Marxist Privacy and the escape into theory

 'The Problem of Privacy in Capitalism and the Alternative Social Networking Site Diaspora*' by Sebastian Sevignani in 10(2) TripleC 600-617 proposes a Marxist theory of privacy, alas Karl rather than Groucho.

In this paper, l examine the alternative social networking site Diaspora* from a Marxist standpoint. The investigation focuses on privacy, and contributes to a better understanding of this issue within the context of capitalism in general. First, I describe Diaspora*’s way of production by pointing out its alternative character as part of the free software and copyleft movement. Second, dominant theories of privacy related to individual control, exclusion, and property are introduced. Third, the problem of privacy in capitalism is described wherein dominant concepts of privacy will be contextualised on behalf of a critical political economy analysis that refers to the Marxian concept of ideology critique, Marx’s differentiation between a societal sphere of production and a societal sphere of circulation, and his analysis of capitalist fetishisms. Fourth, taking into account the problem of privacy in capitalism, the alternative potential of Diaspora* is evaluated. Finally, a brief outline of a Marxist theory of privacy is proposed.

Sevignani comments

Diaspora* challenges commodity production; hence, it challenges capital accumulation in the realm of SNSs. Its alternative and cooperative mode of production provides, according to ideology theory, a base for thinking about an alternative notion of privacy. I have argued that an alternative notion of privacy demands grounding in alternative material practices since the dominant notion of privacy is associated with commodity exchange. Thinking about an alternative notion of privacy instead of abandoning it is relevant and worthy as privacy, although predominantly occupied by possessive individualistic concepts such as exclusion and private property, also represents the basal human need of individuality that cannot be meaningfully denied by any alternative form of society. As far as I can see, there is no positive Marxist theory of privacy and I cannot provide one here. Marx’s focus on a negative critique of capitalism first and foremost aims to abolish social structures that inhibit human potentials and creativity. Following this tradition, Fuchs (2011b) and Allmer (2011) provide some critical remarks for a socialist notion of privacy. I tried to apply myself Marx’s negative critique on capitalist ideology and private property to privacy, following the often mentioned connection between both of the latter terms. 

However, an alternative vision of privacy must contain more than an opposition to societal relations of inequality; rather it should constructively theorise the value of privacy alternatively and based on a “social conception of individuality” (Pateman 1989, 136). It is an important theoretical task to reflect on an alternative relation between the individual and society and various approaches that take seriously the critique of individualistic privacy notions are taking this path (for instance: Solove 2008, 91-98; Cohen 2012). 

Unfortunately, these approaches do not engage with Marx’s profound analysis of capitalist domination structures. In his fetish analysis, Marx has shown that the individual, following the commodity exchange induced assumption that he or she owes nothing to society, cannot get rid of society. Society asserts itself behind individuals’ backs and predetermines their behaviour. Accepting and consciously shaping sociality would be the better option. Taking privacy as an individual claim that excludes others and is raised against society from the outset thus makes no sense at all. Privacy can only be a “societal license” (Etzioni 1999, 196). It is a collective task on how best to satisfy individual privacy needs, such as a home, being alone, silence, reflection, recreation, freedom of expression and decision-making, personal and intimate relations, trust and respect, secrecy, and protection from harm. Pure subjective control theories of privacy should be rejected. Instead, comprehensive democratic structures are required to enable individuals to effectively shape their privacy license in association with others. However, privacy is then not my property and I cannot exchange it and contract it out; it is then a collectively achieved individual value that I can only claim as a member of society. Understanding privacy as an aspect of self-possession then makes no sense. It should be conceptualised as an inalienable collective right. 

Objective notions of privacy as an outcome of conscious association are needed, and Diaspora* has practically developed one: it is based on the idea of privacy for SNS users that challenges economic surveillance. As a consequence, the idea of the exploitation of users and the commodification of data, as done by Facebook and Google+, is rejected. Contributors to Diaspora* are associating themselves consciously, not mediated by commodity exchange, but on behalf of copyleft. They have created an objective notion of privacy in and through their practices. This is vital since a basal assumption of Marx was that there would be no individuality, freedom, autonomy, and privacy as long as there is systematic exploitation and class domination in society. It turns out that what is easier to accept as a starting point for theory, i.e. a societal concept of privacy, is much harder to achieve for Diaspora*, although some consequences of this concept are already realised in Dias- pora*’s opposition to exploitation. Diaspora* provides an alternative to privacy commodification and user exploitation, but its struggle is fought out on the ideological battlefield of privacy which is not a neutral one, and is rather predetermined by possessive individualistic thinking that objectively contradicts Diaspora*’s alternative goals. Diaspora* refers to ownership and individual control exactly because these are the most powerful means of action in capitalism. I have introduced views, such as informational exceptionalism, that welcome changes in the intangible mode of production, but do not challenge capital accumulation in general. Sticking to possessive individualistic premises, albeit in terms of privacy, may ultimately refer to an immanent transformation of capitalism that reproduces the overall system rather than to a real alternative to it. 

