UNESCO AI Ethics Report

Yet another set of principles for Artificial Intelligence ethics, this time from UNESCO. 

The report by UNESCO states 

1. Artificial intelligence (AI) is one of the central issues of the era of converging technologies with profound implications for humanity, cultures, societies and the environment. AI is already having impact across all sectors, and it is already transforming the future of education, natural and social sciences, culture and communication. These areas, along with the higher goal of promoting the respect of human rights and human dignity, along with a culture of peace, are core to UNESCO’s mandate. 

2. As with previous technological revolutions, AI has the potential to transform the future of humanity for the better and in favour of sustainable development. However, it can also bring downside risks and challenges, in particular derived from malicious utilization of the technology, that affects human rights, or from the fact that highly complex AI systems can widen substantially the already existing high inequalities and divides. In fact, these technologies, and the digital transformation have a “winner takes all dynamic” that needs to be addressed. The impact of the technology will depend on the way humanity frames it and masters it, and on the way it prioritizes the goal of leaving no one behind. This is where UNESCO’s role in promoting social inclusion and fighting inequalities, is of paramount importance at the global level. In order to sketch possible scenarios and unlock AI’s potential to grasp development opportunities, while managing risks, it is important to develop a more comprehensive understanding of how societies are transformed by disruptive technologies, such as AI. 

3. Digital transformation is happening at a moment where increased inequalities of income and opportunities are at its highest level in decades (within and between countries). These technologies are already contributing to deepening such inequalities in a profound way, as few firms and a handful of countries own the largest share of these technologies. This can change the landscape beyond recognition. Core elements in the AI life cycle determine who participates and who doesn’t. This can be related to data governance, which is a key issue (including data collection, data ownership, data sharing and data access). Data is the core ‘raw material’ that allows countries and firms to advance new solutions and products, but it is highly concentrated and there is no shared international governance framework. The skills necessary for data mining and the development of models and algorithms are also highly concentrated. Therefore, there is an essential link between data and modelling work, and the governance of AI. 

4. The inclusion of women in the digital transformation, or the lack of it, is especially pertinent, as the development of these technologies is massively contributing to opening an additional gender gap. Women do not participate equally in IT disciplines (they participate even less in IT than in science, technology, engineering and mathematics (STEM); they are underrepresented in the industry, and therefore in the development of AI systems. This opens a worrisome trend by which gender biases and stereotyping are being reproduced massively in the technologies. If technologies are not developed and applied in a gender-responsive way, they are therefore likely to reproduce and reinforce existing discriminatory social norms and even more violence against women (which is already happening). More women, including from different ethnic origins, must be involved in the design and deployment of AI tools. The same can be said about vulnerable populations, and those that are left behind, or discriminated against. They will find it more difficult to cope and benefit from the technological progress that AI technologies bring. 

5. This is why the work needs to be accompanied by an ethical reflection. It is clear that AI technologies are not value neutral, but inherently biased, among others, due to the data on which they are trained, and the choices made while training on the data. It is also influenced by the fact that AI machine decisions (particularly those based on Machine Learning) cannot be fully predictable or understood. Moreover, as AI is a distributed technology, whose current practical governance is spread across numerous institutions, organizations and companies, the reflection on its good governance requires a pluralistic, multidisciplinary, multicultural and multi-stakeholder approach, opening up questions about what type of future we want for humanity. This reflection needs to address the main challenges in the development of AI technologies related to the biases embedded in algorithms, the protection of people’s privacy and personal data, the risks of creating new forms of exclusion and inequalities, the issues of just distribution of benefits and risks, accountability, responsibility, impacts on employment and the future of work, human rights, security and risks of dual use. 

.... 

7. Because of its profound social implications, many organizations and governments are concerned about the ethical implications of AI. National, regional and other strategies and frameworks on AI are being developed. There is a growing number of reports and guidelines on AI and ethics – such as those by the Council of Europe, the European Union, the Institute of Electrical and Electronics Engineers (IEEE), the Organisation for Economic Co-operation and Development (OECD), the International Telecommunications Union, the World Health Organization (WHO), and the UN Secretary-General’s High Level Panel on Digital Cooperation – which have identified important principles for the design, development, and deployment of AI. UNESCO has been following these discussions closely, e.g. as a Co-Champion on AI of the UN Secretary-General’s High Level Panel on Digital Cooperation, an observer in the European Commission High-Level Expert Group on AI and in the Council of Europe Ad hoc Committee on Artificial Intelligence (CAHAI), a member of the OECD Expert Group on AI (AIGO), a partner of the ITU AI for Good Global Summit and a participant in other intergovernmental forums. UNESCO also hosted a high-level dialogue on the ethical dimensions of AI during the World Summit on the Information Society (WSIS) Forum in April 2019, and presented ongoing work on ethics of artificial intelligence at a high-level policy session during the virtual WSIS Forum in July 2020. 

8. UNESCO has a unique perspective to add to this debate given its strong comparative advantage thanks to its universality in membership and drawing on its multidisciplinary expertise. In this regard, the Organization can truly provide a global and pluralistic platform for dialogue on the ethics of AI, bringing together both developed and developing countries, different cultural perspectives, as well as various stakeholders within the public and private spheres. Therefore, in addition to the many ethical guidelines and frameworks that are currently being developed by governments, companies, and societal organizations, UNESCO can contribute to the development of AI for the benefit of all of humanity, sustainable development, and peace. For this purpose, UNESCO acts as a bridge between Member States – which have highlighted repeatedly their support for UNESCO’s AI work – and civil society, the technical community, academia, the private sector, including the cultural and creative industries, building on its record of multi-stakeholder consultation and consensus building. 

9. Building on the previous work of UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), in August 2018, the Commission was requested to prepare a preliminary study on the ethics of AI to help inform UNESCO’s reflection in this area. The work of COMEST on this topic provided the background for the preliminary study on the technical and legal aspects relating to the desirability of a standard-setting instrument on the ethics of artificial intelligence (AI), which was submitted to the Executive Board at its 206th session (document 206 EX/42), in accordance with Article 3 of the Rules of Procedure concerning recommendations to Member States and international conventions covered by the terms of Article IV, paragraph 4 of the Constitution. 10. Subsequently, the Executive Board adopted 206 EX/Decision 42 inscribing the preliminary study on the agenda of the 40th session of the General Conference. The General Conference examined the preliminary study and the comments and observations of the Executive Board thereon (document 40 C/67). By 40 C/Resolution 37, the General Conference recognized the benefits of an international standard-setting instrument on the ethics of artificial intelligence in the form of a recommendation (the “Recommendation”). Furthermore, Member States invited UNESCO to initiate the process of elaborating the Recommendation, and to submit to it at its 41st session the draft text of the Recommendation. The mandate provided by the Member States is highly important: there are many efforts trying to ensure governance of the development of AI, while this is the only standard-setting instrument that is clear on the fact that this governance should be based on strong respect of human rights, human dignity, and ethical considerations. 

11. The COVID-19 pandemic has exemplified how AI technologies can help, but also how much we need a global framework that informs the way we use them and the way we deploy them. To control the pandemic, we are giving access to our data and our activities, raising concerns regarding privacy and data protection and the temporal scope of extended powers, which all require reconceptualization to ensure respect for the rule of law. 

12. This international normative instrument will thus help the world reach an ethical consensus on AI, which is not just a technological turning point but also an anthropological disruption. This is a necessary step to more proactive thinking beyond the traditional legal approaches, which lag behind. The proposed Recommendation should become an ethical guiding compass and a normative bedrock allowing to build a strong respect for the rule of law in the digital world. THE PROCESS 

13. In line with the roadmap presented in Annex III of document 40 C/67, in March 2020, an Ad Hoc Expert Group (AHEG) (category VI meeting) was established to elaborate a first draft of the Recommendation. It is composed of 24 independent experts, appointed on a geographical balance basis from all UNESCO regions. From March to May 2020, due to the COVID-19 pandemic, the AHEG conducted its work using online/virtual modalities over a period of six weeks and produced a first version of the draft Recommendation. 

