DTC

'The Risks of Relying on Direct-to-Consumer Genetic Testing Service Agreements to Protect Genetic Information' by Brennan Canuteson in (2021) 5(1) Business, Entrepreneurship and Tax Law Review 35-49 comments 

 A consumer's unique genetic code is their most intimate piece of personal data. Many federal laws concerning the privacy and nondiscrimination of health data are outdated, and most are related to healthcare providers instead of commercial services. To ensure that direct-to-consumer (" DTC") genetic testing companies do not misuse a consumer's unique genetic code, consumers rely on contractual agreements to protect their genetic information. DTC contractual protections are insufficient for several reasons:(1) consumers may not understand or read the agreement,(2) the company can modify the privacy statement,(3) the company could breach the agreement, and (4) new DTC companies may not include the same level of protection. Ultimately, the concern is that the DTC company may use the consumer's genetic information to be detrimental to the consumer or in a way the consumer did not intend when they provided that information. To address this, Congress should enact a comprehensive federal law for the protection of genetic information.

Cybersecurity

'Enhancing relationships between criminology and cybersecurity' by Benoıt Dupont and Chad Whelan in (2021) 54(1) Journal of Criminology 76–92 comments 

‘Cybercrime’ is an umbrella concept used by criminologists to refer to traditional crimes that are enhanced via the use of networked technologies (i.e. cyber-enabled crimes) and newer forms of crime that would not exist without networked technologies (i.e. cyber-dependent crimes). Cybersecurity is similarly a very broad concept and diverse field of practice. For computer scientists, the term ‘cybersecurity’ typically refers to policies, processes and practices undertaken to protect data, networks and systems from unauthorised access. Cybersecurity is used in subnational, national and transnational contexts to capture an increasingly diverse array of threats. Increasingly, cybercrimes are presented as threats to cybersecurity, which explains why national security institutions are gradually becoming involved in cybercrime control and prevention activities. This paper argues that the fields of cyber-criminology and cybersecurity, which are segregated at the moment, are in much need of greater engagement and cross-fertilisation. We draw on concepts of ‘high’ and ‘low’ policing (Brodeur, 2010) to suggest it would be useful to consider ‘crime’ and ‘security’ on the same continuum. This continuum has cybercrime at one end and cybersecurity at the other, with crime being more the domain of ‘low’ policing while security, as conceptualised in the context of specific cybersecurity projects, falls under the responsibility of ‘high’ policing institutions. This unifying approach helps us to explore the fuzzy relationship between cyber-crime and cyber-security and to call for more fruitful alliances between cybercrime and cybersecurity researchers.

The authors argue 

Cybercrime and cybersecurity are increasingly being presented among the major social, political and economic challenges of our time. Cybercrime is an umbrella concept used to refer to cyber-enabled crimes (i.e. traditional crimes that are enhanced via the use of networked technologies) and cyber-dependent crimes (i.e. crimes that would not exist without networks technologies; see McGuire & Dowling, 2013; Wall, 2001). For the most part, criminological research has focused more on cyber-enabled crime and, to a lesser extent, on policing responses to those crimes. Research in this domain is loosely referred to as ‘cyber-criminology’ (Grabosky, 2016). Cybersecurity is a very broad concept and diverse field of practice. For computer scientists, the term is typically used to refer to policies, processes and practices undertaken to protect data, networks and systems from unauthorised access (Carley, 2020; Fichtner, 2018). It does not matter, from a definitional point of view, whose systems are being considered, with cybersecurity being used in the context of personal devices, the home, workplace and institutions. Rather, the different types and purposes of data, networks and systems are more questions for the precise makeup of cybersecurity. Much like the idea of ‘security’, cybersecurity is a slippery concept meaning very different things to different people. 

The ‘securitisation’ of cybersecurity cannot be ignored (Kremer, 2014). Indeed, some argue that the term ‘cybersecurity’ can be understood ‘as “computer security” plus “securitisation”’ (Hansen & Nissenbaum, 2009, p. 1160), reflecting the view that shifting from computer to cyber security shifts from a technical discourse based on protecting systems to a securitising discourse portraying cybersecurity as a specialised domain of national security. An increasingly diverse array of cybersecurity issues are captured under this conceptualisation, including threats posed from espionage emanating from a foreign state, hacking by (state or non-state) terrorists and various forms of cyber-crime. Increasingly, cybercrimes are presented as threats to cybersecurity. Many of the agencies responsible for cybersecurity, particularly signals intelligence agencies, have historically had very little to do with crimes. Interestingly, governments are also potential threats to cybersecurity, as in the cases over-reaching state surveillance. As a field of practice, cybersecurity is concerned largely with the protection of digital infrastructures such as communications, financial and transportation systems (Fichtner, 2018). At the same time, individuals and organisations of all sizes are increasingly being encouraged and responsibilised to practise cybersecurity. 

