Global Fund and access to pharmaceuticals

The latest issue of the WHO Bulletin features 'Ensuring access to life-saving medicines as countries shift from Global Fund support' by  Mercedes Tatay and Els Torreele .

That editorial states

The Global Fund to fight AIDS, Tuberculosis and Malaria has helped the scaleup of life-saving treatments through affordable, quality-assured medicines and diagnostics. However, faced with stagnating donor health funding, in recent years the Global Fund has revised its allocation model and its sustainability, transitions and co-financing policies. 

These policies are driving changes that can have negative implications for people with human immunodeficiency virus (HIV), tuberculosis or malaria. Higher prices of medicines, more use of medicines of unknown quality and more unstable supplies increase the risk of more deaths from these three preventable, treatable diseases, and exacerbate the growing global health challenge of serious drug-resistant infections. The changes also risk undermining opportunities to scale up life-saving innovations. Such innovations include the first new tuberculosis drugs in 40 years, the most effective first-line antiretroviral regimen, and a combination diagnostic platform for HIV, tuberculosis and other pathologies. 

The Global Fund’s revised allocation model continues to prioritize countries with the highest disease burdens and lowest incomes, but presses deprioritized countries to more rapidly mobilize alternative (especially domestic) funds to avoid reversing progress in access to lifesaving medicines. Furthermore, the revised sustainability, transitions and co-financing policy requires all countries, even those with the lowest incomes, to increase their co-financing of disease programmes, including through purchasing medicines and diagnostics. Consequently, many countries shift sooner than anticipated from Global Fund-supported procurement mechanisms to national procurement processes. However, the shift to increased national procurement risks sacrificing the lower prices, quality assurance and sustainable supplies that come with Global Fund procurement

Mobiles and SMS

The ACCC has released a draft report recommending that regulation of wholesale mobile voice services (aka the domestic Mobile Terminating Access Service or MTAS) should continue for a further five years.

The ACCC is also proposing that regulation of the MTAS for SMS services not continue, due to increased competition from messaging services like iMessage and WhatsApp.

The ACCC states

 The MTAS is a wholesale service that allows consumers on different mobile networks to make calls or send SMS to each other. The ACCC has regulated the MTAS since 2014 to ensure calls can be made, and SMS can be sent, between consumers on all mobile phone networks. In August 2018, the ACCC launched a public inquiry examining whether the current regulation, or declaration, of voice and SMS MTAS should be revoked, extended or varied after it expires on 30 June, 2019. 

The ACCC now proposes to continue the declaration of voice services, while removing regulation of the SMS termination service. 

“Many consumers with smartphones are now using over-the-top messaging services such as iMessage and WhatsApp as alternatives to SMS. Importantly, we have also found that the majority of mobile plans now on offer in the market offer unlimited SMS,” ACCC Chair Rod Sims said. 

“Our decision to regulate SMS appears to have had the desired effect. We are therefore proposing to remove regulation of MTAS for SMS services as we do not think continued regulation is necessary to promote competition.” 

“However, over-the-top voice services are not yet substitutes for mobile voice calls as they do not offer the same quality or access to services such as Triple Zero,” Mr Sims said. “We are therefore proposing to continue declaration of MTAS for voice services.”

The draft report states

The Australian Competition and Consumer Commission (ACCC) is of the draft position that the declaration of mobile voice termination remains in the long-term interests of end-users (LTIE). However, there is less evidence that this remains the case with regard to short message service (SMS) termination. 

The ACCC considers that, while mobile network operators (MNOs) continue to have a monopoly over the provision of mobile voice and SMS termination services on their own networks, there have been significant changes in relevant retail markets since the 2013-14 inquiry. The most notable for the purposes of this inquiry is the increased use of over-the-top (OTT) messaging and voice services by Australian consumers. A key question in this declaration inquiry is whether OTT services are now effective retail substitutes for mobile voice and/or SMS services such that regulatory intervention in the wholesale market is no longer required to promote the LTIE. 

Mobile terminating access service (MTAS) voice termination 

The ACCC has come to the draft position that there are no effective substitutes for voice calls for which voice MTAS is an essential input. While OTT voice calls are increasingly used by end-users, their effectiveness as a substitute is limited due to both functionality and consumer behaviour. Therefore, in the absence of regulation, MNOs have the ability and potentially an incentive to exercise their market power in the wholesale markets to deny the provision of this input on reasonable terms, or to set the price of access to inefficiently high levels. 

As such, the ACCC’s draft position is that extending the declaration of mobile voice termination is likely to promote the LTIE as it would:

• promote competition in the retail markets for mobile services and fixed voice services by ensuring, along with regulated prices in the MTAS Final Access Determination, that wholesale mobile voice termination charges are aligned with the efficient cost of the service, 

• promote the achievement of any-to-any connectivity by ensuring that MNOs are not able to set unreasonable terms or conditions of access to mobile voice termination services, and 

• promote the efficient use of, and investment in telecommunications infrastructure, as in the absence of declaration, MNOs have incentives to set above cost pricing. 

MTAS SMS termination 

On the other hand, the ACCC is of the draft position that OTT messaging services are now effective substitutes for SMS services for which SMS termination is required to supply. 

The ACCC has examined the need for declaration in regards to both person-to-person (P2P) SMS and application-to-person (A2P) SMS services. Unlike OTT voice services, there are few limitations to substitution between P2P SMS and OTT messaging. Therefore, in the absence of declaration, there is less incentive for MNOs to exercise their market power to deny supplying SMS termination on reasonable terms, or to set the price of access to inefficiently high levels. This also means that the removal of declaration is unlikely to materially affect the state of competition in the provision of A2P SMS services for which SMS termination serves as a possible input. 

As such, the ACCC’s draft position is that extending the declaration of SMS termination is not necessary to promote the LTIE because it is no longer required to:

• align wholesale prices more closely with efficient cost of the service to promote competition in the downstream markets, 

• achieve any-to-any connectivity by ensuring that no MNOs are able to set unreasonable terms of conditions of access to SMS termination services, and 

• promote the efficient use of, and investment in, telecommunications infrastructure as, in the absence of declaration, MNOs have limited incentives to set above cost prices for SMS termination.

Fake Physiotherapists and Pharmacists

The Tasmanian Magistrates’ Court in Launceston has fined Michael Sylvester Dempsey $120,000 for holding out following action by the Australian Health Practitioner Regulation Agency (AHPRA). The fine is the largest against an individual for offences under the National Health Practitioner Law.

In February 2019, Dempsey pleaded guilty to charges of holding out 11 people as registered physiotherapists or occupational therapists at various aged care facilities in Tasmania, when they were not.