14. A multi-stakeholder consultation process on the first version of the draft Recommendation was conducted from June to August 2020. In light of the challenges posed by the pandemic, partners from around the world came together with UNESCO to support this consultation process based on three components: (i) public online consultation; (ii) regional and sub-regional virtual consultations co-organized with host countries/institutions in all of UNESCO’s regions; and (iii) open, multi-stakeholder, and citizen deliberation workshops organized by partners. The public online consultation received completed responses from more than 600 participants, generating more than 50,000 comments. Furthermore, eleven regional and sub-regional virtual consultations, including two with youth, were held in all of UNESCO’s regions, involving more than 500 participants. The majority of the consultations were opened at a high level, and included the Assistant Director-General for SHS. Finally, the open, multi-stakeholder, and citizen deliberation workshops drew approximately 500 participants. 

15. The consultations generated a rich conversation that raised awareness, triggered regional and sub-regional debates, and willingness of diverse stakeholders to collaborate with UNESCO in this endeavour. In at least three regions or sub-regions, participants have expressed the willingness to establish regional and sub-regional networks of different disciplines to continue discussions on the ethics of AI. 

16. The consultations have clearly shown the appetite to have an ethical framework on AI. Some regions have called for co-creation practices along the whole AI life cycle, ensuring broader understanding of education, ensuring gender equality, preserving the value of the native cultures beyond their languages, strengthen the need for human rights framework. They have also called for peace to be added as the only way to live in harmony and underlined the need for the document to be intergenerational in terms of values. There is evident strong acceptance of the environmental dimension of AI technologies. Moreover, there is support for its comprehensiveness in terms of including all the ecosystems and departing from a purely anthropocentric view. 

17. Consultation on the first version of the draft Recommendation was also held with the UN system through the intersessional meeting of the High-Level Committee on Programmes (HLCP) on 29 July 2020. All entities expressed their full support and recognized the importance of UNESCO’s work to develop this Recommendation and its relevance to the UN system, Member States and other actors. In general, it was emphasized that the text can and should be more ambitious by underlining more its innovative features and by proposing stronger language and far reaching recommendations when it comes to issues such as governance, human rights, and implementation after its adoption. This is necessary in order to effectively ensure ethical approaches to AI worldwide, to stand out from other documents in the field and to help position UNESCO as a reference for capacity building for Member States in the area of ethics of AI. The comments of UN partners were transmitted to the AHEG accordingly. 

18. The AHEG then revised the first version of the draft Recommendation from mid-August until early September 2020, based on the feedback of the consultations and on its further discussions. As such, the first draft of the Recommendation is transmitted to Member States together with this preliminary report. ... 

19. When preparing the first version of the draft Recommendation, the AHEG’s discussions concentrated primarily around the risks and challenges inherent to the rapid development of AI technologies that have been outlined at the outset of this report. Specific attention has been paid to how much AI technologies are already massively impacting our world, and to an urgent need for a common framework and narrative. The world is not fair and just, on the contrary, and we are often receding from our long-standing achievements. The COVID-19 pandemic is exacerbating the inequality trends by hitting hardest the most vulnerable population. The fundamental dichotomy is either the technologies contribute to worsen the problems of exclusion, inequalities and division, or they are used for noble purposes. Thus, the AHEG identified and conceptualized the issues that need to be corrected and the outcomes that they want to achieve with the proposed ethical framework. 

20. While recognizing the potential role of AI in contributing to solving complex challenges and bringing immense economic value, the AHEG stressed the concerns that AI creates regarding gender equality, diversity and inclusion, biases, privacy and data protection, increase of disinformation, digital exposure by populations at risk, just to name a few. The AHEG’s deliberations showed that today, at the global level, there is a need for a general universal ethical guidance in terms of core values that must underpin the development of AI systems. Due to their transnational character, durable solutions can be found only at the global level. Such an instrument should provide a global mechanism to document the social-cultural changes brought about by the rapid, non-linear development of AI and related ethical issues. 

21. Having agreed that AI technologies are not value neutral, the AHEG took the approach of identifying foundational values and closely interlinked principles, which inform further outlined policy actions. Foundational values have a role of necessary preconditions or prerequisites for principles and policy actions to work. Taken together they form a coherent framework to ensure ethical AI. The first version of the draft Recommendation has identified the values of human dignity, human rights and fundamental freedoms, leaving no one behind, living in harmony, trustworthiness, and protection of the environment. The latter has been purposefully elevated to the level of values because the analysis of various documents proposing principles for AI has shown that the protection of the environment receives little attention or is overlooked. 

22. The AHEG has also identified principles, which are associated with the human-AI systems interaction and those reflecting characteristics associated with the properties of AI systems themselves. The AHEG has recognized that there is an emerging convergence around the importance of certain principles that allow ensuring ethical approaches within the AI lifecycle. Therefore, the first version of the draft Recommendation includes such commonly recognized principles as human oversight, privacy, fairness, transparency and explainability, safety and security, responsibility and accountability, and others. Apart from that, the AHEG proposed new principles, which have not been previously seen elsewhere, such as proportionality, which helps ensuring that AI methods used correspond to the aims, do not bear excessive risks and are appropriate to the context. Nevertheless, the variety of source materials showed that both the notions and substance of principles may vary significantly, and thus the most challenging task for the AHEG was not identification of principles but clarifying their meaning and proposing policy actions that would ensure their implementation in practice. 

23. In view of implementing values and principles, the AHEG has proposed a number of concrete policy actions, which span from promoting diversity and inclusiveness to mitigating negative impacts on society, culture and the environment. The AHEG attempted to address the identified problems also by introducing innovative approaches, e.g. in the areas of governance, impact assessment and capacity building. To support that, the scope and addressees of the Recommendation have been expanded to include, among others, the private sector. 

24. The consultations have shown that the draft Recommendation can be bolder in terms of substance, proposed language and courses of action. This is especially so in terms of addressing gender issues, and broader inclusion, justice and integrity. Greater emphasis is needed to reflect the differential access to and impact of AI across subgroups and individuals, especially women, girls, older persons, youth and children, which should run through the entire document. It was suggested for the draft Recommendation to address more the issues of diversity of country groups as well as differences within countries in terms of level and diffusion of AI technologies. It was recognized that the draft Recommendation highlights the trade-offs, which are not always taken into account in other documents, and it was suggested to elaborate on those further in a more practical way. 

25. Suggestions were made to further elaborate on strategies to be followed in helping the low and middle income countries, including but not limited to countries in Africa, Latin America and the Caribbean, and Central Asia, as well as Small Island Developing States to access AI systems in various fields. There is a need for principles, actions and/or other recommendations aimed specifically at bridging gaps, capacities, resources, and power imbalances between countries and regions with regard to the proliferation of AI and capacity to regulate between AI-producing and AI-consuming countries. 

26. Suggestions were made in terms of the structure of the document. In particular, the policy actions have been perceived as rather complex and prolonged, which require further work. Similarly, aims and objectives of the document should become clearer and more concrete. This is important in order to keep the recommendation simple and pragmatic so that it can be operationalized quickly. Consultations also underscored that the additional value added of the UNESCO instrument is linked to the more action-oriented sections, advising on “how” to foster ethical AI developments, besides the “what” related to the definitions of what is ethical. 

27. Last but not least, it was suggested for the draft Recommendation to be more ambitious. This includes making bold proposals and be more assertive in suggesting that a stronger international legal framework is needed. It has been proposed to be more explicit about the innovative features that are reflected in this draft text in order for it to stand out among other documents. Additional innovative ideas and proposals were highly welcomed to appear in the final first draft of the Recommendation. 28. The comments received during the consultation process have been taken into account and have been reflected in the revised first draft of the Recommendation that is annexed to this preliminary report.

