Knowledge

Knowledge and Fourth Amendment Privacy' by Matthew Tokson in (2017) 111 Northwestern University Law Review 139 comments 

This Article examines the central role that knowledge plays in determining the Fourth Amendment’s scope. What people know about surveillance practices or new technologies often shapes the “reasonable expectations of privacy” that define the Fourth Amendment’s boundaries. From early decisions dealing with automobile searches to recent cases involving advanced information technologies, courts have relied on assessments of knowledge in a wide variety of Fourth Amendment contexts. Yet the analysis of knowledge in Fourth Amendment law is rarely if ever studied on its own. 

This Article fills that gap. It starts by identifying the characteristics of Fourth Amendment knowledge. It finds, for instance, that courts typically look to societal knowledge rather than individual knowledge, allowing them to establish broad precedents to govern police behavior. 

The Article then draws on communications scholarship and research on the spread of innovations to identify conceptual problems inherent in assessing societal knowledge. It also uses original empirical evidence to evaluate courts’ claims regarding societal knowledge in a variety of important cases. And it contends that a knowledge-based Fourth Amendment will shrink and weaken over time as public awareness of new technologies and threats to privacy continues to grow. 

In light of these findings, the Article proposes that the knowledge inquiry in Fourth Amendment law, and the reasonable expectation of privacy test with which it is intertwined, be replaced with a legal regime better able to adjust to technological and social change. 

The Article offers two potential alternatives, one based on existing laws and property concepts, and the other based on direct normative balancing of the benefits and harms of new surveillance practices. It analyzes the relative strengths and weaknesses of these alternatives, with the goal of developing a Fourth Amendment regime that can effectively protect privacy in novel technological and social contexts.

Spooks and secrets

'The Liberty to Spy' by Asaf Lubin in (2019) 61(1) Harvard International Law Journal comments

Many, if not most, international legal scholars share the ominous contention that espionage, as a legal field, is devoid of meaning. For them, any attempt to extrapolate the lex lata corpus of the International Law of Intelligence (ILI), let alone its lex scripta, would inevitably prove to be a failed attempt, as there is simply nothing to extrapolate. The notion that international law is moot as to the question of if, when, and how intelligence is to be collected, analyzed, and promulgated, has been repeated so many times that it has attained the status of a dogma. 

This paper offers a new and innovative legal framework for articulating the law and practice of interstate peacetime espionage operations, relying on a body of moral philosophy and intelligence ethics thus far ignored by legal thinkers. This framework adopts a diagnosis of the legality of covert intelligence, at three distinct temporal stages – before, during, and after. In doing so it follows the traditional paradigms of international law and the use of force, which themselves are grounded in the rich history of Just War Theory. Adopting the Jus Ad, Jus In, Jus Post model makes for an appropriate choice, given the unique symbiosis that exists between espionage and fundamental U.N. Charter principles. 

This paper, focuses on the first of these three paradigms, the Jus Ad Explorationem (JAE), a sovereign’s prerogative to engage in peacetime espionage and the right’s core limitations. Examining a plethora of international legal sources the paper exemplifies the myriad ways by which peacetime intelligence gathering has been already recognized as a necessary pre-requisite for the functioning of our global legal order. The paper then proceeds to discuss the nature of the JAE. It argues that that the right to spy is best understood as a privilege in Hohfeldian terms. It shows how understanding interstate intelligence operations as a weaker “liberty-right” that imposes no obligations on third parties to tolerate such behavior, helps capture the essence of the customary norms that form part of the practice. 

Recognizing the liberty right to spy opens the door for the doctrine of “abuse of rights” to play a role in constraining the practice. By identifying two sole justifications for peacetime espionage – advancing the national security interests of States and promoting an increase in international stability and cooperation – we are able to delimit what may constitute abusive spying (exploiting one’s right to spy not for the purposes for which it was intended). 

The paper thus concludes by introducing five categories of unlawful espionage: (1) spying as a means to advance personal interests; (2) spying as a means to commit internationally wrongful acts; (3) spying as a means to advance corporate interests; (4) spying as a means to facilitate a dictatorship; and (5) spying as a means to exploit post-colonial relationship.

The Law Council of Australia has condemned the Federal Government’s processes in appointing members to the Administrative Appeals Tribunal (AAT) as secretive with the potential to undermine public confidence.

The Council comments

At least 14 former state and federal MPs and staffers were among 86 appointments to the AAT, announced Thursday. Law Council President Arthur Moses SC said the legal profession is concerned and troubled by these developments. “The lack of transparency compromises community confidence in the independence of the tribunal and the quality of its decision making,” Mr Moses said. 

“The independence and integrity of the AAT depends on an apolitical, open and merit-based appointment system. 

“The Federal Government’s announcement of 34 new appointments to the AAT made without community consultation and 52 reappointments for existing members is concerning, as a number of members have been re-appointed before the expiration of their current terms. 

“There is a concern that reappointment of members well before the expiry of their current terms, in the context of an upcoming Federal election, may give rise to a reasonable apprehension that decisions are affected by political considerations and therefore compromises the reputation of the Tribunal. 

“The appearance of a conflict of interest can be just as damaging to the AAT’s integrity as an actual conflict. “Appointments should be made transparently and in consultation with the community, including the legal profession, to safeguard their quality and improve their diversity. 

“The AAT deals with a significant number of cases that directly impact on the lives of Australians. It is important those appointed have the necessary skills to discharge its functions according to law and community expectations. 

“An AAT that reflects the community it serves better enhances public confidence in the administration of justice, including respect for the rule of law,” Mr Moses said. 

The Law Council calls on the Federal Government to implement a transparent appointment process based on merit, similar to that recently announced by the Federal Opposition. Any lack of transparency impacts on the reputations of all members of the AAT, which is unfair.

