GI and Fake Wine

'The Perfect Pairing: Protecting U.S. Geographical Indications with a Sino-American Wine Registry' by Laura Zanzig in (2013) 88 Washington Law Review 723 [PDF] argues that

Chinese counterfeiters have infiltrated the wine world, falsely labeling products and using fraudulent geographical indications (GIs). GIs, which function as a type of brand, are internationally protected designations of a product's origin and characteristics. Recently, United States GIs, such as Napa or Walla Walla, have appeared on bottles of wine composed of Chinese grapes. By misappropriating U.S. brands, Chinese counterfeiters deceive and confuse consumers, disadvantage legitimate businesses, and causes health concerns. Unlike other brands, GIs protect regions, rather than individual producers. This creates a particular void: no single winery can register a GI and no single winery is harmed by fraudulent use, making counterfeits difficult to prevent, detect, and address. This Comment argues that Chinese law currently provides insufficient protection for U.S. wine GIs. As a solution, it proposes a Sino-American wine registry to effectively preserve GIs and protect the affected wines, producers, consumers, and countries.

Zanzig comments that

Splashy headlines around the world decry the rise of Chinese wine counterfeits. A London Telegraph headline reads, “Red Alert Over Bordeaux Wine Fraud,” while a CNN.com headline laments the “Counterfeits in the Grape Wall of China.” Meanwhile, the Australian Broadcasting Company’s article, titled “Winemakers See Red Over Bogus Bottles,” describes counterfeiters who “rebadged” Chinese wines as Australian.

With growing Chinese demand for foreign wines comes a corresponding increase in fraudulent products. For example, counterfeiters pay thousands of dollars for empty French Bordeaux bottles, only to fill them with cheap Chinese wine and sell them at inflated prices. Penfolds, an Australian wine that is popular and well recognized in China, spurred a string of knockoffs marked “Benfolds” in the same typeface as the original. Fake products bottled and packaged as “Canadian ice wine” are available on Chinese shelves, with frauds potentially comprising eighty percent of the ice wine in China. Counterfeit wines create a number of concerns. For example, their labels falsely convey a reputation, which can deceive or confuse consumers. Unfortunately, fraudulent wines are often of much lower quality and sometimes even laced with chemicals. This can lead to dilution of legitimate brands, harming their producers. Meanwhile, counterfeiters receive an unfair advantage, benefitting from the reputation they are weakening.

United States wines have not escaped the counterfeit plague. Recently, a Chinese winery attempted to register itself domestically as “Napa Valley.” Though it didn’t obtain that particular brand, it ultimately assumed the name “Valley Napa” - despite the fact that its wine consisted entirely of Chinese-grown grapes - and marketed its wine to domestic consumers. In late 2012, the Chinese government finally granted protected status to the term “Napa.” However, this protection took fourteen years of work for the Napa Valley Vintners Association, including a 2011 trade mission to China to promote and preserve the Napa name.

The Napa Valley struggle illustrates the problem with protecting geographical indications (GIs). GIs are label designations that indicate a wine’s origin and often denote certain qualities associated with that origin. A form of intellectual property (IP), GIs function as brands, preserving reputation and truth in labeling.

While brand protection benefits any product, the protection that GIs offer is especially crucial for wine. Consumers select wines based on reputation—not merely those of the wine’s producer or its ingredients, but also the reputation of the wine’s geographic region. Strong regional reputations often result in economic profit, as was the case in Walla Walla, Washington. Once a dying agricultural town, the region is now booming thanks to its wine industry. “Walla Walla has created a brand for itself,” says Richard Kinssies, a Seattle wine expert. “It worked very hard for decades to create a viable and valuable wine industry. Where there’s marketing success, someone will want to copy it. Truth in labeling protects that brand.” Due in part to Walla Walla’s brand, Washington now possesses a booming wine industry, the second largest in the U.S.

In addition to their domestic success, U.S. winemakers have set their sights on exporting their wines. China represents an enticing new market with lips that are “thirsty” for wine. In the past few years, Washington and Oregon wine sales in China have increased by an estimated eighty percent each year. China’s rising wine consumption inspired a corresponding increase in domestic wine. Some estimates found that, in the past five years, revenue from the Chinese wine industry rose at an annual rate of over twenty percent, around $7 billion.

Both countries are signatories to the Trade Related Aspects of Intellectual Property (TRIPS) Agreement, which provides international protection for GIs. The TRIPS Agreement regulates the use of geographical terms, aiming to preserve regional brands and prevent GI dilution. A diluted GI becomes “generic,” representing not a specific brand, but a type of product. This dilution is arguably happening to “Champagne.” Traditionally, the term Champagne only described wine from the Champagne region in France. To many customers worldwide, however, it now merely signifies sparkling wine. Another familiar example is the word “Kleenex”—though it is actually a registered brand, consumers now widely use the word to refer generally to any brand of facial tissue. The TRIPS Agreement aims to prevent this from happening to GIs, as well as to protect consumers and legitimate businesses.

The TRIPS Agreement itself does not protect GIs, requiring instead that member countries create domestic legislation implementing TRIPS provisions. In the European Union (EU), GIs enjoy specific protection. By contrast, the United States regulates GIs primarily under its more general national trademark law. A number of Chinese statutes offer GI protection, forming a confusing regulatory system that only one American winery has successfully navigated. Napa Valley, perhaps the U.S.’s most recognizable indication, is the first nondomestic wine GI to receive recognition in China.

Domestic implementation of the TRIPS Agreement often differs based on a country’s legal culture. For example, the EU ardently protects GIs to preserve its traditional brands and its “rich history of local and specialist agricultural production and many famous products closely linked to their place of origin.” Accordingly, its domestic laws focus specifically on GIs and protect them more stringently than other World Trade Organization (WTO) members. By contrast, the U.S. intellectual property scheme evolved to promote the spirit of innovation. U.S. protection of GIs reflects this notion, falling under trademark law, which focuses heavily on a creator or innovator. Due to China’s cultural and political climate, its IP law developed relatively recently, motivated primarily by international - rather than domestic - considerations. As a result, its GI protection is relatively young and reflects a compilation of various foreign systems.

Because of these domestic differences, GI protection can be inconsistent. In response, some countries pursue “TRIPS-plus” measures, which expand on the protection provided by the TRIPS Agreement. The EU embraced this strategy, entering several bilateral agreements with other members to achieve further protection. In the interest of providing more extensive and consistent protection, TRIPS Article 23 also calls for negotiations on a multilateral system of GI registration. However, member nations have disagreed over how the system should operate, stalling the registry’s implementation.