In noting 'Next Steps' the report states 

29. It is envisaged that the Recommendation, to be effective, would need to be accompanied by strong policy and capacity building support in its implementation and transformation into legal frameworks, and AI specific practices in the public and private sector. As such, UNESCO will be bringing its multidisciplinary competences to assist Member States in fulfilling the provisions outlined in the Recommendation once adopted. The Recommendation will also provide a solid foundation for the entire UN system in its collective response to the ethical challenges posed by AI technologies in various fields, with UNESCO playing a leading role in this area. In this regard, UNESCO has over 25 years of experience in developing and implementing normative work through policy advice and capacity building activities in bioethics and ethics of science and technology.

And of course 

UNESCO has the vocation to be the principal United Nations agency to promote and disseminate this Recommendation, and accordingly shall work in collaboration with other United Nations entities, including but not limited to the United Nations Secretary-General’s High-level Panel on Digital Cooperation, the World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), the International Bioethics Committee (IBC), the Intergovernmental Bioethics Committee (IGBC), the International Telecommunication Union (ITU), the International Labour Organization (ILO), the World Intellectual Property Organization (WIPO), the United Nations Children's Fund (UNICEF), UN Women, the United Nations Industrial Development Organization (UNIDO), the World Trade Organization (WTO), and other relevant United Nations entities concerned with the ethics of AI. 

UNESCO shall also work in collaboration with other international and regional organizations, including but not limited to the African Union (AU), the Alianza del Pacífico, the Association of African Universities (AAU), the Association of Southeast Asian Nations (ASEAN), the Caribbean Community (CARICOM), the Caribbean Telecommunications Union, the Caribbean Public Services Association, the Common Market for Eastern and Southern Africa (COMESA), the Community of Latin American and Caribbean States (CELAC), the Council of Europe (CoE), the Economic Community of West African States (ECOWAS), the Eurasian Economic Union (EAEU), the European Union (EU), the International Association of Universities (IAU), the Organisation for Economic Co-operation and Development (OECD), the Organization for Security and Co-operation in Europe (OSCE), the South Asian Association for Regional Cooperation (SAARC), the Southern African Development Community (SADC), the Southern Common Market (MERCOSUR), as well as the Institute of Electrical and Electronic Engineers (IEEE), the International Organization for Standardization (ISO), and international financing institutions such as the World Bank, the InterAmerican Development Bank, and the African Development Bank. 

Even though, within UNESCO, the mandate to promote and protect falls within the authority of governments and intergovernmental bodies, civil society will be an important actor to advocate for the public sector’s interests and therefore UNESCO needs to ensure and promote its legitimacy.

Drones and Australia's National Emerging Aviation Technologies policy

As a basis for the National Emerging Aviation Technologies policy the national Department of Transport and Infrastructure has released a consultation paper on Emerging Aviation Technologies, centred on drones. 

It states 

This paper is the first step towards development of a national policy for the management of drones and other emerging aviation technologies. The paper identifies opportunities and risks associated with these technologies, outlines some of the current approaches for managing these issues and proposes an approach to policy development. It is a starting point for ongoing discussion and collaboration between government, industry and the broader community to develop a comprehensive national policy that will allow Australia to benefit from the considerable opportunities provided by emerging aviation technologies whilst effectively managing the risks and impacts associated with their use. 

Introduction 

Australia is no stranger to adopting new technology and innovation. Australia was one of the first countries in the world to regulate the operation of drones in 2002. Australia was also the first country in the world to welcome regular commercial urban drone delivery services in April 2019. 

Over the last few years, the growth in new emerging aviation technologies such as drones and electric vertical take-off and landing (eVTOL) vehicles is creating even more opportunities for new ways of doing things. New industries are being created and we can clearly see new concepts that were once considered things of the distant future. 

While the technology itself is both important and impressive, it is the applications of this technology where the real potential for significant economic and social benefits exist. It is simply more than enabling technology for technology’s sake; it is unlocking the tangible benefits and use cases this technology can facilitate. There have been a number of estimates of the market value of these new emerging technologies, many of which quote figures in the hundreds of billions of dollars. For example, PwC, a consulting and professional services firm, estimated in 2017 that the market value of drone powered businesses was around AUD $163 billion. Many estimates project growth in the sector to continue at significant rates. While it is difficult to predict the exact market value, it is clear these technologies will be transformative and will change how and where we live. 

It is likely there will be an early impact on a range of industry sectors through productivity gains. We are just at the beginning of utilising and understanding this technology, and there is significant potential for further growth as technology improves, the scale of operations increase and we discover new applications for drones. 

Utilising drones and eVTOL vehicles enables the opportunity to carry out many tasks in the abovementioned industries cheaper, safer and more efficiently. The flow on increase in productivity and sustainability for these industries will boost economic development and jobs. Such technology will likely create a shift in the job market, creating new sectors for operation and maintenance, but also new jobs working with this technology in existing industries. 

In recognition of this potential, the Australian Government is developing a national whole-of-government framework to manage new aviation technologies, such as drones and eVTOL vehicles. A National Policy on Emerging Aviation Technologies is the first step in this process. Noting the potential economic and social benefits, the rationale for a national policy is to provide certainty for industry investment and provide a clear policy and legal framework that actively encourages and facilitates the use of this technology. However, the policy and legal framework will also include a range of measures to mitigate potential risks and impacts on the community. It is vital that these technologies operate in a manner that is safe, secure and considerate of the community and the environment. 

The emergence of this sector also provides an opportunity to examine the regulatory approach. There is an opportunity for the Australian Government to utilise technology in the way we regulate. There is also scope to reduce the regulatory burden for industry through greater coordination and consistency between the numerous different government regulators. 

A national whole-of-government policy approach to emerging aviation technologies will place Australia well to capitalise on our willingness to be an early adopter of new technology and to attract greater investment, jobs, and economic growth. Such technology also has the ability to enhance and revolutionise not just the broader aviation sector, but also many other industries. 

Scope and context 

This paper predominantly discusses issues with reference to the use and operation of drones and eVTOL operations. This paper does not apply to the military use of drones and is of limited relevance to larger drones that will have the ability to transit international airspace. It is also noted that the use of drones by law enforcement, government authorities, and search and rescue operations will continue to require special arrangements and authorisations which are not discussed in this paper. 

The Australian Government invites written submissions on the proposed policy outcomes articulated in this paper to inform the direction of the National Emerging Aviation Technologies policy. Questions to guide the development of submissions include:

• Do you agree with the proposed core principles for the National Emerging Aviation Technologies policy? 

• Will the proposed approach to policy development adequately allow for the future direction, operations and investments of your business/organisation? x Are there any other approaches that could benefit the sector? 

• What level of service and regulation do you expect from the Government? 

• What are your expectations of the Government’s role and responsibilities in the management of drones and eVTOL vehicles? 

• What are the key opportunities that these new technologies could deliver for Australia? 

• What are the most significant barriers to realising these opportunities? 

• What issues or actions should the government prioritise to facilitate the growth of emerging aviation technologies? 

• To what extent should Australia’s approach be harmonised with approaches taken in other countries? 

• Are there other issues that the Australian Government should consider?

What are the next steps? 

The Australian Government will commence a broad process of consultation with industry, state and territory governments and the wider community on the issues identified in this paper. As part of this process, the Department of Infrastructure, Transport, Regional Development and Communications will establish an Industry Advisory Group to coordinate industry input in the development of the national policy framework. This group will be supported by workshops and working groups of relevant stakeholders to drive progress on specific issues, such as Unmanned Traffic Management. These consultations, together with the submissions received in response to this paper, will be used to inform the development of a National Emerging Aviation Technologies Policy statement. This policy statement will then form the basis of any legislative, regulatory or functional change as necessary, settle roles and responsibilities within government, and guide action plans for the development of processes and procedures. Any legislative or regulatory change processes to implement policy outcomes will also include separate consultation consistent with Australian Government processes. 