As cyber-criminology and cybersecurity are both concerned with the study of online harms and responses to such harms, it would be logical to assume that these fields share many theoretical and empirical approaches. Upon a closer examination, however, it becomes clear that they are more accurately understood as two discrete academic fields, each mobilising differentiated conceptual frameworks, research questions, datasets, publication outlets and career paths. This paper argues that the concept and field of cybersecurity is in much need of greater conceptualisation. In doing so, we recognise that ‘all that we can know about security is what people do in its name’ (Valverde, 2011, p. 5), suggesting that efforts should not be caught up in only theorising security but also addressing the practices of security governance. These practices, it is argued, need to be considered in the context of the logics, scale and scope of specific security projects. Our focus in this paper is to consider these questions within the diverse and, at times, contradictory set of actors and practices that make up the field of cybersecurity. The paper therefore proceeds as follows. First, we consider in more depth the origins of the cyber-criminology and cybersecurity fields. This allows us to not only further explain the divergence between these cyber fields but also provide insights into how these differences can be better navigated. We therefore hope to promote further integration between these disciplines in future research on cybercrime and cybersecurity. Second, we focus the rest of the paper on the relational dynamics connecting the cybercrime and cybersecurity fields, including cyber harms and the actors responsible for preventing and controlling such harms. Drawing on concepts of ‘high’ and ‘low’ policing (Brodeur, 2010), we suggest it is useful to consider ‘crime’ and ‘security’ on a continuum. This continuum has crime at one end and security at the other, with crime being more the domain of ‘low’ policing while security, as conceptualised in the context of cybersecurity projects, is more that of ‘high’ policing. In the middle of this continuum, we see a convergence, where crime and security meet. An increasing amount of cybersecurity problems are occupying this territory, which has significant implications for the cyber field as a whole. We conclude the paper by reflecting on these points of convergence and suggest areas for future research in this field.

COVID

'The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic' (LSE Legal Studies Working Paper No. 06/2021) by Siva Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang and Graham Dutfield comments 

The structure of global intellectual property law as incorporated in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is implicated in the current lack of COVID-19 vaccines, medical equipment, medicines and diagnostics (hereafter, ‘health-technologies’), which are needed to combat the pandemic. Although equitable access to vaccines is in the moral, political and economic interests of the global public and requires global solidarity, the phenomenon of COVID-19 ‘vaccine nationalism’ has brought into sharp relief the misalignment of current legal and financial incentives to produce and distribute vaccines equitably. The crisis further demonstrates the failure of high-income countries (HICs) to realise the promise they made at the time of the TRIPS negotiations in 1994, that by agreeing to the terms of TRIPS, lower and middle-income countries (LMICs) would benefit from technology transfer and the building of productive capacity. As such, the current crisis is revealing not only of inadequacies of how to deal with global emergencies, but also of deficiencies within the international ‘patent bargain’ itself. 

This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal initially put forward by India and South Africa in October 2020, which, as of May 2021, is supported by more than 60 states, and which has received statements of support from the World Health Organisation (WHO). We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance.  

The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. 

We make two arguments to this effect: first, the TRIPS waiver is a necessary and proportionate legal measure for clearing intellectual property (IP) barriers in a direct, consistent and efficient fashion, enabling the freedom to operate for more companies to produce COVID-19 vaccines and other health technologies without the fear of infringing another party’s IP rights and the attendant threat of litigation; and second, the TRIPS waiver acts as an important political, moral and economic lever towards encouraging solutions aimed at global equitable access to vaccines, which is in the wider interest of the global public.

'EpiPen, Patents, and Life and Death' by Jacob S Sherkow and Patricia J Zettler in (2021) New York University Law Review Online comments 

Drug pricing disputes, while significant public health concerns, are not typically immediate life or death matters. But they may be for certain emergency medicines, medicines used for potentially lethal and rapidly onset illnesses or injuries. This is especially true for emergency combination drug-device products, like Mylan’s EpiPen, for which patients bear a significant brunt of the products’ cost. Scholarly commentary on the controversy surrounding the pricing of Mylan’s EpiPen, however, has largely elided over this relationship among combination products, emergency medicine, and patient payment, focusing principally instead on classic issues of antitrust and competition. This brief Essay explores how EpiPen’s pricing capacity is a function of a peculiar intersection of emergency medicine, FDA law and policy, and patents, and suggests areas of further analysis for other drug-device emergency products.

Vulnerability

'Vulnerability in Law and Bioethics' by Martha Albertson Fineman in (2020) 30 Journal of Health Care for the Poor and Underserved 52 comments 

 Both law and bioethics are disciplines concerned with establishing principles, norms, and values to govern those subjects and situations within their jurisdictions. The rules that emerge from discussions about necessary ethical principles must be considered just, and must also clearly define appropriate institutional practices and individual behavior. 

The primary subject of both law and bioethics is the human being. While the social and professional roles of the lawyer (and/or legislator and judge) and the bioethicists may be different, both professions are concerned with human beings and the societies in which they live. Therefore, the fundamental question for both disciplines has to be: “What does it mean to be human?” This question must be answered before a determination of what is just can be made in defining professional ethics and responsibility.

