Ideology and Originalism

'Judicial Ideology in the Absence of Rights: Evidence from Australia' by Zoe Robinson, Patrick Leslie and Jill Sheppard in 2020 comments 

This article investigates whether apex court judges behave ideologically in cases not involving civil, political, or economic rights. Research on comparative judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior is outside of rights-based issues. The study contributes to existing research by exploring the predictive effect of judicial ideology on the entire corpus of judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology based and uses original data on every decision by Australian High Court Justices between 1995 and 2018 to test whether, and in which types of cases, the votes of Australia’s apex court judges align with their ideology. The results show a strong relationship between ideology and voting behavior, regardless of policy area, suggesting that judicial policy preferences will inevitably find an outlet, even in the absence of authority over rights.

The dissent by Breyer, Sotomayor and Kagan  JJ in Dobbs v. Jackson Women’S Health Organization 597 U. S. (2022) 17 states in part 

The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again. See ante, at 47 (“[T]he most important historical fact [is] how the States regulated abortion when the Fourteenth Amendment was adopted”); see also ante, at 5, 16, and n. 24, 23, 25, 28. If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist. 

As an initial matter, note a mistake in the just preceding sentence. We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788— did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. 

Casey itself understood this point, as will become clear. See infra, at 23–24. It recollected with dismay a decision this Court issued just five years after the Fourteenth Amendment’s ratification, approving a State’s decision to deny a law license to a woman and suggesting as well that a woman had no legal status apart from her husband. See 505 U. S., at 896–897 (majority opinion) (citing Bradwell v. State, 16 Wall. 130 (1873)). “There was a time,” Casey explained, when the Constitution did not protect “men and women alike.” 505 U. S., at 896. But times had changed. A woman’s place in society had changed, and constitutional law had changed along with it. The relegation of women to inferior status in either the public sphere or the family was “no longer consistent with our understanding” of the Constitution. Id., at 897. Now, “[t]he Constitution protects all individuals, male or female,” from “the abuse of governmental power” or “unjustified state interference.” Id., at 896, 898. 

So how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868? How is it that our Constitution subjects discrimination against them to heightened judicial scrutiny? How is it that our Constitution, through the Fourteenth Amendment’s liberty clause, guarantees access to contraception (also not legally protected in 1868) so that women can decide for them- selves whether and when to bear a child? How is it that until today, that same constitutional clause protected a woman’s right, in the event contraception failed, to end a pregnancy in its earlier stages? 

The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution. “The Founders,” we recently wrote, “knew they were writing a document designed to apply to ever-changing circumstances over centuries.” NLRB v. Noel Canning, 573 U. S. 513, 533–534 (2014). Or in the words of the great Chief Justice John Marshall, our Constitution is “intended to endure for ages to come,” and must adapt itself to a future “seen dimly,” if at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions. 

Nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the Fourteenth Amendment—the guarantees of “liberty” and “equality” for all. And nowhere has that approach produced prouder moments, for this country and the Court. Consider an example Obergefell used a few years ago. The Court there confronted a claim, based on Washington v. Glucksberg, 521 U. S. 702 (1997), that the Fourteenth Amendment “must be defined in a most circumscribed manner, with central reference to specific historical practices”—exactly the view today’s majority follows. Obergefell, 576 U. S., at 671. And the Court specifically rejected that view.4 In doing so, the Court reflected on what the proposed, historically circumscribed approach would have meant for interracial marriage. See ibid. The Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion. Yet the Court in Loving v. Virginia, 388 U. S. 1 (1967), read the Fourteenth Amendment to embrace the Lovings’ union. If, Obergefell explained, “rights were defined by who exercised them in the past, then received practices could serve as their own continued justification”—even when they conflict with “liberty” and “equality” as later and more broadly un- derstood. 576 U. S., at 671. The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply. 

That does not mean anything goes. The majority wishes people to think there are but two alternatives: (1) accept the original applications of the Fourteenth Amendment and no others, or (2) surrender to judges’ “own ardent views,” un-grounded in law, about the “liberty that Americans should enjoy.” Ante, at 14. At least, that idea is what the majority sometimes tries to convey. At other times, the majority (or, rather, most of it) tries to assure the public that it has no designs on rights (for example, to contraception) that arose only in the back half of the 20th century—in other words, that it is happy to pick and choose, in accord with individual preferences. See ante, at 32, 66, 71–72; ante, at 10 (KAVANAUGH, J., concurring); but see ante, at 3 (THOMAS, J., concurring). But that is a matter we discuss later. See infra, at 24–29. For now, our point is different: It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. The second Justice Harlan discussed how to strike the right balance when he explained why he would have invalidated a State’s ban on contraceptive use. Judges, he said, are not “free to roam where unguided speculation might take them.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (dissenting opinion). Yet they also must recognize that the constitutional “tradition” of this country is not captured whole at a single moment. Ibid. Rather, its meaning gains content from the long sweep of our history and from successive judicial precedents—each looking to the last and each seeking to apply the Constitution’s most fundamental commitments to new conditions. That is why Americans, to go back to Obergefell’s example, have a right to marry across racial lines. And it is why, to go back to Justice Harlan’s case, Americans have a right to use contraceptives so they can choose for themselves whether to have children. 

All that is what Casey understood. Casey explicitly re- jected the present majority’s method. “[T]he specific practices of States at the time of the adoption of the Fourteenth Amendment,” Casey stated, do not “mark[ ] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” 505 U. S., at 848. To hold otherwise—as the majority does today—“would be inconsistent with our law.” Id., at 847. Why? Because the Court has “vindicated [the] principle” over and over that (no matter the sentiment in 1868) “there is a realm of personal liberty which the government may not enter”—especially relating to “bodily integrity” and “family life.” Id., at 847, 849, 851. Casey described in detail the Court’s contraception cases. See id., at 848–849, 851–853. It noted decisions protecting the right to marry, including to someone of another race. See id., at 847–848 (“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference”). In reviewing decades and decades of constitutional law, Casey could draw but one conclusion: Whatever was true in 1868, “[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.” Id., at 849. 

And that conclusion still held good, until the Court’s intervention here. It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decisionmaking. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents. It (literally) rattles them off in a single paragraph; and it implies that they have nothing to do with each other, or with the right to terminate an early pregnancy. See ante, at 31–32 (asserting that recognizing a relationship among them, as addressing aspects of personal autonomy, would ineluctably “license fundamental rights” to illegal “drug use [and] prostitution”). But that is flat wrong. The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination. 

And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” posi- tion, as JUSTICE KAVANAUGH tries to argue. Ante, at 2–3, 5, 7, 11–12 (concurring opinion). His idea is that neutrality lies in giving the abortion issue to the States, where some can go one way and some another. But would he say that the Court is being “scrupulously neutral” if it allowed New York and California to ban all the guns they want? Ante, at 3. If the Court allowed some States to use unanimous juries and others not? If the Court told the States: Decide for yourselves whether to put restrictions on church attend- ance? We could go on—and in fact we will. Suppose JUSTICE KAVANAUGH were to say (in line with the majority opinion) that the rights we just listed are more textually or historically grounded than the right to choose. What, then, of the right to contraception or same-sex marriage? Would it be “scrupulously neutral” for the Court to eliminate those rights too? The point of all these examples is that when it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers. And to apply that point to the case here: When the Court decimates a right women have held for 50 years, the Court is not being “scrupulously neutral.” It is instead taking sides: against women who wish to exercise the right, and for States (like Mississippi) that want to bar them from doing so. JUSTICE KAVANAUGH cannot obscure that point by ap- propriating the rhetoric of even-handedness. His position just is what it is: A brook-no-compromise refusal to recognize a woman’s right to choose, from the first day of a pregnancy. And that position, as we will now show, cannot be squared with this Court’s longstanding view that women indeed have rights (whatever the state of the world in 1868) to make the most personal and consequential decisions about their bodies and their lives. 

Consider first, then, the line of this Court’s cases protecting “bodily integrity.” Casey, 505 U. S., at 849. “No right,” in this Court’s time-honored view, “is held more sacred, or is more carefully guarded,” than “the right of every individual to the possession and control of his own person.” Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891); see Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 269 (1990) (Every adult “has a right to determine what shall be done with his own body”). Or to put it more simply: Everyone, including women, owns their own bodies. So the Court has restricted the power of government to interfere with a person’s medical decisions or compel her to undergo medical procedures or treatments. See, e.g., Winston v. Lee, 470 U. S. 753, 766–767 (1985) (forced surgery); Rochin v. California, 342 U. S. 165, 166, 173–174 (1952) (forced stomach pumping); Washington v. Harper, 494 U. S. 210, 229, 236 (1990) (forced administration of antipsychotic drugs). 