Core principles 

The following core principles will underpin a National Emerging Aviation Technologies Policy:

• The necessity for safe and secure operations 

• Encourage best practice operations

• Considerate of the community and environment 

• Support  industry growth and investment

• A fair, competitive  and efficient approach to airspace access 

• A nationally consistent approach

We will achieve this through a market management approach that is:

• Interoperable with international approaches 

• Outcomes-based 

• Technology-driven 

• Flexible and agile 

• Coordinated and free from unnecessary  red-tape 

• Proportionate to risk

Summary of proposed approach to policy development

1. Airspace integration The Australian Government, in partnership with industry, will develop a UTM system that would support a combination of centralised government services and industry-provided services that will facilitate fair and competitive access to airspace and mitigate a wide range of risks and impacts. 

2. Safety The Civil Aviation Safety Authority will maintain its commitment to the primacy of safety, while taking a responsive, modern and evidence-based approach to safety regulation and the certification of new aviation technology that provides scope for innovation and flexibility, having regard to the inherent risks of the operating environment, other airspace users and the travelling public. 

3. Security The Australian Government will lead the development of a proportionate and evidence-based approach to managing security risks associated with drones and eVTOL vehicles that is adaptable to changing circumstances and technologies while ensuring a secure operating environment. 

4. Noise The Department of Infrastructure, Transport, Regional Development and Communications will develop and manage a national regulatory approach to noise management that encourages quieter operations consistent with local community considerations. 

5. Environment The Australian Government will lead the development of a consistent, balanced and proportionate approach to manage the impactson wildlife and the environment, including the enjoyment of nature areas and cultural sites. 

6. Privacy The Australian Government will lead the development of a nationally consistent approach for managing privacy concerns that balances the impacts on privacy with the needs of drone and eVTOL operations. 

7. Electric Vertical Take-Off and Landing Vehicles The Australian Government will work with all relevant stakeholders to develop measures for safe, efficient, considerate and reliable eVTOL operations in a competitive market that supports safe, efficient and equitable access for all airspace users. 

8. Infrastructure The Australian Government will lead the development of a coordinated and informed approach to infrastructure planning, investment, requirements and approvals. 

9. Technology trials The Australian Government will develop an approach that fosters partnerships between government and industry to promote shared outcomes and learning with the goal to support the commencement of future commercial operations. 

10. Central coordination The Department of Infrastructure, Transport, Regional Development and Communications will coordinate an ongoing whole-of-government policy approach to manage future challenges associated with emerging aviation technologies to ensure a consistent and coordinated approach to regulation across issues and jurisdictions.

In dealing with privacy the paper states

The protection of privacy is considered one of the most contentious issues that communities around the world will need to manage as drone use increases. Managing public perceptions of privacy and trust in technology is critical to the ability to embed and harness the benefits of technology and innovation. 

Privacy is a complex policy area as there is no agreed definition of what is meant by privacy. 

The Oxford English Dictionary defines ‘privacy’ as: “The state or condition of being alone, undisturbed or free from public attention as a matter of choice or right; seclusion; freedom from interference or intrusion” 

Australia is a signatory to the International Covenant on Civil and Political Rights. This recognises a right to protection from unlawful or arbitrary interference with privacy. Privacy legislation at the Commonwealth level, and in most States and Territories, supports this right in relation to protecting personal information about individuals. There is no statutory right to sue for serious invasion of privacy in Australia, though existing actions such as breach of confidence, trespass or negligence could apply to privacy breaches. 

Other regulations that may be seen to support the right to privacy in Australia includes Commonwealth, State and Territory legislation that concerns trespass, nuisance and/or surveillance issues. 

Current issues 

As small drones are being sighted more frequently in communities, people are becoming sensitive about the potential impact on their privacy. Drones differ from other forms of new technology that have been introduced to society in recent years, such as engineering robotics or nanotechnology. They are being encountered by people firsthand in a social setting that is atypical for many new technologies. Drones are visible and appear to the public to have unrestricted mobility. They are not bound by the limits that aircraft traditionally have, allowing them to be an anonymous, low-level and continuous presence within any outdoor space. 

The mobility of a drone, which is in many ways their defining feature, can present privacy concerns in certain situations. A drone can be seen to easily intrude into what is viewed as private space, such as a person’s backyard, as well as intrude into personal space, such as when a person is sitting in a public park. 

A person’s privacy can still be recognised within a public space. The rights to privacy within public spaces are more nuanced, and influenced by the location and activity that a person is engaging in. For example, attending a sporting match that is being filmed and broadcast versus entering a toilet within a public shopping center; both are public spaces, but the expectation of privacy in all forms is different in the setting and context. 

Lacking a clear definition, it can be useful to consider two primary forms of privacy invasion. 

First is the intrusion upon seclusion, such as by physically intruding into a person’s private space or by watching, listening to or recording a person’s private activities or private affairs. Second is the misuse of private information, such as by collecting or disclosing private information about a person. These two forms can have considerable overlap. 

The perceived intrusion onto a person’s sense of seclusion can be difficult to quantify and there are questions on how this can be legally enforced. Similarly, with recording information, the ability for a drone to take a photo that includes a person or their home can be viewed as intruding, but may be lawful. 

The second issue, relating to the misuse of information, including the collection of information as well as the disclosure of it, is equally complicated. The widespread use of applications such as Google StreetView has sparked conversations regarding an individual right to personal privacy. The collection and publication of material in public spaces is largely indifferent to an individual’s personal sensitivity or threshold of privacy. 

Drones that are capable of collecting information such as photos, videos or sound recordings that legally operate in public spaces are less of a concern. However, by having the capacity for an aerial view, the potential for people to feel information collection has intruded their privacy grows. For example, the Google StreetView is collected from vehicle height on public roads. A drone operating on the same geographic path will be able to see further into a person’s yard circumventing infrastructure, such as fences, that may have been installed to deliver privacy. 

Current regulation and strategies 

Aside from the Commonwealth Privacy Act 1988, the majority of regulation that is applicable in the privacy area is administered by the state and territory governments. State and territory privacy laws about trespass, nuisance and surveillance are the most likely legislation to apply to drone activities. 

The Senate Standing Committee on Rural and Regional Affairs and Transport (2018) report: Regulatory requirements that impact on the safe use of Remotely Piloted Aircraft Systems, Unmanned Aerial Systems and associated systems and the Australian Government response ... noted that state and territory privacy laws are a matter for state and territory governments, however the Australian Government will engage with state and territory governments to consider national harmonisation of state and territory privacy laws. 

Regulation is not the only option available to manage public concerns over privacy and drone use. A further option would be to consider the potential for non-binding codes of practice or privacy guidelines applicable to drone operators, and to encourage commercial and community uptake of these when operating a drone. 

Commonwealth legislation 

CASA’s safety rules limiting the ability for a drone to fly over a person or activity reduces the potential for perceived intrusion. However, a drone operating 30m away from a person may still be seen as intrusive, even if not directly above them. 

In terms of specific privacy legislation, the Commonwealth has responsibility for the Privacy Act. This legislation covers the protection of personal information in the Commonwealth public sector and in the private sector for organisations with an annual turnover of $3 million or more, subject to some exceptions. It does not address the collection and use of information by individuals acting in a personal capacity nor does it cover more generally the concept of intrusion upon a person’s seclusion. The Privacy Act deals with the protection of personal data and the security of personal information rather than with privacy more generally. The Privacy Act contains 13 Australian Privacy Principles that set out standards for the collection, storage, security, use, disclosure and quality of personal information. 

The Privacy Act does not generally apply to state and territory government agencies or contractors to those agencies. They are subject to state and territory privacy legislation in all jurisdictions, except for South Australia and Western Australia, who do not currently have privacy legislation. 

Public awareness and expectations of what organisations and actions are covered by the Privacy Act is poor with a majority of Australians believing that the reach was greater and extended to more organisations that it does. 

State legislation 

State and territory governments all have different legislation and approaches to privacy. This reflects the history of each state, the related pieces of state legislation and the community expectations in each jurisdiction. Not all States have privacy legislation. All have some forms of trespass, nuisance and surveillance legislation that may apply to drone activities. 