This Comment argues that Chinese law currently fails to sufficiently protect U.S. wine GIs. It then proposes a bilateral wine registry as a TRIPS-plus solution to effectively regulate GIs. The registry would promote dispute avoidance, as it would reflect shared attitudes about GI protection and provide mutual benefits to the U.S. and China. Finally, the registry would further the goals of the TRIPS Agreement and serve as a model for future international GI protection.

Part I of this Comment addresses international protection of GIs. Part II discusses United States GI protection, particularly in terms of wine. Part III analyzes Chinese IP law and its interaction with wine GIs. Part IV argues that the current state of Chinese law provides insufficient protection for U.S. wine GIs. Part V proposes a bilateral wine registry as a solution to Sino-American gaps in GI protection.

Harms, Hart and Homosexuality

'Legal Responses to Consensual Sexuality between Adults: Through and Beyond the Harm Principle' (University of Cambridge Faculty of Law Research Paper No. 46/2013) by Matthew H. Kramer revisits  HLA Hart's arguments in his 1963 Law, Liberty, and Morality.

It seeks to reinforce and extend Hart's liberal positions by offering lines of reasoning that are quite different from his, and by highlighting the inadequacy of John Stuart Mill's harm principle for coming to grips with contemporary issues such as the introduction of same-sex marriage. 

Kramer comments

In the present essay, I shall reassess some of Hart’s arguments in Law, Liberty, and Morality. My aim is predominantly constructive, in that this essay will seek to reinforce and extend Hart’s liberal positions (though often not the specific arguments with which Hart endeavored to support those positions). I will not generally gauge the accuracy with which Hart represented the views of his opponents, nor will I attempt to engage sustainedly with the myriad writings on paternalism that have emerged during the five decades since Hart published his book on the matter. Instead, this essay will intermittently make reference to a few of the elements in the taxonomy of responsibility with which it has begun. Some of the disputation in Law, Liberty, and Morality can fruitfully be understood as centered on questions of responsibility.

 He offers a taxonomy -

The property of responsibility can obtain in many different forms. Among those sundry kinds of responsibility are the following six:

1. Responsibility as Attributability. Somebody is responsible for some instance(s) of conduct if the instance(s) of conduct can correctly be attributed to him (usually for purposes of commendation or condemnation).

2. Responsibility as Prudence or Upstandingness. Somebody is responsible if she is generally disposed to act prudently, or if she generally behaves upstandingly (especially as a member of some community or group, whose good she generally seeks to further).

3. Responsibility as Obligatedness. Somebody is responsible for a certain task or objective if he is obligated to perform that task or to fulfill that objective.

4. Responsibility as Due Care. Somebody exhibits responsibility in her undertaking of a certain activity if she acts in a duly careful manner when she proceeds with it.

5. Responsibility as Accountability. Somebody is responsible for the fulfillment of a certain objective or the emergence of a certain state of affairs if she can properly be held to account for the non-fulfillment of that objective or the non-emergence of that state of affairs.

6. Responsibility as Custodianship. Somebody is responsible for another person if he is obligated to look after that other person’s interests in a variety of ways.

These six types of responsibility are of course not mutually exclusive. In particular, someone responsible in the third sense is almost always responsible in the fifth sense as well, and responsibility in the fourth sense is often a situation-specific manifestation of responsibility in the second sense. Still, the distinctions among these types can serve to underscore the multifacetedness of the phenomenon of responsibility. The multifacetedness of that phenomenon becomes even more evident when we attend to distinctions within each of the six categories above. For example, responsibility as attributability can be a causally grounded property or a normatively grounded property; it can derive from the direct causal involvement of somebody in a certain set of events, or it can derive from a normative relationship between somebody and some other person(s) or animal(s).

Kramer  goes on to argue

since the harm principle alongside the authorization/toleration distinction is consistent with the levying of criminal sanctions in this context, anyone who wishes to advocate the introduction of same-sex marriage ─ and to assail any criminalization of the conduct of homosexuals who seek to wed each other ─ will need to go beyond the harm principle.

The central ethical value which militates in favor of the introduction of same-sex marriage is that of equality. When the state confers its imprimatur (responsibility qua attributability) on heterosexual unions while it withholds that imprimatur from any homosexual unions, it is pro tanto treating homosexuals as second-class citizens. Declining to extend authoritative recognition to any loving and committed relationships between homosexuals, the state thereby treats those relationships as inferior to the loving and committed relationships between heterosexuals that are authoritatively recognized through marital rites. Although individuals in their private capacities should be legally at liberty to harbor the invidious attitudes embodied in such a discriminatory policy, the legitimacy of any public institution depends on its prescinding from those attitudes. Whereas the harm principle does not in itself disallow the inflection of public policies by such prejudices, the value of equality does.

Given that the value of equality is the fundament of every government’s moral obligation to treat same-sex couplings on a par with heterosexual couplings, the rationale for the extension of the institution of marriage does not transfer straightforwardly to polygamous unions. Notwithstanding that the implications of the value of equality have been discussed above as a matter of uniform treatment at the hands of public officials, that very value sometimes militates against such uniformity ─ because principles of equality disallow any public policy that foreseeably entrenches broad patterns of domination in the society at large. Now, although polygamous unions are not indisseverably connected to the subordination of women as a logical matter, there are strong historical connections. In traditions (such as Islam and Mormonism and Biblical Judaism) where polygamy has been common, it has been strongly associated with male dominance. Hence, when someone insists that governments are morally obligated by principles of equality to recognize same-sex marriages on the same terms as heterosexual marriages, he or she is not perforce committed to the additional proposition that governments are morally obligated to recognize polygamous marriages. The truth-value of that additional proposition hinges on complex empirical and normative matters that lie well beyond the scope of this essay. For example, one key question is whether polygamous unions recognized as marriages would tend to become egalitarian de facto as well as de jure through a legal system’s assignment of egalitarian packages of rights and responsibilities to the parties in each of those unions. Because such questions cannot be explored at all in this essay, the proper status of polygamous arrangements should be left unsettled here. (Worth noting briefly, however, are two points. First, someone who favors the legal recognition of certain polygamous unions as marriages does not have to contend implausibly that such recognition would render every polygamous marriage egalitarian de facto. After all, it is not the case that every monogamous heterosexual marriage in Western countries is egalitarian de facto. Second, in Western countries until quite recently and in much of the world outside the West to the present day, the institution of monogamous heterosexual marriage has in fact been strongly inegalitarian. Within Western countries, the evolution of the de-facto character of that institution in an egalitarian direction has undoubtedly been partly due to the evolution of its de-jure status in such a direction.)

