Publishing

Koops,Bert-Jaap. 2022. Goodbye to Publications, or Confessions of a Privacy Law Scholar' by Bert-Jaap Koops in (2022) 20(3) Surveillance & Society 312-316 comments

Privacy and surveillance scholars, myself included, publish too much and read too little. That is basically the abstract for this opinion piece. So, if you’ve got the message, you can stop reading. On second thoughts, if you’ve got the message, maybe you should continue reading. 

My first response to the invitation to contribute to this Dialogue was: “Great idea. There are so many connections between surveillance and privacy scholarship.” Normally, I would think of a topical technological development, something like facial recognition, with, of course, the obligatory reference to artificial intelligence. I would identify two privacy challenges and write something sensible about how surveillance theory could help regulators to address these challenges. A few days’ work, and yet another item to add to my bulky publication list (thank you, Bryce and Scott!). 

My second response was: “Wait. Hasn’t Julie Cohen already written on this, something reasonably definitive?” [Yes, she has (Cohen 2015), even if that was on law generally, not privacy law specifically.] And don’t the two communities of surveillance studies and privacy law already know sufficiently of each other’s existence? Privacy scholars know the basics of surveillance theory (or they shouldn’t call themselves privacy scholars), just as surveillance scholars know basic privacy theory and some privacy law (or at least know their Warren and Brandeis and Westin). And why surveillance studies and privacy law, specifically? Each discipline is surrounded by ten neighboring disciplines that inform it, so the same exercise could be done for, say, surveillance studies and media studies, or privacy law and social psychology. 

As the section editors suggested in their invitation, the potential synergies of the two related disciplines seem underutilized, and it is useful for both fields to discuss how their discipline’s scholarship might benefit from additional cross-pollination. True enough. The editors particularly invited reflections on how these fields’ disciplinary orientations constrain inquiry. But that, I think, is not the real issue. The mainissue is that there is so much knowledge out there already in both fields and, with a little effort, scholars could easily find it if they wanted to, but they don’t. Want to, I mean. Or perhaps they would want to if this were an ideal world, but alas, it isn’t. Scholars simply don’t have time to read each other’s work, because they have to write. 

My third response, therefore, was: “Thanks, but no, thanks.” I shouldn’t be contributing to our collective drowning in the publication deluge. Except, perhaps, to make explicit what I assume many often think but dare not say aloud: shouldn’t we stop running on this publication treadmill to churn out the so-manieth paper on the normative implications of phenomenon X from the perspective of Y, and do some serious reading instead? 

Hence my fourth response: “The only meaningful thing I can think of is a meta-ish opinion piece reflecting about the lack of real discussion in the literature and its potential causes and consequences.” Which resulted in the piece you are now reading, or rather, skimming through because you don’t really have time to read. Hence the seemingly flippant style, which you will realize is a rhetorical device to entice you to keep on reading. I mean, skimming.

Lobbying

'Mapping the Lobbying Footprint of Harmful Industries: 23 Years of Data From OpenSecrets' by Holly Chung, Katherine Cullerton and Jennifer Lacy-Nichols in (2024) The Milbank Quarterly comments 