Fineman states

In law, vulnerability has been developed as a term of art, with a particular and specific meaning. Therefore, a legal theorist immersed in vulnerability theory would respond: “To be human is to be vulnerable.” Vulnerability is the universal, continuous human condition. It is the ultimate characteristic that defines what it means to be human. 

Bioethics has also recognized human vulnerability. In the 1979 Belmont Report, which is acknowledged as a landmark in the development of bioethics, the Commissioners established the three ethical principles that should underlie research involving human subjects: respect for persons, beneficence, and justice. When placed in the context of research practice, these principles mandated researchers ensure the informed consent of participants, make an assessment of the risks and benefits, and be fair in the selection of research subjects. 

Vulnerability emerged as a “special” consideration in the context of the fair selection of research subjects. The Report indicated that a “special” injustice could result, even when subjects generally were selected fairly. Particularly vulnerable subjects (or populations) were identified as “racial minorities, the economically disadvantaged, the very sick, and the institutionalized.” These vulnerable groups were to be specially protected or excluded from research because of their “dependent status and compromised capacity for free consent.” 

In the final decades of the 20th century, the groups deemed in need of special protection grew and the consideration of vulnerability was broadened from a specific category applied only to the fair selection of research subjects. Protection of the “vulnerable person” was mandated in the guidelines established by the Council for International Organizations of Medical Sciences in 1991. Vulnerability became a “fundamental value,” incorporated into the core principle of respect for the person. In 2005, the United Nation’s Universal Declaration on Bioethics and Human Rights elevated consideration of vulnerability in both its general and special manifestations, to a Principle. Article 8 provided: “In applying and advancing scientific knowledge, medical practice and associated technologies, human vulnerability should be taken into account. Individuals and groups of special vulnerability should be protected and the personal integrity of such individuals respected.” 

However, in this evolution of vulnerability in bioethics from special consideration to fundamental value to ethical principle, vulnerability is not clearly or consistently defined, either as a general or special characteristic. Further, arguments abound over just who should constitute a “vulnerable population” and why. 

In Vulnerability: Challenging Bioethics, bioethicist Henk ten Have addressed the confusion that has resulted in the absence of a definitive understandings of what human vulnerability means for bioethics. He noted that there are some areas of general agreement. For example, the idea that there are different types of vulnerability is widely accepted. Consistent with the history of the use of the concept of vulnerability in bioethics, these differences are primarily considered distinct, attached to specific populations requiring special consideration or treatment. There seems also to be some agreement that vulnerability is a negative condition or position. It is narrowly understood as an openness to physical, social, or emotional harms. In addition, since special vulnerability is by definition not universal, it can be attributed to varying contexts and sources. 

The search in bioethics seems to be to identify who is so vulnerable as to need special protection. What characteristics make an individual or population especially vulnerable and why? The ethical response from a researcher would then be to remove or lessen an individual’s vulnerability, protecting them even if that means excluding them from the study.

Banerji

'Balancing Public Servants’ Responsibilities with the Implied Freedom of Political Communication: What Can We Learn from Banerji?' by Shireen Morris in 2021) Monash University Law Review comments 

There is a long-standing institutional tradition that requires public servants to refrain from participating in public debate, in the interests of preserving APS impartiality. At the same time, there is recognition in APS guidelines that public servants are also citizens entitled, to some extent, to express their political views. Comcare v Banerji presented an opportunity to resolve these competing tensions, yet the case leaves us with various uncertainties about whether and how public servants can contribute to public debate. This uncertainty has several potential consequences. First, without principled criterion by which to assess public comments, managers might err on the side of caution and overreach in restricting employees’ speech. Second, government employees might self-censor for similar reasons. Third, when gagging of public servants goes too far, this can itself appear politically biased, compromising APS impartiality and professionalism. In this paper, we argue that public servants are constitutional actors. Like other constitutional actors, they should be allowed to wear two hats, to enable a reasonable level of free speech in their private and expert capacities. We propose policy recommendations building on the Justices’ proposals, that may help clarify a better balance between public servants’ responsibilities and the freedom of political communication.

'Public Servants and the Implied Freedom of Political Communication' by Anthony Davidson Gray in (2021) 49(1) Federal Law Review comments 

The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.

Gray argues 

(T)he scrutinised, as a class, always want to do their work on their own terms. Their lives are much easier if they never have to explain why taxpayer money gets wasted, they want to spy on citizens, or people are locked up without cause. Ignorance has never been a solid basis for citizenship or a method to get the best out of elected governments. 

In a recent decision, the High Court of Australia unanimously overturned a decision of a tribunal that had found in favour of a federal public servant in a compensation case. The public servant had been dismissed after sending numerous tweets critical of various officers in political life, including ministers and members of the opposition. The public servant had argued that the Code of Conduct under which she was dismissed was in conflict with the implied freedom of political communication, which had been recognised by the High Court since 1992, and that the restrictions on the speech of public servants were not proportional to the objectives that the measures sought to achieve. Her arguments failed. While most members of the High Court agreed that the Code of Conduct provisions curtailed the implied freedom of political communication, all found that the measures were justified, proportional responses in pursuit of a legitimate objective, compatible with our system of representative and responsible government. 