Proposed policy approach 

The Australian Government will lead the development of a nationally consistent approach for managing privacy concerns that balances the impacts on privacy with the needs of drone and eVTOL operations. 

The application of trespass, nuisance and surveillance legislation to drone activities can be complex. The use of nuisance for example may not extend to a drone unless it is interfering with the ordinary usage of a place. Similarly, trespass requires a person to hold a particular title over the land in question and does not apply in public areas. The operation of drones in airspace creates further issues as generally it is viewed that a property owners rights are restricted to the heights that are necessary for the ordinary use and enjoyment of their land. A lack of Australian case law means that there is uncertainty over how trespass legislation is interpreted on some occasions. 

Where privacy has been invaded through the use of surveillance devices there may be some remedy under a state or territory’s surveillance laws . These laws can include regulations on how a device is used as well as regulating how the information collected from a device is communicated or published. This varies across states and territories. Use of listening devices are generally prohibited without consent. However, optical devices are not as consistently addressed, with a number of states silent on their use. States may have alternative legislation that creates an offense relating to the possession of unlawfully recorded private activities. 

The need for nationally consistent privacy regulation was discussed in a 2008 Australian Law Reform Commission report . While some degree of national consistency has been achieved since then, as the Commonwealth and certain states and territories have amended privacy laws in their own jurisdictions, States and Territories still maintain discretion to ensure that any privacy related legislation responds to local conditions and appropriately interacts with any other state based legislation such as freedom of information or human rights. The Commonwealth will work with States and Territories to consider increased interoperability and application of privacy laws in regards to drones and eVTOL vehicles to provide more clarity and greater consistency in the approach to how the privacy implications of drones are handled. 

Non-regulatory approaches will also be considered to educate drone operators and the community to create a respectful operational environment. This could include non-binding codes of practice or privacy guidelines applicable to drone operators, and to encourage commercial and community uptake of these when operating a drone. The development and introduction of a UTM system will also provide the ability to enable a technology solution to identify and report drones that are potentially infringing privacy. 

Privacy impact 

Drones will potentially have access to airspace in part determined by the extent of their ability to not unduly intrude upon privacy. Drones without recording devices may have greater freedom to operate over residential areas at lower altitudes than those with high resolution cameras and microphones. This would incentivise, for example, delivery drone manufacturers to develop less intrusive drones for residential deliveries or develop other methods to mitigate privacy concerns where such recording equipment is being used. Drones with high-resolution recording equipment may be limited to higher altitudes or less privacy sensitive areas, such as flying over major road corridors or industrial areas. Similarly, drones flown by trusted operators could have greater access to privacy sensitive areas than those operated by users who have not demonstrated appropriate processes for ensuring privacy in their operations. The Commonwealth will work with States and Territories to develop, as required, a clearer process to handle privacy complaints regarding an inappropriate use of a drone that unduly impacts privacy, causes nuisance or trespasses.

Corporate Pathologies

'Corporate Law and Corporate Psychopaths' by Benedict Sheehy, Clive Boddy and Brendon Murphy in (2020) Psychiatry, Psychology and Law comments 

For more than three decades there has been a growing interest, and concern, in the role that psychopathy plays in corporate affairs. The literature in this field is essentially interdisciplinary, drawing heavily on advances in neuroscience, behavioural and organisational psychology and criminology. In this paper that authors open a line of enquiry on the role that law can play in the regulation, and remedies, available to deal with dysfunctional and psychopathic management. In this paper we argue that the impact of corporate psychopaths – particularly the sub-clinical types – is sometimes potentially devastating for the organisation, its mission, its employees and, where they exist, shareholders. In this article we outline the nature of corporate psychopathy, its impact on corporate entities, and outline a range of potential legal remedies.

Elections

Problems with bureaucratic incapacity or just differing views of mission? The Australian Electoral Office has been dismissive of a negative report by the ANAO regarding the AEC's administration of the political donation system. 

In Administration of Financial Disclosure Requirements under the Commonwealth Electoral Act the ANAO concludes that the AEC had failed to take any concrete steps to improve following a 2012 review, which found it needed to be more proactive in its approach to compliance. 

Its assessment is that -

• the AEC is failing to obtain key records from some donors. In four years, the AEC has not obtained 75 annual returns – a key record detailing a donors’ contribution in any given financial year. 
• Many records are being submitted late, in some cases by more than a month. Around a quarter of annual returns and 17% of election returns were submitted late. 44 donors were late by an average of more than 30 days. 
• The AEC is doing little to verify that the information it does receive is accurate and complete. It appears to looking for empty fields in forms and obvious errors but not validate by comparing what a donor has reported to other data from internal or external sources. 
• The AEC is failing to meet its own target for compliance reviews, which are used to audit a donor’s claims, notably failing to conduct 58 of the 168 reviews it had planned in the five years examined in the audit. 
• No compliance reviews have been conducted on entities who claimed to have made no donations in any particular period. 
• Donation records from third parties  such as the Minderoo Foundation,  the Australian Christian Lobby and unions are not analysed. 
• The AEC failed to analyse donation records submitted during elections by candidates, Senate groups or election donors, instead relying on records handed in by political parties. 

Most interestingly, the report argues the AEC is not properly using its enforcement powers when it does identify noncompliance. 

ANAO again offers recommendations to improve the AEC’s handling of the political donations system, strengthening analysis of the accuracy of the data, improved  collection of donation records, and adopting a more targeted approach to its compliance activities. 

 The AEC response has been unenthusiastic. The recommendation to use a more graduated system of punishments for noncompliance by donors, including the use of criminal prosecutions was rejected outright, because the AEC said it already takes such an approach. Other recommendations were accepted with qualifications.

The AEC report states in part

Background 

1. The financial disclosure scheme was introduced in 1983 to increase overall transparency and inform the public about the financial dealings of political parties, candidates, senate groups and others involved in the electoral process. Regulation of the receipt and public disclosure of campaign funding and expenditure was seen as complementary and a necessary corollary to the introduction of public funding of political parties and candidates. 

2. The financial disclosure scheme requires specified participants (entities) in the electoral process that receive funding, provide funding, or incur political, now electoral expenditure to lodge financial disclosure returns with the Australian Electoral Commission (AEC). Such information assists voters to make judgements knowing who funds political representatives and to what extent. 

Rationale for undertaking the audit 

3. The administration of the financial disclosure requirements by the AEC was selected for audit because the purpose of the financial disclosure scheme is to preserve the integrity of the electoral system, maintain public confidence in the electoral process and reduce the potential for undue influence and corruption. The financial disclosure scheme is also a central pillar of the Australian arrangements to provide electors with sufficient information on which to base selection of their political representatives. 

Audit objective and criteria 

4. The objective of the audit was to examine the effectiveness of the AEC’s management of financial disclosures required under Part XX of the Commonwealth Electoral Act 1918, including the extent to which the AEC is achieving accurate and complete financial disclosures. 

5. To form a conclusion against the audit objective the following high level audit criteria were used: Has the AEC established effective arrangements to administer the financial disclosure scheme? Has the AEC developed and implemented effective compliance monitoring arrangements? 

Conclusion 

6. The AEC‘s management of the financial disclosures required under Part XX of the Commonwealth Electoral Act 1918 is partially effective. 

7. The arrangements that the AEC has in place to administer the financial disclosure scheme are limited in their effectiveness as: across the four year period examined, while the AEC has obtained 5882 annual and election returns, as at 30 June 2020, 75 returns have not been obtained. There have also been delays with the submission of returns to the AEC with 22% of annual returns and 17% of election returns lodged after the legislated due date; the AEC does not make effective use of available data sources to identify entities that may have a disclosure obligation that have not submitted a return; there is insufficient evidence that the returns that have been provided are accurate and complete5; there is limited analysis undertaken of returns that are obtained; and risks to the financial disclosure scheme are not managed in accordance with the risk management framework. 