At any rate, even if one concludes that no polygamous unions should be legally recognized as marriages in a particular jurisdiction, one can rightly maintain that efforts by polygamists to call down the imprimatur of the law on their domestic arrangements should not be subjected to criminal sanctions. In the absence of previous attempts by some or all of the parties involved, it is enough if any such effort is foiled through the nullity of the legal seal of approval which the parties have sought to obtain. Moreover, if the concerns over the inegalitarian impact of the recognition of polygamous marriages can be overcome, legal powers to enter into such marriages should no longer be withheld from sane adults who are consentingly disposed toward such arrangements.

Kramer concludes -

Although this essay has ultimately moved quite a long way from Hart’s concentration on the harm principle, my invocation of the value of equality ─ along with my invocation of the distinction between toleration and authorization ─ is of course consistent with Mill’s position. My reasoning goes well beyond the harm principle, but is not at odds with it. What my closing discussion has shown is not the incorrectness of Mill’s precept; that precept is impeccable as far as it goes. Rather, what my closing discussion has shown is that his harm principle in itself does not go nearly far enough to deal adequately with the intricacies of the law’s proper regulation of consensual sexuality. After all, as has already been emphasized, that principle simply lays down a necessary condition for the moral legitimacy of any proscriptions imposed by a system of legal governance. It does not per se go any distance toward prescribing the ways in which the law should recognize or authorize various modes of conduct in order to treat people as equals. It does not per se prescribe how the law should bestow its imprimatur to ensure that people are treated with equal respect and concern de jure and to promote the treatment of them with equal respect and concern de facto. Hence, solid though the harm principle is as a precept of political morality, it is badly in need of supplementation by other tenets of liberal democracy. Hart was correct to invoke it, of course, but he did not fully grasp the limitedness of the guidance which it pro

Metasurveillance

'Bulk Metadata Collection: Statutory and Constitutional Considerations' by Laura Donohue in Harvard Journal of Law and Public Policy (Forthcoming) considers metadata collection and analysis, highlighted through revelation for example about PRISM.

Donohue comments that

Part I of this article begins by pointing out that the reason Congress introduced FISA was to make use of new technologies and to enable the intelligence community to obtain information vital to U.S. national security, while preventing the NSA and other federal intelligence-gathering entities from engaging in broad domestic surveillance. The legislature sought to prevent a recurrence of the abuses of the 1960s and 1970s that accompanied the Cold War and the rapid expansion in communications technologies.

Congress circumscribed the NSA’s authorities by limiting them to foreign intelligence gathering. It required that the target be a foreign power or an agent thereof, insisted that such claims be supported by probable cause, and heightened the protections afforded to the domestic collection of U.S. citizens’ information. Initially focused on electronic surveillance, FISA expanded over time to incorporate physical searches, pen registers and trap and trace, and business records and tangible goods.

The NSA program reflects neither the particularization required by Congress prior to acquisition of information, nor the role anticipated by Congress for the Foreign Intelligence Surveillance Court and Court of Review.

The bulk collection program, moreover, as pointed out in Part II of this Article, violates the statutory language in three important ways: (a) it fails to satisfy the requirement that the records sought “are relevant to an authorized investigation”; (b) it fails to satisfy the statutory provision that requires that information sought could be obtained via subpoena duces tecum; and (c) it bypasses the statutory framing for pen registers and trap and trace devices.

Part III of this Article suggests that the bulk collection of U.S. citizens’ metadata also gives rise to serious constitutional concerns.

Further examining the Supreme Court’s jurisprudence, Part III goes on to note that over the past decade, tension has emerged between considering new technologies from the perspective of trespass doctrine or from the application of Katz’s reasonable expectation of privacy test. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs, divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines to the telephony metadata program.

Under trespass doctrine, the primary order for the program amounts to a general warrant — the elimination of which was the aim of the Fourth Amendment. In light of social norms, it is also a digital trespass on individuals’ private spheres. Under Katz, in turn, Americans do not expect that their telephony metadata will be collected and analyzed. Indeed, most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information. The courts also have begun to recognize, in a variety of contexts, the greater incursions into privacy represented by new technologies.

A variant of the government’s argument suggests that the mere acquisition of data, absent human intervention, means that it is not a search. There are multiple problems with this approach, not least of which are that the Supreme Court has never carved out an automation exception; that privacy interests are determined from the perspective of the individual, not the government; and that the decision to collect the information is replete with human interaction. Citations to the usefulness of such information fail to extract the program from a Constitutional abyss.

Part IV concludes this Article by calling for an end to the telephony metadata program and the implementation of FISA reform to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of U.S. law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs”, and requiring the government to demonstrate past effectiveness prior to renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States.

Foster's Fijian Holiday

Given that I'm writing a book chapter at the moment about the psychology of white collar crime (Madoff, Stanford, Balfour, Ponzi, Kreuger, Maxwell etc)  it was interesting to see that serial scammer and self-described "international man of mischief" Peter Foster has supposedly skipped the country after being sentenced for contempt of court in connection with yet another bout of criminality. Whodathunkit.

The Sunday Mail breathlessly reports that

In an audacious bid for freedom, Foster, 51, disguised and travelling on a false passport, arrived early on Saturday in Fiji, where he will seek a protection visa. In an exclusive interview  ... Foster refused to reveal how he made it out of the country. He said his escape had left him exhausted and "sick to the stomach". "There is a sense of exhilaration," Foster said. "But I've left a beautiful home and a beautiful family now. I'm a stranger again. It's hard to celebrate. I know I should be happy but I'm not. I just feel incredible sadness."

Poor poor diddums. There's nothing like a narcissist who apparently believes his own stories - and persuades other people to believe them - and recurrently operates outside the law.

Last Thursday Justice Logan in the Brisbane District Court sentenced Foster to three years' jail on two charges of contempt of court relating to his involvement in the scam diet spray Sensaslim. Foster had been on the run since September 27 after Justice Logan found [ in Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984] the self-proclaimed "international man of mischief" guilty of contempt. Peter Foster said he had been planning his escape for six months. Foster vowed to appear in court for sentencing last Thursday after he had put plans in place for the care of his elderly, ailing mother Louise should he be sent to prison. In the end, Foster failed to show, and was sentenced to three years' jail in absentia. Justice Logan said if Foster's mother died while he was incarcerated, he should be permitted to attend her funeral. Foster indicated on Saturday that he had been planning a possible escape for six months.