In responding to the conviction of Dempsey AHPRA CEO Martin Fletcher referred to the organisation's determination to protect the community from unlawful and deceptive behaviour, commenting

 The deliberate, intentional and deceptive behaviour uncovered as part of this case is of the most serious kind perpetrated on vulnerable people in aged care facilities. 

AHPRA will not hesitate to take action if we identify someone is practising as a registered practitioner when they are not registered. 

It also highlights the importance of the public and employers checking the online national register of practitioners to make sure services are being provided by a registered health practitioner. If you think someone is not registered – and they should be – tell AHPRA,

AHPRA states that it initiated investigation after a complaint from a registered chiropractor employed by Dempsey’s company Libero Health Care Pty Ltd (Libero). Following its investigation, AHPRA alleged that Libero was engaging unregistered people to provide regulated health services, specifically complex health care to residents at aged care facilities. AHPRA also alleged that the people held out by Libero to deliver services were not registered practitioners and had been instructed to falsely assume/sign the names of registered practitioners when providing treatment to residents in the aged care facilities they visited. The people held out came from unrelated sectors including hospitality and transport, to provide pain management services to around 78 patients whose ages ranged from 67 to 99 years of age across several aged care facilities in Tasmania.

Libero was placed into liquidation in January; Dempsey's registration as a physiotherapist was suspended by the Physiotherapy Board of Australia in September last year.

Earlier this month AHPRA reported

A New South Wales Court has convicted and fined a man for holding himself out as a registered pharmacist following charges laid by the Australian Health Practitioner Regulation Agency (AHPRA). 

At sentencing today, Mr Michael Simon was fined $10,000 and ordered to pay the AHPRA’s legal costs of $4,000. 

Mr Simon has never held registration under the National Law1 and is not eligible to be registered as a pharmacist. 

Mr Simon was alleged to have worked as a pharmacist between 25 and 29 June 2018 at a family owned pharmacy in Randwick. It was alleged that he had dispensed scheduled medications on numerous occasions on 25, 27, 28 and 29 June 2018 at the pharmacy. 

The conduct was identified on 29 June 2018, when an Inspector with the Pharmacy Council of New South Wales conducted a routine inspection of the Pharmacy. On this date, the Council Inspector observed a sign near the dispensary stating, ‘Pharmacist in Charge, Michael George Simon’. Mr Simon claimed to be the registered pharmacist on duty. As the Council Inspector could not find registration details for Mr Simon’s registration on the public register of practitioners maintained by AHPRA, and the Inspector ordered the pharmacy to be closed. The Council then referred the matter to AHPRA. 

As a result, on 19 December 2018, AHPRA charged Mr Simon with four counts of unlawfully holding himself out as a registered pharmacist.

Qld Prisons

Incarceration through an economic lens? The draft report of the inquiry by the Queensland Productivity Commission into Imprisonment and Recidivism comments

• The rate of imprisonment in Queensland—the number of prisoners per head of population—has increased by 44 per cent between 2012 and 2018. This increase is being driven by behavioural, policy and system changes, not underlying rates of crime, which have been falling steadily for the last 20 years. The median prison term is short (3.9 months) and most (65 per cent) are for non-violent offences. 
• Imprisonment is expensive: It costs around $107,000 to accommodate a prisoner for a year.  Imprisonment also has indirect costs on prisoners, their families and communities. These costs are difficult to estimate, but could be around $40,000 per prisoner per year. At the current rate of growth, Queensland will require an additional 4,600 to 5,800 additional prison cells by 2025—this will require around $5.2 to 6.5 billion in infrastructure costs alone. 
• Imprisonment benefits the community where it incapacitates and deters offenders, particularly where it prevents high-harm offences. However, preliminary analysis suggests that:  for a material portion of Queensland’s prison population, the costs of imprisonment outweigh the benefits to the community; for a further portion, lower cost alternatives would provide greater benefits to the community. 
•  Every month over 1,000 prisoners are released back into the community. Many receive limited rehabilitation or support to reintegrate. Over 50 per cent will be back in prison or under community supervision within two years. 
• There are no easy policy solutions. Options that will have a meaningful impact on the prison population will require significant and politically challenging changes to the way things are done. 

Four priority areas for reform are most likely to improve outcomes for the community.

1. Adopt more effective ways to deal with offending 

• Redefine offences currently classified as crimes where the costs of criminalisation outweigh the benefits (possible offences include some regulatory, illicit drug and public nuisance offences). 

• Establish a victim restitution and restoration process. 

• Increase non-prison sentencing options, including home detention, monetary penalties and community-based orders, and remove unnecessary restrictions on these options. 

2. Break the cycle of reoffending 

• Reconfigure rehabilitation and reintegration through an effective service delivery model of throughcare. 

• Remove regulatory and other barriers to reintegration and employment. 

3. Reduce interactions with the criminal justice system 

• Increase diversionary options, including cautions. 

•  Fill the gaps in prevention and early intervention. 

4. Build a better decision-making architecture 

• Change the way funding and policy decisions are made, by establishing a separate justice reform office that is accountable for criminal justice system outcomes.

The report states

Across Australia and other developed countries, governments are contending with rising imprisonment and high levels of recidivism. In Queensland, the number of people in prisons has risen by around 58 per cent between 2012 and 2018. The rate of imprisonment—the number of prisoners per head of population—increased by 44 per cent. Infrastructure has not kept up with this growth, with prisons currently holding around 37 per cent more prisoners than they are designed to hold. 

More than half of prisoners reoffend and are given a new sentence of imprisonment or community supervision within two years of their release. The rate of imprisonment for Aboriginal and Torres Strait Islander people continues to outstrip the rate for the rest of the population, and imprisonment rates for women have been increasing faster than for men. 

The growth in prisoner numbers has significant social and economic implications for the Queensland community, affected individuals and their families, and the Queensland Government. 

In September 2018, the Queensland Government asked the Commission to undertake an inquiry into imprisonment and recidivism in Queensland. The terms of reference for this inquiry ask us to examine how government resources and policies can be best used to reduce imprisonment and recidivism and improve outcomes for the community over the medium to longer term. 

There are many factors that influence imprisonment and recidivism. The scope of this inquiry therefore encompasses a broad set of issues and areas—from early intervention to post- prison support. Our approach to this inquiry reflects that there have been at least 10 major reviews looking at aspects of the criminal justice system in Queensland over the last decade. Many of their recommendations are still being implemented. The Commission has built on, rather than revisit, the issues covered by these reviews. 

The terms of reference ask us to consider:

• trends in imprisonment and recidivism and the causal factors underlying these trends 

• factors affecting imprisonment for Aboriginal and Torres Strait Islander people, women and young people 

• the benefits and costs of imprisonment, including its social effects, financial costs and effectiveness in reducing/preventing crime 

• the effectiveness of programs and services in Australia and overseas to reduce the number of people in prison and returning to prison, including prevention and early intervention approaches, non-imprisonment sentencing options, and the rehabilitation and reintegration of prisoners 

• the efficacy of adopting an investment approach, whereby investments in prevention, early intervention and rehabilitation deliver benefits and savings over the longer term. 