Casey recognized the “doctrinal affinity” between those precedents and Roe. 505 U. S., at 857. And that doctrinal affinity is born of a factual likeness. There are few greater incursions on a body than forcing a woman to complete a pregnancy and give birth. For every woman, those experiences involve all manner of physical changes, medical treatments (including the possibility of a cesarean section), and medical risk. Just as one example, an American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion. See Whole Woman’s Health v. Hellerstedt, 579 U. S. 582, 618 (2016). That women happily undergo those burdens and hazards of their own accord does not lessen how far a State impinges on a woman’s body when it compels her to bring a pregnancy to term. And for some women, as Roe recognized, abortions are medically necessary to prevent harm. See 410 U. S., at 153. The majority does not say—which is itself ominous—whether a State may prevent a woman from obtaining an abortion when she and her doctor have determined it is a needed medical treatment. 

So too, Roe and Casey fit neatly into a long line of decisions protecting from government intrusion a wealth of private choices about family matters, child rearing, intimate relationships, and procreation. See Casey, 505 U. S., at 851, 857; Roe, 410 U. S., at 152–153; see also ante, at 31–32 (list- ing the myriad decisions of this kind that Casey relied on). Those cases safeguard particular choices about whom to marry; whom to have sex with; what family members to live with; how to raise children—and crucially, whether and when to have children. In varied cases, the Court explained that those choices—“the most intimate and personal” a per- son can make—reflect fundamental aspects of personal identity; they define the very “attributes of personhood.” Casey, 505 U. S., at 851. And they inevitably shape the nature and future course of a person’s life (and often the lives of those closest to her). So, the Court held, those choices belong to the individual, and not the government. That is the essence of what liberty requires. 

And liberty may require it, this Court has repeatedly said, even when those living in 1868 would not have recognized the claim—because they would not have seen the person making it as a full-fledged member of the community. Throughout our history, the sphere of protected liberty has expanded, bringing in individuals formerly excluded. In that way, the constitutional values of liberty and equality go hand in hand; they do not inhabit the hermetically sealed containers the majority portrays. Compare Obergefell, 576 U. S., at 672–675, with ante, at 10–11. So before Roe and Casey, the Court expanded in successive cases those who could claim the right to marry—though their relationships would have been outside the law’s protection in the mid- 19th century. See, e.g., Loving, 388 U. S. 1 (interracial couples); Turner v. Safley, 482 U. S. 78 (1987) (prisoners); see also, e.g., Stanley v. Illinois, 405 U. S. 645, 651–652 (1972) (offering constitutional protection to untraditional “family unit[s]”). And after Roe and Casey, of course, the Court continued in that vein. With a critical stop to hold that the Fourteenth Amendment protected same-sex intimacy, the Court resolved that the Amendment also conferred on same-sex couples the right to marry. See Lawrence, 539 U. S. 558; Obergefell, 576 U. S. 644. In considering that question, the Court held, “[h]istory and tradition,” especially as reflected in the course of our precedent, “guide and discipline [the] inquiry.” Id., at 664. But the sentiments of 1868 alone do not and cannot “rule the present.” Ibid. 

Casey similarly recognized the need to extend the constitutional sphere of liberty to a previously excluded group. The Court then understood, as the majority today does not, that the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens. See supra, at 15. A woman then, Casey wrote, “had no legal existence separate from her husband.” 505 U. S., at 897. Women were seen only “as the center of home and family life,” without “full and independent legal status under the Constitution.” Ibid. But that could not be true any longer: The State could not now insist on the historically dominant “vision of the woman’s role.” Id., at 852. And equal citizenship, Casey realized, was inescapably connected to reproductive rights. “The ability of women to participate equally” in the “life of the Nation”—in all its eco- nomic, social, political, and legal aspects—“has been facilitated by their ability to control their reproductive lives.” Id., at 856. Without the ability to decide whether and when to have children, women could not—in the way men took for granted—determine how they would live their lives, and how they would contribute to the society around them. 

… Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry. It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.) Today’s decision, the majority first says, “does not undermine” the decisions cited by Roe and Casey—the ones involving “marriage, procreation, contraception, [and] family relationships”—“in any way.” Ante, at 32; Casey, 505 U. S., at 851. Note that this first assurance does not extend to rights recognized after Roe and Casey, and partly based on them—in particular, rights to same-sex intimacy and marriage. See supra, at 23.6 On its later tries, though, the majority includes those too: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66; see ante, at 71–72. That right is unique, the majority asserts, “because [abortion] terminates life or potential life.” Ante, at 66 (internal quotation marks omitted); see ante, at 32, 71–72. So the majority depicts today’s decision as “a restricted railroad ticket, good for this day and train only.” Smith v. Allwright, 321 U. S. 649, 669 (1944) (Roberts, J., dissenting). Should the audience for these too-much-repeated protestations be duly satisfied? We think not. … 

According to the majority, no liberty interest is present— because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved. And if that is true, it is im- possible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even “undermine”—any number of other constitutional rights. Ante, at 32. 

Nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever rea- son, that it will go so far and no further. Scout’s honor. Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to- explain lines. Rights can expand in that way. Dissenting in Lawrence, Justice Scalia explained why he took no comfort in the Court’s statement that a decision recognizing the right to same-sex intimacy did “not involve” same-sex marriage. 539 U. S., at 604. That could be true, he wrote, “only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” Id., at 605. Score one for the dissent, as a matter of prophecy. And logic and principle are not one-way ratchets. Rights can contract in the same way and for the same reason—because what- ever today’s majority might say, one thing really does lead to another. We fervently hope that does not happen be- cause of today’s decision. We hope that we will not join Jus- tice Scalia in the book of prophets. But we cannot under- stand how anyone can be confident that today’s opinion will be the last of its kind. 

Consider, as our last word on this issue, contraception. The Constitution, of course, does not mention that word. And there is no historical right to contraception, of the kind the majority insists on. To the contrary, the American legal landscape in the decades after the Civil War was littered with bans on the sale of contraceptive devices. So again, there seem to be two choices. See supra, at 5, 26–27. If the majority is serious about its historical approach, then Griswold and its progeny are in the line of fire too. Or if it is not serious, then . . . what is the basis of today’s decision? If we had to guess, we suspect the prospects of this Court approving bans on contraception are low. But once again, the future significance of today’s opinion will be decided in the future. At the least, today’s opinion will fuel the fight to get contraception, and any other issues with a moral dimension, out of the Fourteenth Amendment and into state legislatures. Anyway, today’s decision, taken on its own, is catastrophic enough. As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it. Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differently. It has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static. It relies on accumulated judgments, not just the sentiments of one long-ago generation of men (who themselves believed, and drafted the Constitution to reflect, that the world progresses). And by doing so, it includes those excluded from that olden conversation, rather than perpetuating its bounds. 

As a matter of constitutional substance, the majority’s opinion has all the flaws its method would suggest. Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman—even in the first days of her pregnancy—that she could do nothing but bear a child, it can once more impose that command. Today’s decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and what- ever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty. Even before we get to stare decisis, we dissent.

Loyalty

'Legislating Data Loyalty' by Woodrow Hartzog and Neil M Richards in (2022) 97 Notre Dame Law Review Reflection 356 (2022) comments 

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its ‘notice and consent’ roots to confront people’s vulnerabilities in their relationship with powerful data collectors. 

In this short Essay, we propose a model for legislating data loyalty. Our model takes advantage of loyalty’s strengths – it is well-established in our law, it is flexible, and it can accommodate conflicting values. Our Essay also explains how data loyalty can embolden our existing data privacy rules, address emergent dangers, solve privacy’s problems around consent and harm, and establish an antibetrayal ethos as America’s privacy identity. 

We propose that lawmakers use a two-step process to (1) articulate a primary, general duty of loyalty, then (2) articulate ‘subsidiary’ duties that are more specific and sensitive to context. Subsidiary duties regarding collection, personalization, gatekeeping, persuasion, and mediation would target the most opportunistic contexts for self-dealing and result in flexible open-ended duties combined with highly specific rules. In this way, a duty of data loyalty is not just appealing in theory – it can be effectively implemented in practice just like the other duties of loyalty our law has recognized for hundreds of years. Loyalty is thus not only flexible, but it is capable of breathing life into America’s historically tepid privacy frameworks.