This article will take issue with the High Court’s decision in this case. Part II will briefly explain the development of the law relating to free speech in the common law. In the past, English law gave limited protection to free speech, favouring strong powers for those in power to stifle and silence dissent and criticism. As confidence in the stability of government grew, the courts grew more confident in protecting free speech. In essence, the law morphed from a Hobbesian view of government to a Lockean view of government, emphasising democratic self-government, and those in Parliament as representatives of the people. On the other hand, governments regularly find public criticism of their activities and policies annoying, and there is a long tradition of punishment and attempted deterrence of criticism that, whilst more subtle than earlier times, continues to be in evidence. Part II will also explain development of the High Court jurisprudence on the freedom of political communication, with particular emphasis to those aspects of the judgments considered most pertinent to the current context of the speech of public servants. 

Part III will consider other contexts in which the value of the importance of public servants’ speech to democracy has been recognised. This includes leading scholars such as Finn, Stiglitz and Sunstein. The views of Finn are particularly interesting, with his background as a leading public law scholar who was appointed to the bench, and had some opportunity to implement his views in one of the (few) decisions on the constitutional freedom of a public servant to air grievances. It also includes a discussion of the jurisprudence of other countries, in particular Canada, where the importance of the speech of public servants to a vibrant democracy has been recognised. Whilst these courts have recognised the legitimate interest of a government in terms of loyalty and objectivity of public servants, they have typically tightly constrained the ability of a government to effectively stop a public servant from speaking out about public affairs. 

Part IV then considers the High Court’s recent Banerji decision concerning the freedom of a public servant to engage in social media discussion about political figures and government policy. It contains criticism of the High Court decision, including the lack of express recognition of the important role that public servants might play in political discussions, and the lack of evidence that the public servant’s personal opinions might realistically, or in fact did, preclude her ability to do the work for which she had responsibility. The recent decision also continues a line of argument featured in other case law, where the courts seem to be accepting that the tone of a communication can be relevant to a decision about its constitutionality. Respectful disagreement will be expressed with this developing line of reasoning. Finally, the article will briefly consider other contexts in which the law protects the freedom of individuals to express their political views, including non-discrimination laws. Coherence in the law is also considered to be important. Possible incoherence arises when the law, on the one hand, recognises the important role whistleblowers, including public servants, can play in bringing alleged wrongdoing to the attention of the public and improving accountability of those in government, and by generally making it unlawful to discriminate against a person on the basis of their political views or activity, but then, on the other, effectively countenancing dismissal of a public servant who publicly expressed her genuinely held views.

'Of Lonely Ghosts': The Primacy Of Responsible Government In Comcare v Banerji' by Patrick Graham in (2019) 30(4) Public Law Review 261-280 comments

The High Court ruled on the compatibility of legislation with the constitutionally implied freedom of political communication (implied freedom) for the third time this year in Comcare v Banerji (Banerji). The case is another example of the significant work that the implied freedom is expected to do in resolving fundamental questions as to the correct balance to be struck between sensitive policy objectives and democratic principles. Banerji concerned a Commonwealth public servant, Michaela Banerji (the respondent), who, in September 2013, had her seven-year employment with the (then) Commonwealth Department of Immigration and Citizenship (the Department) terminated. This followed an investigation commenced in May 2012 into Ms Banerji's use of a Twitter account to publish highly critical comments of the Department, government and opposition immigration policy, politicians and her colleagues. Ms Banerji used a pseudonym when tweeting, but did publish "other identifying information". Section 13 of the Public Service Act 1999 (Cth) (PSA) set out the terms of the Australian Public Service (APS) Code of Conduct with subs (11) stating that APS employees "must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS". Section 13(11) operated alongside s 10(1)(a) of the PSA, which, in turn, defined "APS Values" as including the specification that "the APS is apolitical, performing its functions in an impartial and professional manner". Further, s 15(1) of the PSA established that an APS employee found to have breached the Code of Conduct could be subject to a specified discretionary sanction ranging in severity from termination of employment to a reprimand.

Structural Deregulation

Regulatory incapacity in the US? 'Structural Deregulation' by Jody Freeman and Sharon Jacobs in (2022) Harvard Law Review comments 

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what Elena Kagan termed presidential administration. 

 

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies understaffed and without permanent leadership; marginalizing agency expertise; weakening independent agency oversight; reallocating agency resources; occupying an agency with busywork; and damaging an agency’s reputation. Structural deregulation differs from traditional “substantive” deregulation, which targets the repeal of particular agency rules or policies. While substantive deregulation may have serious consequences, it is relatively transparent, limited in scope, and subject to legal challenge. By contrast, structural deregulation is stealthier. It is death by a thousand cuts. 