No great surprises there.

"This is not about avoiding jail. This is bigger than me. It's about my mother. She will not spend the twilight days of her life in a nursing home. She will spend it being cared for by me and she will spend it with a cool sea breeze in her hair, in the shade of a coconut palm. Her therapy will be floating in a blue lagoon. I just know this place will be my mother's fountain of youth. This whole thing was a malicious prosecution because it was Peter Foster. ... As far as I'm concerned, Justice Logan can shove it up his jacksie."

Foster earlier claimed that prosecution by the  Australian Competition and Consumer Commission over promotion to investors of SensaSlim was “vicious and malicious”.

The Courier Mail reports that Foster once boasted he had been locked up in 10 jails on three continents.

He has a history of jumping bail and going on the run.

In 1997 he went into hiding during proceedings to extradite him to England over a diet scam.

In that instance he was arrested in Melbourne two months later, with a family friend ordered to forfeit a $250,000 bond she had put up as surety for him.

Foster claims [PDF] to

have been an undercover operative for the Australian Federal Police (1993-94 and 1997) and Derbyshire Force Intelligence in England (1996) so perhaps it is in my nature to take risks and seek redemption for my own sins and misdemeanours by trying to expose evil.

Let's hope that his Fijian holiday doesn't last very long.

Aufklarung

And from Mr Kant

Enlightenment is man's emergence from his self-imposed guardianship. Guardianship is the inability to use one's own understanding without another's guidance. This guardianship is self-imposed if its cause lies not in lack of understanding but in indecision and lack of courage to use one's own mind without another's guidance. Sapere aude. Dare to know! "Have the courage to use your own understanding," is therefore the motto of the enlightenment.

Laziness and cowardice are the reasons why such a large part of mankind gladly remain minors all their lives, long after nature has freed them from external guidance. They are the reasons why it is so easy for others to set themselves up as guardians. It is so comfortable to be a minor. If I have a book that thinks for me, a cleric who acts as my conscience, a physician who prescribes my diet, and so on - then I have no need to exert myself. I have no need to think, if only I can pay; others will take care of that disagreeable business for me. Those guardians who have kindly taken supervision upon themselves see to it that the overwhelming majority of mankind - among them the entire fair sex - should consider the step to maturity, not only as hard, but as extremely dangerous. First, these guardians make their domestic cattle stupid and carefully prevent the docile creatures from taking a single step without the leading-strings to which they have fastened them. Then they show them the danger that would threaten them if they should try to walk by themselves. Now this danger is really not very great; after stumbling a few times they would, at last, learn to walk. However, examples of such failures intimidate and generally discourage all further attempts.

Thus it is very difficult for the individual to work himself out of the guardianship which has become almost second nature to him. He has even grown to like it, and is at first really incapable of using his own understanding because he has never been permitted to try it. Dogmas and formulas, these mechanical tools designed for reasonable use - or rather abuse - of his natural gifts, are the fetters of an everlasting guardianship. The man who casts them off would make an uncertain leap over the narrowest ditch, because he is not used to such free movement. That is why there are only a few men who walk firmly, and who have emerged from guardianship by cultivating their own minds.

It is more nearly possible, however, for the public to enlighten itself; indeed, if it is only given freedom, enlightenment is almost inevitable. There will always be a few independent thinkers, even among the self-appointed guardians of the multitude. Once such men have thrown off the yoke of guardianship, they will spread about them the spirit of a reasonable appreciation of man's value and of his duty to think for himself. It is especially to be noted that the public which was earlier brought under the yoke by these men afterwards forces these very guardians to remain in submission, if it is so incited by some of its guardians who are themselves incapable of any enlightenment. That shows how pernicious it is to implant prejudices: they will eventually revenge themselves upon their authors or their authors' descendants. Therefore, a public can achieve enlightenment only slowly. A revolution may bring about the end of a personal despotism or of avaricious tyrannical oppression, but never a true reform of modes of thought. New prejudices will serve, in place of the old, as guide lines for the unthinking multitude.

This enlightenment requires nothing but freedom - and the most innocent of all that may be called "freedom": freedom to make public use of one's reason in all matters. Now I hear the cry from all sides: "Do not argue!" The Officer says: "Do not argue - drill!" The Tax Collector: "Do not argue - pay!" The Cleric: "Do not argue - believe!" Only one prince in the world says: "Argue as much as you please, but obey!" We find restrictions on freedom everywhere. But which restriction is harmful to enlightenment? Which restriction is innocent, and which advances enlightenment? I reply: the public use of one's reason must be free at all times, and this alone can bring enlightenment to mankind.

On the other hand, the private use of reason may frequently be narrowly restricted without especially hindering the progress of enlightenment. By "public use of one's reason" I mean that use which a man, as scholar, makes of it before the reading public. I call "private use" that use which a man makes of his reason in a civic post that has been entrusted to him. In some affairs affecting the interest of the community a certain& mechanism is necessary in which some members of the community remain passive. This creates an artificial unanimity which will serve the fulfillment of public objectives, or at least keep these objectives from being destroyed. Here arguing is not permitted: one must obey. Insofar as a part of this machine considers himself at the same time a member of a universal community - a world society of citizens - (let us say that he thinks of himself as a scholar rationally addressing his public through his writings) he may indeed argue, and the affairs with which he is associated in part as a passive member will not suffer. Thus it would be very unfortunate if an officer on duty and under orders from his superiors should want to criticize the appropriateness or utility of his orders. He must obey. But as a scholar he could not rightfully be prevented from taking notice of the mistakes in the military service and from submitting his views to his public for its judgment. The citizen cannot refuse to pay the taxes levied upon him; indeed, impertinent censure of such taxes could be punished as a scandal that might cause general disobedience. Nevertheless, this man does not violate the duties of a citizen if, as a scholar, he publicly expresses his objections to the impropriety or possible injustice of such levies. A cleric, too, is bound to preach to his congregation in accord with the doctrines of the church which he serves, for he was ordained on that condition. But as a scholar he has full freedom, indeed the obligation, to communicate to his public all his carefully examined and constructive thoughts concerning errors in that doctrine and his proposals concerning improvement of religious dogma and church institutions. This is nothing that could burden his conscience. For what he teaches in pursuance of his office as representative of the church, he represents as something which he is not free to teach as he sees it. He speaks as one who is employed to speak in the name and under the orders of another. He will say: "Our church teaches this or that; these are the proofs which it employs." Thus he will benefit his congregation as much as possible by presenting doctrines to which he may not subscribe with full conviction. He can commit himself to teach them because it is not completely impossible that they may contain hidden truth. In any event, he has found nothing in the doctrines that contradicts the heart of religion. For if he believed that such contradictions existed he would not be able to administer his office with a clear conscience. He would have to resign it. Therefore the use which a scholar makes of his reason before the congregation that employs him is only a private use, for no matter how sizable, this is only a domestic audience. In view of this he, as preacher, is not free and ought not to be free, since he is carrying out the orders of others. On the other hand, as the scholar who speaks to his own public (the world) through his writings, the cleric in the public use of his reason enjoys unlimited freedom to use his own reason and to speak for himself. That the spiritual guardians of the people should themselves be treated as minors is an absurdity which would result in perpetuating absurdities.