The challenge for a Marxist theory of privacy and for alternative SNSs, such as Diaspora*, is to thoroughly disentangle privacy from private property (Goldring 1984, 321f.) in such a way that privacy neither appears as a commodity itself nor contributes to the ideological premises of commodity production and capital accumulation. A material base for such thinking can already be found in Diaspora*, copyleft, and projects of a similar nature.

The 'Introduction' by Christian Fuchs & Vincent Mosco in the same issue of TripleC offers a summary of "anti-Marxian prejudices" in communication studies and "a counter-claim that ... shows the importance of Marx for understanding society and the media critically" -

1a) Marxist Outdatedness! Marxism is old-fashioned and not suited for a post-industrial society. 1b) Marxist Topicality! In order to adequately and critically understand communication in society, we need Marx. 

2a) Marxist Repression! Marxism may sound good in theory, but in practice it can only result in terror, tyranny and mass murder. The feasibility of a socialist society and socialist media are illusionary. 2b) Capitalist Repression! Capitalism neither sounds like a good idea/theory nor does it work in practice, as the reality of large-scale inequality, global war, and environmental devestation shows. The feasibility of social- ism and socialist media arises out of the crises of capitalism. 

3a) Marxism = Determinism! Marx believed in deterministic laws of history and the automatic end of capitalism that would also entail the automatic end of capitalist media. 3b) Marxism = Dialectics and Complexity! Marxian and Hegelian dialectics allow us to see the history of society and the media as being shaped by structural conditioning and open-ended struggles and a dialectic of structure and agency. 

4a) Marxist Do-Goodism! Marx had a naïve picture of humanity’s goodness and ignored that humans are naturally selfish, acquisitive, aggressive and competitive. The media industry is therefore necessarily based on profit and competition; otherwise it cannot work. 4b) Capitalist Wickedness! The logic of individualism, egoism, profit maximization, and competition has been tried and tested under neoliberal capitalism, which has also transformed the media landscape and made it more unequal. 

5a) Marxist Reductionism! Marx and Marxism reduce all cultural and political phenomena to the economy. They do not have an understanding of non-economic aspects of the media and communication. 5b) Marxist Complexity! Contemporary developments show that the economy in capitalism is not determining, but a special system that results in the circumstance that all phenomena under capitalism, which includes all media phenomena, have class aspects and are dialectically related to class. Class is a necessary, although certainly not sufficient condition for explaining phenomena of contemporary society. 

6a) Marxist Anti-Humanism! Marx had no interests in religion and ethics and reduced consciousness to matter. He therefore paved the way for the anti-humanism of Stalin and others. Marxism cannot ground media ethics. 6b) Marxist Humanism! Marx was a deep humanist and communism was for him practical humanism, class struggle practi- cal ethics. His theory was deeply ethical and normative. Critical Political Economy of the Media necessarily includes a critical ethics of the media. 

7a) The Outdatedness of Class! Marxism’s obsession with class is outdated. Today, the expansion of knowledge work is removing all class barriers. 7b) The Importance of Class! High socio-economic inequality at all levels of societal organisation is indicative of the circumstance that contemporary society is first and foremost a multi-levelled class society. Knowledge work is no homogenous category, but rather a class-structured space that includes internal class relations and stratification patterns (both a manager and a precariously employed call centre agent or data entry clerk are knowledge workers) 

8a) Marxists Oppose Democracy! Marxists favour violent revolution and oppose peaceful reform and democracy. They do not accept the important role of the media for democracy. 8b) Socialism=Democracy! Capitalism has a history of human rights violations, structural violence, and warfare. In the realm of the media, there is a capitalist history of media support for anti-democratic goals. Marxism is a demand for peace, democracy, and democratic media. Marx in his own journalistic writings and practice struggled for free speech, and end to censorship, democratic journalism and democratic media. 