The terms of reference require that our recommendations are consistent with the Queensland Government Policy on the Contracting-out of Services, which states that there will be no contracting-out of services currently provided by the Queensland Government unless it can be clearly demonstrated to be in the public interest. 

As this is a forward-looking inquiry, we have not assessed the extent to which additional prison infrastructure is required to address current levels of overcrowding, nor have we conducted an operational review of each element of the criminal justice system. Rather, we have focused on policy areas where change is most likely to provide the largest benefits for the community. 

The inquiry is predominantly concerned with the adult corrections system. In this context, the Commission has considered the youth justice system as an important pathway into the adult corrections system. Further, the Queensland Government has only recently completed its Youth Justice Strategy for 2019–23 following the 2018 Report on Youth Justice (the Atkinson report). For this reason, the Commission has not conducted a review of the youth justice system for this draft report. 

This draft report represents the first stage of the inquiry. It presents initial findings and recommendations based on the evidence received so far. 

To prepare this draft report, we released an issues paper (September 2018) and consulted with more than 400 stakeholders through: public forums in Brisbane, Townsville, Cairns and Rockhampton; individual meetings with a wide range of stakeholders including the judiciary, unions, legal advocates, peak bodies, Indigenous and non- Indigenous advocacy groups, service providers, academics and government; visits to drug and Murri courts; site visits to four correction centres. 

We also received 43 written submissions, which have been incorporated in our analysis. The policy areas under consideration for this inquiry are complex and potentially controversial, and the evidence is not always clear or settled. For some areas, the Commission is still analysing the evidence to understand why imprisonment levels in Queensland have been rising, particularly for women and Aboriginal and Torres Strait Islander peoples. The Commission is also yet to fully analyse the costs and benefits of potential reform options. 

As a result, the analysis in this report should be considered as preliminary—the purpose of this draft report is to seek further comment on the findings and recommendations. The Commission intends to release supporting papers for consultation during 2019, which will examine trends in imprisonment and recidivism. Following a second round of consultation, we will develop final findings and recommendations and deliver a final report to the Queensland Government by 1 August 2019.

The Commission's draft recommendations are

The draft recommendations outline the key reforms the Commission considers will reduce the use of imprisonment and reduce reoffending in the medium to long term. The Commission's view is that the draft recommendations are unlikely to compromise community safety and, by addressing many of the issues that drive offending are, instead, likely to make the community safer over the longer term. However, the policy areas under consideration for this inquiry are complex and potentially controversial, with evidence that is not always clear or settled. For some areas, the Commission is still analysing the evidence, including data from Queensland Government agencies. Therefore, each of these proposed reforms will require more analysis to ensure they can be implemented in a way that will deliver the best outcomes for the community. 

The Commission is seeking further comments from stakeholders on each of these recommendations. 

Reduce the scope of criminal offences 

R1 The Queensland Government should seek to remove those activities from the Criminal Code Act 1899 and other relevant legislation, for which the benefits of being included do not outweigh the costs. This reform should focus on, but not be limited to, acts that do not have an obvious victim, including: • public order offences • illicit drugs offences • regulatory offences. When assessing whether an activity should be redefined, consideration should be given to: • the extent to which the activity causes harm to others • the costs that criminal sanctions impose on offenders and whether these costs are proportionate to the harm caused to others • the extent to which criminal sanctions deter harmful offending • whether criminalisation has unintended consequences that result in greater harm • whether criminalisation undermines public perception of the legitimacy of the law. 

2 To support any changes to the use of criminal law, the Queensland Government should develop alternative policy approaches where required, including: • incentives to reduce undesirable behaviours, such as civil remedies, tax and regulatory regimes and other non-criminal sanctions • education and information provision, to highlight potential harms from newly decriminalised acts • health responses, such as those that address mental health and drug problems. Information request 

The Commission is seeking further information on the following issues: • What current offences do not warrant being defined as an offence? What current offences do not warrant being defined as an offence if imprisonment is a potential punishment? • What offences, if any, are candidates for downgrading from a criminal offence or misdemeanour to a simple offence or to a regulatory offence? • Is there scope for greater use of the civil law, and for which offences? • Does criminalisation impede a health–based response to the problem of illicit drug usage? • Are there approaches to drug reform that offer significant net benefits? 

Provide options for victim involvement 

R3 The Queensland Government should introduce victim-focused restitution and restoration into the sentencing process. This system should: • give victims the option of engaging in a process of restitution and restoration with the offender prior to sentencing • provide victims and offenders with a wide range of options for achieving restoration for harms inflicted, including financial and non-financial compensation • reflect and enforce, through the sentencing process, agreements that are reached between the victim and offender • provide mechanisms to ensure that courts consider any residual public interest in final sentencing • allow normal court processes to proceed where victims choose not to pursue restitution or restoration or where victims and offenders cannot reach agreement • include appropriate protections for victims and offenders. Victim-focused restitution and restoration should be made available for any offence where a victim is identifiable. 

The Commission is seeking information on the design of a victim restitution and restoration system, including: • key design features such as: – the principles that should guide the residual public interest test – mechanisms to minimise the risk of unnecessary delays – any processes needed where offenders do not fulfil their agreed obligations • whether restoration principles should be included as a sentencing purpose in the Penalties and Sentencing Act 1992 • how restitution and restoration may best meet the needs of Indigenous communities • key risks, costs and benefits, including potential unintended consequences. 

Increase the range of non-custodial sanctions 

R4 The Queensland Government should reform sentencing legislation to: • make sentences involving home detention available to courts • allow courts to impose custodial sentences in low security correctional facilities • remove restrictions on the use of monetary penalties, community service and community-based orders, or the combination of these orders with other sentences. To encourage the appropriate use of non-custodial sentencing, the Queensland Government should: • establish a mechanism to allocate resources to community corrections to support changing court sentencing practices • amend section 9(2) of the Penalties and Sentences Act 1992 to include a consideration of the costs of sentencing options, including the financial costs imposed on the community • review legislated restrictions on judicial discretion to check if they are serving their intended purpose. To ensure sentencing options support community safety and rehabilitation, the Queensland Government should introduce pre-sentence assessment of offenders who may be facing prisons terms. 

R5 To strengthen community confidence in sentencing, the Queensland Government should: • expand the role of the Queensland Sentencing Advisory Council in producing and communicating an evidence base for sentencing and assessing sentencing in Queensland against this evidence • introduce judicial self-monitoring, independent external review or other appropriate mechanisms to improve the consistency of sentencing outcomes for lower level offences where appeals mechanisms are infrequently used. 