But should a society of clerics, perhaps a church council or a venerable classis (as they call themselves among the Dutch), be justified in obligating itself by oath to a certain unchangeable doctrine in order to enjoy perpetual guardianship over each of its numbers and through them over the people as a whole, and even to make it eternal? I answer that this is altogether impossible. Such contract, made to shut off all further enlightenment from the human race, is absolutely null and void even if confirmed by the supreme power, by parliaments, and by the most ceremonious of peace treaties. An age cannot bind itself and ordain to put the succeeding epoch into such a condition that it cannot extend its (at best very occasional) knowledge, purging themselves of errors, and generally progressing in enlightenment. That would be a crime against human nature, the proper destination of which lies precisely in this progress and the descendants would be fully justified in rejecting those decrees as having been made in an unwarranted and malicious manner. Therefore, succeeding ages are fully entitled to repudiate such decisions as unauthorized and outrageous. The touchstone of all those decisions that may be made into law for a people lies in this question: Could a people impose such a law upon itself? Now it might be possible to introduce a certain order for a definite short period of time in expectation of better order. But, while this provisional order continues, each citizen (above all, each pastor acting as a scholar) should be left free to publish his criticisms of the faults of existing institutions. This should continue until public understanding of these matters has gone so far that, by uniting the voices of many (although not necessarily all) scholars, reform proposals could be brought before the sovereign to protect those congregations which had decided according to their best lights upon an altered religious order, without, however, hindering those who want to remain true to the old institutions. But to agree to a perpetual religious constitution which is not publicly questioned by anyone would be, as it were, to annihilate a period of time in the progress of man's improvement. This must be absolutely forbidden.

A man may postpone his own enlightenment, but only for a limited period of time. And to give up enlightenment altogether, either for oneself or one's descendants, is to violate and to trample upon the sacred rights of man. What a people may not decide for itself may even less be decided for it by a monarch, for his reputation as a ruler consists precisely in the way in which he unites the will of the whole people within his own. If he only sees to it that all true or supposed  improvement remains in step with the civic order, he can for the rest leave his subjects alone to do what they find necessary for the salvation of their souls. Salvation is none of his business; it is his business to prevent one man from forcibly keeping another from determining and promoting his salvation to the best of his ability. Indeed, it would be prejudicial to his majesty if he meddled in these matters and supervised the writings in which his subjects seek to bring their [religious] views into the open, even when he does this from his own highest insight, because then he exposes himself to the reproach: Caesar non est supra grammaticos. It is worse when he debases his sovereign power so far as to support the spiritual despotism of a few tyrants in his state over the rest of his subjects.

When we ask, Are we now living in an enlightened age? the answer is, No, but we live in an age of enlightenment. As matters now stand it is still far from true that men are already capable of using their own reason in religious matters confidently and correctly without external guidance. Still, we have some obvious indications that the field of working toward the goal [of religious truth] is now opened. What is more, the hindrances against general enlightenment or the emergence from self-imposed guardianship are gradually diminishing. In this respect this is the age of the enlightenment and the century of Frederick.

A prince ought not to deem it beneath his dignity to state that he considers it his duty not to dictate anything to his subjects in religious matters, but to leave them complete freedom. If he repudiates the arrogant word "tolerant", he is himself enlightened; he deserves to be praised by a grateful world and posterity as that man who was the first to liberate mankind from dependence, at least on the government, and let everybody use his own reason in matters of conscience. Under his reign, honorable clerics, acting as scholars and regardless of the duties of their office, can freely and openly publish their ideas to the world for inspection, although they deviate here and there from accepted doctrine. This is even more true of every person not restrained by any oath of office. This spirit of freedom is spreading beyond this land] even where it has to struggle against the external hindrances established by a government that fails to grasp its true interest. This land is a shining example that freedom need not cause the least worry concerning public order or the unity of the community. When one does not deliberately attempt to keep men in barbarism, they will gradually work out of that condition by themselves.

I have emphasized the main point of the enlightenment - man's emergence from his self-imposed guardianship - primarily in religious matters, because our rulers have no interest in playing the guardian to their subjects in the arts and sciences. Above all, guardianship in religion is not only the most harmful but the most dishonorable. But the disposition of a sovereign ruler who favors freedom in the arts and sciences goes even further: he knows that there is no danger in permitting his subjects to make public use of their reason and to publish their ideas concerning a better constitution, as well as candid criticism of existing basic laws. Of this we have a shining example wherein no monarch is superior to him we honour.

But only the man who is himself enlightened, who is not afraid of shadows, and who commands at the same time a well disciplined and numerous army as guarantor of public peace - only he can say what a republic cannot dare to say: "Argue as much as you like, and about what you like, but obey!" Thus we observe here as elsewhere in human affairs, in which almost everything is paradoxical, a surprising and unexpected course of events: a large degree of civic freedom appears to be of advantage to the intellectual freedom of the people, yet at the same time it establishes insurmountable barriers. A lesser degree of civic freedom, however, creates room to let that free spirit expand to the limits of its capacity. Nature, then, has carefully cultivated the seed within the hard core - namely the urge for and the vocation of free thought. And this free thought gradually reacts back on the modes of thought of the people, and men become more and more capable of acting in freedom. At last free thought acts even on the fundamentals of government and the state finds it agreeable to treat man, who is now more than a machine, in accord with his dignity.

Offences

The Victorian Government has released a 220 page consultation paper [PDF] regarding its Review of Sexual Offences.

The paper states that

Many of Victoria’s sexual offence laws are complex, inconsistent and unclear. Nowhere is this problem worse than with the offence of rape. These problems make it extremely difficult, if not impossible, for a judge to explain the law to a jury in a clear and intelligible manner and for the jury to understand and apply the law to the facts in the case. These problems have resulted in numerous appeals, convictions being set aside and retrials being ordered, most notably in Worsnop v The Queen (2010) 28 VR 187 and Getachew v The Queen [2011] VSCA 164.