9a) Marxist Dictatorship! Marxism’s logic is the logic of the party that results in the logic of the state and the installation of monstrous dictators that control, monitor, manipulate and censor the media. 9b) Capitalist Dictatorship! Capitalism installs a monstrous economic dictatorship that controls, monitors, manipulates and censors the media by economic and ideological means. Marxism’s logic is one of a well-rounded humanity fostering conditions that enable people to be active in many pursuits and includes the view that everyone can become a journalist. 

10a) Non-class-oriented New Social Movements! New social movements (feminism, environmentalism, gay rights, peace movement, youth move- ment, etc) have left class and Marxism behind. Struggles for alternative media are related to the new social movements, not to class struggles. 10b) Class-oriented New New Social Movements! The new movements resulting from the current crisis (like the Occupy movement) as well as recent movements for democratic globalization are movements of movements that are bound together by deep concern for inequality and cla

Passports

The Canberra Times reports yesterday's conviction in ACT Magistrates Court of a man who obtained a passport under a false name and travelled on it for eight years.

Philip Lindsay Byrne  pleaded guilty to one charge of making a false statement to obtain a passport and another charge of producing a false or misleading document. He apparently purchased a fake birth certificate in Queensland for $500 and used it to apply for a passport under the name Philip Byne in November 2004.

During the following eight years  he used that passport to enter and leave Australia 27 times. After detection (not discussed in the report) Byrne indicated that he "obtained the passport because he had been the subject of an extortion attempt in the Philippines".

The court heard he readily admitted the offence to authorities and gave them a full explanation, pleading guilty at the first opportunity. Byrne's lawyer told the court his client had family and a partner in the Philippines and regarded the country as his home. He had only returned to Australia to receive treatment for cancer and to visit his elderly father. 

Byrne had since been issued with a legitimate passport.

DUI Frighteners

The AIC has released a 160 page report [PDF], under the National Drug Law Enforcement Research Fund, on Evaluating the deterrent effect of random breath testing (RBT) and random drug testing (RDT) — The driver’s perspective.

The project involved a mixed methodology -

• review and a qualitative component guiding development of a survey to assess the deterrent effect of random breath testing and random drug testing, 
• a quantitative component measuring the influence of various law enforcement practices on a driver’s decision to drink/drug drive. 

It centred on identifying the law enforcement practices that have the greatest deterrent effect on drivers who consume alcohol and/or drugs, and who indicate they are likely to drink drive and/or drug drive in the future. In particular it measured RBT and RDT practices from the driver’s perspective rather than from law enforcement activity reports, on the basis that a driver’s perception is more likely to influence behaviour than enforcement activities that are unnoticed by drivers.

Key findings of the qualitative research are that

• Many participants indicated they would know if they were over the legal alcohol limit for driving, albeit many relied on intuition rather than knowledge. By contrast, many said that when it came to drugs they would not really know what it feels like to be over the limit because there is little knowledge about how long one would need to wait before one could drive after consuming drugs. 
• Many marijuana smokers indicated that they would drive regularly after smoking marijuana and that driving while affected by marijuana was less dangerous than driving under the influence of alcohol. However, many gave accounts of driving under the influence where their driving ability was severely impacted by the drug. 
• Although many drivers were aware of RBT on the roads, they did not see RBT as random. Most indicated they knew when and where RBT was conducted on the roads. Drivers reported that ‘booze buses’ were visible generally late at night and early mornings on the weekends, and usually in the same locations, making particular mention of testing taking place during long weekends and holiday periods. Drivers indicated that there was a greater chance of being tested by mobile police, although many believed they would know the places and times this testing was likely to be undertaken. 
• Participants were generally unaware of the specific aspects of RDT, with many drivers unaware if RDT was being undertaken in their jurisdiction. Drivers from Queensland appeared to have lower awareness of RDT compared with drivers from NSW and Victoria. Participants also believed that there was a very low chance of being tested for drugs while driving, due to the lack of resources. There was the perception that they would only be tested if visibly displaying signs of the effects of drug use. 
• Many drivers said that they would drive while under the influence of alcohol if it was only a short trip, with drivers reportedly evaluating the chances of being caught against driving somewhere they felt they ‘needed’ to go. Participants also reported driving the next day after drinking when there was a likelihood they were still over the legal limit. 
• Perceptions of whether someone would ‘get caught’ by RBT were mixed. Even though many drivers believed that RBT was not random, there were many drivers who felt the police were a ‘visible presence’ and that there was a ‘real chance’ of getting caught if they drive over the legal alcohol limit. However, other drivers felt the police were not a ‘visible presence’ on the roads, there was no need to be worried about being tested, or that there was a very low chance of being tested (especially regarding drugs) In general, participants felt there was no ‘real chance’ of being tested for drugs. 
• Some drivers said that RDT was not currently working as a deterrent on the roads and that it needs to be more widespread to be effective. Others mentioned that testing was visible at certain times of the year but questioned whether it was worth RDT being visible throughout the entire year. 
• Most drivers were able to mention television advertising campaigns for alcohol and drugs, particularly mentioning the hard-hitting and graphic nature of these ads. However, although some felt these ads were effective, others mentioned these ads probably miss the mark with younger people, as young people see themselves as being invincible and may socialise with people who consistently and repeatedly drink/drug and drive (and go undetected by police, or who are not penalised for drink driving). 
• Many drivers felt that the government should spend money and invest resources in alcohol and drug testing on the roads. There were some who felt there are too many drivers being pulled over for drink driving, suggesting that drink driving remains a serious community concern and that more should be done. Others mentioned that the fact there are so many drivers out there driving under the influence means the anti-drink driving message isn’t getting through and that perhaps the money allocated to drink driving campaigns is not being well spent. 