 Our research reveals the similarities and differences among the lobbying activities of tobacco, alcohol, gambling, and ultraprocessed food industries, which are often a barrier to the implementation of public health policies. Over 23 years, we found that just six organizations dominated lobbying expenses in the tobacco and alcohol sectors, whereas the gambling sector outsourced most of their lobbying to professional firms. Databases like OpenSecrets are a useful resource to monitor the commercial determinants of health. Commercial lobbying is often a barrier to the development and implementation of public health policies. Yet, little is known about the similarities and differences in the lobbying practices of different industry sectors or types of commercial actors. This study compares the lobbying practices of four industry sectors that have been the focus of much public health research and advocacy: tobacco, alcohol, gambling, and ultraprocessed foods. Data on lobbying expenditures and lobbyist backgrounds were sourced from the OpenSecrets database, which monitors lobbying in the United States. Lobbying expenditure data were analyzed for the 1998–2020 period. We classified commercial actors as companies or trade associations. We used Power BI software to link, analyze, and visualize data sets. We found that the ultraprocessed food industry spent the most on lobbying ($1.15 billion), followed by gambling ($817 million), tobacco ($755 million), and alcohol ($541 million). Overall, companies were more active than trade associations, with associations being least active in the tobacco industry. Spending was often highly concentrated, with two organizations accounting for almost 60% of tobacco spending and four organizations accounting for more than half of alcohol spending. Lobbyists that had formerly worked in government were mainly employed by third-party lobby firms. Our study shows how comparing the lobbying practices of different industry sectors offers a deeper appreciation of the diversity and similarities of commercial actors. Understanding these patterns can help public health actors to develop effective counterstrategies. 

The definition of commercial determinants of health (CDoHs) set out in The Lancet 2023 series recognizes that commercial actors are diverse and have different impacts on health. Yet too often, public health advocates fail to make these distinctions, referring to “the industry” or “corporations” as a proxy for harmful commercial actors. This lack of nuance stymies efforts to develop a science of commercial determinants. One way to start thinking through the differences among commercial actors is to compare the practices and attributes of different types of actors. In this study, we contrast the lobbying activities of four industry sectors that severely impact health and have been the focus of much public health research and advocacy: tobacco, alcohol, gambling, and ultraprocessed food (UPF) companies. In addition to comparing commercial actors based on their portfolio, we also differentiate between individual companies and industry trade associations, a distinction that is often missing in empirical studies of political activity. Beyond this paper's conceptual focus on commercial actor diversity, it also seeks to investigate which characteristics of commercial lobbying are feasible to capture at scale. In so doing, it supports efforts to systematically monitor the CDoHs. Attention to CDoHs has grown in recent years, with the World Health Organization (WHO)’s launch of a new program of work in 2021 and the launch of The Lancet series on CDoHs offering two prominent illustrations. Within this emerging discipline, there are many streams of work analyzing different aspects of CDoHs, including system dynamics such as neoliberalism and capitalism, the diversity of commercial actors, commercial practices influencing science, marketing, and politics; and the myriad of case studies concerning harmful industry sectors such as alcohol, gambling, tobacco, UPFs, guns, and fossil fuels.

The authors state 

This study focuses on one commercial activity: lobbying. Lobbying is one of several political strategies that commercial actors use to influence policymaking. Evidence demonstrates that countries with a greater degree of corporate permeation are less likely to implement evidence-based health policies endorsed by the WHO, and more recently, lobbying practices by companies and trade associations have been linked to efforts to influence US participation in and funding of WHO. Although the tobacco industry has a long history of lobbying to deliberately stall, weaken, and block public health regulations of its industry, there is growing evidence that the same political practices are used by gambling, alcohol, and UPF industries to oppose policies that threaten their business interests. We note that much of this research relies on documentary analysis, as empirical data sets of lobbying are rare. Analyzing and monitoring political practices like lobbying is challenging, as information about commercial lobbying and political donations is often poorly disclosed, delayed, or lacking relevant information. In this study, we aimed to explore the utility of one notable non-governmental organization (NGO) database (OpenSecrets) to monitor corporate lobbying. This study is part of our broader program to explore approaches to monitor CDoHs. Lobbying is defined in different ways, with an Organisation for Economic Co-operation and Development survey noting that no country used the same definition. In 2022, a number of NGOs developed the International Standards for Lobbying Regulation, which defined lobbying as “any direct or indirect communication with a public official that is made, managed, or directed with the purpose of influencing public decision making.” Many different activities have been conceptualized as a form of lobbying, including meeting with public servants, coordinating public campaigns to influence voters, funding astroturf organizations (designed to appear as genuine grassroots advocacy), or submissions to policy processes. In some cases, companies have staff employed in-house to specifically focus on lobbying (e.g., government relations units). In other cases, companies hire third-party (external) lobby firms to lobby on their behalf. Although concerns have been raised about the undue influence of some businesses and industry sectors in politics, it is important to note that lobbying itself is a legitimate practice in democratic governments and can support representative policymaking. 