The Commission is seeking further information on: • the extent to which the proposed changes to sentencing would result in ‘net widening’, whether this would be desirable, and, if not, ways that it can be managed • the consistency of sentencing outcomes and appropriate ways for sentencing consistency to be monitored in the Magistrates Court • whether victims of crimes should be given the right to instruct the Director of Public Prosecutions to seek leave to appeal against a sentence handed down by a District or Supreme Court. Reduce the use of remand 

R6 To encourage confidence in, and greater use of bail, the Queensland Government should: • develop evidence-based risk assessment tools to assist police and courts when considering bail applications • make available, through legislative amendment, a greater range of non-custodial options to courts, including the use of electronic monitoring and home detention • establish a mechanism to allocate resources to support any changes in the use of community-based supervision • trial remand accommodation options for homeless offenders, including bail hostels and low security custodial facilities • consider extending the operations of Court Link and QMERIT to more locations. 

R7 The Queensland Government should assess whether there are opportunities to reduce time spent on remand by reducing court delays and increasing time for bail hearings. 

R8 To provide greater guidance to courts, the Queensland Government should insert ‘guiding principles’ into the Bail Act 1980, based on the following principles: • maximising the safety of the community and persons affected by crime • taking account of the presumption of innocence and the right to liberty • taking account of the cost of imprisonment to the community • promoting transparency and consistency in bail decision-making • promoting public understanding of bail practices and procedures. 

The Commission is seeking further information on: • the causes of the growth in the remand prisoner population • the causes for delays in court proceedings and possible remedies • any changes to court procedures that could improve decision-making • bail support services and non-custodial options that would improve the effectiveness of, and confidence in, non-remand options • how police and courts should consider risk when assessing bail applications. 

Improve rehabilitation and reintegration 

R9 The Queensland Government should modify legislation, policy and operational procedures to include a clear and specific objective of rehabilitation and reintegration of prisoners. 

R10 To improve rehabilitation and reintegration of prisoners, and to reduce recidivism, the Queensland Government should introduce an effective throughcare model into the adult criminal justice system. The features of this model should include: • clear objectives to rehabilitate and reintegrate prisoners • adequate resourcing to meet these objectives • a focus on individual rehabilitation needs of prisoners • coordinated service delivery • sufficient delegation of authority • transparency and accountability mechanisms that would encourage continuous improvement • incentives to reduce reoffending. In developing this model, consideration should be given to ways to foster markets and community involvement in services that support rehabilitation and reintegration. 

The Commission is seeking evidence from stakeholders on: • the arrangements that would best encourage continuous improvement and effective and efficient rehabilitation and reintegration of prisoners • the appropriate starting point for throughcare in the adult corrections system. 

R11 When Queensland Corrective Services develops its capital program for building new corrections centres or when modifying existing facilities, it should assess options to make infrastructure more effective for prisoner rehabilitation. Consideration should be given to: • the best available international evidence on the effect of infrastructure on rehabilitation • cost-effective options to improve rehabilitation of prisoners. 

The Commission is seeking information on: • completion rates of in-prison programs and the evidence from evaluations or other studies of the contribution of in-prison programs to reducing recidivism in Queensland • how QCS considers the impact on rehabilitation when designing its capital program • the incentives for: – prison managers, to encourage prisoners to participate in and complete programs within prisons and to engage in meaningful employment – prisoners, to participate in and complete programs within prisons and to engage in meaningful employment – course providers, to encourage prisoners to participate in and complete programs within prisons • changes to governance arrangements that would improve rehabilitation and reduce recidivism. 

R12 To lower reoffending, the Queensland Government should improve the likelihood of successful reintegration by: • removing regulatory impediments to reintegration, including the lack of work release options, and uncertain release dates • introducing measures to ensure parole workers’ caseloads support effective community supervision • providing sufficient flexibility on release dates to allow Corrective Services to effectively prepare prisoners for release • ensuring all prisoners, at release, have up-to-date identity documents, including a Medicare card and birth certificate, a driver's licence and bank account where required, and information on social welfare and employment services. 

Further information is sought on: • the number of prisoners receiving reintegration support from government service providers, and the costs of these services • the number of released prisoners accessing government-funded housing each month • the extent to which the NGO sector is supporting prisoners with accommodation (not funded by government) • the number of prisoners released without a planned release date and any problems this creates for the delivery of reintegration services • options for linking released prisoners to accommodation services without government funding • the practicality and value of developing temporary release programs for prisoners in the final stage of a prison sentence. 

Address gaps in prevention and early intervention 

R13 To progress initiatives relating to the youth justice system, the Queensland Government should publish its Youth Justice Action Plan in response to the Report on Youth Justice. As part of this response, the government should publicly report on recommendations and evaluation of programs. 

R14 In implementing the recommendations of the Service delivery to Queensland’s remote and Indigenous communities report, the Queensland Government should prioritise recommendations that address the causal factors for offending, such as entrenched economic disadvantage, including: • removing barriers to local economic activity, including ensuring that procurement and job requirements do not exclude local participation • developing a land tenure reform plan that better supports economic development in remote communities • reforming policies that facilitate the growth of the Indigenous private sector • investigating ways to develop community and market initiatives in Indigenous communities including through the use of arm's length funding arrangements that devolve authority to communities. 

R15 The Queensland Government should: • fill gaps in preventative service delivery where stigmatisation prevents accessibility or funding (such as programs that encourage self-referrals to prevent sexual offending), and establish trials where these are suitable • establish a trial program through schools to identify and better support at-risk children to prevent disengagement from the education system. 

The Commission is seeking further information on: • any deficiencies in prevention and early intervention strategies operating in Queensland • options that are likely to address the underlying causes of incarceration of Indigenous Queenslanders • options that would increase accessibility of stigmatised preventative programs • supports that are required to keep at-risk children in schools. 

Expand diversionary options 

R16 To prevent unnecessary interactions with the criminal justice system, and to better treat offending behaviour, the Queensland Government should: • review current practice and establish KPIs to encourage the efficient use of police discretion, diversion and cautions • introduce additional diversionary options for police, including on-the-spot fines, conditional referrals and additional cautioning options • develop a simple public interest test for police, to encourage and guide the use of discretion. To support these changes, reporting and monitoring arrangements will need to be in place to ensure public confidence and accountability. 

The Commission is seeking information on: • other options that would be effective in reducing unproductive interactions with the criminal justice system • issues that a simplified public interest test should consider • whether there would be benefits from reversing the onus of the public interest test used by public prosecutors for selected low-harm or ‘victimless’ offences • reporting and monitoring arrangements that would ensure public confidence and accountability on the way that police discretion is used. 