 

We argue that structural deregulation is in tension with the constitutional separation of powers and well-established administrative law norms. Nevertheless, public law is remarkably ill-equipped to address it. Constitutional and administrative law both have blind spots when it comes to presidential management of the bureaucracy, especially when the president’s mission is incapacitation. Specific statutes meant to protect the civil service or inoculate agency budgets from presidential control do not help much either—they are vulnerable to workarounds. These blind spots and workarounds have allowed structural deregulation to flourish as a method of presidential control, with serious consequences for the future of the administrative state. We therefore propose legislative and regulatory reforms that could help to control the risks of structural deregulation by constraining certain aspects of presidential power.

Conservation and Personhood

'A critical review of the compassionate conservation debate' by Simon Coghlan and Adam P A Cardilini in (2021) Conservation Biology comments

 

Compassionate conservation holds that compassion should transform conservation. It has prompted heated debate and has been criticized strongly. We reviewed the debate to characterize compassionate conservation and to philosophically analyze critiques that are recurring and that warrant further critical attention. The necessary elements of compassionate conservation relate to the moral value of sentient animals and conservation and to science and conservation practice. Although compassionate conservation has several nontraditional necessary conditions, it also importantly allows a degree of pluralism in values and scientific judgment regarding animals and conservation practice. We identified 52 specific criticisms from 11 articles that directly critique compassionate conservation. We closely examined 33 of these because they recurred regularly or included substantial questions that required further response. Critics criticized compassionate conservation's ethical foundations, scientific credentials, clarity of application, understanding of compassion, its alleged threat to conservation and biodiversity. Some criticisms, we found, are question begging, confused, or overlook conceptual complexity. These criticisms raise questions for critics and proponents, regarding, for example, equal versus differential intrinsic moral value of different sentient animals (including humans), problems of natural and human-caused suffering of wild animals and predation, and the acceptability of specific conservation practices within compassionate conservation. By addressing recurring and faulty critiques of compassionate conservation and identifying issues for compassionate conservation to address, this review provides a clearer basis for crucial ongoing interdisciplinary dialogue about ethics, values, and conservation.

'Recognizing animal personhood in compassionate conservation' by Arian D. Wallach, Chelsea Batavia, Marc Bekoff, Shelley Alexander, Liv Baker, Dror Ben-Ami, Louise Boronyak, Adam P. A. Cardilin, Yohay Carmel, Danielle Celermajer, Simon Coghlan, Yara Dahdal, Jonatan J. Gomez, Gisela Kaplan, Oded Keynan, Anton Khalilieh, Helen Kopnina, William S. Lynn, Yamini Narayanan, Sophie Riley, Francisco J. Santiago-Ávila, Esty Yanco, Miriam A. Zemanova and Daniel Ramp in (2020) Conservation Biology comments 

Compassionate conservation is based on the ethical position that actions taken to protect biodiversity should be guided by compassion for all sentient beings. Critics argue that there are 3 core reasons harming animals is acceptable in conservation programs: the primary purpose of conservation is biodiversity protection; conservation is already compassionate to animals; and conservation should prioritize compassion to humans. We used argument analysis to clarify the values and logics underlying the debate around compassionate conservation. We found that objections to compassionate conservation are expressions of human exceptionalism, the view that humans are of a categorically separate and higher moral status than all other species. In contrast, compassionate conservationists believe that conservation should expand its moral community by recognizing all sentient beings as persons. Personhood, in an ethical sense, implies the individual is owed respect and should not be treated merely as a means to other ends. On scientific and ethical grounds, there are good reasons to extend personhood to sentient animals, particularly in conservation. The moral exclusion or subordination of members of other species legitimates the ongoing manipulation and exploitation of the living worlds, the very reason conservation was needed in the first place. Embracing compassion can help dismantle human exceptionalism, recognize nonhuman personhood, and navigate a more expansive moral space.

The authors argue 

Western culture traditionally regarded humans as exceptional among all animals (Rose 2011). This belief was challenged by scientific and philosophical breakthroughs confirming Charles Darwin's view that “there is no fundamental difference” between humans and other animals (Darwin 1871). Today, it is beyond dispute that many animals are sentient beings (Low et al. 2012; Bekoff & Pierce 2017). Much has changed since the 1960s, when primatologist Jane Goodall was castigated for ascribing chimpanzees with personalities and feelings (Goodall 1998). Despite this, even those nonhuman animals with recognized mental, emotional, and social sophistication (such as mammals, birds, and cephalopods) are still readily treated as means to human ends (Midgley 1985). Conservation is no exception (Wallach et al. 2018). 