There have been many calls for significant reform of Victoria’s rape laws since these decisions. These calls have emanated from the judiciary, lawyers, academics, victim/survivor support groups and the media. The Attorney-General has publicly committed to reforming sexual offence laws and jury directions in order to address the current complexity, inconsistency and uncertainty. Victoria’s sexual offence laws are also failing to respond adequately to the problem of persistent sexual abuse of a child. The current approach does not work effectively for child victims/survivors who, because of the repeated and systematic nature of the offending against them, are unable to distinguish between the different instances of abuse. A fresh approach to this problem is needed. While rape laws have been frequently amended in the last 20 years, other sexual offences have not received the same attention. As a consequence, some have become outdated, inconsistent and unclear in their scope, structure and terminology. Other offences fail to recognise that sexual offences can be committed in new ways through advances in technology.

This review examines rape and other sexual offences in the Crimes Act 1958, focussing not only on policy issues, but also on the structure and components of each offence. This practical focus is essential for effective reform. Our aim is to make sexual offences as clear, simple, consistent and effective as possible. Simpler and clearer offences will assist judges to direct juries, and juries to understand and apply the law. This will help to reduce successful appeals against conviction for a sexual offence. A better functioning criminal justice system will help to improve the experience of victims/survivors who report a sexual offence to the police.

The County Court is Victoria’s principal trial court. Almost 50% of all trials that go to verdict in the County Court are sexual offence trials. In 2002/03 only 36% of all trials were sexual offence trials. Over the last 10 years there has been an 81% increase in the number of sexual offence trials. This reflects an increase in the proportion of sexual offence cases as well as an increase in the overall number of trials conducted. Better laws will deliver substantive justice in individual cases and, in combination with other proposed reforms to jury directions, will assist in reducing delay. This paper contains 49 proposals for, and 10 questions about, reform of Victoria’s most important sexual offences and procedure. The paper also contains a number of options and questions about possible reforms. The Department of Justice seeks feedback on each of the proposals, options and questions in this paper in order to provide advice to the government on how best to reform sexual offences.

The paper goes on to address particular issues, as follows -  

Rape and compelling sexual penetration

The existing rape laws are highly complex and difficult to explain to juries. As a result, they have been the subject of numerous appeals and retrials, which are extremely stressful for victims/survivors, create delays in the criminal justice system and are costly. Many rape convictions have been set aside on appeal; the complexity of the law is the principal reason for the appeals succeeding.

Many of the problems stem from the fault element in relation to the complainant not consenting. For the offence of rape, the principal fault elements refer to the state of mind of the accused: was the accused aware that the complainant was not consenting or might not be consenting? However, if the accused argues that he or she did not have that state of mind because he or she believed the complainant was consenting, which often occurs, the issues become very complex. The jury must consider whether the accused’s belief was reasonable in all the circumstances. However, the trial judge must ‘balance’ this direction by explaining that whether the accused had reasonable grounds goes only to the issue of whether the accused actually had the belief.

There may also be evidence that the accused was aware that the complainant was asleep, or was so intoxicated as to be incapable of consenting, or that the complainant was submitting because of fear of force or harm. The Crimes Act specifies that this evidence is relevant to the accused’s claimed belief that the complainant was consenting but does not indicate that it has any relevance to the fault elements, namely whether the accused was aware that the complainant was not or might not be consenting. In this kind of situation, the trial judge must give the jury a number of directions concerning these issues.

The accused’s awareness of the above kinds of factors (e.g. that the complainant was asleep) is relevant to determining whether the accused’s belief that the complainant was consenting was reasonable in the circumstances. This must be understood in the limited way of assisting the jury to determine whether the accused actually or genuinely believed the complainant was consenting. And if the accused did so believe, the nature and strength of this belief must then be assessed in determining whether this prevents the prosecution from proving beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not be consenting.

Applying these directions to disputed evidence, where the evidence is also often the subject of directions about the purposes for which certain evidence may or may not be used, makes these directions even more difficult in a real case.

These directions are extraordinarily complex. The VLRC called for the review of sexual offence laws in its Jury Directions: Final Report (2009). Not surprisingly it has led to the Court of Appeal commenting that these laws throw into doubt the expectations of the jury system that the trial judge can explain the law and that the jury can comprehend the law, in all its permutations. Further the Court of Appeal has called for the ‘urgent and wholesale amendment’ of these laws.

In addition, there is a concern that the offence of rape is too narrow because it does not criminalise situations in which the accused’s belief that the complainant consented is completely unreasonable in all the circumstances.

In Part 3, we present three options for reforming the fault element in relation to the complainant not consenting in the offence of rape.

Option 1 would maintain the current law’s alternative fault elements with regard to the complainant not consenting, but seek to improve the clarity and structure of the offence and address a number of matters that are currently too complex or uncertain.

Option 2 would replace the three current alternative fault elements with two new alternative fault elements: either the accused knew that the complainant was not consenting or did not believe on reasonable grounds that the complainant was consenting. This option addresses the inherent functional complexities in the current fault element. Option 2 replaces these technical legal issues with more practical tests that can be applied by a jury. It also incorporates a policy proposal that a person who has no reasonable grounds for believing that another person is consenting to sexual intercourse should be guilty of the offence of rape.

Option 3 would split the proposal in Option 2 into two separate offences. The first offence would cover where the accused knew that the complainant was not consenting or did not believe that the complainant was consenting. The second offence would cover where the accused did not have reasonable grounds for believing that the complainant was consenting. This second offence would be called ‘sexual violation’ and would be subject to a lesser penalty than rape.

Part 3 also proposes a number of changes to the other elements of rape and the offence of compelling sexual penetration in order to make these offences simpler, clearer and easier to explain to juries.

Sexual assault and related offences

The offences of indecent assault and assault with intent to rape are inadequate in several respects. The notion of ‘indecency’ is unclear and outdated, and the definition of ‘assault’ is complex and unclear. The elements of the offence of assault with intent to rape are also unclear, and the maximum penalty for this offence (10 years imprisonment) is too low to properly reflect its seriousness as an offence preparatory to rape.

