Data Sharing

'Does Legislation Impede Data Sharing in Australia Across Institutions and Jurisdictions? A Scoping Review' by James Scheibner, Nicole Kroesche, Luke Wakefield, Tina Cockburn, Steven M. McPhail and Bernadette Richards in (2023) 47 Journal of Medical Systems comments 

 Healthcare providers and organisations, researchers and government agencies increasingly call for seamless access to, and transfer of, health and social welfare data across institutions and jurisdictions. Different healthcare providers request access to patient data, records, and information from other institutions to facilitate continuity of care and in seeking to reduce the risk of clinical errors. Likewise, patient healthcare information in aggregate form represents an increasingly powerful tool to promote collaborative health-related research by universities and research institutions. Finally, data can help guide quality improvement, policy development and resource allocation by government agencies such as public health departments. These use cases will be described as ‘data sharing’ throughout this paper. Whilst these use cases might play different roles in the healthcare system, they have the potential to promote public safety and improve clinical outcomes. 

Despite the potential for health and social welfare data sharing to improve the safety and quality of healthcare and facilitate research, it remains relatively uncommon in Australia. Although technical incompatibility and public concerns over data sharing are important considerations, one commonly cited reason not to share data is regulatory burden. Regulation, ranging from formal legislation to institutional policies and guidelines for conduct, supplies the privacy and research ethics principles concerning the use and sharing of health and social welfare data. Further, different regulation protects individuals with respect to how their data is used. This dual function has led healthcare providers and organisations, government agencies and researchers to frequently argue that in seeking to provide a protective framework, the regulation serves to prohibit data sharing. In addition, stakeholders such as researchers and healthcare providers often perceive this regulation as creating a significant barrier to data sharing across jurisdictions. Regulatory divergence is more complicated in a federal nation such as Australia, where the Federal and state governments have overlapping jurisdiction. Specifically, Federal privacy laws govern the processing of personal information by private entities as well as Commonwealth government agencies. By contrast, state agencies (such as public hospitals) are regulated under state privacy, health information and public sector laws. This somewhat diverse regulatory landscape can complicate effective sharing of data, but the challenge is not limited to clearly identified regulatory barriers. A careful review of the discourse surrounding the sharing of health and social welfare data reveals that the extent to which the identified restrictions on data sharing are actual, perceived, or self-imposed remains unclear. Although published literature has so far focused on legal analyses of privacy legislation and other forms of regulation, it can also assist in the characterisation of regulatory barriers to data sharing as either perceived, real or self-imposed. This understanding can, in turn, facilitate meaningful engagement with the challenges facing those who wish to share data for valid research and healthcare delivery-related purposes and inform law and policy reform. 

This paper presents a scoping review of the academic literature on cross-institutional and jurisdictional sharing of medical and social welfare data in Australia published between January 2011 and December 2021. To provide a meaningful review of the literature, a broad approach was adopted. Both empirical studies where data sharing supports the research method, and policy studies that consider the impact of data sharing regulations were included. This approach was adopted with a view to assessing whether perspectives on data sharing regulation diverge between scientific researchers and policy scholars. We then deductively coded these studies according to methods used in each study, as well as stakeholders, jurisdictions and regulatory tools mentioned. In addition, we deductively and inductively coded each of these articles to identify the specific challenges associated with data sharing. We also categorised articles depending on whether they considered data sharing at the institutional or inter-jurisdictional level. We concluded by examining the extent to which reported issues with data sharing are consistent with how data sharing legislation operates between different jurisdictions in Australia. The results from this study will help assess whether current regulations prohibit data sharing or other factors play a more significant role in prohibiting data sharing across Australia.

Sovereignty

Sovereignty Under The Australian Constitution: Why is Section 6 of the Australia Acts binding on State Parliaments?' by Jonathan Crowe in (2023) UQ Law Journal comments 

Section 6 of the' Australia Acts 1986 provides that, when a State law concerns the ‘constitution, powers and procedure’ of the State Parliament, it must abide by any relevant ‘manner and form’ requirements in previous legislation. This provision is generally accepted as imposing a binding limitation on the sovereignty of State Parliaments. However, the reason why this section is binding on State Parliaments is disputed. This article begins by discussing the concept of sovereignty in philosophical terms, before turning to the history of sovereignty in Australia. It explores the role of the Australia Acts in the constitutional system, focusing on their implications for constitutive power in the States, then looks specifically at s 6 and its capacity to bind State Parliaments. I argue that attempts to explain the authority of s 6 by appealing to the United Kingdom or Commonwealth Australia Acts fail. The only satisfactory explanation appeals to the idea that the Australian Parliaments acting together have a special form of sovereignty that allows them to make certain kinds of constitutional changes. This conclusion has important implications for how constitutive power is understood in Australia today. 