Build a better decision-making architecture 

R17 The Queensland Government should establish a justice reform office to: • coordinate and review policy and budget submissions from the core criminal justice sector agencies to cabinet and cabinet committees • implement justice system reforms • advise government of priority criminal justice policy issues • lead and support evidence-based policymaking. The office should be responsible to a suitably constituted board that includes representation from each of the core criminal justice agencies and independent experts. 

R18 The Queensland Government should require the justice reform office to introduce the following specific reforms: • common performance objectives and indicators across the core criminal justice agencies, including targets for: – reducing offending and reoffending rates, including for youth and women – closing the gap on Indigenous incarceration • mechanisms for allocating resources to support system objectives • systems to provide accurate and timely data to support decision-making, and improved transparency and accountability • modelling that promotes understanding of how policy and other proposals are likely to impact across the system • mechanisms to ensure decision-makers are informed of the full impacts of policy proposals on the criminal justice system, clients and stakeholders, such as: – incorporating justice system proposals into the existing regulatory impact assessment process – introducing a formal test to assess impacts across the criminal justice system. These reforms are to be introduced within 24 months of the reform office’s establishment.

EU Genomic Datasharing

The European Commission has highlighted a 13 nation declaration 'for delivering cross-border access to their genomic information.

The Towards access to at least 1 million sequenced genomes in the European Union by 2022 Declaration of Coperation has been signed by the Czech Republic, Estonia, Spain, Italy, Greece, Lithuania, Luxembourg, Malta, Portugal, Slovenia, Finland, Sweden and the UK.

The Declaration states

Having regard, among other initiatives, to:

• The Digital Single Market strategy midterm review1 and notably its priorities on health and care announcing the intention of the European Commission to adopt a Communication including inter alia "supporting data infrastructure to advance research, diseases prevention and personalised health and care in key areas including rare, infectious and complex diseases"; 

• The Council conclusions on "Health in the digital society – making progress in data-driven innovation in the field of health", adopted on 8 December 2017, emphasising that " without prejudice to national legislation and legal grounds for health data processing, flexible systems and tools are needed enabling citizens to access their own data and information on the use of their data, as well as to manage their consent to processing and sharing their health data, including for secondary use” and inviting the Member States and the Commission to "work together with the aim of improving access to larger European datasets, longitudinal data and world-class high performance computing infrastructure for health research and innovation purposes, while ensuring a high level of data protection", building thereby on existing initiatives such as the European Cloud Initiative, encompassing EuroHPC and the European Open Science Cloud; 

• The Council Conclusions on "Encouraging Member States driven Voluntary Cooperation between Health Systems” adopted on 16 June 2017, inviting Member States to "explore areas in which voluntary cross-border collation of data and the development of common principles on data collection in compliance with data protection legislation, may provide added value, while fully respecting Member States' competences"; 

• The Council conclusions on "Personalised medicine for patients", adopted on 7 December 2015, inviting the European Commission to pursue a "dialogue with Member States’ authorities and stakeholders to facilitate step-by-step implementation of the public health genomics approach both at European Union and national level on the basis of past European Union initiatives"; 

• The Council conclusions on "Safe and efficient healthcare through eHealth" adopted on 1 December 2009, calling upon the Member States to conceive and implement initiatives aimed at enabling the deployment and use of eHealth services; 

• The Recommendation of the Council of Europe on Research on Biological Materials of Human Origin4 and other relevant recommendations adopted by the OECD  

• Different national and regional initiatives on genomic medicine that are being developed across the Union, and based on which cooperation can be further enhanced to deliver added value for European research and clinical practice; 

• Existing European and global initiatives and public-private partnerships aiming to foster data-driven research and innovation in health.

The signatories of this declaration recognise that:

• The digital transformation of health and care and, in particular, the use of genomic medicine, will help health systems to meet the challenges they face and become more sustainable , thereby improving the provision of high quality health services for citizens and the effectiveness of treatments for patients; 

• There is a need to ensure that the Union remains competitive in the global race to advance personalised medicine, and that its citizens benefit from the latest innovation in this field. 

•  Scaling up digital health and connected care and unlocking progress in implementing data-driven digital solutions requires a concerted effort to overcome data silos, lack of interoperability and fragmentation of initiatives across the EU; 

• Secure and authorised cross-border access to genomic and other health data in the Union will support innovation leading to more cost effective use of health care resources in the Union and new approaches to care delivery that better address the needs of individual patients; 

• Secure and authorised cross-border access to genomic and other health data in the Union will enable targeted research and innovation as well as efficient translation of that research into clinical settings and public health work, which can lead to more effective therapies for individual patients and improved preventive measures. It will enable researchers to define subsets of patients who are not benefiting from standard treatments; 

• Coordinating secure access to data from 1M genomes that are linked to health data, as well as pooling analytical capabilities, in compliance with the General Data Protection Regulation, is crucial to advance the understanding of genetic associations that cause or predispose diseases; 

• Efforts to allow cross-border access to genomic and other health data must be implemented in a lawful, secure, appropriate and specific way; 

• Strengthening cooperation between Member States in the field of genomic and related health data will translate into improved health outcomes and will also contribute to investments, economic growth and jobs. Benefits of coordination across national initiatives and biobanks include accessing data from different phenotypes at scale and enhancing technology and infrastructure capacity. This will avoid silos that could hamper the advancement of personalised medicine, including genomic medicine, in the future.

The signatories of this declaration share the same resolve in ensuring that in the future:

• Citizens' needs are at the centre of data-driven healthcare innovation as active agents in their own health journey and can benefit from more precise and personalised treatments as well as a more participatory healthcare experience; 

• Citizens better understand the benefits of sharing genomic and other related health data; 

• Citizens, researchers and health systems in the Union can benefit from the full potential of genomics to advance targeted health care interventions leading to better prevention, early diagnosis and treatment of diseases; 

• The Union stays at the forefront of genomic and personalised medicine globally, and improves its scientific capabilities and industrial competitiveness for the benefit of patients and the economy.

In order to realise this shared vision, the signatories of this declaration agree to work together to provide cross-border, data-driven health and care solutions to benefit citizens of the Union. As part of this goal the signatories will work towards building a research cohort of at least 1 million sequenced genomes accessible in the EU by 2022. This cooperation, which will build upon existing initiatives in genomics and personalised medicine, will inter alia aim to:

• Define a voluntary coordination mechanism of national, regional and local public authorities to link ongoing genomic medicine initiatives and to steer the activities stemming from this declaration; 

• Ensure distributed, authorised and secure access to national and regional banks of genetic and other relevant data for the advancement of science and innovation, while taking appropriate measures to protect the privacy of individual data donors;

• Define a governance model of cooperation, particularly concerning the terms and conditions for distributed access to genomic data across borders, usage of the data and other aspects deemed necessary by the signatories; 

• Support the development of technical specifications for secure access and cross-border exchange of genomic datasets and facilitate interoperability of relevant registries and databases to support research; 

• Develop a secure infrastructure and tools to enable cross-border sharing or analysis of genetic and other data-sets, anonymised as appropriate, from multiple Member States, building upon existing infrastructure; 

• Develop a coordinated data governance framework necessary to facilitate Europe-wide large-scale processing of health and related data in compliance with the applicable data protection legal framework, in order to support shared health policy goals; notably to achieve better health for citizens, future sustainability of health systems, and to boost large-scale data-driven biomedical and clinical R and D in Europe; 

• Promote the use of open standards and data management systems to ensure interoperability of genomic and other health data with a view to enhance research on personalised medicine and genetic diseases; 

• Strengthen cooperation on the implementation of the General Data Protection Regulation particularly as concerns the further processing of personal data concerning health.

