry and this market.” 

If the technology industry can create invasive and intrusive technology, it can certainly craft technology with better privacy protections if properly motivated. In the 1800s, when privacy of written communications was not practically assured, public approval for the innovations of envelopes and locks on mail bags compelled Congress to enact statutory protections for the privacy of the postal service. Such efforts resulted in paper mail receiving greater legal privacy protections today than digital information. Technological innovation and legal privacy protections can be and have been compatible. For this to occur, however, the American legal system must fulfill its obligation to enforce existing protections of the autonomy rights of individuals in the face of commercial and governmental interests intent on overreaching. 

To illuminate how existing legal tenets identify and enforce privacy rights, it is critical to examine the contexts where individual privacy rights are already most suppressed under American law: the arena of persons in civil and criminal state confinement. The use of technology to constantly monitor humans in confinement without their consent presupposes a legitimate purpose of public health and safety pursuant to state police power and other common law doctrines. More constant monitoring is arguably warranted based on the lesser right to autonomy and privacy of persons who are subject to court-ordered confinement for the protection of themselves or others, but is facing a reexamination in the courts. 

This article begins by introducing in Section I the legal recognition of the basic human need for autonomy in navigating privacy and social interactions, including its origins in natural law, adoption in international human rights, and emerging statutory and regulatory frameworks in the United States. Section II examines how and to what degree the courts have recognized the essential human and societal need for individual privacy and social interaction, with a focus on common law doctrines, as well as state and federal constitutional protections of the autonomy rights of persons in state confinement. Section III outlines the comparative state interests when infringing on the individual autonomy rights of confined persons in prisons and medical settings, including identification of interests common to all institutional settings. Finally, Section IV addresses the need for courts to realign the balance of these interests in light of emerging psychological research which reveals the continued importance of individual privacy with respect to technological innovation facilitating constant surveillance.

Drones

'Liability Issue of Domestic Drones' by Vivek Sehrawat in (2018) 35(1) Santa Clara Computer and High Technology Law Journal comments 

Drones are much debated as weapons of war and due to privacy issues. Drones are also now under development for package delivery. This paper examines the potential liability associated with the domestic use of drone aircrafts and offers solutions for drone liability. This paper also examines potential drone liability through the lens of existing trespass causes of action and other applicable laws such as nuisance and negligence. Furthermore, this paper analyzes the legality of shooting down a drone for self-defense and discusses the minimum insurance requirements for drones.

Australian readers will turn to Des Butler's 2014 'The Dawn of the Age of the Drones: An Australian Privacy Law Perspective' noted here and to 'Drone danger: Remedies for damage by civilian remotely piloted aircraft to persons or property on the ground in Australia' by Pam Stewart in (2016) 23 Torts Law Journal 290.

Stewart comments

 Civilian use of drones (Remotely Piloted Aircraft: RPA) in Australian skies is increasing at a dramatic rate. Whilst there is a strict regulatory framework in which RPA operate, they have the capacity to cause significant damage to persons or property on the ground. This article evaluates the availability and scope of statutory and common law remedies for such damage demonstrating a complex matrix of potential accountability. Statutory strict liability under Damage by Aircraft legislation does not apply uniformly to all RPA with the definition of RPA as ‘aircraft’ the crucial determinant. Where the statutory remedy is unavailable, common law causes of action must be relied upon with the statutory safety regulations providing assistance in establishing liability. The article demonstrates that it would be appropriate for legislators to ensure uniform application of the strict liability regime to all RPA and for compulsory identification and insurance of RPA.

The House of Representatives Standing Committee on Social Policy and Legal Affairs 'Eyes in the sky: Inquiry into drones and the regulation of air safety and privacy' report was noted here.