Although conservation was founded on a uniquely expansive ethic that recognizes the intrinsic value of the living world (Batavia & Nelson 2017), nonhuman animals do not necessarily meet a better fate in the hands of conservationists than in any other hands (Ramp & Bekoff 2015; Wallach et al. 2018). Conservationists often embody deep concern, even love, for wildlife and nature. Yet, this can be a “violent love” (Srinivasan & Kasturirangan 2017). Systemic harm of sentient animals in conservation is enabled by 3 ethical orientations: collectivism (or holism)—the belief that species matter more than individuals; instrumentalism—the treatment of an entity as a means to an end; and nativism—the view that populations established by humans are unnatural (Wallach et al. 2018). These orientations drive conservation practices that use “authoritarian management and control measures” (Bhattacharyya & Larson 2014) and that regard nonhuman animals as “instances of their type” (Vucetich & Nelson 2007) and as “killable” (Haraway 2013) “objects” (Nussbaum 1995). 

Compassionate conservation, in contrast, recognizes that the interests and agency of all sentient beings should be protected in conservation practice (Ramp & Bekoff 2015; Wallach et al. 2018). In other words, sentient beings are persons. Personhood, in an ethical sense, implies an entity is owed respect and should not be treated as a means to other ends (Midgley 1985; Dayan 2018). Many traditions (including hunting-based cultures) have long understood the world as animated with multitudes of persons with whom humans form kinship relations (e.g., Rose 2011; Hill 2013; Robinson 2014). Western tradition, however, has largely restricted the notion of personhood to humans, an expression of human exceptionalism that maintains humans as a categorically separate and inherently superior class of being (Plumwood 1993). It is not our purpose to dispute this view, per se, but to offer an alternative; namely, all sentient beings are persons when viewed through the lens of compassion. 

The proposition that compassion for sentient beings should inform and where necessary redirect conservation goals and practices has generated intense debate. Recently, a series of critiques of compassionate conservation unfolded in Conservation Biology and included a Conservation Focus “Debating Compassion in Conservation Science” (2019, Volume 33, Issue 4). We considered the main statements made in opposition to compassionate conservation in 5 essays that responded to Wallach et al. (2015) and Wallach et al. (2018): Russell et al. (2016), Driscoll and Watson (2019), Hampton et al. (2019), Hayward et al. (2019), and Oommen et al. (2019) (hereafter critiques or critics). We condensed the critiques into 3 core reasons to reject compassionate conservation and support lethal and invasive conservation practices: the primary purpose (raison d'être) of conservation is biodiversity protection; conservation is already compassionate to animals; and conservation should prioritize compassion to humans (Table 1). We developed these reasons into formal arguments, which allowed us to clarify the values and logic underlying the debate around compassionate conservation. Formal arguments are composed of a set of premises (P) leading to a conclusion (C). An argument is sound when it meets 2 conditions: it is valid, meaning its conclusion necessarily follows from its premises, and its premises are true or appropriate, meaning the empirical premises are factually accurate and the ethical premises are consistently defensible (Hughes et al. 2010).

Insecurity

The recommendations of the first Interim Report (on On-demand platform work in Australia) by the Senate Select Committee on Job Security are 

 R 1  The committee recommends that the Australian Bureau of Statistics expands its Labour Force Survey to capture quarterly estimates in relation to the number of workers engaged in the on-demand platform sector. These estimates could include the industries and occupations in which they work, the hours they work, their visa status, the nature of their working arrangements relative to other workers, earnings and other demographic characteristics. 

R 2  The committee recommends that the Australian Bureau of Statistics enhances its Work-Related Injuries Survey to capture specific information on the number, and types, of injuries and fatalities for workers engaged in the on‑demand platform sector. 

R 3  The committee recommends that Safe Work Australia enhances its national data collection process to capture specific information on the number, and types, of injuries and fatalities for workers engaged in the on‑demand platform sector. The committee further recommends that all road crashes involving on-demand workers be officially recognised as workplace incidents and are recorded and investigated as such. 

R 4  The committee recommends that, as a matter of priority, Safe Work Australia develops meaningful, high-level guidelines on the application of the model Work Health and Safety Laws to the on-demand platform (or 'gig') sector. The guidance should be aimed at addressing practices that incentivise unsafe behaviour, as well as enforcing compliance with safety rules and obligations. The guidance should not seek to unreasonably circumvent the obligations of on-demand companies through novel interpretations of workers as being a 'person conducting a business or undertaking' (PCBU), particularly when such workers in the on-demand sector are engaged in highly dependent or low-leverage work arrangements. 

R 5  The committee recommends that the Australian Government urgently clarifies, by way of regulation, which persons or entities owe a duty of care as a person conducting a business or undertaking (PCBU) under the Model Work Health and Safety laws in relation to individual support workers engaged through on‑demand platforms like Mable. The law should dictate that: a platform that engages individual workers to provide support work under the NDIS or similar schemes, and makes money from the arrangement, is a PCBU and owes a duty of care to that worker, regardless of that worker's work status (employee or contractor), or their visa status; and that individual care recipients, such as NDIS participants, are not a PCBU in relation to that worker. 

R 6  The committee recommends that the Australian Government works with state and territory governments to lead the reform of state-based workers' compensation schemes so that they extend to platform workers, regardless of their visa or work status, and require platform companies to pay workers' compensation premiums for these workers. 