The signatories of this declaration invite the European Commission to:

• Consider the shared vision enshrined in this declaration and endorsed by the signatories as it implements measures to support the digital transformation of health and care further to the Digital Single Market mid-term review, notably aiming at "supporting data infrastructure to advance research, diseases prevention and personalised health and care"; 

• Support and facilitate Member States cooperation set out in this declaration; 

• Mobilise funds from the Horizon 2020 and Connecting Europe Facility programmes to support pilot actions, pooling data and resources across the Union, and demonstrate the benefits in advancing genomic medicine. Consider further support from future programmes; 

• Regularly report on progress achieved regarding the implementation of the commitments outlined above, including updates on global developments concerning genomic medicine.

Facebook and the Canadian Privacy Regime

No great surprises about Facebook's disregard of regulation and disrespect for privacy, in  the Joint investigation of Facebook, Inc. by the Privacy Commissioner of Canada and the Information and Privacy Commissioner for British Columbia report.

That document  states

In March 2018, in response to a complaint, the Office of the Privacy Commissioner of Canada (“OPC”) commenced an investigation into Facebook, Inc. (“Facebook”) relating to its compliance with the Personal Information Protection and Electronic Documents Act (“PIPEDA”) in the wake of revelations about Facebook’s disclosure of the personal information of certain of its users to a third-party application (the “TYDL App”)—information that was later used by third-parties for targeted political messaging. In April 2018, the OPC was joined by the Office of the Information and Privacy Commissioner for British Columbia (“OIPC BC”) and the investigation continued as a joint investigation. 

Our investigation focused on three general areas of concern under PIPEDA and the Personal Information Protection Act (British Columbia) (“PIPA”): (i) consent of users, both those who installed an app and their friends, whose information was disclosed by Facebook to apps, and in particular to the TYDL App; (ii) safeguards against unauthorized access, use and disclosure by apps; and (iii) accountability for the information under Facebook’s control. 

To ensure a fair investigation of the facts, we have sought information and submissions from Facebook. We are disappointed that many of our questions have as yet gone unanswered or not answered to our satisfaction (i.e. they were incomplete, or otherwise deficient). 

Based on the evidence gathered during this investigation, our findings can be summarized as follows: 

Facebook failed to obtain valid and meaningful consent of installing users. Facebook relied on apps to obtain consent from users for its disclosures to those apps, but Facebook was unable to demonstrate that: (a) the TYDL App actually obtained meaningful consent for its purposes, including potentially, political purposes; or (b) Facebook made reasonable efforts, in particular by reviewing privacy communications, to ensure that the TYDL App, and apps in general, were obtaining meaningful consent from users. 

Facebook also failed to obtain meaningful consent from friends of installing users. Facebook relied on overbroad and conflicting language in its privacy communications that was clearly insufficient to support meaningful consent. That language was presented to users, generally on registration, in relation to disclosures that could occur years later, to unknown apps for unknown purposes. Facebook further relied, unreasonably, on installing users to provide consent on behalf of each of their friends, often counting in the hundreds, to release those friends’ information to an app, even though the friends would have had no knowledge of that disclosure. 

Facebook had inadequate safeguards to protect user information. Facebook relied on contractual terms with apps to protect against unauthorized access to users’ information, but then put in place superficial, largely reactive, and thus ineffective, monitoring to ensure compliance with those terms. Furthermore, Facebook was unable to provide evidence of enforcement actions taken in relation to privacy related contraventions of those contractual requirements. 

Facebook failed to be accountable for the user information under its control. Facebook did not take responsibility for giving real and meaningful effect to the privacy protection of its users. It abdicated its responsibility for the personal information under its control, effectively shifting that responsibility almost exclusively to users and Apps. Facebook relied on overbroad consent language, and consent mechanisms that were not supported by meaningful implementation. Its purported safeguards with respect to privacy, and implementation of such safeguards, were superficial and did not adequately protect users’ personal information. The sum of these measures resulted in a privacy protection framework that was empty.

These failures are extremely concerning given that in a 2009 investigation of Facebook, the OPC also found contraventions with respect to seeking overbroad and uninformed consent for disclosures of personal information to third-party apps, and inadequate monitoring to protect against unauthorized access by those apps. In our view, if Facebook had implemented the OPC’s recommendations and its eventual commitments meaningfully, with a privacy protection framework that was not only mechanical, but substantive and effective the risk of unauthorized access and use of Canadians’ personal information by third-party apps would have been avoided or significantly mitigated. 

Pursuant to our Findings in this report, we had made several recommendations, with a view to allowing Facebook to bring itself into compliance with the PIPEDA and PIPA, and to ensuring its ongoing commitment to upholding Canadian privacy law in the future. We are disappointed that Facebook either outright rejected, or refused to implement our recommendations in any manner acceptable to our Offices. This is particularly troubling given Facebook’s public commitments to work with regulators and rectify the “breach of trust” associated with these events. 

In our view, therefore, the risk is high that Canadians’ personal information will be disclosed to apps and used in ways the user may not know of or expect.

The report concludes

The complaint against Facebook on each of the aspects of accountability, consent, and safeguards, is well-founded, and remains unresolved. We will proceed to address the unresolved issues in accordance with our authorities under PIPEDA and PIPA.

The report notes

PIPEDA and PIPA provide that Facebook is responsible for users’ personal information under its control, and to implement policies and practices to give effect to the privacy protections afforded under Canadian and British Columbia privacy law.

Despite Facebook’s claims and representations regarding its respect for users’ privacy, Facebook’s actions in this case paint, in our view, a very different picture, one more consistent with Facebook CEO Mark Zuckerberg’s public statement, in March 2018, that Facebook committed a “major breach of trust”.

The facts in this case, as outlined above, do not in our view, portray an organisation taking responsibility for giving real and meaningful effect to privacy protection. They demonstrate Facebook abdicating its responsibility for personal information under its control, effectively shifting that responsibility to users and apps. Their purported safeguards were, at the time the TYDL App was launched, superficial and still do not, in our view, adequately protect users’ personal information. Ultimately, the ineffectiveness of the consent and safeguard regimes, resulted in the TYDL App’s unauthorized access to millions of users information and its use of that information for political purposes. This is particularly concerning given the vast amount of personal information under Facebook’s control, much of which can be highly sensitive (e.g. private messages). The TYDL App is but one of potentially millions of apps that could have had access to such information, potentially using it for a myriad of unknown purposes.