Abuse

'Peer Mistreatment on Employee Performance' by Yuntao Bai, Lili Lu and Li Lin-Schilstra in (2022) 178(3) Journal of Business Ethics comments 

An accumulating amount of research has documented the harmful effects of abusive supervision on either its victims or third parties (peer abusive supervision). The abusive supervision literature, however, neglects to investigate the spillover effects of abusive supervision through third-party employees’ (i.e., peers’) mistreatment actions toward victims. Drawing on social learning theory, we argue that third parties learn mistreatment behaviors from abusive leaders and then themselves impose peer harassment and peer ostracism on victims, thereby negatively affecting victims’ performance. Further, we posit that, if a victim has a proactive personality, this will weaken these indirect, negative effects. We conducted two studies, both with three-wave longitudinal data, to verify the hypotheses. The results of Study 1 evidence the significant indirect effects of abusive supervision on employee creative performance via both peer harassment and peer ostracism. Contrary to our moderation hypothesis, the analysis shows that victims’ proactive personality strengthens rather than weakens the negative indirect effects of peer harassment. Study 2 generally replicated the results of Study 1 with employee’s objective job performance as outcome. Our research contributes to the abusive supervision literature by highlighting a social learning process of third-party peer mistreatment, suggesting a spillover channel of abusive supervision on the victim’s performance

Identity

'From knowing by name to targeting: the meaning of identification under the GDPR' by Nadezhda Purtova in (2022) International Data Privacy Law comments 

Despite its core role in the EU system of data protection, the meaning of identification remains unclear in data protection law and scholarship while the spotlight focuses on the legally relevant chance of identification, ie identifiability. While Article 29 Working Party interpreted identification broadly, as distinguishing one in a group, this interpretation has been questioned in light of the CJEU decision in Breyer. This article tackles this uncertainty. This article offers an integrated socio-technical typology of identification where, in addition to the known identification types (look-up-, recognition-, session- and classification identification), targeting is added as a new identification type. To identify by way of targeting means to select a particular individual from a group as an object of attention or treatment in a single moment of time. The article clarifies the legal meaning of identification under the GDPR. It proposes a contextual interpretation of Breyer, which negates Breyer’s restrictive potential and brings all identification types within the GDPR. The article concludes with a discussion of the implications of this reading of identification for data protection in terms the applicability of the GDPR to new data technologies and practices such as facial detection and non-tracking based targeted advertising, effects of certain privacy preserving technologies such as federated learning of cohorts, consequences for invoking data protection rights when identification is not possible, but also in terms of the need to clearly define the objectives of the data protection law. 

 Purtova argues 

 Identification, referring both to the process of identifying someone and the fact of being identified, is one of the boundary concepts of data protection law. It separates the data that is personal, i.e. relating to an identified or identifiable natural person, from non-personal, and thus triggers the applicability of the EU General Data Protection Regulation (the GDPR). Yet, despite the high stakes attached to the meaning of this concept, relatively little attention is paid both in law and legal scholarship to what identification is. Therefore the chief issue tackled here is the meaning of identification under the GDPR. 

The primary focus of the current scholarly attention lies on the adjacent concept of identifiability which refers to the possibility of identification, ie of being identified, in future. This is not surprising since in practice whether or not a person is identifiable rather than identified is regarded as an easier criterion to meet and is therefore a de facto ‘threshold condition’ when determining the status of data as personal. Some legal scholars discuss the meaning and legally relevant degree of identifiability, pseudonymization, and true meaning and possibility of anonymization. The debates among computer scientists tackle anonymization and reidentification techniques and their (in)effectiveness. These discussions clarify the boundaries of application of data protection law and contribute to practical solutions for at least some of the data protection concerns, and as such are valuable and relevant. Yet, the meaning of identifiability is derived from and hence is secondary in relation to the primary concept of identification. Therefore any identifiability debate is at risk of being hollow when not underpinned with a robust understanding of identification. It makes little sense to argue if a natural person is ‘identifiable’ when it is not clear when a natural person would be ‘identified’ and what it means to identify somebody. 

As the technologies to target a person evolve and test the boundaries of data protection, the meaning of identification becomes less clear, and the gap in understanding what it means to identify becomes increasingly more obvious and imperative to close.8 A relatively recent case of such technological development is face detection and analysis used in ‘smart’ advertising boards. Unlike with facial recognition where one’s facial features are compared to pre-existing facial templates to establish if a person is known, face detection and analysis do not recognize people but ‘detect’ them and, in case of smart billboards, classify them into gender-, age-, emotion-, and other groups based on processing of their facial features to display tailored ads. The industry that develops, sells, and employs the technology argues that facial detection does not involve processing personal data,10 eg because the chance of establishing who a person before the ‘sensor’ is close to null. In part this is due to the ‘transient’ nature of the processing, where raw data of an individual processed by the detection ‘sensors’ is discarded immediately. The technology does not allow tracking a person and recognizing him or her over time either. To be clear, as will become apparent from further analysis, these industry arguments do not necessarily withstand legal scrutiny and it is highly likely that personal data will be processed in these contexts, if the proposed interpretation of identification is adopted. Yet, there is no uniform position on the interaction of face detection and data protection across the EU Member States. For instance, the Dutch data protection authority considers face detection in the context of smart billboards as processing of personal data, while its Irish and reportedly Bavarian counterparts are of the opposite view. More similar debates and uncertainties are likely to emerge in other contexts where facial analysis and sensing can be used, such as healthcare for pain or pulse detection, in the news sector for audience measurement, or in assisted driving, video surveillance with face analytics, but also online in the context of tracking-free advertising, and in other cases of the ‘transient’ data processing. While the applicability of the GDPR would be the focus of debate in these contexts, the discussions will inevitably emerge also where the applicability of the GDPR is not in dispute, eg in the context of invoking data protection rights. Article 11(2) GDPR—under some caveats—exempts data controllers from complying with data subjects’ data access and rectification requests, requests for erasure and restriction of processing, as well as data portability obligations where ‘the controller is able to demonstrate that it is not in a position to identify the data subject’. The question will then be: what does it mean to identify? The definition of biometric data in Article 4(14) GDPR and pseudonymization in Article 4(5) GDPR also hinge on the meaning of identification. 

To date, there have been disappointingly few attempts in the data protection legal scholarship, at least in English, at understanding identification beyond identifiability. In 2007 Leenes proposed a four-fold classification of identification. According to Leenes, there is more to identification than simply establishing one’s civil identity, and we need to read identification broadly if we are to address the ‘real privacy concerns’. He distinguished look-up (l-), recognition (r-), classification (c-), and session (s-) identifiability. A recent notable contribution to the debate on the meaning of identification is by Davis who examines the meaning of an ‘identified natural person’ specifically in the context of smart billboards and articulates the importance of looking into the meaning of ‘identified’ as a baseline for establishing the meaning of ‘identifiable’. However, Leenes, while examining the meaning of identification in data protection law, does so with a view to inform the information privacy debate across borders rather than to offer an interpretation of the specific legal concept of the EU data protection law, among others in light of the evolving case law of the Luxemburg Court, and Davis’ analysis is limited to the legal status of data in the context of facial detection. Jasserand addressed the meaning of identification under the GDPR framework, but only when it concerns the definition of biometric data. 

In addition, there is a swirling stream of sociological and philosophical literature focusing on the related concepts of identity and anonymity. To name a few, in 1999 Gary Marx presented a sociological typology of what he called ‘identity knowledge’, which is the opposite of anonymity and hence I consider it equal to identification. He specified seven broad types of identity knowledge: legal name, locatability, pseudonyms linked to identity or location, pseudonyms that are not linked to name or location, pattern knowledge, social categorization, and symbols of eligibility/non-eligibility. Helen Nissenbaum discussed the meaning and value of anonymity in the information age as ‘unreachability’. A range of scholars offer many accounts of the meaning and construction of identity, generally and in the context of ambient intelligence and profiling. Against this backdrop the legal scholarly account of the meaning of identification is inadequate. 

This lack of academic consideration might be partially explained by the fact that the Article 29 Working Party, an EU advisory authority on data protection under the former 1995 Data Protection Directive, defined what an identified person means in its 2007 opinion on the concept of personal data: ‘[i]n general terms, a natural person can be considered as “identified” when, within a group of persons, he or she is “distinguished” from all other members of the group’.  The same explanation arguably holds for the concept of personal data in the GDPR, since there are no fundamental differences between the definitions of personal data under the 1995 Directive and the Regulation. This approach includes identification by name, but also other modes of ‘zoom[ing] in on a flesh and bone individual’.  The authority of the Working Party when it comes to the data protection on the ground is undoubted, and its opinion on the concept of personal data is the most comprehensive and influential guideline for the controllers as to how this concept should be used in practice. The general perception of the meaning of identification under the GDPR following from the WP29 interpretation is thus that it is broad, flexible, and generously accommodating to the realities and challenges of the modern data processing practices.  Indeed, the meaning of identification as distinguishing a person from a group should bring the cases of targeted advertising, profiling, and others where the name of a person is of no consequence to the protective bosom of the GDPR. Perhaps for this reason the data protection scholarship seems to be comfortably content with the status quo in law and literature. 