Lobbying can be a resource intensive activity, with an estimated US $4.1 billion spent on lobbying in the United State in 2022. This makes it easier for well-resourced organizations (like many businesses and trade associations) to engage in lobbying and other political activities. Lobbying resources can go beyond the money spent hiring lobby firms (or employing lobbyists directly). One longer-term strategy that can increase the effectiveness of lobbying is the revolving door, which is the movement of individuals from employment in government in political or administrative roles (e.g., elected officials or civil servants) to private industry, and vice versa. Revolving-door practices are particularly common for third-party lobbyists and are understood to confer three main categories of benefits to the lobbyist and their clients: they can leverage professional networks to achieve their clients’ goals; they have intimate knowledge of governmental processes, which can inform strategies; and they may also have insider knowledge regarding government preferences concerning specific policy matters. In the absence of enforced cooling-off periods after exiting public office, the revolving door can also present risks for conflicts of interest to arise, especially if the former government employee moves into a lobbying role that focuses on their former portfolio. 

Efforts to systematically monitor lobbying face several challenges. No single measure of lobbying is consistently available internationally, presenting challenges for efforts to develop global indices of corporate political activity or CDoHs. Of the three monitoring frameworks proposed to measure the influence of commercial actors, lobbying only appears as an indicator in one: the CDoHs index. Authors of the Corporate Permeation Index and Corporate Financial Influence Index excluded lobbying indicators, as there were insufficient comparable data on this metric across countries, though the authors acknowledged lobbying as an important mechanism of CDoH influence on policymaking. Alongside academic efforts to monitor lobbying and corporate political activity are the civil society groups and NGOs who play an active role in monitoring commercial practices, drawing public and policymaker attention to commercial harms and advocating for transformative changes so that people are prioritized over profits. 

Some NGOs have developed databases for monitoring and sharing information about commercial lobbying. OpenSecrets is a nonprofit organization that maintains one of the most extensive databases on political donations, lobbying expenditure, and revolving-door practices in the United States. This database presents an opportunity to monitor corporate lobbying over time and to compare the practices of different industry sectors. This study seeks to expand our understanding of the corporate political activities of four industries that profoundly affect health (tobacco, alcohol, gambling, and UPFs). By exploring one of the more complete data sets concerning corporate lobbying, we aim to answer two questions. First, which patterns could be identified about how different commercial actors engage in lobbying over time? Second, what are the opportunities and limitations afforded by the OpenSecrets database? In the discussion, we reflect on our learnings as well as some of the challenges we faced. We conclude by proposing ways that this database could be adapted and modified so that other jurisdictions can more easily monitor corporate political activity.

Traditional Knowledge

'Traditional Knowledge as Intellectual Property Subject Matter: Perspectives from History, Anthropology, and Diverse Economies' (Queen Mary Law Research Paper No. 418/2024) by Graham Dutfield and Uma Suthersanen comments 