Key findings of the quantitative research are that -

• drink drivers are more likely to be male, aged between 26 and 35 years, and regular alcohol users. They are more likely to be in a defacto relationship, working full-time or self-employed. 
• Drug drivers are more likely to be male, aged between 26 and 35 years, and regular cannabis and/or ecstasy users. They are also more likely to be in a defacto relationship and working full-time, self-employed, a stay at home mum/dad or a student. 

The report considers the deterrence value of law enforcement practices, concluding that

collectively perceived credibility of the program, perceived enforcement of the program, reported visibility of police testing, randomness of police testing, publicity of police testing and a driver’s knowledge of penalties, significantly influence a driver’s decision to drink/drug drive. The most crucial aspects of the drink/drug driving programs, in terms of having the greatest deterrence value to drink/drug driving were perceived credibility and enforcement. 

 In relation to drink driving credibility issues surrounding whether a driver (or someone they know) had been caught for drink driving and penalised or ‘let off’, had the greatest influence on a driver’s intention to drink drive in the future, relative to the influence of visibility, randomness, publicity, and knowledge of penalties. Drivers who have had a personal experience with being tested for alcohol (or know someone who has), and perceive avoiding police interception to be difficult, are less likely to drink drive in the future.

In the case of drug driving, credibility and enforcement had an even greater impact on a driver’s intention to drug drive, when compared with the impact of these measures on a driver’s intention to drink drive. Drivers who have had a personal experience with drug testing and perceive avoiding police interception to be difficult, are less likely to drug drive.

The report suggests that perceptions of the accuracy of police testing devices play a role in a driver’s decision to drink/drug drive. It goes on to comment that publicity is likely to have greater deterrence value to those who intend on drink/drug drive if followed up with increased police testing activity (personal experience with being tested).

The report notes the usual  avoidance strategies reported by drivers, including -

• the use of backstreets, either to avoid driving on roads the driver believed would be typical police testing sites, or to avoid a stationary booze/drug bus that was seen by drivers on the road ahead. 
• avoiding police interception by receiving a phone call from a friend about police testing at a specific site. 
• consuming a substance or food helped disguise any alcohol/drug content in their mouth. 

The report concludes that a specific deterrence strategy is more likely to influence a driver’s decision to drink/drug drive.

Although the data suggests that visibility, randomness and publicity (general deterrence strategies), have less deterrence value to drink/drug driving in the driver population surveyed relative to the deterrence value of credibility and enforcement (specific deterrence strategies), it is important to consider the aims of general and specific deterrence. General deterrence strategies remain important in maintaining general compliance within the general driving population, whereas, specific deterrence strategies aim to impact the drink/drug driving intentions of a specific high-risk driver group. The specific deterrence strategies recommended in this report should therefore be implemented in conjunction with, not in place of, current general deterrence law enforcement activities.

Mark

In Mantra IP Pty Ltd v Spagnuolo [2012] FCA 769 the Federal Court of Australia has overturned the decision by the Registrar of Trade Marks to refuse registration by Mantra IP of the 'Q1' word mark.

The Registrar found that the word mark, being used to identify the location of services rather than as a badge of origin, would likely deceive or cause confusion. 'Q1' also formed the name of an 'iconic' 78-level apartment building on Queensland's Gold Coast owned by a Mantra IP associate.

The Court disagreed, finding that the word mark had been sufficiently used as a trade mark to distinguish Mantra IP's services.