Data, Dignity and Obscurity

'No One Owns Data' by Lothar Determann in (2019) 70(1) Hastings Law Journal 1-44 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.

'Data Privacy and Dignitary Privacy: Google Spain, the Right To Be Forgotten, and the Construction of the Public Sphere' by Robert C Post in (2018) 67 Duke Law Journal comments

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. 

With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming the “public opinion” that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication. 

With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with “control” over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy. 

The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication. 

The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy. 

Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google.

Clown Eggs

'Clown Eggs' by David Fagundes and Aaron Perzanowski in (2019) 94(3) Notre Dame Law Review 1313 comments 

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns – like comedians, roller derby skaters, tattoo artists, and other subcultures – have developed an elaborate informal scheme in lieu of state-created copyright or trademark law to regulate their creative production. Second, this Article explores a rarer phenomenon in the norms-based IP context: formalized registration related to norms-based ownership rules. It shows that the Register exists not only to support those rules, but it also serves a host of nonexclusion functions, including expressing members’ professionalism, conferring a sense of prestige, and creating a historical record. Finally, this Article shows how its analysis of the Clown Egg Register offers lessons for the study of registers in the context of tangible and intellectual property alike.

Young Plasma Infusions

A dose of 'Young blood' and 'young plasma' as a fix for inconveniences such as ageing? In the US the FDA has cautioned consumers against receiving young donor plasma infusions that are promoted as unproven treatment for varying conditions.

The media release states

The FDA has recently become aware of reports of establishments in several states that are offering infusions of plasma from young donors to purportedly treat the effects of a variety of conditions. The conditions range from normal aging and memory loss to serious diseases like dementia, Parkinson’s disease, multiple sclerosis, Alzheimer’s disease, heart disease or post-traumatic stress disorder. We have significant public health concerns about the promotion and use of plasma for these purposes. There is no proven clinical benefit of infusion of plasma from young donors to cure, mitigate, treat, or prevent these conditions, and there are risks associated with the use of any plasma product.

Today, we’re alerting consumers and health care providers that treatments using plasma from young donors have not gone through the rigorous testing that the FDA normally requires in order to confirm the therapeutic benefit of a product and to ensure its safety. As a result, the reported uses of these products should not be assumed to be safe or effective. We strongly discourage consumers from pursing this therapy outside of clinical trials under appropriate institutional review board and regulatory oversight.

Plasma is the liquid portion of the blood. It contains proteins that help clot blood and can be used for the management of bleeding and clotting abnormalities. The benefits of plasma have long been recognized, especially in trauma settings or in patients whose blood is unable to clot due to medications or certain illnesses. The FDA-recognized Circular of Information for the Use of Human Blood and Blood Components, published by AABB, lists recognized indications for which the administration of plasma is safe and effective; these are included in the FDA’s safety communication. For those patients receiving a plasma product for a recognized use, the benefits of treatment have been determined by the agency to outweigh its risks. But even under such recognized uses, plasma administration is not without risks. The more common risks are allergic reactions and transfusion associated circulatory overload and less common risks include transfusion related acute lung injury or transfusion associated circulatory overload and infectious disease transmission.

Our concerns regarding treatments using plasma from young donors are heightened by the fact that there is no compelling clinical evidence on its efficacy, nor is there information on appropriate dosing for treatment of the conditions for which these products are being advertised. Plasma is not FDA-recognized or approved to treat conditions such as normal aging or memory loss, or other diseases like Alzheimer’s or Parkinson’s disease. Moreover, reports we’re seeing indicate that the dosing of these infusions can involve administration of large volumes of plasma that can be associated with significant risks including infectious, allergic, respiratory and cardiovascular risks, among others.

The administration of plasma for indications other than those recognized or approved by the FDA should be performed by a qualified investigator or sponsor who has an active Investigational New Drug (IND) application with the FDA. Clinical studies are performed under an IND to help ensure the safety of participants in the trials. When clinical trials are not conducted under an IND, it means that the FDA has not reviewed the experimental therapy to help make sure it is reasonably safe.

Simply put, we’re concerned that some patients are being preyed upon by unscrupulous actors touting treatments of plasma from young donors as cures and remedies. Such treatments have no proven clinical benefits for the uses for which these clinics are advertising them and are potentially harmful. There are reports of bad actors charging thousands of dollars for infusions that are unproven and not guided by evidence from adequate and well-controlled trials. The promotion of plasma for these unproven purposes could also discourage patients suffering from serious or intractable illnesses from receiving safe and effective treatments that may be available to them. We strongly urge individuals to consult their treating physicians prior to considering the use of such products for aging indications or for the treatment of conditions such as dementia, Parkinson’s disease, multiple sclerosis, Alzheimer’s disease, heart disease or post-traumatic stress disorder given the known and unknown risks associated with their use.

We support sound, scientific research and regulation of medical treatments. We will use our tools and authorities to protect patients from unscrupulous actors and unsafe products. As a general matter, we will consider taking regulatory and enforcement actions against companies that abuse the trust of patients and endanger their health with uncontrolled manufacturing conditions or by promoting so-called ‘treatments’ that haven’t been proven safe or effective for any use.

As a growing number of clinics offer plasma from young donors and similar therapies, we want to encourage consumers considering treatments to ask their health care providers to confirm that the FDA has reviewed any treatment that is investigational. You also can ask the clinical investigator to give you the FDA-issued IND number and to provide a copy of the FDA communication acknowledging the IND. We encourage patients to ask for this information before receiving treatment. Furthermore, we urge patients and their health care providers to report any adverse events related to treatment with plasma from young donors for aging or related indications to the FDA’s MedWatch Adverse Event Reporting program. The agency will continue to closely monitor this issue and take additional steps, as appropriate, along with state and local health departments and blood establishments.