However, the status quo has been resting on shaky grounds. The position of the Working Party, and hence the ‘distinguished from’ approach to identification, are not formally binding. The Court of Justice of the European Union (CJEU), the only body with authority to issue binding interpretations of the GDPR, was long silent on the meaning of identification. While the Court did follow the Working Party in interpreting the ‘information’ and ‘relating to’ elements of the concept of personal data in Nowak, it also has a record of not following the lines of interpretation chosen by the WP29 earlier. To complicate matters further, the Court in its 2016 Breyer decision appeared to have invalidated the understanding of identification as distinguishing or being distinguished from a group, advanced by the Working Party and granting the GDPR protection a broad reach. Without any detailed consideration about the meaning of identification, the Court in Breyer dismissed a dynamic IP (Internet Protocol) address as an identifier sufficient to identify a person, while one of the core functions of an IP address is exactly to distinguish one web visitor, or at least a location on the network, from another. 

This brief consideration seems to restrict the interpretation of identification under the GDPR to the identification by name or a similar unique identifier representing one’s civil identity, the narrowest meaning of identification possible. This effectively takes cookies, IP addresses, and other online trackers, and with them a large part of online tracking and discrimination, but also not name-tied individual profiling and (real-time) automated decision-making, among others enabled through some of the new technologies such as facial detection, outside of the scope of the data protection law, and deprives people affected by these practices of legal protection that the GDPR would have granted, was the identification interpreted broadly. The very limited scholarly commentary on the Breyer case has largely overlooked this remarkable and consequential departure of the CJEU from the WP29 interpretation.  Hence, the question remains: how should identification under the GDPR be understood? 

This article will answer this question in two steps. First, it will examine the meaning of identification outside of the legal context (the Section ‘Meaning and Socio-Technical Approaches to Identification outside of the GDPR’). It will offer an integrated typology of identification as a process and result of distinguishing a person in a group. The typology builds on three prominent socio-technical accounts of identification: four identifiability types by Leenes, seven types of identity knowledge by Marx, and anonymity as unreachability by Nissenbaum. In addition to the established types, I will identify targeting as a new identification type, where to identify by way of targeting means to select a particular individual from a group as an object of attention or treatment in a single moment of time. The argument will build, among others, on the literatures on calculated publics, profiling in recommender systems, price, and content personalization. Second, I will focus on the legal meaning of identification under the GDPR. I will build a case that all five identification types not limited to civil identity identification are covered by the GDPR meaning of identification. It is an easy conclusion to draw if one follows a non-binding interpretation of Article 29 Working Party that to identify means to distinguish one in a group. This approach will be detailed in the section ‘The Article 29 Working Party Interpretation of the GDPR’. In the section ‘Meaning of Identification in CJEU’s case law’ I review the CJEU case law with relevance to the meaning of identification, including Breyer and its potentially restrictive impact. I then propose a contextual interpretation of Breyer in light of the facts of the case, which negates Breyer’s restrictive potential and brings all types of identification, including non-civil identity ones, within the meaning of identification under the GDPR. The section’ Conclusion: What This Means for Data Protection’ will conclude with a discussion of the implications of this broad reading of identification for EU data protection law practice and research.

Contingency

'False Contingency' by Susan Marks in (2009) 62(1) Current Legal Problems 1–21 comments 

... To be clear at the outset, I believe it is quite right to hammer the point that history is a social product, not given but made. For if it has been made, then it can be remade differently. This is surely a cardinal principle of all progressive thought, and the work of drawing out its multifarious implications is as urgent as it is endless. The worry I want to explore here, however, is that we may be undertaking this work in a way which causes us to neglect the equally important progressive point that possibilities are framed by circumstances. While current arrangements can indeed be changed, change unfolds within a context that includes systematic constraints and pressures. In general terms, what I wish to re-evoke is the idea that things can be, and quite frequently are, contingent without being random, accidental, or arbitrary. From another angle, there is a kind of necessity which must be reckoned into, rather than always contrasted with, our sense of what it is to be an artefact of history. I will use the term ‘false contingency’ to denote the failure to take that idea adequately into account. In the discussion that follows I will explain more precisely how I intend this phrase, and will try to illustrate something of its significance and ramifications. Along the way I will also offer some speculative comments on why false contingency may need, as I suggest, re-evoking — why this second half of the critical equation seems to have got forgotten or put aside. But first, I need to begin with the backstory. 

False Necessity 

The inspiration for my term ‘false contingency’ comes from the established concept of false necessity. As is, I think, well known, this is the subject of an eponymous book by Roberto Unger, first published in 1987. Part of his multi-volume study entitled ‘Politics: A Work in Constructive Social Theory’, False Necessity is in every sense of the word a colossal work, and its analysis is at times rather recondite. When it comes to the exposition of this central concept, however, Unger expresses himself with great clarity and concision. ‘The illusions of false necessity arise’, he writes, ‘because we surrender to the social world, and then begin to mistake present society for possible humanity, giving in to the ideas and attitudes that make the established order seem natural, necessary, or authoritative.’ Yet ‘what seems to be given and presupposed is merely what we have temporarily refrained from challenging and remaking’. Far from representing a natural order of things, social reality is best understood as characterized by ‘permanent incompleteness, perennial conflict and inescapable choice’. Unger explains that, as an analytical concept, false necessity helps to bring into focus the ‘fatalistic myths’ which mask the historicity of existing arrangements and prevent us from grasping their contingency, provisionality and hence, most importantly, their mutability. He invites his readers to join him in a ‘campaign against false necessity’,8 dedicated to subverting these resignation-inducing myths one by one. 

The basic idea of false necessity, then, is that things do not have to be as they are. Actuality is not destiny, and we need to search out and expose the various forms of thought which obscure that fact and lend an aura of solidity and self-evidence to what must instead be revealed as precarious and contingent. Although Unger develops his arguments in his own very distinctive way, he does not, of course, claim this as an original insight; his project is to recover it, and imbue it with new emphasis and new meaning. Certainly the basic idea here long predates the name Unger gives to it. A defining theme of social theory in a ‘critical’ mode, it has a history in many different disciplines and today carries the banner of many different traditions and concepts, or indeed none. To take the case of writing about international law, the phrase ‘false necessity’ has to my knowledge rarely, if ever, been used, but the claim it is meant to express serves as the premise or explicit argument of much contemporary scholarship. Thus, scholars highlight the contested character of what appears as beyond dispute—the humanitarianism of humanitarian intervention, for example, and indeed its categorization as intervention. Or they point up the political stakes behind technical-legal description—what happens when having foreign students in your class becomes trade in services, for instance, or when soya bean seeds become intellectual property. Or yet, to mention just one other familiar move, they show how analyses—in areas such as development policy— can work as ‘progress narratives’ that encourage us to assume that all is for the best in this best of all possible worlds. The idioms, projects and fields of study vary widely, but the ambition of challenging what Unger terms false necessity is very widely shared. 

Standing behind the concept of false necessity is obviously an idea of necessity and its postulated alternative, contingency. In philosophy, and especially the philosophy of history, debates about necessity and contingency have mostly revolved around determinism, accident and the ‘role of the individual in history’. It will be instructive for my later argument if we review something of these issues. As a starting point for doing so, we can take Isaiah Berlin’s influential essay entitled ‘Historical Inevitability’. Writing in 1953, Berlin criticizes what he sees as the renewed currency of determinism in approaches to historical enquiry. By determinism he means, as he somewhat archly puts it, the effort ‘to bring us to our senses by showing where the true, the impersonal and unalterable machinery of life and thought is to be found’.  That is to say, it refers to the notion that history obeys laws, that these laws set us on an irresistible course with inevitable outcomes, and that events are accordingly to be attributed to impersonal forces beyond the control of individual human beings. Berlin observes that this kind of approach is both inaccurate and dangerous. It is inaccurate because there are no such laws: individual will and action, not to mention accident, are in fact, and have always been, at the heart of historical processes. And it is dangerous because, where individual agency is denied, so too is the basis for personal responsibility. In his words:

. . .if the history of the world is due to the operation of identifiable forces other than, or little affected by, free human wills and free choices, then the proper explanation of what happens must be given in terms of the evolution of such forces. . . [W]hat can a single individual . . . be expected to do?