8. Compliance monitoring and enforcement activities are partially effective with the result that the AEC is not well placed to provide assurance that disclosure returns are accurate and complete. 

Supporting findings 

9. Across the four year period examined by the ANAO the AEC has obtained 5882 annual and election returns, and as at 30 June 2020, has not obtained 75 returns. Compliance with legislated timeframes has also been an issue, with 22% of annual returns and 17% of election returns lodged after the legislated due date. Forty four entities have submitted annual returns on average over 30 days late on two or more occasions, with 12 (27%) having lodged, on two or more occasions, on average over 120 days late. Additionally, the AEC does not make effective use of available data sources to identify entities that may have a disclosure obligation and have not submitted a return. 

10. There is insufficient evidence that annual and election returns are accurate and complete. While the AEC checks that all fields have been completed and looks for some obvious errors it does not compare the figures disclosed with other data available from internal or external sources, instead relying on its annual compliance review program to provide sufficient evidence that the annual and election returns are accurate and complete. 

11. The effectiveness of the analysis undertaken by the AEC is limited. Annual returns submitted by third parties and donors are not analysed. Election returns submitted by candidates, senate groups or election donors are not analysed. The analysis that is undertaken of annual returns submitted by political parties and associated entities is limited as there is no detailed analysis of the financial information, and effective data analytics and data matching techniques are not employed by the AEC. 

12. Risks to the financial disclosure scheme have not been managed in accordance with the AEC’s risk management framework. While the risk appetite and tolerance statement of this framework states that the AEC has a low/moderate risk tolerance for risks associated with the disclosure function there is no evidence that risks relating to all entities that have a disclosure obligation have been assessed and are being managed appropriately. Additionally, there is no treatment plan in place for the risk that has been identified by the AEC, being the risk of non-compliance by political parties. 

13. While the AEC has identified some lessons that it could learn from other electoral bodies that regulate financial disclosure schemes, there is little evidence of any resulting changes having been made to how the Commonwealth scheme is administered. The AEC has also not taken adequate steps to implement agreed recommendations from a review it commissioned in 2012 of the disclosure compliance function (which concluded that the AEC needed to become more proactive in its approach). 

14. The AEC does not apply an appropriate risk based approach to planning and conducting compliance activities. While most reviews are planned on the basis of a risk assessment, there are a number of limitations in the risk assessment methodology employed. Over the period assessed the AEC did not undertake a compliance review of any election donor returns or of any annual returns that included no financial disclosures (that is, a nil return). 

The number of reviews, and the resources allocated to them, have declined considerably across the five year period analysed. These reductions do not reflect an assessment that the risk of non-disclosure or non-compliance has reduced and this situation is also at odds with the significant growth that has occurred in the total value of receipts and other figures included in the financial disclosure returns provided to the AEC. 

15. Planned compliance activities are not implemented in a timely and effective manner. Of the 168 reviews that were planned to have been conducted over the five year period examined by the ANAO, 58 (35%) have not been completed. While completion rates have improved in the last two years this is due to the AEC significantly reducing the number of planned reviews, narrowing the scope of planned reviews, and reducing the value of the transactions being tested. There has also been a marked decline in the number of full reviews that are being conducted on large entities with disclosure obligations. 

16. The AEC does not appropriately act upon identified non-compliance. It is not making effective use of its enforcement powers and as such has not implemented a graduated approach to managing and acting on identified non-compliance.

The ANAO's  recommendations in summary are - 

Recommendation no.1 

Paragraph 2.19 The Australian Electoral Commission improve the extent to which it is obtaining annual and election returns by taking: greater steps to identify entities with a reporting obligation, and drawing that obligation to the attention of those entities; and more effective action to obtain returns that have not been submitted by an entity with an identified disclosure obligation. 

AEC Response: Agreed with qualification 

Recommendation no.2 

Paragraph 2.43 The Australian Electoral Commission use data analytics and data matching techniques to provide greater assurance over whether data included in returns can be relied upon, and as an indicator of returns that may require investigation. 

AEC Response: Agreed with qualification 

Recommendation no.3 

Paragraph 2.52 The Australian Electoral Commission identify and develop treatment plans for risks relating to the financial disclosure scheme and manage the scheme in line with its revised risk management framework. 

AEC Response: Agreed 

Recommendation no.4 

Paragraph 3.13 The Australian Electoral Commission apply the lessons learned that have been identified through: accessing specialist expertise to test the effectiveness of the processes and practices that are in place to identify undisclosed financial transactions; and establishing arrangements with other government agencies to share intelligence gathering, data interrogation and risk based sampling techniques. 

AEC Response: Agreed with qualification 

Recommendation no.5 

Paragraph 3.39 The Australian Electoral Commission adopt a risk based approach to its compliance review program that: assesses the aggregate level of risk to inform decisions about the size and coverage of the program; includes all disclosures required under the updated legislative framework; and improves the effectiveness of the risk matrix used to select the majority of reviews, and better address risks of non-disclosure and incomplete disclosure. 

AEC Response: Agreed with qualification 

Recommendation no.6 

Paragraph 3.73 The Australian Electoral Commission establish performance measures for its compliance program that are relevant, reliable and complete. 

AEC Response: Agreed 

Recommendation no.7 

Paragraph 3.90 The Australian Electoral Commission implement a graduated approach to addressing non-compliance, including by making better use of its investigatory powers and seeking to have prosecutions undertaken by the Commonwealth Director of Public Prosecutions or civil penalties applied by the courts where serious or repeat non-compliance has been identified. 

AEC Response: Not agreed

The AEC's response in summary is  

An effective and transparent financial disclosure scheme is a key pillar of Australia’s democratic framework, and the outcomes of this audit demonstrate there are aspects of the AEC’s administration of the disclosure scheme that would benefit from further enhancements. The AEC acknowledges the audit team’s work and notes the observations, which we will address in line with our responses to the recommendations. However, the ANAO’s categorisation of the AEC’s management of the disclosure scheme as ‘partially effective’ is rejected. The proposed report contains some errors of fact and superficial analysis that lead to some flawed observations. It demonstrates a misunderstanding of the AEC’s business and the legislation under which it operates. The ANAO’s decision to conduct this audit prematurely –before recent legislative changes have had a chance to take effect — is akin to a building inspector assessing a two-storey house after only the first level had been completed. The result is a report that gives the Australian public an unduly negative and misleading impression of the effectiveness of the scheme. 

The ANAO’s finding that the AEC’s management of the disclosure scheme is ‘partially effective’ runs counter to the extent of disclosure achieved by the AEC (obtaining 98.9% of annual returns and 99.6% of election returns during the four year period examined), the transparency of the current system, and the successful operation of the scheme within existing legislative boundaries. 

The AEC view is that the ANAO has misunderstood the intent of the legislation. Over the period the AEC has been administering the requirements of the Electoral Act, the AEC has not detected systemic issues, wilful or large scale non-compliance with the legislation. And nor have others that scrutinise this scheme through our transparent sharing of the data. Our experience is that incomplete or incorrect disclosures are almost entirely caused by administrative mistakes or misunderstanding of disclosure obligations, which participants rectify. As a result, disclosure is achieved in line with the legislation. 

The AEC’s risk based approach to compliance reviews is the outcome of balancing the competing tensions of natural justice, apprehended bias and prudent use of Commonwealth funds with the preservation of public confidence in the transparency of the financial dealings of political parties and others involved in the electoral process. 

Moreover, the AEC disagrees with the ANAO’s view that it does not make effective use of its enforcement powers. The ANAO seems to have misinterpreted parliament’s intent on this issue. The AEC’s view, supported by data, is that the AEC has successfully achieved disclosure through consultation and education. The proposition the AEC should be more heavy-handed in its approach to enforcement is rejected, as prosecutorial action for amendments and other administrative mistakes would be disproportionate. 

The AEC believes the ANAO’s misunderstanding of the intent of the legislation exaggerates the nature of the recommendations and the perceived risk to electoral integrity.