R 7  The committee recommends that the Australian Government expands the definitions of 'employment' and 'employee' in the Fair Work Act 2009 to capture new and evolving forms of work. In addition to an expanded definition of 'employment' and 'employee' under the Fair Work Act, there should be a mechanism by which the Fair Work Commission can extend coverage of those rights when necessary to workers falling outside the expanded definition of employment, including low-leveraged and highly dependent workers so they can be provided with standards and protections under the Act. 

R 8  The Committee recommends that the Australian Government investigates options for a Federal regulator to be empowered to request data from platforms that employ and contract workers, including: pay rates; hours worked; other conditions governing that work; and other relevant information needed to appropriately monitor safety, competition and labour rights. 

R 9  The committee recommends that the Australian Government gives the Fair Work Commission (FWC) broad powers to resolve disputes and make orders for minimum standards and conditions in relation to all forms of work. The expanded remit of the FWC would include: adjudicating in cases where there is a dispute in relation to the appropriate status of workers; setting binding minimum standards and conditions in relation to non‑standard forms of work, regardless of employment status; and the capacity to resolve disputes (including where necessary through binding decisions) in a low-cost and effective manner. The FWC should be empowered to make determinations and orders for groups and categories of workers, not just individuals. 

R 10  The committee recommends that the Australian Government empowers the Fair Work Commission (FWC) to provide pathways to permanency via arbitrations for casual conversion. Any disputes with regards to work status, contractual arrangements, or casual conversion should be able to be arbitrated via a low‑cost, accessible process, whether via the FWC or another body, to ensure workers are able to practically enforce their rights, and both workers and employers can have matters adjudicated quickly. 

R 11  The committee recommends that the Australian Government provide greater protections for independent contractors who are sole traders by establishing an accessible low-cost national tribunal to advise on, oversee, and make rulings relating to employment relationships involving low‑leveraged independent contractors, such as those in the rideshare and other platform sectors. 

R 12  The committee recommends that the Joint Standing Committee on the National Disability Insurance Scheme give specific consideration to the following matters related to platform-based work in the disability sector as part of its current inquiry into the NDIS Workforce and its ongoing examination of the operation and performance of the NDIS: the prevalence of platform-based work in the sector, and the growing and evolving nature of this business model; the prevalence of independent contracting through platforms; the characteristics of independent contractors providing support work through platforms like Mable; the extent to which workers rely on this income, or have other sources of income; the typical earnings, insurance coverage, superannuation and access to leave and other entitlements available to these workers; the adequacy of training and support provided to workers; issues associated with safety, risk, and liability under Work Health and Safety laws; and issues relating to the potential for NDIS recipients to be classified as persons conducting a business or undertaking (PCBUs) under existing Work Health and Safety laws. 

R 13  Taking into account the findings of any relevant inquiries, the committee recommends that the Australian Government considers regulatory options that would ensure support workers engaged to provide services funded through the National Disability Insurance Scheme are provided with fair pay and conditions, including those engaged through on‑demand platforms. 

R 14  The committee recommends that the Australian Government considers working with states and territories to design a national scheme that connects and extends the current state and territory schemes to provide portable long service leave, sick leave and other leave entitlements, and portable training entitlements, to all workers delivering services under the National Disability Insurance Scheme. 

R 15  The committee recommends that the Australian Government works through the Council on Federal Financial Relations to achieve an intergovernmental agreement that government procurements must require companies engaged by the Federal and state and territory governments to provide minimum standards of pay, safety and insurance, workers' compensation and basic protections for workers.

A perspective is provided by the 2018 ACT Legislative Assembly report on the Standing Committee on Education, Employment and Youth Affairs inquiry regarding the Extent, Nature and Consewquences of Insecure Work in the ACT.

Biometrics

'Changing perceptions of biometric technologies' (Australian Institute of Criminology Research Report no. 20) by Christie Franks and Russell Smith - oriented to the Department of Home Affairs and heavily dependent on work by the biometrics industry body - comments 

 Identity crime and misuse cost the Australian economy an estimated $3.1b in 2018–19 (Smith & Franks 2020). Protecting individuals’ personal identification information and finding secure ways to verify identities has become an increased priority as the impact of identity crime continues to grow in Australia and worldwide. Biometric technologies for identity verification provide an enhanced security solution, although implementation of biometric systems within Australian society has met with varying degrees of acceptance. Since 2013, the Australian Institute of Criminology (AIC) has conducted online surveys to gain a greater understanding of identity crime and misuse in Australia. These surveys have asked about respondents’ experience of identity crime and also their previous use of, and future willingness to use, biometric technologies to safeguard their personal information. This report presents both qualitative and quantitative research findings obtained from a sample of respondents in the most recent surveys concerning their experiences of biometrics and perceptions as to its role in identity security.

 The authors state 

Annually since 2013 (with the exception of 2015), the AIC has administered online questionnaires to a research panel of Australians drawn from all states and territories. A sampling frame of more than 300,000 individuals was provided by the market research company i-Link Research Solutions, which also hosted the online questionnaire and provided raw, de-identified data for the AIC to analyse. Sampling was completed once a quota of 10,000 respondents had been satisfied. No other quotas were employed as the sample was sufficiently large to ensure good representation from urban and regional areas across Australia. 