Berlin is worried about the weakening of our capacity to evaluate conduct, and ascribe praise or blame where it is due. Is he right to worry about this? A notable riposte to Berlin was delivered by EH Carr in his book What is History? first published in 1961.  It is always easier, Carr remarks, to blame catastrophes on individual wickedness and credit achievements to individual genius than to study historical processes at the level of deeper causes and wider contexts. He agrees with Berlin that ‘the facts of history are indeed facts about individuals’, but counters that these facts are not generally about ‘actions of individuals performed in isolation’, and nor are they only about conscious motives and willed outcomes.  For Carr, any adequate theory of history has to take into account that people’s actions often have results they do not intend or even desire. This is not to maintain that they are the unconscious tools of some all-powerful force, but it is to note that social circumstances matter in historical explanation. In this regard, Carr contends that determinism is a ‘red herring’.  Clearly, we can no longer imagine that history obeys laws. But historians can, and most do, imagine that causation can be investigated, and for Carr, determinism refers simply to the belief underpinning this that everything that happens has a cause and could not have happened differently without some difference in that antecedent cause. Or rather, most things that happen have multiple causes, so that the key issue is to establish the relative significance of various determining factors. If the most significant factors generally have more to do with institutions and policies than with the actions and wishes of particular individuals, then Carr insists that this is not to negate the reality or relevance of the latter. As he recalls, one who studies the causes of crime does not by that fact alone deny the moral responsibility of individual offenders.

Rights and histories

A Powerless Companion: Human Rights in the Age of Neoliberalism' by Samuel Moyn in (2014) 77(4) Law and Contemporary Problems 147 comments 

 It is increasingly common to claim that international human rights law is a neoliberal phenomenon. And certainly the common timing is right: the human rights revolution and the victory of market fundamentalism have been simultaneous. In an important new essay, Marxist international lawyer Susan Marks compares Naomi Klein's The Shock Doctrine with my own recent history of international human rights, which emphasizes the 1970s as the moment of breakthrough for their ascent. Both histories, Marks observes, ascribe the newfound visibility of human rights to their promise to transcend formerly attractive political options east and west that seemed inadequate or even dangerous. "For her too," Marks acknowledges of Klein's treatment, "the human rights movement as we know it today took shape during the 1970s. And for her too, a defining characteristic of the new movement was its non-political creed." But for Marks, Klein succeeds by unveiling the neoliberal circumstances of human rights that have permanently defined their trajectory:

[S]he considers that a rather important aspect of the context for the movement's emergence is one Moyn omits to mention: the rise in that period of the neo-liberal version of 'private' capitalism, with its now familiar policy prescription of privatisation, deregulation and state retreat from social provision. To its influential enthusiasts then and now, that is the last utopia. .. . From Klein's perspective, then, the history of human rights cannot be told in isolation from developments in the history of capitalism."

(At this point Marks notes that Milton Friedman won the Nobel prize for economics in 1976, the year before Amnesty International was given the Nobel Peace Prize.) 

Friedrich Hayek, the guru of neoliberalism, was as impressed a witness of the human rights revolution of the 1970s as anyone else. But it is interesting that, although occasionally an advocate of the constitutionalization of basic liberties like freedom of speech and press, he was in fact an acerbic critic of that revolution. In an interview, he described the spike in talk around human rights associated with Jimmy Carter's election to the American presidency as a strange fad, which (like all fashions) risked excess:

I'm not sure whether it's an invention of the present administration or whether it's of an older date, but I suppose if you told an eighteen year old that human rights is a new discovery he wouldn't believe it. He would have thought the United States for 200 years has been committed to human rights, which of course would be absurd. The United States discovered human rights two years ago or five years ago. Suddenly it's the main object and leads to a degree of interference with the policy of other countries which, even if I sympathized with the general aim, I don't think it's in the least justified.... But it's a dominating belief in the United States now.

All the same, since that moment of modish popularity, the staying power of human rights has led to many more positive visions of the essential harmony-if not identity-of economic liberalism and international human rights. The Marxist left, indeed, is hardly the only source of claims concerning the synergetic relationship between the advancement of market freedoms and human rights. If anything, it is much more common to promote neoliberalism as an agent of the advancement of human rights rather than to link them as malign accomplices. 

Perhaps most notably, Ernst-Ulrich Petersmann argues that, although human rights law may exact some costs to efficiency, the general relationship between economic liberty and human rights is productive and strong, so much so that promoting the former and latter are not very different enterprises. He writes:

[E]njoyment of human rights require[s] the use of dispersed information and economic resources that can be supplied most efficiently, and most democratically, through the division of labour among free citizens and through liberal trade promoting economic welfare, the freedom of choice and the free flow of scarce goods, services, and information across frontiers in response to supply and demand by citizens.

There is, accordingly, little daylight between economic liberalization and the promotion of international human rights. And though Petersmann's optimism about near identity has certainly drawn their fire, mainstream international human rights lawyers generally envision a large zone of compatibility between their norms and standard market arrangements; they merely insist that the values of international human rights need to be kept separate so as to provide critical purchase on "globalization" if and when it goes wrong.' In the mainstream vision, international human rights can offer a toolbox of legal and other standards to guide, tame, and "civilize" an era of transnational market liberalization that has generally improved the human condition.

This article argues that it is far too soon - analytically in the one case and historically in the other - to sign on to either the Marxist or mainstream position about the relationship between human rights and neoliberalism. To the first position, much more analytical clarity is required to prove more than a simple case of conjuncture between the two phenomena that are sometimes too easily conflated. To the second, the record so far suggests that human rights seem fit to provide little, if any, help in remedying (let alone overturning) the development in the history of capitalism that its critics range under the heading "neoliberalism." In largest part that is because, although the record of capitalism in our time is highly mixed when it comes to the achievement and violation of basic human rights, its most serious victim is equality (of resources and opportunities alike) both in national and global settings-a value that the Universal Declaration of Human Rights of 1948 and the international human rights movements following in its wake do not even set out to defend." Since globalizing neoliberalism and international human rights emerged at the same moment and developed in parallel, there are undoubtedly connections to be found. But the interactions between human rights and neoliberalism are more subtle than Marxists so far claim. Indeed, the crucial connection is a missed connection: precisely because the human rights revolution has at its most ambitious dedicated itself to establishing a normative and actual floor for protection, it has failed to respond to-or even allowed for recognizing- neoliberalism's obliteration of the ceiling on inequality. 

"Neoliberalism," especially in leftist discourse, often does massive work in diverse settings of argument, coming close through its overuse to functioning as a call for explanation rather than the real thing. And with its moral charge, it is sometimes deployed like holy water, sprinkled liberally for safety's sake to ward off evil. Although its rise as an item of discourse and apotropaic talisman reflects understandable anger, it is also symptomatic of explanatory confusion. Nonetheless, as David Singh Grewal and Jedediah Purdy indicate in their introduction to this issue, citing an inadequate shorthand for the complex of individualist thought, market solutions, and state retrenchment both domestically and internationally is better than omitting these topics altogether, as American legal scholarship has so far done to its detriment. 

But looking beyond America, the prominence of neoliberalism as a category in scholarship about human rights means that the exact nature of the linkage of the two requires as much attention as the omission of the former from thinking about the latter. "Human rights, as with power and money, became a means to an end of globalizing neoliberal democracy," Stephen Hopgood remarks in his much noticed recent study, in a commonplace observation." And yet, so far, Marxists such as Wendy Brown, Susan Marks, and others have offered indeterminate and unsubstantiated claims that do not suffice to plausibly elevate the chronological coincidence of human rights and neoliberalism into a factually plausible syndrome. For there is a long way from historical "coincidence" or companionship - which there certainly has been between neoliberalism and the human rights phenomenon-to actual causality and complicity. "We would do well to take the measure of whether and how the centrality of human rights discourse might render ... other political possibilities more faint," Brown has argued in a classic indictment at the center of the recent commentary.  Even this displacement theory, about which Brown explicitly invites further reflection rather than offering a strong conclusion, is weak compared to the much stronger accusation of complicity that Brown and others simultaneously offer." 

Though it seems likely that some displacement of other schemes of justice has indeed occurred thanks to the rise of human rights, I do not think a much stronger claim is likely to work.  To say that human rights were coincident with or part of the context of neoliberal victory is not only not to say more-it is also not to say much. In particular, it is not to say that neoliberalism has required human rights to make its way in the world-or vice versa. Picayune an agenda as it might seem to specify how weakly related the ascent of human rights appears to the market fundamentalism of our time, I suggest that the finding of only a tenuous relationship between the two has substantial ramifications for judging human rights and their spectacular rise in the last few decades - and thus for assessing the mainstream position. 