In Part 4 we discuss the forms of non-penetrative sexual assault that require proof of physical contact between the accused and the complainant. Our proposed changes would:

• replace the offence of indecent assault with a new offence of sexual assault, which would modernise the terminology of the existing offence, and clarify its elements and scope 

• revise the offence of assault with intent to rape in order to clarify its elements, in particular the meaning of ‘intent to rape’ 

• increase the maximum penalty for assault with intent to rape from 10 years imprisonment to 15 years imprisonment, and 

• create a new offence of compelling sexual touching to complement the offence of compelling sexual penetration.

In Part 10 we discuss offences related to sexual assault that do not require proof of physical contact between the accused and the complainant. Our proposed changes would:

• replace the current offence of threatening to assault with intent to commit rape with a clear new offence of threat to rape 

• create a new offence of performing a sexual act intended to cause another person to experience fear or distress, and 

• replace the current statutory and common law offences of wilful and obscene exposure with a clear and revised summary offence of sexual exposure.

Sexual intercourse with a child

In Part 5 we discuss sexual penetration offences against a child. The current approach to sexual penetration offences against children under 16 – a single offence with three different maximum penalties – differs from the approach used for all other sexual offences. It is unnecessarily complex for police, lawyers, judges and juries. In addition, the maximum penalty for sexual penetration of a child under 16 (but not under 12) warrants further consideration.

Our proposal is to simplify the current approach by replacing the offences in sections 45 and 48 of the Crimes Act with three new offences:

• sexual intercourse with a child under 12

• sexual intercourse with a child under 16, and

• sexual intercourse with a child aged 16 or 17 who is under the care, supervision or authority of the accused.

We also propose changes that would:

• increase the maximum penalty for sexual intercourse with a child under 16 from 10 years to 15 years imprisonment in all situations (by removing the need for the prosecution to prove that the child is under the care, supervision or authority of the accused), in order to reduce the large gap in the maximum penalty for offences against a child under 12 and a child aged 12 or older

• use a description of conduct that is consistent with the conduct in rape offences 

• expand the definition of ‘care, supervision or authority’ to include a broader range of people within religious organisations who provide religious care or religious instruction to a child 

• modernise and clarify the available exceptions and defences to the offences, and the allocation of the burden of proof in relation to each exception and defence, in order to reduce the complexity of jury directions concerning the defence of consent and reasonable mistake, and 

• make offences generally much clearer and easier to prosecute and to explain to juries.

Sexual touching of a child, and sexual activity in the presence of a child

The current offences of committing an indecent act with or in the presence of a child contain a number of complexities and limitations. The notion of an ‘indecent’ act is unclear, outdated and requires modernisation. In addition, these offences have not kept pace with technological changes and need to be broadened to include sexual activity directed at a child through the use of technology.

In Parts 6 (dealing with sexual touching of a child) and 7 (dealing with sexual activity in the presence of a child), we propose changes that would:

• create separate new offences of sexual touching of a child and sexual activity in the presence of a child 

• clarify the conduct involved in each new offence by distinguishing clearly between contact forms of sexual activity with a child (that do not involve sexual penetration) and non-contact forms of sexual activity with a child 

• replace the notion of ‘indecent act’ with the simpler concepts of ‘sexual touching’ (consistent with the approach in the proposed offence of sexual assault) and ‘sexual activity’

• expand what it means to engage in conduct ‘in the presence of’ a child, in order to capture different ways of committing child sexual offences, including over the internet, and

• clarify fault elements, exceptions and defences in relation to the current offences, which should assist judges in directing juries. 

Encouraging and grooming a child to engage in sexual conduct

The current offences of soliciting or procuring a child to take part in an act of sexual penetration or an indecent act are unclear, outdated and rarely used. The Cummins Report, Protecting Victoria’s Vulnerable Children (2012), recommended that Victoria enact an internet grooming offence. In Part 8 we propose changes that would:

• provide a more modern, useable and responsive scheme of preparatory sexual offences, by replacing the current soliciting or procuring offences with new offences of encouraging a child to engage in sexual conduct 

• expand criminal liability to apply where a person encourages a child to engage or be involved in sexual conduct, regardless of whether the child in fact engaged in any sexual conduct

• remove the requirement that an accused be aged 18 or older, and

• create a new offence of grooming a child under 16 for sexual conduct, which would apply whether the grooming occurs online, face to face or by any other means.

Exceptions and defences to sexual offences against children

In this review, we distinguish between ‘exceptions’ and ‘defences’ to sexual offences. We define an ‘exception’ as a provision which limits the scope of an offence by setting out particular conditions under which no offence is committed. In contrast, a ‘defence’ provides a separate basis for exculpating the accused, even where he or she has committed an offence. An accused who falls within an exception commits no offence, whereas an accused who successfully relies on a defence commits the offence, but is not guilty of the offence.

In Part 9 we discuss in more detail the rationale for, and scope of, each exception and defence to child sexual offences. We also propose a number of changes to make the exceptions and defences more consistent, less complex and easier to use, including clarifying the allocation of the burden of proof.

Changes to other sexual offences

In Part 11 we propose a number of changes to incest offences and the current offence dealing with persistent sexual abuse of a child.

We pose an important question in relation to the current incest offences. In all reported cases of incest involving a parent, step-parent or lineal ancestor and their child (of any age), the child is the victim/survivor. However, the Crimes Act makes it an offence for a person (aged 18 or over) to have sexual intercourse with their parent or lineal ancestor. The very existence of this offence contributes to a perception that child victims/survivors are complicit in some way in incestuous sexual abuse. The VLRC recommended in its Sexual Offences: Final Report (2004) that this offence be repealed. Part 11 poses the question whether this offence be kept, repealed or amended to provide an exception for adult children who were previously the victim of child sexual abuse.

We also propose minor changes to update the terminology and scope of the incest offences. These changes would modernise the definition of ‘child’ and related terms to reflect new types of parentchild relationships, and expand the scope of the offences to include domestic partnerships.

Procedural reforms and prosecuting multiple charges

Parts 12 and 13 address some current problems concerning the way certain kinds of sexual offending are prosecuted. Part 12 deals with repeat and systematic sexual offending. The current offence of persistent sexual abuse of a child fails to deal effectively with this most serious form of sexual offending. This is because it requires victims/survivors to provide specific details of each different instance of offending, and this is often not possible due to the repeated and systematic nature of the sexual  abuse. As a result, either no offence can be charged or only isolated offences can be charged. Several attempts have been made by parliaments across Australia to address the problems identified by the High Court in the case of S v The Queen (1989) 168 CLR 266.

No other Australian jurisdiction has found a way of dealing effectively with this heinous form of sexual offending. However, these problems have been successfully avoided or addressed in other jurisdictions such as the United Kingdom and New Zealand.