In respect of meaningful consent to disclose information about installing users to third-party apps, Facebook relied on third-party apps to obtain that consent, without implementing reasonable measures to ensure that such consent was actually obtained.

In respect of meaningful consent from installing users’ friends, Facebook could have implemented measures to provide the specific and timely information those users would need to grant meaningful express consent in each instance, prior to (or at the time when) Facebook disclosing information to third party apps, but it did not do so.

To the contrary, Facebook relied on vague and over-broad, over-arching language in its terms and conditions, leaving users’ with insufficient knowledge of all the potential apps to which Facebook might disclose their information, and all the potential purposes for which those apps might use their information. Further, Facebook relied on users’ ability to navigate through various app controls to decide how, and how much, information would be disclosed to apps installed by their friends, without sufficient context to make such decisions meaningful. And finally, they relied on Facebook users to provide consent on behalf of each of their friends, often in the hundreds, to release those friends’ information to an app, without even ensuring that the friends had any knowledge of that disclosure, before or after it took place.

In respect of safeguards, Facebook again relied, for millions of apps (other than the 500 “top apps”), on others to ensure its policies were being followed by third-party apps—for example, relying on user and media reports of concerns, when in reality, users and media are not well-equipped to determine if or when Facebook has disclosed information to a third-party app, let alone if that app is conforming with the Platform Policy. While Facebook maintained a written policy regarding third-party apps’ access to and treatment of user information, in practice, Facebook has been unable to provide evidence that these policies were effectively monitored or enforced so as to prevent the unauthorized access to and use of users’ personal information by the TYDL App, or third-party apps in general.

Furthermore, Facebook only took action to investigate and disable the TYDL App in December 2015 following a media report, rather than in May 2014, when it should have been readily apparent to Facebook—through App Review—that the TYDL App may have been in violation of the Platform Policy. Facebook also chose not to alert users to the TYDL App’s breach of its contractual safeguards, and the TYDL App’s resulting unauthorized access to as many as 87,000,000 users’ information, until 2018—again, only in response to media coverage and ensuing investigations by data protection authorities, including the OPC and OIPC BC.

The evidence and the analysis throughout this Report highlight that many of the very same concerns the OPC raised in its 2009 investigation remained into 2015. While Facebook undertook to address these issues to some degree, following the OPC’s 2009 investigation, we are of the view that a truly accountable organisation would have implemented those commitments in a manner that gave real effect to its privacy protection obligations. Facebook’s establishment of a “granular data permissions” model and additional disclosure to users may have represented an improvement at the time, in consideration of the sheer absence of controls in place prior to the 2009 investigation. Those controls were, however, as identified in this Report, still ineffective, having been neither adequately implemented nor dynamically maintained. This does not, in our view, resemble a “continuing and dedicated commitment” to obtaining consent from users for disclosures to third-party apps.

As a result, Installing Users and Affected Users did not meaningfully understand what information, including sensitive information, would be disclosed to what apps for what purposes, which was particularly concerning in the case of the TYDL App, where millions of users’ information was disclosed for purposes of political targeting.

In our view, Facebook’s failure to take responsibility for its own privacy practices indicates a clear and concerning lack of accountability. Facebook did not take real responsibility for the vast amounts of user information, much of it sensitive, within its control, in that it did not implement sufficient practices and procedures to give effect to the principles set forth in PIPEDA and PIPA. In sum, we agree that Facebook’s privacy practices, including its superficial and ineffective implementation of the OPC’s 2009 recommendations, represent not only a “major breach of trust” with Facebook users, but also a serious failure with respect to Facebook’s ongoing compliance with Canadian and British Columbia privacy law.

In light of the above, we find that Facebook did not implement policies and practices to give effect to the principles, contrary to Clause 4.1.4(a) in Schedule 1 of PIPEDA, and subsection 4(2) of PIPA. Facebook’s Response to our Recommendations

In determining an appropriate resolution to this matter, we considered a range of factors. First, we considered the serious nature of the failings described above. Second, we considered that OPC had already raised many of these concerns and the risks that flow from these concerns in their 2009 findings. The recommendations that were made to Facebook in that Report of Finding should have served as a warning to Facebook regarding its privacy practices. Facebook’s failure to effectively address those concerns, to meaningfully implement its 2009 commitments to the OPC, and to act on violations of its own policies in a material way, is demonstrative of the lack of accountability at Facebook.

Certain of the above issues have been addressed via technical fixes—for example, the switch to Graph v2 and the implementation of App Review in 2014/2015 reduced the information an app could receive by default and placed significant limits on the types of apps that could receive information about friends of installing users, subject to potential limitations outlined in paragraph 15 of this report, an issue we are investigating.

We also recognize that Facebook will retro-actively review apps that had access, under Graph v1, to a “large” amount of personal information, and inform users of the potential disclosure of their information to apps installed by one of their “friends” where Facebook determines that those apps have misused their data. However, before the issuance of these findings, we recommended, in a preliminary report, that Facebook make certain commitments, outlined below, to be supported by a Compliance Agreement with Facebook, to: (i) bring Facebook into compliance with PIPEDA and PIPA; (ii) remediate the effects of Facebook’s past non-compliance; (iii) ensure effective implementation of its commitments; and (iv) ensure Facebook’s future compliance with Canadian privacy law.

After we provided Facebook our preliminary report, we also provided it with further specification regarding our Offices’ expectations with respect to its implementation of these recommendations. This was done during two in-person meetings and via a letter.

Ultimately, we were very disappointed with Facebook’s response to our recommendations, which it provided to our Offices on March 27, 2019. Facebook disagreed with our findings and proposed alternative commitments, which reflected material amendments to our recommendations, in certain instances, altering the very nature of the recommendations themselves, undermining the objectives of our proposed remedies, or outright rejecting the proposed remedy. Facebook offered very limited remedial action over and above its existing practices. In our view, such commitments would not bring Facebook into compliance with PIPEDA or PIPA. 

Below, we provide: (i) each of our five recommendations, as shared with Facebook in our preliminary report; (ii) further recommendation details and clarifications subsequently provided to Facebook; and (iii) Facebook’s ultimate response to our recommendations. 

Our primary recommendation was that: Facebook should implement measures, including adequate monitoring, to ensure that it obtains meaningful and valid consent from installing users and their friends. That consent must: (i) clearly inform users about the nature, purposes and consequences of the disclosures; (ii) occur in a timely manner, before or at the time when their personal information is disclosed; and (iii) be express where the personal information to be disclosed is sensitive.