Reeves J commented that

It is not in dispute in these proceedings that a person cannot obtain the registration of a trade mark for a building. That is so because under the Trade Marks Act 1995 (Cth) trade marks can only apply to distinguish goods and services: see s 17 of the Act. However, the central question posed in these proceedings is whether a person can obtain the registration of a trade mark for services where the mark concerned is also the name of the building from which the services are supplied. 

With the plethora of large commercial and residential buildings constructed in cities throughout Australia, one might have thought that this question would have come to be judicially determined before now. However, with the exception of one decision of the Full Court of this Court and some decisions of the Registrar of Trade Marks, the counsel for the parties have informed me that is not so.

Spagnuolo - who owns apartments in the building and operates an accommodation service promoted through a domain name that features 'q1' - was successful in his opposition to Mantra IP’s applications for registration of a mark relating to its services. In Danilo Spagnuolo v Mantra IP Pty Ltd [2010] ATMO 110 the Registrar’s delegate refused to register the word mark “Q1” as a trade mark under s 55(1)(a) of the Act, observing that observed that the name “Q1” had a geographical connotation rather than being a badge of origin for Mantra IP’s services: "The applicant’s evidence shows that, in practice, the ‘Q1’ name is predominantly used to identify the location of the services provided, rather than as a badge of origin".

The delegate concluded -

 I find that, because of the geographical connotation contained in the Q1 sign, there is a real likelihood that its use as a trade mark by the applicant in respect of the very wide range of services specified in its applications will cause deception and confusion of the public. The Q1 sign is the only name of a building which, by virtue of its multi-faceted identity, has in the words of the Full Federal Court ‘become part of the common heritage’. As such, it has a connotation that effectively eclipses any function it might otherwise have performed in denoting any single trader, and which renders it simply unsuitable for use as a trade mark. Even with the best of intentions, any use of ‘Q1’ intended to denote a single trader cannot avoid creating deception and confusion in the marketplace, as it is a name patently required for use by all of the many traders with a connection to the building. The very nature of the sign means that it is, to return to the words quoted earlier from the ORLWOOLA case, ‘utterly unfit for registration as a trade mark’.

Mantra IP then claimed that the Registrar erred in making the following findings, or conclusions: (a) the Trade Mark had a geographical connotation; (b) the Trade Mark formed “part of the common heritage” and was therefore unfit for registration as a trade mark; (c) use of the Trade Mark by the Applicant, if the Trade Mark did in fact have a geographical connotation, was likely to deceive or cause confusion; and (d) the Applicant used the Trade Mark to identify the location of the services provided rather than as a badge of origin.

Reeves J referred to the Full Court decision in  MID Sydney Pty Ltd v Australian Tourism Co Ltd (1998) 90 FCR 236, commenting that

a sign concurrently applied as the name of a privately owned building and to distinguish certain services to be provided from, or in relation to, that building, does not lose its inherent adaptability to distinguish the services concerned. The Full Court appears to have reached that conclusion because the name of a privately owned building cannot be regarded as being the equivalent of a geographical place name such that it is to be considered as part of the “common heritage” over which the public, including a competitor trading in, or near, the building can claim to have a public right to make honest use of that sign in relation to its goods or services. In other words, its use as a trade mark will not, in any way, infringe upon the “common heritage” because its concurrent use as a building name does not bring it within that domain. This does not, of course, prevent a trader operating within the building concerned from using the name of the building to indicate the location of its place of business. 

Like the Chifley Tower, “Q1” was a sign devised by Sunland, a private entity, to, among other things, signify or name its private building development. When it chose the sign “Q1”, it did not adopt or incorporate a geographical name such as that of an established town, suburb or district, like Surfers Paradise, or the Gold Coast. Nor, for that matter, was it a name chosen following some public process, for example, by the Minister under the Place Names Act 1994 (Qld). For the same reason I also do not consider the fact that Sunland chose to register the address of the Q1 building with a Queensland Government Department affects this conclusion .... 

At about the same time as it devised the sign “Q1” as the name of its building development, Sunland successfully applied for the registration of a number of logo marks for the sign “Q1” for a range of services essentially comprising the same services as Mantra IP’s Designated Services. It later assigned those Q1 logo marks to Sunleisure. From late 2005, Sunleisure used the Q1 word mark as a trade mark .... Soon after Sunleisure became a part of the Mantra Group of companies, Mantra IP (then Stella IP) applied to register the word mark “Q1” in relation to its goods or services. From this history, I do not consider there is any basis upon which any trader could claim to have any “common right of the public” to make honest use of the sign “Q1” as a trade mark. Put differently, there is nothing about the sign “Q1” that could be said to bring it within the “common heritage” as discussed in Clark Equipment, or MID Sydney, such that it should be available for use by all members of the community and, as a consequence, remove its inherent adaptability to distinguish Mantra IP’s Designated Services.