The Australia Acts 1986 are a truly extraordinary package of legislation. They consist of two Australia Acts passed by the Commonwealth and United Kingdom Parliaments, respectively, preceded by six Australia Acts (Request) Acts enacted by the State Parliaments. The legislation made important changes to Australia’s constitutional system, particularly regarding Australia’s relationship to the United Kingdom, but also concerning the powers of State Parliaments. The unique way that the Australia Acts were enacted was intended to harness the combined sovereignty of the eight distinct Parliaments involved. Nonetheless, questions still arise about the source of the legislation’s authority to change Australia’s constitutional arrangements. This issue holds the potential to illuminate the notion of sovereignty in Australia, including both its historical development and its current status. Section 6 of the Australia Acts provides that when a State law concerns the ‘constitution, powers and procedure’ of the State Parliament, it must be passed in accordance with any relevant ‘manner and form’ requirements. This provision is generally accepted as imposing a binding limitation on the sovereignty of State Parliaments. However, the reason why this section is binding on State Parliaments is disputed. No satisfactory explanation for this conclusion has been provided, including by the High Court. This article begins by discussing the concept of sovereignty in philosophical terms, before turning to the history of sovereignty in Australia. It explores the role of the Australia Acts in the constitutional system, focusing on their implications for constitutive power in the States, then looks specifically at s 6 and the source of its ability to bind State Parliaments to manner and form requirements. Why, then, does s 6 of the Australia Acts bind the States? 

Explanations based on the authority of the United Kingdom or Commonwealth versions of the Australia Acts are unconvincing. I argue that the only satisfactory explanation appeals to the idea that the Australian Parliaments acting together have a special form of sovereignty that allows them to make certain kinds of constitutional changes. This explanation derives from the distinctive process used to enact the Australia Acts themselves. The proposal might seem undemocratic when compared with the referendum process under s 128 of the Constitution. However, it is consistent with the role played by parliamentary bodies in the Australian system — not only as organs of representative democracy, but also as repositories of constituent power.

ChatGPT

'Not quite eye to A.I.: student and teacher perspectives on the use of generative artificial intelligence in the writing process' by Alex Barrett and Austin Pack in (2023) 20(59) International Journal of Educational Technology in Higher Education comments 

Generative artificial intelligence (GenAI) can be used to author academic texts at a similar level to what humans are capable of, causing concern about its misuse in education. Addressing the role of GenAI in teaching and learning has become an urgent task. This study reports the results of a survey comparing educators’ (n = 68) and university students’ (n = 158) perceptions on the appropriate use of GenAI in the writing process. The survey included representations of user prompts and output from ChatGPT, a GenAI chatbot, for each of six tasks of the writing process (brainstorming, outlining, writing, revising, feedback, and evaluating). Survey respondents were asked to differentiate between various uses of GenAI for these tasks, which were divided between student and teacher use. Results indicate minor disagreement between students and teachers on acceptable use of GenAI tools in the writing process, as well as classroom and institutional-level lack of preparedness for GenAI. These results imply the need for explicit guidelines and teacher professional development on the use of GenAI in educational contexts. This study can contribute to evidence-based guidelines on the integration of GenAI in teaching and learning. 

Public interest in artificial intelligence (AI) has grown substantially as a result of recent public access to large language models (LLMs; e.g., OpenAI’s GPT-3 and 4, Google’s PaLM 1 and 2), and chatbots (e.g., OpenAI’s ChatGPT, Google’s Bard, Microsoft’s Bing) that allow users to interface with LLMs. These Generative AI (GenAI) tools afford individuals with the ability to instantly generate writing on any topic by inputting a simple prompt. The public discourse surrounding GenAI has been mostly positive, but in the education sector there is serious concern about academic integrity and plagiarism (Dehouche, 2021; Lampropoulos et al., 2023; Sullivan et al., 2023; Yeo, 2023). Some schools have responded by banning the technology outright (Yang, 2023), a move likened by some to the banning of the pocket calculator when it was perceived as a threat to math education (Urlaub & Dessein, 2022). What is clear is that this new technology possesses disruptive potential and that institutions which have relied heavily on student writing for education and assessment will need to respond accordingly. 