We subsequently explained that we expect Facebook to implement additional measures to ensure that it is obtaining meaningful consent for its disclosure of user information to each third-party app, such as: implementation of contractual terms requiring apps to comply with consent requirements consistent with those under PIPEDA and PIPA, including at a minimum, to comply with the “must dos” as outlined in our Offices’ Guidelines for Obtaining Meaningful Consent; proactive review, through automated and/or manual means, of all apps’ privacy communications to ensure compliance with those legal/contractual requirements; reactive review of apps’ privacy communications and associated privacy practices, where privacy or compliance ‘red-flags’ have been identified; and a robust and demonstrably effective program of enforcement and remediation where apps practices are inconsistent with Facebook’s privacy-related policies or requirements.

Facebook did not agree with our findings or to implement the above measures. Rather, Facebook essentially proposed the status quo with respect to its consent practices. Facebook asserted that the shift to Graph v2 largely eliminated Facebook’s disclosure of friends’ information to third-party apps. The extent to which Facebook continued to share friends’ information with apps outside the context of Graph v2 is the subject of an ongoing investigation by our Office (see paragraph 15). To the extent that Facebook is now allowing, or does in future allow apps to access information of installing users’ friends, it should obtain consent for this practice consistent with the recommendation outlined above.

We made two further recommendations with a view to remediating the effects resulting from Facebook’s privacy contraventions, by empowering users with the knowledge necessary to protect their privacy rights and better control their personal information in respect of apps that may have gained unauthorized access to their personal information: Facebook should implement an easily accessible mechanism whereby users can: (i) determine, at any time, clearly what apps have access to what elements of their personal information [including by virtue of the app having been installed by one of the user’s friends];Footnote 26 (ii) the nature, purposes and consequences of that access; and (iii) change their preferences to disallow all or part of that access.

Facebook’s retroactive review and resulting notifications should cover all apps. Further, the resulting notifications should include adequate detail for [each user]  to understand the nature, purpose and consequences of disclosures that may have been made to apps installed by a friend. Users should also be able to, from this notification, access the controls to switch off any ongoing disclosure to individual apps, or all apps. 

With respect to (a), above, Facebook did not agree to inform users regarding friends’ apps that may have accessed their information. Facebook indicated that such a practice would confuse users by notifying them regarding apps that may or may not have actually accessed their information, since Facebook was, itself, unable to determine which apps would have had such access. Facebook also asserted that it already substantively complies with the recommendation, in respect of installing users, through its “Apps and Websites” dashboard. 

With respect to (b), in response to concerns raised by Facebook relating to the scope of the recommended review, we explained that we were open to alternative proposals that reflect what is possible, based on the information currently available to Facebook. Facebook did not agree to expand its retroactive review as recommended or propose a viable alternative. Facebook provided no evidence to substantiate an inability to expand its review. Nor did it provide any metrics of the reviews it has conducted, to substantiate the effectiveness of the current state. To ensure Facebook’s implementation of any commitments accepted by our Offices, we recommended that: Facebook should agree to oversight by a third-party monitor, appointed by and serving to the benefit of the Commissioner[s],Footnote 28 at the expense of Facebook, to monitor and regularly report on Facebook’s compliance with the above recommendations for a period of five years. 

Facebook indicated that it was willing to agree to third-party monitoring, subject to certain proposed material conditions and restrictions. However, given that Facebook has not agreed to implement our substantive recommendations, the monitor would serve no purpose. 

Finally, given our findings regarding Facebook’s serious accountability failures, noting the broader audit powers available to our counterparts in Europe (including the UK Information Commissioner’s Office), we recommended that: Facebook should, for a period of five years, permit the OPC and/or OIPC BC to conduct audits, at the OPC and/or OIPC BC’s discretion, of its privacy policies and practices to assess Facebook’s compliance with requirements under PIPEDA and PIPA respectively. 

Facebook rejected this recommendation outright, claiming that it was unnecessary and unreasonable, and that it exceeds the powers currently provided under PIPEDA. Facebook then proposed a wholly revised version of the recommendation that would have limited our ability to audit, even moreso than that currently provided for under PIPEDA and PIPA. 

Given the serious accountability failings we have identified in this report, which are consistent with Facebook’s admission that it has breached users’ trust, we are particularly disappointed that Facebook would not agree to this recommendation. We find it difficult to reconcile Facebook’s CEO’s recent public statements regarding Facebook’s desire to work with regulators towards a more privacy-focused platform, with Facebook’s refusal to submit to audits whereby our Offices could confirm that Facebook is acting in an accountable way. 

Patenting

'The Sound and Fury of Patent Activity' (Stanford Law and Economics Olin Working Paper No. 521) by Robin Feldman and Mark A. Lemley comments

Patent reform is a hotly contested issue, occupying the attention of Congress, the Supreme Court, and many of the most innovative companies in the world. Most of that dispute centers on patent enforcement, and in particular on the role of non-practicing entities (NPEs) or “patent trolls” – companies that don’t themselves make products but sue those that do. To technology companies, NPEs are a drag on innovation, taxing them tens of billions of dollars every year while achieving no social purpose. To NPEs and their supporters, they are enabling the first inventor to get paid and creating a working market for the transfer of technology. 

Which is it?

In this paper, we present the first full empirical study of the effect of patent licensing demands on the economy. With the help of a National Science Foundation grant and experts in survey design, we sent our survey out to every US-based business with at least one employee and revenue of $1 million or more – over 45,000 companies. Our results provide important insights into the nature and limits of patent licensing demands and their role (or lack thereof) in driving innovation.

We find that NPE licensing demands almost never lead to innovation by the target firm. None of the indicia we would expect of real technology transfer were common in patent licensing demands. Moreover, NPE demands were particularly unlikely to be accompanied by the sharing of know-how or employees, the creation of joint ventures, or the development of new products.

NPEs do not seem to be a monolithic group. The results for certain types of NPEs were more promising. Federal labs that assert patents are the group most likely to transfer knowledge or drive new products when they license patents. University patent demands are more likely to drive innovation than demands by other sorts of NPEs, but most of them still don’t involve any indicia of technology transfer. We also find that the patent system works differently in different industries. Patent licensing demands almost never result in technology transfer or new innovation in the computer industry, particularly when NPEs are doing the asserting. They are somewhat more likely to be productive in the life sciences, but it is areas like energy that see the most new products resulting from patent assertions.

Finally, and perhaps most important in the long run, a significant majority of respondents simply didn’t face patent licensing demands at all. It is true that those companies may be smaller and less innovative than the ones that do face licensing demands. But given the raging debates over the patent system and its role in driving the economy, it is important to recognize that there are large swaths of American business that simply don't deal with patent licensing demands at all.