The Court went on to note that

it was an agreed fact that Sunleisure has used a website located at www.Q1.com.au to promote its businesses since 2005. Based on this evidence, I find that Sunleisure made sufficient use of the “Q1” word mark, as a trade mark, prior to the priority date of 10 March 2008, to establish a claim to prior use as an owner for the purposes of s 58 of the Act. It follows that I do not consider that this ground of opposition provides any basis for rejecting Mantra IP’s applications. 

It concluded that

the word mark “Q1” is alone inherently adapted to distinguish Mantra IP’s Designated Services and there is no other ground for the rejection of Mantra IP’s applications to register the “Q1” word mark in relation to its Designated Services. I therefore propose to make appropriate orders to reverse the delegate’s decision and dismiss Mr Spagnuolo’s notices of opposition to Mantra IP’s application.

Learning

Reading Judith Shklar's 1989 'A Lifetime of Learning' (Charles Homer Haskins Lecture, American Council of Learned Societies) [PDF], replete with delights such as

One day I picked up the first volume of Shakespeare in the Schlegel-Tieck translation. The first play was Titus Andronicus, and I read it all. To this day I can still feel the fear and horror it inspired. I was so afraid and confused that I could not even bring myself to tell anyone what was bothering me. Finally I managed to spill it out to my oldest sister. As soon as I told her I, of course, felt infinitely relieved, especially as she assured me that these things did not really happen. The trouble was that both she and I knew that far worse was going on all around us. By 1939 I already understood that books, even scary ones, would be my best refuge from a world that was far more terrible than anything they might reveal. And that is how I became a bookworm. It was also the end of my childhood.

and

when I was required to take a course in money and banking it became absolutely obvious to me that I was not going to be a professional economist. Philosophy was, moreover, mainly taught by a dim gentleman who took to it because he had lost his religious faith. I have known many confused people since I encountered this poor man, but nobody quite as utterly unfit to teach Plato or Descartes. Fortunately for me I was also obliged to take a course in the history of political theory taught by an American, Frederick Watkins. After two weeks of listening to this truly gifted teacher I knew what I wanted to do for the rest of my life. If there was any way of making sense of my experiences and that of my particular world, this was it. 

Watkins was a remarkable man, as the many students whom he was to teach at Yale can testify. He was an exceptionally versatile and cultivated man and a more than talented teacher. He not only made the history of ideas fascinating in his lectures, but he also somehow conveyed the sense that nothing could be more important. I also found him very reassuring. For in many ways, direct and indirect, he let me know that the things I had been brought up to care for, classical music, pictures, literature, were indeed worthwhile, and not my personal eccentricities. His example, more than anything overtly said, gave me a great deal of self-confidence, and I would have remembered him gratefully, even if he had not encouraged me to go on to graduate school, to apply to Harvard, and then to continue to take a friendly interest in my education and career. It is a great stroke of luck to discover one’s calling in one’s late teens, and not everyone has the good fortune to meet the right teacher at the right time in her life, but I did, and I have continued to be thankful for the education that he offered me so many years ago.

and

I had hardly arrived [at Harvard] when the wife of one of my teachers asked me bluntly why I wanted to go to graduate school, when I should be promoting my husband’s career and having babies. And with one or two exceptions that was the line most of the departmental wives followed. They took the view that I should attend their sewing circle, itself a ghastly scene in which the wives of the tenured bullied the younger women, who trembled lest they jeopardize their husbands’ future. I disliked these women, all of them, and simply ignored them. In retrospect I am horrified at my inability to understand their real situation. I saw only their hostility, not their self-sacrifices.