In May 2024, the World Intellectual Property Organization (WIPO), the UN specialised agency for intellectual property, will hold a diplomatic conference with a view to forging a new legal instrument to prevent patents from misappropriating traditional knowledge and associated genetic resources. Thus, after more than 20 years of discussion at WIPO, there is a genuine possibility of a binding legal instrument providing substantive protection of traditional knowledge. Whatever actually transpires, that in itself is a matter of socio-legal and historical importance. Our aim is two fold. First, we enquire whether treating traditional knowledge (TK) as an intellectual property (IP) problem lending itself to an IP-related solution can actually work. In this context, we take account of the likelihood of any adopted international instrument taking the form of a one-size-fits-all text providing legal protection for knowledge deemed “traditional” on the basis of its originating from autochthonous or other groups sharing similar circumstances and related, albeit far from identical, legal and economic interests. By autochthonous, we refer to peoples so rooted psychologically, spiritually and materially to their homeland that it is if they were sprung from the land; their land. Second, we consider whether alternative framings of “the TK problem” in more pluralistic and culturally informed and culturally sensitive forms within or outside IP law may be more promising. IP law of course arises from a myriad of rationales situated within different timelines but embedded within a largely Eurocentric or American discourse and worldview that may be an ill fit for autochthonous and other groups who one presumably are to be the beneficiaries of the kinds of instrument under negotiation. 

The perspective we adopt invites a more intercultural and better informed discourse within law itself, which we feel is absolutely necessary. This perspective is then juxtaposed on the diverse economies approach which seeks to harness different practices in order to break down our dominant view of the world as being predominantly capitalist, at least in the sense of being based on waged labour, and production of commodities for exchange in markets run by capitalist businesses.By employing a multidisciplinary and pluralistic approach, we can better address the challenges facing Indigenous people and governments in the context of current and forthcoming international rules on the governance of TK. 

Feedback

'Enhancing feedback practices within PhD supervision: a qualitative framework synthesis of the literature' by Margaret Bearman, Joanna Tai, Michael Henderson, Rachelle Esterhazy, Paige Mahoney and Elizabeth Molloy in (2024) Assessment and Evaluation in Higher Education comments 

 PhD candidates, like all students, learn through engaging with feedback. However, there is limited understanding of how feedback strategies support doctoral candidates. This qualitative framework synthesis of 86 papers analysed rich qualitative data about feedback within PhD supervision. Our synthesis, informed by sociomateriality and a dialogic, sense-making view of feedback, underscores the critical role that feedback plays in doctoral supervision. Supervisors, through their engagement or disengagement with feedback, controlled candidates’ access to tacit and explicit standards. The ephemeral and generative nature of verbal feedback dialogues contrasted with concrete textual comments. While many supervisors aimed for candidates to become less reliant on feedback over time, this did not necessarily translate to practice. Our findings suggest that balancing power dynamics might be achieved through focussing on feedback materials and practices rather than supervisor-candidate relationships. 

Professional and personal crises are common among doctoral candidates (Katz 2018) and experiences with feedback may be part of the problem (Engebretson et al. 2008). Feedback is a process that enables university students to gauge their progress, direct their efforts and participate in academic debate. Multiple meta-analyses suggest it has highly positive effects on learning (Hattie and Timperley 2007; Wisniewski, Zierer, and Hattie 2019). However, while feedback and feedback research holds a prominent position in the higher education literature, its role in the PhD experience is considerably less studied (Chugh, Macht, and Harreveld 2021). For many in doctoral education, feedback may be seen as a pedagogical technique that primarily pertains to written work. However, feedback can be defined as a broader process where the learner makes sense of, and acts upon, useful information about their work (Henderson et al. 2019). From this perspective, feedback is embedded within doctoral supervision. Feedback strategies may therefore need to take account of the intense interpersonal nature of doctoral studies, where the supervisor-candidate relationships span years rather than months. By examining how feedback manifests within supervisory contexts, which are dynamic, socially bound and intensely interpersonal, we can infer feedback strategies that enhance doctoral supervision. 