Although a few schools have banned ChatGPT and similar tools, many have not, displaying confidence that their institution’s academic integrity policy is robust enough to accommodate the new technology. However, current definitions of plagiarism have been described as medieval (Dehouche, 2021; Sadeghi, 2019), typically including language such as kidnapping, stealing or misappropriating the work of others (Sutherland-Smith, 2005), which now leads us to question whether a chatbot counts as one of these others. Generative AI is trained on a selection of diverse natural language data from across the Internet which allows it to string together unique combinations of words and phrases, similar to how humans learn to produce an unlimited amount of novel spoken or written text from the limited language they absorb from their environment, a tenet of generative grammar (Chomsky, 1991). The result is that there is no identifiable other whose work is being stolen by a chatbot. To complicate matters, the language of OpenAI’s Terms of Use state that it assigns users “all its right, title and interest in and to Output” from ChatGPT, including for purposes of publication (OpenAI, 2023). Any practiced educator would likely agree that submitting an essay written by ChatGPT without disclosure violates academic integrity, but students may not readily see a problem with it. 

Although GenAI has multiple applications, its use as an authoring tool in programs like ChatGPT allow for easy misuse. Students who have purposefully violated academic integrity in the past through the use of contract cheating or paper mills will likely not hesitate to use ChatGPT or other GenAI tools to do so now, but other students will need guidance on how to avoid inadvertently cheating. Student perceptions of academic dishonesty have historically been unclear or incomprehensive, and rarely align with teacher expectations (Tatum, 2022), GenAI will only serve to complicate this (Farrokhnia et al., 2023). 

Some advocate working towards a coexistence with AI in education by establishing common goals and guided exploration of the limitations of the technology (Godwin-Jones, 2022; Tseng & Warschauer, 2023). Yeo (2023) has specifically recommended the exploration of student perceptions about the ethics of using GenAI tools, and Pack and Maloney (2023a) suggested teacher and researcher use should also be investigated. 

To date no consensus has arisen regarding what constitutes appropriate use of GenAI in higher education. Therefore, with the goal of identifying some common expectations, the purpose of this study is to explore student and teacher perspectives of using GenAI for various tasks in the writing process, including brainstorming, outlining, writing, and revising done by students, and evaluation and feedback done by teachers. The research questions guiding the study are: 

1. What are undergraduate students’ and teachers’ perspectives on using GenAI in the writing process (brainstorming, outlining, writing, revising, evaluation, and feedback)? 

2. How do student and teacher perspectives on the use of GenAI in the writing process compare?

Teaching

'Beyond emergency remote teaching: did the pandemic lead to lasting change in university courses?' by Broadbent, Ajjawi, Bearman, Boud and Dawson in (2023) 20(58) International Journal of Educational Technology in Higher Education comments 

The COVID-19 pandemic significantly disrupted traditional methods of teaching and learning within higher education. But what remained when the pandemic passed? While the majority of the literature explores the shifts during the pandemic, with much speculation about post-pandemic futures, a clear understanding of lasting implications remains elusive. To illuminate this knowledge gap, our study contrasts pedagogical practices in matched courses from the pre-pandemic year (2019) to the post-pandemic phase (2022/2023). We also investigate the factors influencing these changes and the perceptions of academics on these shifts. Data were gathered from academics in a large comprehensive Australian university of varying disciplines through a mixed-methods approach, collecting 67 survey responses and conducting 21 interviews. Findings indicate a notable increase in online learning activities, authentic and scaffolded assessments, and online unsupervised exams post-pandemic. These changes were primarily driven by university-guided adaptations, time and workload pressures, continued COVID-19 challenges, local leadership, an individual desire to innovate, and concerns about academic integrity. While most changes were seen as favourable by academics, perceptions were less positive concerning online examinations. These findings illuminate the enduring effects of the pandemic on higher education, suggesting longer-term implications than previous studies conducted during the acute phase of the pandemic. 