In contrast the ANAO comments 

The core elements of the financial disclosure scheme were introduced in 1983 and required disclosure reporting to the AEC and also provided the AEC with powers to undertake reviews and inquiries to maintain compliance with the disclosure provisions as well as a range of penalties aimed at discouraging non-compliance. Since its introduction, the financial disclosure provisions of the Electoral Act have been subject to four substantial amendments, most recently in 2018. The impact of those recent amendments on the AEC’s practices was considered as part of the audit. Reflecting that the key elements of the AEC’s responsibilities for administering the scheme are longstanding the audit examined administration of the disclosure scheme across four financial years spanning two federal elections and eleven by-elections. 

To achieve the purpose of the disclosure scheme, it is important that reports be obtained from all those with a reporting obligation and that the reports obtained be timely, accurate and complete. While almost all returns sought by the AEC were obtained: 

• reporting has not been sufficiently timely, with 22% of annual returns and 17% of election returns lodged after the due date with some entities submitting returns late on multiple occasions; and 78% of returns reviewed by the AEC required amendment 

• yet, rather than increasing its scrutiny of the reports that have been obtained, the AEC:

• significantly reduced the number of planned reviews, narrowed the scope of planned reviews, and reduced the value of the transactions being tested; 

• did not undertake or did not complete 35% of planned compliance reviews; and 

• has not undertaken a compliance review of any election donor returns or of any annual returns that included no financial disclosures (that is, a nil return).

Dignity

In Pile v Chief Constable of Merseyside Police [2020] EWHC 2472 (QB) the Court states 

Cheryl Pile brings this appeal to establish the liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing. Of course, such a right, although perhaps of dubious practical utility, will generally extend to all adults of sound mind who are intoxicated at home. Ms Pile, however, was not at home. She was at a police station in Liverpool having been arrested for the offence of being drunk and disorderly. She had emptied the contents of her stomach all over herself and was too insensible with drink to have much idea of either where she was or what she was doing there. Rather than leave the vulnerable claimant to marinade overnight in her own bodily fluids, four female police officers removed her outer clothing and provided her with a clean dry outfit to wear. The claimant was so drunk that she later had no recollection of these events. 

It is against this colourful background that she brought a claim against the police in trespass to the person and assault alleging that they should have left her squalidly and unhygienically soaking in vomit. Fortunately, because this appeal will be dismissed, the challenge of assessing damages for this lost opportunity will remain unmet. 

She also alleges that the circumstances in which these events took place amounted to an unlawful invasion of her right to privacy under Article 8 of the European Convention on Human Rights. 

Her claims came before Recorder Hudson in Chester last November. The hearing lasted three days at the conclusion of which the Recorder found for the defendant Chief Constable on all issues. 

Ms Pile now appeals against the Recorder's decision to this Court with the permission of the single judge. For ease and continuity of reference, I will refer to her henceforth in this judgment as the claimant.

Turner J notes

On 22 April 2017, the claimant got into a taxi in an advanced state of intoxication. Her condition was such that she has no, or virtually no, recollection of what happened afterwards. 

The relevant events can, however, be pieced together from evidence from other sources. The unfortunate taxi driver rang 999 after the claimant had started abusing him and "kicking off". She had been physically sick all over herself and the back of the taxi. The police officers who arrived in response to the call described the claimant as being covered in vomit. Indeed, on the following morning, the claimant herself asked the police to dispose of her trousers because of the foetid state they were in. One officer said that the vomit was in her hair and had gone all down her front. There can be little doubt from the evidence that the claimant's clothes were filthy and unhygienic when she arrived at the police station. 

The claimant's behaviour at the police station continued to be challenging. I have seen the CCTV footage of the claimant's arrival. As the Recorder accurately observed, the officers accompanying her were clearly sympathetic and trying to help her. Her befuddled attempts to give her details, including her own name, reveal that she was incoherent with drink. 

On her way to the cells, as the Recorder found, she started to flail her arms with the clear intention of striking at the officers accompanying her. The cell to which she was taken was monitored by a CCTV camera. Some legitimate criticism could, and indeed was, levelled at the decision of one Inspector Fairhurst not to require initially that she should be detained in an unmonitored cell but any such criticism was overtaken by events with the claimant's aggressive display in the corridor on the way to the cells. By that stage, it was obviously in the claimant's own best interests, and those of the officers responsible for her detention, that she should be monitored from the outset. 

Once in the cell, the officers tried to replace the claimant's wet and soiled clothes with clean ones. They were wearing protective gloves and managed to put her dirty clothes in a plastic bag. The claimant, however, continued to struggle and they left the cell. After that, Inspector Fairhurst looked into the cell through the hatch to check on the claimant. His intention was to ensure her continued safety. He had not known that she was still in her underwear. The Recorder found that all those involved in the detention of Ms Pile on the night in question were concerned with her welfare and the protection of her dignity. The officers had used no more force than was strictly necessary to remove the claimant's clothes and she was too drunk to understand what was going on. Furthermore, Inspector Fairhurst had no darker voyeuristic purpose when he was checking up on her. 

The CCTV monitoring in the cell fed back to the custody suite. In the event, it was fortunate for the claimant that she was kept under observation because, soon after she had been left alone, she lost her balance, fell over and banged her head on the cell floor. She was taken to hospital and treated for her injuries. I note, in passing, that she brought a claim in negligence against the defendant in respect of these injuries but that claim was rejected by the Recorder at first instance and this finding remained wisely unchallenged on this appeal. 

After her hospital visit, the claimant was returned to the police station and released. She agreed to pay a £60 fixed penalty for being drunk and disorderly and thereby avoided prosecution.

Anabiosis

Anabiosis and the Liminal Geographies of De/extinction' by Adam Searle in (2020) 12(1) Environmental Humanities 321–345 comments

The spectacle of de-extinction is often forward facing at the interface of science fiction and speculative fact, haunted by extinction’s pasts. Missing from this discourse, however, is a robust theorization of de-extinction in the present. This article presents recent developments in the emergent fields of resurrection biology and liminality to conceptualize the anabiotic (not living nor dead) state of de/extinction. Through two stories, this article explores the epistemological perturbation caused by the suspended animation of genetic material. Contrasting the genomic stories of the bucardo, a now extinct subspecies of Iberian ibex whose genome was preserved before the turn of the millennium, and the woolly mammoth, whose genome is still a work in progress, the author poses questions concerning the existential authenticity of this genomic anabiosis. They serve as archetypal illustrations of salvaged and synthesized anabiotic creatures. De/extinction is presented as a liminal state of being, both living and dead, both fact and fiction, a realm that we have growing access to through the proliferation of synthetic biology and cryopreservation. The article concludes through a presentation of anabiotic geographies, postulating on the changing biocultural significances we attach to organisms both extinct and extant, and considering their implications for the contemporary extinction crisis. 

Searle argues

 Extinction is not a moment or singular event. Extinctions, as ecologically and culturally significant as they may be, are difficult to locate, define, understand, or even imagine. Often the term itself assumes some pre-given contextual meaning that masks its polymorphous ambiguity. Amidst narratives of Anthropocenes, the sixth mass extinction, and the emergence of novel technologies in synthetic biology, both conservation and geographical research face a series of epistemic and ontological questions. The multifaceted nature of extinction invites us to make sense of it empirically, in grounded and relatable “stories,” facilitating and affording the affective reimagining of alternatives and capacities for responses. Amidst an emergent ontology between existential extremes of extinct and extant, scientific speculation and practice are reworking the significances of extinction. This article aims to de-speculate biotechnical assemblages unsettling preceding epistemologies of extinction: contingent on the extinct as permanent and non-negotiable within evolutionary time. This article discusses two nonhuman protagonists at the heart of this emergent ontology: the bucardo, the only extinct animal to have ever been cloned; and the woolly mammoth, perhaps the most charismatic de-extinction candidate. 