Many publications examine PhD supervision but feedback tends to be given cursory attention. Indeed, Chugh, Macht, and Harreveld (2021) recent narrative review suggests that feedback is rarely a focus of doctoral studies research. Their analysis focusses on practical feedback strategies for doctoral supervisors such as: developing a ‘positive supervisory relationship’, articulating ‘suitable feedback content’ and finding ‘suitable and balanced ways of giving feedback’ (689). However, doctoral education is equally as enmeshed with interpersonal relationships, institutional strategies and academic power structures as it is with educational practices (Bastalich 2017). Indeed, feedback within doctoral supervision can be understood as an entree to broader academic practices (Carless, Jung, and Li 2023). Therefore, we build on Chugh, Macht, and Harreveld’s (2021) review by employing a formal qualitative synthesis, which gathers together ‘analytical depth and contextualised detail’ (Pope, Mays, and Popay 2007, 78) from qualitative studies, to discern the distinctive nature of feedback practices in PhD supervision within the existing literature. 

We adopt two conceptual underpinnings. We regard feedback as primarily a formative development process and therefore emphasise a facilitative and dialogic approach (Evans 2013). Boud and Molloy (2013) differentiation of feedback designs—by their focus on teacher or learner—can provide useful insights. In a teacher-focussed design, feedback is concerned with how the teacher constructs messages that are timely, evaluative and help students to better complete the next task. However, this overlooks the need for a student to respond to this information. Student-oriented perspectives of feedback encompass how students access and make meaning of messages (from teacher, self and peers) in order to better complete the next related task. This latter view is exemplified by the definition of feedback as ‘a process in which learners make sense of information about their performance and use it to enhance the quality of their work or learning strategies’ (Henderson et al. 2019, 1402). 

Our second conceptual frame acknowledges that feedback takes place within the complex social world of doctoral studies. Therefore, we adopt a sociomaterial approach. This perspective regards learning as constituted within situated social interactions but also acknowledges the contributions of materials, including objects and places. A sociomaterial view of feedback encompasses the interactions between the learner, the teacher, the objects they produce and the spaces they inhabit and change (Gravett 2020). Thus doctoral supervision can be seen as a dynamic interplay between teachers, learners, objects and places, which emerge across time and space (Fenwick, Nerland, and Jensen 2012). 

These two frameworks highlight the distinctive nature of this review, which provides an in-depth qualitative analysis to provide insights into the dialogic, relational, contextual and temporal nature of feedback practices in doctoral supervision.

Data

'Data Is What Data Does: Regulating Based on Harm and Risk Instead of Sensitive Data' by Daniel J Solve in (2024) 118 Northwestern University Law Review 1081 comments

Heightened protection for sensitive data is becoming quite trendy in privacy laws around the world. Originating in European Union (EU) data protection law and included in the EU’s General Data Protection Regulation, sensitive data singles out certain categories of personal data for extra protection. Commonly recognized special categories of sensitive data include racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation and sex life, and biometric and genetic data. 

Although heightened protection for sensitive data appropriately recognizes that not all situations involving personal data should be protected uniformly, the sensitive data approach is a dead end. The sensitive data categories are arbitrary and lack any coherent theory for identifying them. The borderlines of many categories are so blurry that they are useless. Moreover, it is easy to use nonsensitive data as a proxy for certain types of sensitive data. 

Personal data is akin to a grand tapestry, with different types of data interwoven to a degree that makes it impossible to separate out the strands. With Big Data and powerful machine learning algorithms, most nonsensitive data give rise to inferences about sensitive data. In many privacy laws, data giving rise to inferences about sensitive data is also protected as sensitive data. Arguably, then, nearly all personal data can be sensitive, and the sensitive data categories can swallow up everything. As a result, most organizations are currently processing a vast amount of data in violation of the laws. 

This Article argues that the problems with the sensitive data approach make it unworkable and counterproductive as well as expose a deeper flaw at the root of many privacy laws. These laws make a fundamental conceptual mistake—they embrace the idea that the nature of personal data is a sufficiently useful focal point for the law. But nothing meaningful for regulation can be determined solely by looking at the data itself. Data is what data does. 

To be effective, privacy law must focus on harm and risk rather than on the nature of personal data. The implications of this point extend far beyond sensitive data provisions. In many elements of privacy laws, protections should be proportionate to the harm and risk involved with the data collection, use, and transfer.