In 2020 and 2021, higher education institutions globally had to modify curricula and pedagogy due to the COVID-19 pandemic (UNESCO, n.d.). This rapid shift became commonly known as ‘emergency remote teaching’ (Hodges et al., 2020). Emergency remote teaching (ERT) involves unplanned, quick adaptation, often using existing technology and resources, and with emphasis on preserving instruction rather than enhancing learning quality (Watermeyer et al., 2021). This type of teaching is distinct from online learning, which is a thought-out approach designed for online delivery and is considerate of learners’ needs and preferences (Hodges et al., 2020). During this emergency phase, face-to-face classes were stopped or transferred online to lessen COVID-19 risks (Crawford et al., 2020; Johnson et al., 2020). Class assessments moved online, activities requiring specific locations or equipment were disrupted, and students had to work more independently, regardless of their self-regulation skills (Bartolic et al., 2022a; Slade et al., 2022). Many academics felt ill-prepared for the changes that transpired (Sum & Oancea, 2022) and reported concerns that teaching quality suffered during this time (Weidlich & Kalz, 2021). 

COVID changed teaching and learning practices in a profound manner. For example, a consortium comprising nine institutions from around the world investigated changes to teaching and learning during the early stages of the pandemic, collecting data from 4243 students, 281 instructors, 15 senior administrators, and 43 instructional designers (see Bartolic et al., 2022a, 2022b; Guppy et al., 2022a, 2022b). This body of work showed challenges faced in ERT (Guppy et al., 2022a), including the modifications in assessment approaches corresponding to the digital shift (Bartolic et al., 2022a) and student vulnerabilities and confidence in an online learning environment (Bartolic et al., 2022b). However, are these findings a question of a momentary disruption and a return to the previous status quo? Or does the pandemic represent the kind of external shock that fundamentally changes the landscape? Funding bodies report substantial challenges for teaching and learning innovations to have long lasting impacts (Kottmann et al., 2020). What is interesting about the pandemic is that it forced change across all levels of the university all at once, and this may prove to be a useful lesson for understanding how educational change itself can unfold in different circumstances. Therefore, it is important to ask what, if anything, has been retained and why. 

In a systematic review from 2023, Imran et al. analysed 68 studies on blended and online teaching modes, aiming to identify emerging themes in learning modes from the post-pandemic era. Notably, of the studies they examined, only a handful were conducted in the recent post-pandemic years of 2022 and 2023. Among the few that were, none compared pre-pandemic conditions to the post-pandemic environment nor centred their analysis on data highlighting shifts in teaching practices from the viewpoint of educators. Instead, a significant portion of these studies offered mere speculations about the future in the aftermath of the pandemic. This led the authors to emphasise a noteworthy gap in the literature, concluding that “future research should focus on the long-term effects of COVID-19 on teaching modes and the resulting changes in curriculum development” (p. 8). Echoing this sentiment, Kerres and Buchner (2022) noted that much of the current research predominantly centres around the pre- and mid-pandemic phases, with scant attention paid to post-pandemic impacts. They argue that despite the plethora of available research, “it is still difficult to grasp a clear picture of the effects of the pandemic on education in the various sectors of education worldwide” (p. 6). This ambiguity primarily stems from the dearth of data concerning educational transformations in the post-pandemic world. 

The current research intends to delve deeper into the post-pandemic aftermath than previous studies. We explore the elements from the pre-pandemic era that were retained and what adjustments made during the pandemic persisted, if any. Further, using ecological systems theory as a framework, we explore which factors at the individual, faculty/discipline, university and outside the university contributed to retain changes. This will enhance understanding into how educational change occurs and may allow universities, faculties, and academics to tackle the challenging problem of sustaining change to teaching and learning practices.

Cryo and Post-mortem rights

'Cryopreservation and current legal problems: seeking and selling immortality' by Alexandra Mullock and Elizabeth Chloe Romanis in (2023) 10(2) Journal of Law and the Biosciences comments 

 Cryonics, the ‘freezing’ of the human body after death in the hope of reanimation in the future, remains a remote possibility, and yet it is becoming a more popular choice. There has been much academic discussion of the ethics of cryopreservation; however, the legal problems have received little attention. There are, however, several potential current conflicts that might arise, as was illustrated by the case of JS in England, in which a 14-year-old girl who sought cryopreservation against her father’s wishes. In the USA, there have been disputes within families about cryonic preservation, and between cryonics organizations and loved ones of the deceased when there is negligent preservation. Cryopreservation raises questions concerning the law on death and posthumous interests, property in the body, contract law, and (potentially) negligence. We argue that, in the absence of proper regulation, cryonics organizations may be able to exploit the dying and dead. The potential legal problems that we have identified in relation to the law in England and Wales demonstrate that the law is ill-equipped to protect the interests of the dead and their next of kin. 