Survey results were weighted by age and gender to represent the spread of the population in Australia. Australian Bureau of Statistics data from the 2016 Census were used to develop the weighting matrix for the sample. Questions on biometrics were asked of all respondents, not only those who had reported previous misuse of personal information. All respondents answered questions about their prior use of biometrics and their willingness to use biometrics for specified purposes. 

Extended online interviews were conducted with 99 individuals who had participated in the AIC’s online survey in 2018 and who had agreed to participate in further research. These interviews were moderated by Footprints Market Research using the i-Discuss online platform provided by i-Link Research Services. Interviews canvassed four selected topics that enabled responses of the original survey respondents to be examined in greater depth. These qualitative results are the focus of the present report. In order to provide data on certain other aspects of biometrics, the findings of two other surveys were presented. One was conducted for the Ada Lovelace Institute in the United Kingdom on public attitudes to facial recognition technology and the other was conducted for the Biometrics Institute to ascertain the views of its membership regarding the biometrics market globally. These are presented by way of comparison with the AIC’s quantitative survey and qualitative interview research findings. ... 

Results of the AIC 2019 identity crime survey, AIC 2018 identity crime survey and online interviews, and consulted international publications, demonstrate a generally high level of previous exposure to biometrics, with an increasing willingness to use biometric technologies in the future, especially among previous victims of identity crime. Simple username and password combinations are becoming obsolete as offenders have become more adept at compromising these user authentication processes. The constant requirement of network security to reset these combinations has made it challenging for users to manage access to devices without resorting to insecure ways of remembering passwords. Biometrics offer a more secure solution by enabling individuals to use their biological attributes as a means of identifying themselves. 

The AIC’s research has shown that previous use of specified biological biometrics is strong, with three out of four respondents stating they have used at least one form of the technology in the past (Franks & Smith 2020). Franks and Smith (2020) also reported that future willingness to use biometrics as a security solution remains consistently strong, with at least 71 percent of all respondents willing to use some form of biometric for identification purposes, increasing to 76 percent for recent victims of identity theft. Recent victims were also more than twice as willing as non-victims to try having a computer chip implanted under their skin as a future security option (42% vs 20% respectively; Franks & Smith 2020). Generally, recent victims of identity crime were more willing than non-victims to use all of the biometric technologies mentioned; however, recent victims were four percentage points less willing than non-victims to continue using the less secure option of passwords (Franks & Smith 2020). The top three preferred biometrics among the cohort interviewed by the AIC in 2018 were fingerprint scans, facial recognition and voice recognition. 

Respondents to the AIC surveys have shown a general approval of the use of biometric technologies by government authorities for law enforcement and national security reasons and as a means of obtaining access to government services. Feelings towards the use of biometric technologies for public surveillance, personal reasons and by private industry are mixed. Privacy, ethical use, data access and storage security were some of the main concerns expressed by both AIC and comparison survey participants. Results of the Biometrics Institute (2019) survey of industry experts were consistent with 2018 in predicting facial recognition technology as the area of greatest potential growth by 55 percent of Biometrics Institute respondents. AIC and Ada Lovelace Institute (2019) survey respondents stated their acceptance of the use of this technology in the form of crowd surveillance for national security and community safety but were less willing when considering it for commercial use. Survey participants were generally willing to use all biometric systems monitored by government entities and far less willing to use those issued by private organisations. 

Most of the survey cohort had limited knowledge of how their personal information was being used, stored and protected, and expressed disappointment in the degree of information provided by both government and industry. The Biometrics Institute (2019) cohort ranked ‘data sharing concerns’ as the second highest key market restraint, with ‘privacy/data protection concerns’ ranked at number one. 

Respondents from both the AIC and Ada Lovelace Institute surveys and the AIC online interviews were concerned about privacy issues and the ethical use of biometrics data—these included concerns about inaccurate matching leading to false identification/prosecution by law enforcement. Individuals were most comfortable with biometrics when they were afforded freedom of choice but accepted enforced use in situations where their security was at risk; however, support was not unconditional. The capture and storage of information without user consent was not justifiable for most. 

Identity crime and misuse of personal information remain ongoing concerns for those in the Australian community. Despite advances in verification of credentials and improvements in online authentication procedures, victimisation continues to increase. Financial losses also continue to rise, along with the equally harmful non-financial consequences including damage to credit ratings, being wrongly accused of crime, and a range of psychological and emotional harms. 

This report presents the findings obtained in online interviews with selected AIC 2018 survey participants as well as the results of the latest AIC identity crime survey, conducted in 2019. The results of relevant international publications that demonstrate previous exposure to biometrics in Australia and overseas are also presented by way of comparison. This report also examines the increasing willingness of individuals to use biometric technologies in the future, advantages, challenges, future developments and the restraints of implementation including expense, privacy and ethics considerations.