Excusing human rights from causally abetting the free market victory of the neoliberal age is, after all, no defense of their prominence today. It is certainly worth considering the possibility that human rights provide some sort of moral leverage against neoliberal developments. However, even if the value of the normative guidance that human rights provide is undoubted, the trouble is that it amounts to little more than a set of mostly rhetorical admonitions. Worse, by focusing on a minimum floor of human protection, human rights norms prove inadequate in facing the reality that neoliberalism has damaged equality locally and globally much more than it has basic human rights outcomes (which, in some cases, it may indeed have advanced). It is hardly less distressing, but, so far, much more justifiable to conclude that human rights have not made enough of a difference in the short timeframe and global space they share with their neoliberal frere ennemi. They have been condemned to watch but have been powerless to deter. Added to the fact that human rights at least as canonically established have nothing to say about the principal value of equality that neoliberalism threatens, it seems hard to conclude that they are a useful resource in response. 

If my perspective in between Marxism and the mainstream is adequate, it also follows that there is not much critical or political value in opposing human rights out of understandable outrage at neoliberalism. Instead, the economic transformations of the current era force a heavy burden on those concerned to formulate or to find a more serious analytical account of economic transformations and to offer more robust political resistance than they have marshaled so far. And since human rights idioms, approaches, and movements are unlikely to offer either - and, indeed, do not strive to do so when it comes to inequality - they should stick to their minimalist tasks outside the socioeconomic domain, in part to avoid drawing fire for abetting the stronger companion of their historical epoch. 

This article is structured to reach these conclusions by examining a range of Marxist positions on the relationship between neoliberalism and human rights, beginning with Karl Marx's own theory of rights, both because of its intrinsic importance of and its frequent application to current debates. After concluding that this theory offers only initial starting points for analyzing international human rights and the neoliberal era of capitalism alike, the article's next part turns to the late-twentieth-century history of the companionship of the two, tracking their contemporaneous inceptions to examine their harmony and dissonance. The final part of the article stresses that human rights offer a minimum of protection where the real significance of neoliberalism has been to obliterate the previous limitation of inequality. Although human rights idioms, regimes, and movements have valuably formulated one approach to that floor, they have so far done little or nothing to build it, even as they have surged discursively across the same era as the ceiling on hierarchy has been simply blown away.

'Human Rights and History' by Stefan-Ludwig Hoffmann in (2016) 232(1) Past & Present 279–310 comments 

Historians are the embalmers of our political and moral convictions. As soon as historiography begins to take an interest in an issue, we can be certain that it no longer possesses a self-evident presence in our society. Some questions and problems only become objects of history after society has become historically conscious of them. The history of workers boomed in the 1970s, for example, when industrial labour was in the process of disappearing, just as memory and its sites became a mode of inquiry for historians in the 1980s precisely at the moment when lived memory of ‘the age of extremes’ (Eric Hobsbawm) was disappearing together with its last generation. 

The issue of human rights has by no means come so far, even if a certain historicizing sobriety has now set in among activists. On the contrary, as I have argued elsewhere, human rights are still something like the doxa of our times: those ideas and sentiments that are tacitly presumed to be self-evident truths and not in need of any justification.  Who is opposed to human rights today? And who of those born before the late twentieth century would like to be reminded that earlier he or she had had little use for the concept of human rights? At least in the Euro-Atlantic world today the resonance of human rights is so universal and unassailable that in principle the only thing still debated is how they can best be realized on a global scale. We feel distressed and melancholic about the continued violation of human rights in our time but do not wish to abandon the concept altogether. 

And yet it is remarkable that historians have begun to concern themselves with human rights only recently — essentially only since the late 1990s. Still, in the major historical syntheses of the past two decades, for instance in the interpretations of the twentieth century by Eric Hobsbawm and Tony Judt or of the nineteenth century by Jürgen Osterhammel and Chris Bayly, or of the rise and fall of empires by Jane Burbank and Fred Cooper, human rights have appeared only at the margins, if at all. Most historians of genocide, refugees, nationalism, slavery or humanitarianism (including Pamela Ballinger, since 2011 the first professor of the history of human rights in the United States)  do not consider themselves to be part of the new field of human rights history. This is about to change, so much can be said already. In recent years we have apparently arrived at a new present, an era of ‘global governance’, ‘cosmopolitan ethics’, ‘transnational law’ and ‘humanitarian interventions’, for which we seek anchoring points in history, but which begins at the same time to historicize itself. As times change, so does the past. 

The new historiography of human rights can be divided into these two tendencies: one that searches for stabilizing points for the present and finds them in the longue durée evolution of human rights (deep history) and one that seeks to demonstrate in revisionist fashion the instability of such universalist narratives and thereby the historicity, that is, the transience, of our political and moral convictions (recent history). Conveniently, these two tendencies are grouped around two path-breaking books: Lynn Hunt’s Inventing Human Rights and, as a counterpoint, Samuel Moyn’s Last Utopia. 

Put briefly, Lynn Hunt argues that in the eighteenth century human rights gained in currency because they were based on new experiences and cultural practices, a new emotional regime, the core of which was ‘imagined empathy’. From this new emotional regime, which is evident, for example, in sentimental, epistolary novels as well as in the moral campaign for the abolition of torture beginning in the 1760s, a new legal regime emerged during the French Revolution that in turn followed its own cascading logic: once human rights had acquired self-evidence, they could no longer be removed from the world, and unfolded their revolutionary potential during the nineteenth and twentieth centuries. Reading epistolary novels or accounts of torture had physical effects that translated into ‘brain changes’ and ‘came back out’ as new concepts of individual human rights. Hunt acknowledges the paradoxes of human rights as politics, that rights claims emerged in tandem with revolutionary violence, but insists that their self-evidence ultimately transcends these historical mutations: ‘You know the meaning of human rights because you feel distressed when they are violated’. 

Samuel Moyn, in contrast, objects in Last Utopia that we can speak of human rights in their current form, as individual rights granted to every person even beyond the nation state, only since the late 1970s — since Jimmy Carter and disco, as one unhappy reviewer summarized.   Prior to this, human rights were tied to the nation state and were thus essentially citizenship rights. As the title suggests, human rights became, according to Moyn, the last utopia, especially for activists in the recently established human rights non-governmental organizations such as Amnesty International, following the failure of other global emancipation ideologies such as socialism and anti-colonialism. With this brilliant polemic, Moyn provides an interpretative framework for a series of more recent studies and ongoing research projects of a new generation of historians investigating the ‘breakthrough’ of human rights to a global morality in the 1970s. 

This essay is intended as a historiographical intervention in this debate and develops three interconnected arguments that seek to determine the place of human rights in the crises and conflicts of the recent past. First of all, I shall push the historiographical revisionism of Moyn and others even further and argue that we can first speak of individual human rights as a basic concept ( Grundbegriff ), that is, a contested, irreplaceable and consequential concept of global politics, only in the 1990s, after the end of the Cold War. In the 1970s and 1980s ‘human rights’ coexisted and overlapped with other moral and political idioms like ‘solidarity’ and included competing notions of rights, which were in many ways still indebted to the legacies of socialism and anti-colonialism, as in, for example, the transnational movement against apartheid. It was only after the end of the Cold War that ‘human rights’ emerged as an explanatory framework for understanding what had just happened. Human rights idealism, I shall argue, is not the cause but the consequence of the epochal ruptures of the late twentieth century. 

However, this does not mean, secondly, that ‘human rights’ have no deeper history; here I agree with Hunt and others. On the contrary, in many respects the human rights idealism of the 1990s appears as a strange return of the enlightened liberalism of the late eighteenth and the nineteenth century and its critics (of Immanuel Kant and Carl Schmitt, the two sources of inspiration and antipodes of the political and moral discourse of the 1990s), as does the enthusiasm for cosmopolitanism, civil society, free trade, humanitarian interventions and moral justifications of war within the new world (dis)order. I shall suggest, therefore, that we should bring the long nineteenth century back into human rights history, especially the histories of social and economic rights, women’s rights, humanitarianism and international law, to assess more precisely what is new about the human rights idealism of the late twentieth century. Conversely, I shall discuss which previous notions of international human rights were replaced or bypassed in the 1990s, especially collective rights claims that were of particular importance for the so-called Third World UN from the 1950s to the early 1990s. The unrecognized irony is that human rights have become not less but more Eurocentric in recent years. 

Human rights are not a new (and certainly not the last) utopia. Rather, the question is whether the human rights idealism of the Euro-Atlantic world at the end of the twentieth century can be seen as utopian at all. It is other motifs that appear to be new: the self-evidence of individual human rights, which stand above the rights of states; the evocation of present and past suffering as a mobilizing source; and, finally, the global claims connected to human rights as well as the media presentism of their failed realization, that is, the ubiquity of crises and the state of emergency as a matter of course. The ‘endtimes of human rights’ (Steven Hopgood) are the global here and now, not a utopian ‘elsewhere’. From this follows, thirdly, my concluding suggestion that the rise of human rights as the crisis semantics of a new fin de siècle can be understood in part as a result of the fracturing of the modern time regime, that is, the ways in which past, present and future are reflected in our experience of time. Not the future (or an idealized past) serves as the vanishing point, but rather the present, which appropriates past and future to validate the immediate. The new historiography of human rights also belongs, I think, in this context. It invents for our times a history of human rights conceived as individual and pre-state rights which are read into the past and future as if without alternatives.