and

I was struck very forcefully by the difference between legal and political thinking and by the professional constrictions of jurisprudential thought, especially when it was extended beyond the limits of normal court business. Nothing could have been more remote from my mind, however, than to attack legal scholarship, lawyers, or the integrity of our legal system, but the majority of law journals were really upset at the very notion that politics structured the law very significantly. Nor were they exactly thrilled to read that one could justify the Nuremberg trials only on political grounds and the Tokyo ones not at all. I was told in no uncertain terms that only lawyers could really understand the perfection of legal reasoning. I look back with some amusement at this episode, because my skeptical inquiry into the traditional orthodoxies of legal thought was so mild and so qualified, compared to the assaults that Critical Legal Studies have mounted against the basic assumptions of the legal establishment since then. And it is with some dismay that I now find myself treated as the purveyor of standard ideas, known to and accepted by all, even by the most conservative academic lawyers. To recognize that professions have their self-sustaining ideologies is hardly news today, but it was in 1964. And so Legalism, which is my favorite of the books that I have written, went quickly from being a radical outrage to being a conventional commonplace.

and

Although I sometimes have students in mind when I write, I tend to keep writing and teaching apart. I have many friends who write their books as they lecture, but I somehow cannot do that, though I wish that I could. I think of the two as complementary, but different. In class I have to think of what the students must be taught, when I write I have only myself to please. I do not even find that the two compete for my time, and rather that mysteriously and semi-consciously, they interact. I have had the good luck to have taught some absolutely wonderful young people. Some of the Harvard seniors whose undergraduate theses I have directed are the most intelligent, stimulating, and delightful people I have known, and preparing for their tutorials has certainly done a lot for my own education as well. 

Graduate students are not as easy to get on with at first, because they are in such a difficult position, having just fallen from the top of their undergraduate class to the very bottom of a very greasy pole. I certainly prefer frank and independent students to ingratiating and flattering ones, and trust those who take charge of their own education most of all. Ultimately they can be the most gratifying people for a teacher. The graduate students who become professional quickly and develop a real passion for their studies may soon be one’s friends, their success is in some way one’s own, and they are often the best partners for discussion, whether we agree or not.

Big Alan

Monday's UK Independent, under the heading 'Big Alan is watching you … on YouView: Catch-up box will report all your programme choices so broadcasters – and the neighbours – learn your habits', reports on privacy aspects of a Tivo-style service -

 YouView allows broadcasters and their commercial partners to know exactly which programmes you are watching, and when. 

An internet connection from the box to the outside world tracks individual choices and reports the data back to the company, gathering similar information to that collected online by Google. YouView will use the material to build up a profile of each user. 

The company – some of whose employees worked for Phorm, a US technology firm accused of developing advertising spyware – hopes to become as popular in British living rooms as Sky. Priced at £300 with no further television subscription, its box will be sold by John Lewis, Currys and other retailers later this year and offered by internet service providers as part of phone and broadband packages. 

Prospective viewers, however, may not be aware that the technology will record each channel being viewed. Each time you change channels or start/stop recording a programme, YouView reports back to headquarters via the internet connection, telling the company what it is you are watching and what you are doing with the box. 

The profile might contain information such as the type of box being used, when you first used YouView, your internet address, which programmes you have watched, and whether you prefer sports, news or cookery programmes and so on. 

YouView indicates that data from each box will be anonymised and "only relates to the device and is mainly technical in nature"."YouView doesn't sell advertising so it doesn't use data for behaviourally targeted advertising" but data will be passed to third-party companies, allowing targeted advertising on a postcode by postcode basis. Presumably targeting could be more granular.

The service is touted as a 'carcase' that will eventually be enhanced to include on-demand movies, games and other services.

The Independent indicates that

 Other likely applications are features such as "What's hot in your area" showing what neighbours are watching, with percentages for each show displaying, for instance, that 40 per cent are watching Downton Abbey, 31 per cent Strictly Come Dancing and 3 per cent shows on gambling or pornography. 

'Neighbours' presumably covers an aggregate of consumers in the particular postcode or other catchment area, rather than a report that the little old lady two doors down is fogging up the screen watching a documentary on dogging.

Legality? The service is broadly permissible under UK law on the basis that consumers agree to sharing of information.

The YouView privacy statement indicates that -

YouView is committed to safeguarding your personal information. Whenever you provide such information, we are legally obliged to use your information in line with all laws concerning the protection of personal information, including the Data Protection Act 1998 (these laws are referred to collectively in this Privacy Policy as the "data protection laws"). 

We will keep your information confidential except where disclosure is required or permitted by law (for example to government bodies and law enforcement agencies). However, we may use third parties to process your information but only for the purposes set out in this policy. These third parties will be required to comply strictly with our instructions and we will also require that they do not use your personal information for their own business purposes, unless you have explicitly consented to the use of your personal information in this way. We will not otherwise share your personal information without first seeking your consent. 