Waking the dead after cryopreservation remains science fiction. While freezing human cells and tissue is well established in medicine—particularly freezing gametes or embryos for fertility treatment—life after death via cryopreservation remains impossible. Despite the state of the science, people are opting for this technology and entrusting their ‘remains’ to cryonics companies, and interest in doing so is increasing. Individuals can arrange for either their entire body or their head to be frozen after death, and thereafter preserved with the hope that reanimation (and cure) is eventually possible. The question of whether such a hope will ever be fulfilled is not our concern and this article does not attempt to engage with unknown futures and science fiction. Rather we are concerned about the current legal uncertainty over preserving the dead in this way and the potential for legal conflict this raises for the living relatives of the deceased in the present. In this paper, we consider the legal uncertainties in the jurisdiction of England and Wales. 

An example of conflict over cryopreservation was seen in Re JS, in which a 14-year-old-girl with a rare form of terminal cancer successfully sought a court order to allow her body, after death, to be cryonically preserved without the approval of her estranged father. While this case set no precedent approving or encouraging cryonics, questions about the way the process would be handled prompted Jackson J to conclude that proper regulation of cryonics was needed. As JS illustrated, the current law is struggling to accommodate the cryonic process, the interests of those preserved and their relatives. The conflict in JS reveals how those with an interest in what happens to the body of a deceased relative may seek to prevent cryopreservation. Moreover, because the process and maintenance of cryonics involves an ongoing obligation to preserve the body of the deceased, whose legal rights died with them, questions arise, and are addressed in this paper, over the nature of any legal obligations to the next of kin and importantly, who has the legal right to possess the preserved body or head in the event of a dispute. 

While the ethics of cryonics have been considered in some depth, the legal questions have received less attention. Perhaps this is unsurprising. Conway takes the view that so few people in the UK are choosing cryonic preservation that regulating to address such rare needs is ‘not such an urgent task’. However, we believe that examining the issues to better inform the debate before regulation becomes a more urgent task is a worthwhile exercise. Some people are already using this technology, and the potential for legal problems and conflict is significant. Many of the legal issues we explore in this article are speculative, but such an investigation is necessary to consider what may be problematic about cryonics, and to consider potential legal solutions. Furthermore, because of the importance attached to respecting the wishes and the remains of the dead, and the logistics of preserving and storing the dead in this context, cryopreservation raises particularly sensitive and potentially disturbing issues. Such issues require thorough consideration before a court is compelled to resolve a dispute concerning cryopreservation. 

There is nothing to prevent individuals in England and Wales from choosing cryonic preservation after death, provided they can pay for it and make the necessary arrangements to be frozen and stored at a cryonics organization. There is, however, somewhat of a legal vacuum when it comes to the potential legal problems or conflicts between interested parties surrounding cryonic preservation. Consequently, it is important to examine problems that have arisen — in Re JS and in the USA — and to speculatively consider foreseeable legal problems related to use of technology in advance of such conflicts materialising in the jurisdiction of England and Wales. 

In this article, we first consider how the initial arrangements are conducted with the relevant organizations and the challenges of ensuring that cryopreservation ensues, particularly in England and Wales. These complications may arise while the person intending to become a cryon is still alive/dying and thus is a legal person. We then discuss ‘conflicts about cryopreservation’— namely, what happens where family members oppose cryopreservation (even though favored by the dying/dead individual), or where the state has requirements for bodily treatment/investigation after death, or, if a problem arises with the process immediately after death. We then consider ‘conflicts in preservation’—namely, disputes between the dead/their next of kin and cryonics organizations where there is a failure to cryonically preserve a body, or the process is in some way negligent. All these disputes are complicated because they often occur once the person who had wanted to be preserved is no longer alive, and thus no longer a legal person. Finally, we consider ‘disputes after preservation’—these are primarily questions of who, in the event of a dispute, has the right to possess, or perhaps ‘own’ a cryopreserved body when that body (definitively no longer a legal person) effectively becomes a chattel. While the general rule is that the body is not property, we argue that cryonic preservation could transform human remains into property. While the family initially has a strong claim in deciding what happens to the body in terms of how the body is disposed of, once the cryonic organization takes possession and exercises skill in preserving the body, the issue of ownership becomes unclear. 