SOCI

The ANAO report 'Administration of Critical Infrastructure Protection Policy: Department of Home Affairs' (Auditor-General Report No.38 2021–22) comments 

The department’s administration and regulation of critical infrastructure protection policy was partly effective. 

The department has partly effective governance arrangements to administer critical infrastructure protection policy. Implementation of critical infrastructure related risk assessments and reporting was not captured in risk documentation. The effectiveness of the department’s stakeholder coordination arrangements is reduced by not having an engagement strategy and providing limited support to other critical infrastructure regulators. The department’s performance framework as it related to critical infrastructure was not adequate, with performance statements, regulatory performance assessment, and use of internal measures to inform policy and regulation requiring improvement. 

The department’s administration of compliance activities consistent with critical infrastructure protection requirements is partly effective. The department’s compliance framework does not reflect existing responsibilities or compliance requirements. Compliance activities are not supported by approved procedures or systems controls. The department has not established a risk-based decision framework for achieving compliance outcomes or demonstrating its impact on asset security or resilience. The department does not have a process of effectively reviewing its use of regulation tools, impact on industry or to inform continuous improvement. 

Supporting findings 

Governance arrangements 

10. The department identified key critical infrastructure risks and had appropriate governance arrangements to assess and assign responsibility for these risks. The department’s critical infrastructure risk management does not represent an integrated approach to risk management between its enterprise and operational, legislative and policy functions. Implementation of critical infrastructure related risk assessments and reporting was not captured in risk documentation, which reduces its use to inform business planning, legislative reform, and policy decisions. (See paragraphs 2.3 to 2.23) 

11. While the department undertakes coordination activities with key stakeholders, including through some long-established forums, it does not have a documented stakeholder engagement strategy to identify the engagement purpose, means by which engagement occurs or scenarios are managed, or the basis for there being more established information-sharing arrangements with some key stakeholders than with others. (See paragraphs 2.26 to 2.35) 

12. The department’s performance framework requires improvement. Critical infrastructure related content in the department’s 2020–21 performance statements is not adequate. The department did not assess its critical infrastructure functions against the Regulator Performance Framework. The department has established internal performance reporting but could improve its use of measures in the Critical Infrastructure Resilience Strategy to inform policy development and regulation. (See paragraphs 2.38 to 2.51) 

Compliance activities 

13. The department has established a compliance framework comprised of the Critical Infrastructure Resilience Strategy, Compliance Strategy and Administrative Guidelines. This framework would be enhanced by updating documents in the framework to align with and clarify the department’s existing responsibilities and regulatory posture. (See paragraphs 3.2 to 3.7) 

14. The majority of policy and procedural documents (15 of 22) to support possible critical infrastructure related compliance activities were drafted, but not finalised and approved, or included in the department’s policy and procedural repository. A lack of procedures, or procedures that remain in draft, increases the risk of inconsistency in administration and decision-making. The department does not have an established process to ensure that appropriately trained officials are engaged in investigations under critical infrastructure regulations. Classified network and critical infrastructure-related system security controls do not meet the requirements to mitigate the risk of unauthorised access. (See paragraphs 3.10 to 3.20) 

15. The department’s use of regulatory tools is not always consistent with legislative and procedural requirements, and approved procedures or decision records do not exist for all compliance activities and outcomes. Use of regulatory tools was consistent with the department’s documented regulatory posture. Decisions on whether to escalate to higher tiers of the regulatory compliance model were not supported by approved procedures, processes, or documented analysis of the administrative or financial burden associated with an escalation of compliance activity. (See paragraphs 3.23 to 3.29) 

16. The department does not have an established process to obtain assurance of regulatory compliance. This limited the department’s capacity to demonstrate that it has a proportionate and effective approach to resolving non-compliance, or has improved the security or resilience of critical infrastructure assets. (See paragraphs 3.30 to 3.44) 

17. The department has not established a process to effectively review regulatory tool use, impacts on industry, or lessons learned to inform continuous improvement. (See paragraphs 3.45 to 3.46)

The  Recommendations are

Recommendation no. 1 Paragraph 2.24 Recommendation no. 2 Paragraph 2.36 The Department of Home Affairs ensures that implementation of critical infrastructure related risk assessments and reporting is appropriate to inform policy and regulatory decisions. 

Department of Home Affairs response: Agreed. The Department of Home Affairs establish an engagement strategy to document how it will coordinate with stakeholders with shared responsibility for critical infrastructure security and resilience. 

Department of Home Affairs response: Agreed. Recommendation no. 3 Paragraph 2.52 

Recommendation no. 4 Paragraph 3.8 Recommendation no. 5 Paragraph 3.21 The Department of Home Affairs ensure performance measurement: 1. (a) in its corporate plan is adequate and measurable; 2. (b) aligns with the Regulator Performance Guide; and 3. (c) is used to inform policy and regulatory improvements. 

Department of Home Affairs response: Agreed. The Department of Home Affairs revise or replace the Critical Infrastructure Resilience Strategy with documentation that reflects current policy, regulatory responsibilities and posture, and outlines its application by the department in relation to other critical infrastructure asset sector policy leads and regulators. 

Department of Home Affairs response: Agreed. The Department of Home Affairs support effective use of the full suite of available critical infrastructure related regulatory tools by having in place procedures that: 1. (a) are finalised, approved and lodged on the internal policy and procedural repository; 2. (b) ensure that trained officials are appropriately engaged in investigations; and 3. (c) align with the Protective Security Policy Framework and Information Security Manual requirements. 

Department of Home Affairs response: Agreed. The Department of Home Affairs approve, apply and monitor consistent use of policies, procedures and processes to: 1. (a) trigger, triage and manage escalated use of critical infrastructure compliance powers, including by making better use of its information gathering, and investigatory powers where national security concerns have been identified; and 2. (b) revise its risk approach and implement processes that enable effective assessment, prioritisation and management of non-compliance risks. 

Department of Home Affairs response: Agreed. 

Recommendation no. 6 Paragraph 3.39 Recommendation no. 7 Paragraph 3.47 The Department of Home Affairs evaluate, monitor, and report on: 1. (a) the extent to which regulatory tools are used to effectively improve security and resilience of critical infrastructure assets to risks; and 2. (b) implementation of actionable items in strategies, reviews and lessons learned for which it is responsible and how they contribute to intended outcomes. 

Department of Home Affairs response: Agreed.

For some cyber security students the report's value will be in contextualisation paragraphs such as

1.1 Australian society and its economy are supported by a network of interconnected infrastructure assets across a broad range of industry sectors. The Australian Government defines critical infrastructure as:

those physical facilities, supply chains, information technologies and communication networks which, if destroyed, degraded or rendered unavailable for an extended period, would significantly impact the social or economic wellbeing of the nation or affect Australia's ability to conduct national defence and ensure national security. 

1.2 Threats such as natural disasters, pandemics, sabotage, and espionage have the potential to significantly disrupt critical infrastructure. Secure and resilient infrastructure ensures continuous access to services that are essential for everyday life, such as food, water, health, energy, communications, transport, and banking. A disruption to any of these critical infrastructure sectors could have serious implications for business, government, and the community. 

1.3 The Commonwealth, state and territory governments have different responsibilities for critical infrastructure depending on the sector or nature of the threats being mitigated. Responses to a threat can involve the asset owner and operator, technical and operational lead for that jurisdiction, and emergency services or law enforcement. Coordination among entities is therefore required to prepare and respond to critical infrastructure threats. 

1.4 The Department of Home Affairs (the department) is the lead Australian Government agency responsible for the administration of critical infrastructure policy and regulation. 

Critical infrastructure policy and regulation 

Regulatory options 

1.5 Governments may approach regulation through either legislative or non-legislative models. Non-legislative models involve achieving regulatory ends through non-legislative means, such as guidelines on market participants, and can include light touch or principles-based regulation4, self-regulation5 and quasi-regulation. Legislated approaches involve either  co-regulation or explicit government regulation, which is used where ‘there is a high perceived risk or public interest and achieving compliance is seen as critically important’. 

1.6 Australian Government regulators are empowered by, and subject to, a range of legal and other requirements including the following.

• Legislation that establishes the regulatory powers of an entity, and underpinning policies and relevant directions. 