Under the Data Protection Act you have the right to request a copy of the personal information we hold about you and to have any inaccuracies corrected. (We charge £10 for information requests and require you to prove your identity with 2 pieces of approved identification). We will use reasonable efforts to supply, correct or delete personal information about you on our files.

Repatriation of Cultural Property

The national Arts Minister, Simon Crean, has announced that international loans of "important cultural objects will be secured by new legislation to protect them from seizure".

The new legislation will guarantee the return to the lender of cultural objects such as paintings, drawings, sculptures, textiles, stamps and coins, which are brought to Australia on loan for temporary public exhibition. 

The SMH report indicates that the Minister argued that in the absence of such a statute 'Australians might have been denied the opportunity to see masterpieces such as those on loan from the Prado in Madrid to the Queensland Art Gallery' and that its absence 'has been cited by Australian collecting institutions as a barrier to negotiating loans where there is the potential for dispute about a work's ownership or ethics of acquisition'.

The new legislation, scheduled for passed in the 2012 spring session of Parliament, will supposedly "ensure that any [such] loans from overseas collections will be co-ordinated in consultation with Aboriginal and Torres Strait Islander people". It will modify the regime provided by the Protection of Movable Cultural Heritage Act 1986 (Cth) and the Foreign States Immunities Act 1985 (Cth).

Australia is a party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Export and Transfer of Ownership of Cultural Property and is considering accession to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, the Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and the 2001 Convention on the Protection of the Underwater Cultural Heritage.

The proposed legislation reflects last year's consultation exercise centred on the 23 page 'Immunity from Seizure for Cultural Objects on Loan' discussion paper [PDF] under the auspices of the Office for the Arts in the Prime Minister's Department.

The expectation is that the granting of immunity for an object or collection would prevent third party claimants from lodging petitions to disrupt or terminate the loan of the object or collection in question.

Immunity would also prevent the enforcement of any judgment or arbitration award, and would prevent judicial seizure (including criminal seizure) resulting from third party claims whilst in Australian territory, providing the above requirements were maintained and remained true for the duration of the loan. That would address concerns highlighted in the litigation over Schiele's Portrait of Wally from 1998 to 2010, discussed in works such as Holocaust Restitution: Perspectives on the Litigation and Its Legacy (New York University Press, 2006) by Michael Bazyler & Roger Alford and 'Art Loans and Immunity from Seizure in the United States and the United Kingdom' by Lawrence Kaye in (2010) 17 International Journal of Cultural Property 335-359.

Immunity would

prevent any court in Australia from making any order which deprives the borrower or any person or organisation contracted by them in accordance with the loan agreement from possession of the object or collection, unless the court is required to make the order under, or under provision giving effect to, any international treaty to which Australia is a party.

Key points in a 'hypothetical model' identified in the paper are -

• An immunity from seizure certificate may be granted for each item or collection proposed for loan at the discretion of the Minister for the Arts or their delegate. 
• The objects must be arriving in Australia for the purpose of public exhibition, and the granting of immunity would be subject to particular requirements. These may include

• the exhibiting institution’s demonstration of due diligence in their general operations, as well as specifically in regard to the loan in question, such as compliance with the ICOM code of ethics; 

• the provision of provenance and acquisition records by the lender; 

• evidence of the lender’s legal authority to lend the object and confirmation that these have been checked by the borrower; 

• confirmation that there has been no breach of any international obligations; 

• that the import of the object does not contravene a prohibition or restriction on the import of goods (for example CITES); and 

• confirmation that the ICOM Red Lists and ‘100 Missing Objects’ list has been checked.

• Immunity from seizure would only be granted to objects or collections for which the lender was seeking immunity as a non-negotiable clause in the loan agreement. 
• Applicants would be able to apply for immunity for up to two years in advance of an object entering Australia. Applications must be made at least 6 months before the object is due to arrive in Australia.
• The immunity certificate would be current for up to two years, from the date the object arrives in Australia, with an extension only in the event that conservation or repair work must be undertaken in Australia as a result of damage incurred to the object during the period of the loan. The length of the certificate would be inclusive of travel periods for the transport to and from the exhibition. 
•  In the case of Australian material that fell within the definition of an Australian Protected Object under the Protection of Movable Cultural Heritage Act 1986, a Certificate of Exemption might be sought via the existing process. 
• As Commonwealth legislation, the provisions would override all state and territory laws to the extent of any inconsistency, except public records laws which allow state and territory public record offices to seize and retain ownership of documentary heritage records that were created by the relevant state or territory government.

Submissions in response to the paper are here.