The promise of de-extinction radically alters the way we perceive the event of extinction, through an introduced potential for the resurrection of extinct species. Some commentators note that it may inspire agnosticism toward extant animals, whereas others openly celebrate the prospect of optimism in public perceptions of conservation.  De-extinction has been perceived by some as active engagement with the Anthropocene,  symptomatic of the emergent role of technoscience in more-than-human relations, or as an extreme on the spectrum of introductory techniques in the conservationist’s toolbox.  Many scholars in the environmental humanities have demonstrated the multiplicities of extinction. Through an approach inspired by this literature, this article explores the various practices and performances at the interface of biology, technology, and culture in grounding the multiplicities of de-extinction, outlining differences between the bucardo and mammoth de-extinction stories. Taking into account these multiplicities of meaning, defining de-extinction becomes increasingly difficult, especially as one comes up against questions such as: are reintroductions (say, for example, of beavers in Scotland) de-extinctions? However, for ease of argument I follow the typology of Sherkow and Greely in their 2013 Science article, which maintains that de-extinction comes in three forms: back-breeding, cloning, and genetic engineering. 

Back-breeding, the practice of selective breeding in an attempt to reverse domestication, is an interesting approach to ecological restoration for extinct biota currently utilized by some practitioners in the rewilding movement.  This article focuses on the cloning and genetic engineering approaches to de-extinction, due to the use of novel technologies in the genetic governance of life, and their active interactions with the genome. The bucardo and the mammoth are perhaps the classic examples for exploring the practices of speculative science in the global de-extinction discourse. Cloning as a de-extinction tool is contingent on the availability of intact genetic material.  The bucardo is the only extinct mammal to be outlived by their cryopreserved material,  and therefore unique in its resurrection subjection to cloning, yet in an age of salvage cryogenics it is likely the first of many. The mammoth, conversely, is de-extinction’s celebrity candidate. As elaborated by Stephanie Turner, “for extinction narratives, the development of molecular biology means that species such as woolly mammoths and Neanderthals are not lost after all, but continue to exist as genetic codes residing in their remains, codes we are getting better and better at reading and interpreting.”  It is speculatively engaged by synthetic biologists owing to the relative abundance of its genomic material; the rate of biological deterioration diminished through the aid of permafrost. Yet intact cells remain fantastical, and as such a mammoth de-extinction would rely on a process of hybridization with the embryonic material of elephants. 

Entanglements with extinction in both of these cases are archetypal and the most developed, both theoretically and empirically, the justification for their inclusion in this essay. Beyond contrasting techniques, their juxtaposition invites reflection on the changing temporalities and materialities of extinction. Charismatic vertebrates have dominated the global de-extinction discourse, with birds and mammals populating candidate lists disproportionately.  Invertebrates and plants are rarely featured, reflecting the broader allocation of attention in wildlife conservation. Acknowledging that drawing upon these examples may further propagate this oversight, I would emphasize that these two de-extinction stories have been selected for their technoscientific peculiarities rather than the spectacle of the animals themselves. 

This article is not an argument for or against de-extinction, which is a blossoming and encapsulating debate in the ecological and environmental sciences,  bioethics,  law,  genetics,  and even tourism studies.  The list goes on in countless other disciplines, the media, and public imaginations. Phillip Seddon speaks for a significant number of people when he affirms that “de-extinction will be pursued—the reality of the idea is too sexy to ignore, and it could be driven by aesthetic, commercial, scientific, or some other hitherto unanticipated imperatives and motivations.”  As noted by Bill Adams, the prospect of de-extinction has the ability to grab headlines, to circulate and multiply to the extent that it has fallen out of contact with the scientific community.  Consequentially, de-extinction has been subject to intense speculation, and the means in which many come to engage it is at the interface of science fiction and speculative fact.  After calls for a social scientific narrative to de-speculate de-extinction,  this article works toward a theorization of de-extinction’s geographies in the present. I begin by introducing key theoretical aspects of this changing landscape, through which to interrogate the empirical stories of the mammoth and bucardo. These changing epistemologies implicate the geographies and ontologies of extinction. 

De-extinction is a speculative practice engaging the anabiotic: the liminal materiality between living and dead. Liminality is an established tradition in geography, initially conceptualized within the anthropology of ritual,  and is commonly understood as a transitional process between and on both sides of a boundary or threshold. Examples of geographical applications have included identities in cyberspace,  theoretical examinations of borders and diplomatic arenas,  international relations,  and diaspora;  the diversity of its conceptual malleability illustrated in a recent edited book called Breaking the Boundaries: Varieties of Liminality.  “Liminality is also a provocation to take process, creativity, and aspiration seriously.”  Liminality is, itself, a conceptual frame that works through “shaking up epistemological assumptions”  by collapsing binaries around constructed ontological borders, such as extinct/extant, dead/alive, immaterial/material, nonlife/life, and technological/vital. Recent scholarship has applied the concept to animals,  or liminanimals, as Clemens Wischermann and Phillip Howell celebrate the creativity of the hybrid encounter.  Through the stories presented later, I will explore the liminal geographies emerging at the heart of narratives encompassing taxa resurrection, those salvaged and the synthesized genomes in the geographies of de-extinction. De-extinction technologies and ideas unsettle, distort, and disfigure the spaces and temporalities of extinction. This liminal state of de/extinction recalibrates genetics and the genome into a multifaceted existence, being both in potentiality as information and in actuality as deoxyribonucleic acids, exceeding and encompassing the aforementioned dualisms. I use a slash (/) to differentiate this existential liminality from the concept or process of resurrecting extinct taxa that is denoted by hyphenation (-). This discursive function of the slash indicates “an active and reiterative (intra-active) rethinking of the binary,”  allowing the conceptualization of binaries as dynamic and enmeshed rather than strictly oppositional,  as liminal and uncanny. Depending on context, a slash can be used in three ways: to denote “and,” “or,” or the spanning of two discrete categories (e.g. 2011/12). De/extinction should be thought of as a proactive and interactive questioning of the extinction concept, one accounting for both extinction and de-extinction as coexisting actions perpetually rethinking one another, forceful and metamorphic. De/extinction is relative and only makes sense with a contemplation of trace; that is, to consider de-extinction is to consider what extinction is not, and vice-versa.  This ontology exists in a plane of potentiality with agency to shape the ways we engage with and perceive the worlds we inhabit, certainly questioning the notion of extinctions as irreversible and indefinite. 

In what follows this article will explore liminal materialities, two anabiotic existences that unsettle the previously held epistemologies of extinct and extant: the bucardo and the mammoth. Through exploring the materialities and agencies of DNA itself, these genomes distort the discreteness of life and death. Biologists engaging de/extinction optimistically make sense of candidate genomes dissimilarly: they are the salvaged ghosts of extinction’s lost pasts, the synthesized ghosts of extinction’s lost futures. The bucardo and the mammoth provide archetypal illustrations of salvaged and synthesized anabiosis, the “not anymore” and “not there yet.” Genomes are simultaneously material amino acids and immaterial codes of semiotic programming, the program of which is referred to as a text by the molecular biologist, the scriptural model of which Derrida contends is central to advances in postwar science.  “Literary metaphors have been woven into the fabric of molecular biology since its inception. The determination of the human genome sequence has brought these metaphors to the forefront of the popular imagination, with the natural extension of the notion of DNA as language to that of the genome as the ‘book of life.’”  These systems of meaning are appropriately engaged through a posthumanist lens, which “expresses multiple ecologies of belonging,”  encompassing the matters of language, discourse, culture; but, most notably, matter itself. Posthumanist thought has been influenced through Derrida’s writings on biology, founded through his conceptualization of trace [trace],  referring to that which formulates difference and its deferral of meaning [différance].  This postponement of action or event creates meaning and presence through absence, and is the opening in which binary oppositions can operate: those aforementioned concepts of life/death, extant/extinct, and nature/culture. Exploring the trace of bucardo and mammoth’s genomes poses to offer insights into what anabiosis ontologically and existentially is at present.