• The Public Governance, Performance and Accountability Act 2013 along with delegated legislation such as the Public Governance, Performance and Accountability Rule 2014, the Commonwealth Procurement Rules, and the Commonwealth Risk Management Policy. 

• The Australian Government Regulator Performance Framework — introduced in October 2014 — to encourage regulators to achieve their objectives while minimising their impact on regulated entities. On 1 July 2021, the Regulator Performance Guide replaced the 2014 Framework and included a transition year for regulators to assess their approach to complying with its requirements. 

1.7 The Australian Government’s critical infrastructure regime is comprised of a combination of light touch, co-regulation and explicit government regulation. 

Overview of the Australian Government critical infrastructure regime 

1.8 Terrorist attacks in the United States in 2001, and Indonesia in 2002, were the catalyst for formal engagement between the Commonwealth, state and territory governments, and industry on how to prepare for and respond to threats against critical infrastructure assets. In 2003, the Australian Government established a Trusted Information Sharing Network as the primary engagement mechanism for business and government information sharing, and resilience building initiatives on critical infrastructure. 

1.9 Prior to the introduction of critical infrastructure focussed policy and legislation in 201810, national security threats to assets were primarily assessed under the Foreign Investment and Takeovers Act 1975 (FATA). Under the FATA, certain proposed foreign investments, including those related to critical infrastructure assets require approval from the Treasurer. Conditions may be imposed, existing conditions may be varied, or a divestment from an approved investment may be required where a national security risk emerges. 

1.10 The Treasury remains the lead entity for assessments under the FATA. The department provides national security advice to support decisions made under the FATA, and may impose and enforce conditions on approved applications. In 2020–21, the department received 943 applications for review from the Treasury, an increase from the 640 received during 2019–20.

1.11 The Australian Government Critical Infrastructure Resilience Strategy was released in May 2015.11 The strategy comprises a policy statement and plan, and sets out the Australian Government’s policy position that:

• critical infrastructure is essential to Australia’s economic and social prosperity; • resilient critical infrastructure plays an essential role in supporting broader community and disaster resilience; • businesses and governments have a shared responsibility for the resilience of critical infrastructure, requiring strong partnerships; and • all states and territories have their own critical infrastructure programs that best fit the operating environments and arrangements in each jurisdiction. 

1.12 The policy statement sets out an approach based on non-regulatory business–government partnerships, mature risk management, and effective information sharing. The policy statement required the strategy to be reviewed in 2020. 

1.13 The Critical Infrastructure Centre was established in 2017 to coordinate the management of risks to Australia’s critical infrastructure and deliver more coordinated national security assessments to inform foreign investment decisions in significant and complex cases. In December 2017, critical infrastructure policy, regulatory and strategy functions were transferred to the department and the Critical Infrastructure Centre became a division within the department. 

Critical infrastructure legislation 

1.14 In 2018, legislative coverage of the security of critical infrastructure expanded from the FATA to include: 

• the Security of Critical Infrastructure Act 2018 (SoCI Act), which commenced on 11 July 2018; and 

• the amendments to Part 14 of the Telecommunications Act 1997, or Telecommunications Sector Security Reforms (TSSR), which commenced on 18 September 2018. 

1.15 The legislation in paragraph 1.14 enables the government to obtain information to undertake risk assessments in relation to critical infrastructure, and gives government the power to issue directions to address national security risks if necessary. 

Security of Critical Infrastructure Act 2018 

1.16 The SoCI Act was introduced to ‘strengthen the Government’s capacity to manage the national security risks of espionage, sabotage and coercion arising from foreign involvement in Australia’s critical infrastructure’.  The SoCI Act defines a critical infrastructure asset, and what assets can, and must not be prescribed as being ‘critical’.  The SoCI Act has three measures to manage national security risks related to critical infrastructure.

• The Register of Critical Infrastructure Assets (the Register), provides the government visibility of who owns and controls the assets. 

 • The information gathering power, provides the ability to obtain more detailed information from owners and operators of assets in certain circumstances. 

• The Ministerial directions powers, provide the ability to intervene and issue directions in cases where there are significant national security concerns that cannot be addressed through other means. 

1.17 In 2020, the Australian Government approved changes to the critical infrastructure regulatory regime on the basis that the SoCI Act did not enable it to impose requirements on entities to protect their assets, and an over-reliance on the FATA to manage risks arising from foreign ownership. In 2020, the department sought public contributions on the design of ‘an enhanced regulatory framework, building on existing requirements under the SoCI Act’. 

1.18 In December 2020, the Australian Government introduced a Bill that included amendments to the SoCI Act. These amendments would enact the regulatory framework that was the subject of public consultation. The Bill proposed mandatory incident reporting, an expanded application of the register of critical infrastructure sectors and assets, powers to obtain ownership, operational and risk management information, and powers to respond to serious cyber incidents. The amendments to the SoCI Act were described when they were introduced, as being ‘underpinned by enhancements to Government’s existing education, communication and engagement activities, under a refreshed Critical Infrastructure Resilience Strategy’. 

1.19 In December 2020, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) commenced an inquiry into the Bill that would amend the SoCI Act, as well as a statutory review into the Act.  In September 2021 the PJCIS published an Advisory Report on the concurrent reviews of the Bill and statutory review of the SoCI Act and made 14 recommendations. Among   the recommendations was that the Bill be split in two so that government assistance and an expanded definition of critical infrastructure sectors and assets could be legislated in the shortest time possible. 

1.20 An additional $42.4 million over two years from 2021–2221 was included in the 2021–22 Budget for ‘Protecting Critical Infrastructure and Systems of National Significance’.

• In September 2021, the Critical Infrastructure Centre was re-branded as the Cyber and Infrastructure Security Centre. 

• In December 2021, amendments to the SoCI Act expanded the asset classes covered from four to 22 across 11 sectors to include: communications, financial services and markets, data storage and processing, defence industry, higher education and research, energy, food and grocery, health care and medical, space technology, transport, and water and sewerage.  The department estimated that it would have ten times the number of assets on its Register under the SoCI Act as a result of this change. 

• Also in December 2021, the Australian Government commenced consultations on further amendments to the SoCI Act.   

• In March 2022, the PJCIS published an Advisory Report on the proposed further amendments to the SoCI Act and made 11 recommendations.

1.21 In March 2022, the Security Legislation Amendment (Critical Infrastructure Protection) Act 2022 was passed by the Parliament. Details of changes to Australian Government critical infrastructure legislation are in Appendix 3. 

Telecommunications Sector Security Reforms 

1.22 The TSSR established a regulatory framework ‘to better manage the national security risks of espionage, sabotage and foreign interference to Australia’s telecommunications networks and facilities’.  The purpose of the TSSR is to:

• introduce a comprehensive risk-based regulatory framework to better manage national security risks of espionage, sabotage and foreign interference to Australia’s telecommunications networks and facilities; and 

• better protect networks, and the confidential information stored on and carried across them, from unauthorised interference and access. 

1.23 The aim of the TSSR is to encourage early engagement on proposed changes to networks and services that could give rise to national security risks, and to facilitate collaboration on the management of those risks. Key elements of the TSSR include: 

• a security obligation that requires all carriers, carriage service providers and carriage service intermediaries to do their best to protect networks and facilities from unauthorised access or interference; 

• a notification obligation that requires carriers and nominated carriage service providers to notify the Australian Government of planned changes to their networks and services that are likely to have a material adverse effect on their capacity to comply with the security obligation; 

• that the Secretary of the department can obtain information and documents for the purpose of assessing carriers and carriage service providers compliance with their security obligations; and 

• that the Minister for Home Affairs can direct a carrier, carriage service provider or carriage service intermediary to:  − not use or supply carriage services if the Minister considers the use or supply prejudicial to national security; and  − do, or not do, a specified thing that is reasonably necessary to protect networks and facilities from national security risks. 

1.24 In September 2020, the PJCIS commenced a statutory review of the operation of the TSSR. The PJCIS published its report on the statutory review in February 2022 and made six recommendations.  ...

Critical infrastructure security and resilience roles 

1.26 The Commonwealth, state and territory governments, and industry, have a shared responsibility to ensure the security and resilience of critical infrastructure, and to prevent, prepare, respond to, and recover from all hazards. Each participant has different roles as shown in Table 1.1. 

1.27 The Department, as the lead agency for ensuring the protection of critical infrastructure, must coordinate, complement, and support the programs and activities of all these participants. When the Critical Infrastructure Centre and SoCI Act were established, it was recognised that the Australian Government would have limited powers to implement risk management strategies, and monitor and enforce compliance, and should first leverage existing state and territory regimes to conduct these activities.