In Part 12 we propose a significant new approach to enable repeat offending to be charged. This new approach, based on the United Kingdom’s laws, could be used effectively for child sexual offences, but is not limited to these offences. This new approach would allow the filing of a charge (known as a ‘multiple offences charge’) that alleges a course of conduct of offending. Under this approach, it would not be necessary to identify specific offences in separate charges. This approach uses the very problem, the repetitive nature of offending, as the source of the solution. It essentially replaces the need for specific details with the need for proof of a course of conduct. This new approach would provide a fair and effective process for dealing with allegations of repeated sexual offences.

Part 13 deals with problems which can arise with sexual offences where one episode or occasion of offending gives rise to multiple charges because of the way the definition of rape, for example, covers a variety of types of sexual penetration. Such indictments treat the different instances of penetration as if they were distinct episodes of offending. To cover the whole episode, every separate penetration is charged as rape. This can make the jury’s task more complex than it needs to be and arguably may not properly reflect the true extent of the offender’s criminality. Sometimes this results in an indictment being ‘overloaded’. In Part 13 we propose a way to simplify such prosecutions by allowing the prosecution to allege multiple offences, in relation to the one occasion of offending, in the one charge.

The volume of charges can also be a problem because of limitations concerning when a court may take into account the surrounding circumstances, when these circumstances constitute a separate offence. The general presumption is that a person cannot be sentenced for an offence with which they have not been charged (Newman and Turnbull v The Queen [1997] 1 VR 146). This results in the prosecution charging lesser offences to ensure that the court can take all relevant circumstances into account when sentencing an offender. Part 13 proposes a simpler way for the court to consider less serious offences when sentencing, thereby allowing the prosecution to file indictments with fewer charges, which will make the jury’s task much easier

Secrecy

I'm chasing citations after reading Mark Harrison's elegant 'Secrecy' in Harrison (ed) Guns & Roubles: The Defense Industry in the Stalinist State (Yale University Press, 2008).

'Soviet controls on the circulation of information in the 1920s and 1930s' by Jonathan Bone in (1999) 40 (1-2) Cahiers du monde russe comments that

If Bolsheviks in general understood that knowledge is power, Stalinists institutionalized the adage. Historians have long recognized that Stalin and his supporters used control over information to help them gain, exercise, and maintain power in the USSR of the 1920s and 1930s. Surprisingly, however, there has been little serious investigation of how this deliberate manipulation might have affected the era's archival records. On the basis of recent work in a variety of Russian repositories, therefore, I should like to offer some initial observations on the ways information was controlled within the pre-war Soviet apparat (Party and state apparatus).

From the apparat's inception, conspiratorial Bolshevik habits (carried over from pre-revolutionary practice) reinforced tendencies normally inherent in bureaucratic settings such that knowledge was subjected to control. Individuals and especially institutions in the subsequent, formative years not only routinely manipulated information for their own proximate reasons. More and more they were required to control it procedurally, as part of the general process of consolidating and administering Soviet rule.

Specialists in the history of the 1920s and 1930s have paid considerable attention over the years to the increasing censorship of publicly disseminated information. However we have given short shrift to the control of information circulating within the apparat itself. While the Soviet Union still existed this neglect was an honest artifact of restricted archival access. In the relatively open post-1991 era, though, it has continued for what I think have been rather different reasons.

First, although cold-war concerns have not vanished entirely, the social focus that used to be decidedly heterodox now dominates our research. Our prior obsessions with the top end of the Soviet system and its capacity to do harm have yielded to broader interests in Soviet society and in the subtleties of the statesociety interface.

Second, many post-1991 investigators (Russians in particular) have been rather more interested in exhuming the Stalinist past than in the relatively prosaic work of analyzing it in full forensic detail. Given that the former activity must precede the latter, much of the bias is wholly understandable and perfectly normal. Unfortunately, zeal in uncovering repression and other salient secrets occasionally has exceeded attention paid to the provenance and general import of the evidence in question.

Controls on the circulation of information within the apparat can be divided heuristically into three general categories: right-to-know controls, need-to-know controls, and special handling procedures.

What I call 'right-to-know controls' involved the consecration of various types of material according to an elaborate, graded system of secrecy classification. Access to these sacred texts was proportionate to standing within the state apparatus. The lower the potential recipient's sacerdotal status, the lower the category of esoteric knowledge that was allowed.

'Need-to-know controls' circumscribed the circulation of information at a given right-to-know secrecy level. They compartmentalized knowledge that was notionally relevant to constituent parts of the state apparatus. In particular, they ensured that bureaucratic paper was directed to specific recipients and that these documents contained only that information thought necessary and/or sufficient for the purpose at hand.

Finally, 'special handling procedures' governed the preparation, distribution, and storage of secret materials. Note that none of these generic types of controls were mutually exclusive. Need-to-know targeting often was applied to material already restricted by secrecy classification, further narrowing its circulation. My eventual intent is to work through all three of these areas systematically. I shall confine myself here mainly to right-to-know controls and some special handling procedures.

Harrison's 'Secrecy and Transaction Costs: The Business of Soviet Forced Labour in the Early Cold War' (PERSA Working Paper no. 64, 2011) [PDF] argues that

In 1949 the Cold War was picking up momentum. The Soviet state had entered its most secretive phase. The official rationale of secrecy was defense against external enemies. One of the Gulag’s most important secrets was the location of its labour camps, scattered across the length and depth of the Soviet Union. As this secret was guarded more and more closely, the camps began to drop out of the Soviet economic universe, losing the ability to share necessary information and do business with civilian persons and institutions without disclosing a state secret: their own location. For some months in 1949 and 1950, the Gulag’s camp chiefs and central administrators struggled with this dilemma without achieving a resolution. This episode teaches us about the costs of Soviet secrecy and raises basic questions about how secrecy was calibrated.

His 'Why Secrets? The Uses of Secrecy in Stalin’s Command Economy' comments that

In Stalin’s command system secrecy was used to conceal information and decisions. We look at the uses of secrecy in a hierarchical system of the Soviet type in the context of the fundamental problem of command. Secrecy was a conditional choice. Principals gained by making economic information secret when the agent’s expected profit opportunities in private trade were tempting, horizontal trust was fragile, and secrecy itself was cheap. It paid them to make decisions in secret when unexploited opportunities, and the wage that the principal could afford to pay the agent, were both low. Under some circumstances secrecy benefited both principal and agent. Secrecy was one element in an equilibrium that enabled principals and agents to participate in the command system and enabled the system itself to persist.