As Re JS illustrated, people may opt for cryopreservation as a way of dealing with or processing their death, perhaps as a means of obtaining some comfort and hope about the end of their life. Our analysis demonstrates that this choice makes them incredibly vulnerable in several ways. We highlight how, without proper regulation in a number of areas, cryonics organizations are able to exploit the dying and dead, and potentially also create significant legal problems, with associated emotional distress, for the family of the deceased person.

'What Remains? Human Rights After Death' by Claire Moon in Ethical Approaches to Human Remains (Springer, 2020) 39-58 comments 

This chapter is concerned with the human rights of the deceased victims of mass atrocity. It addresses these rights in the context of forensic anthropological work to establish the individual and collective identities of the victims. This work became historically and politically signi cant in the later decades of the twentieth century in the context of attempts to determine the numbers, identities, and cause of death of victims of state crimes and violent con ict, return their bodies to family members, and contribute evidence to legal trials for crimes such as crimes against humanity, genocide, torture, and enforced disappearance. Key amongst these efforts were attempts to recover and establish the identities of the dead who were subjected to torture and enforced disappearance in Argentina in the mid-1980s, and ongoing efforts to return human remains to families of the dead in the former-Yugoslavia following the wars of the 1990s. Our moral obligations to the dead in these contexts beg a profound and comprehensive ethical approach. With this in mind, this chapter addresses two key questions: do these dead have human rights? And if so, which speci c rights do they have? This chapter puts forward some provisional lines of enquiry and argumentation for consideration. It provides resources and evidence — historical, legal, and forensic — in support of such rights, and makes several suggestions regarding which rights might be developed with respect to the dead. 

Introduction My contribution to this volume is expressly concerned with the rights, or human rights, of the deceased victims of mass atrocity. It concentrates on certain ethical issues arising out of the archaeology of mass violence, which means that it addresses the human rights that arise in the context of mass grave exhumations and humanitarian efforts to establish, by forensic means, the individual and collective identities of the victims. This kind of work became historically and politically signi cant in the later decades of the twentieth century in the context of determining the numbers, identities, and cause of death of victims of state crimes and violent con ict, returning their bodies to family members, and contributing evidence to legal trials for crimes such as crimes against humanity, genocide, torture, and enforced disappearance. Key amongst these efforts were attempts to recover and establish the identities of the deceased individuals who had been tortured and subjected to enforced disappearance in Argentina in the mid-1980s; ongoing efforts to return human remains to families of the dead in the former-Yugoslavia in the long aftermath of the wars of the 1990s; the International Criminal Tribunal for Rwanda’s (ICTR) investigation into the 1994 genocide; ongoing exhumations of Spain’s Civil War graves; the trial for genocide of Guatemala’s former President Rios Montt in 2013; and current efforts by human rights, forensics, and family organisations to establish the numbers and identities of victims of torture, murder, and enforced disappearance perpetrated by criminal gangs and state security forces in the context of Mexico’s war against organised crime. ... 

I will start by reprising my two questions: do the dead have human rights? And if so, which rights do they have? These seemingly simple questions are hugely controversial and invite wildly varying responses. To date I have put them, informally, to a range of professionals and experts including international lawyers and forensic scientists. I have been faced with radically polarised responses to the rst of these questions, ranging from ‘what a ridiculous question! Only the living can have human rights’, to ‘what a ridiculous question. Of course, the dead have human rights!’. When pushed, my interlocutors have been unable to elaborate compelling justications for their (primarily, I think) instinctive responses, although some have ventured to articulate which rights the dead might have a claim to (and I return to this in the closing section of this chapter). These polarised responses demonstrate the need to address these two questions and I would argue, following Marcel Mauss ([1935] 1973, 70), that it is“generally in these ill-demarcated domains that the urgent problems lie”. There is no doubt in my mind that these are, now, urgent questions. 

Arguments about the rights of the dead have, traditionally, been conducted within the fields of law and medical ethics in relation to property rights (Smolensky 2009) and organ and tissue donation (Boddington 1998; Emson 2003; Harris 2003; See the Colibrí Centre (2018) in Tucson, Arizona, for its work on migrant death on the US/ Mexico border, and the Mediterranean Missing (2018) and Last Rights (2018) projects, amongst others, who work on migrant deaths on Europe’s borders. The International Committee of the Red Cross (2017) also provides support to families of missing migrants. 

Attempts to establish the human rights of the dead are scant, and have so far attracted philosophical interest but have escaped philosophical justification. As I see it, this is at least partly because the dead are interpreted within a (generally) liberal scheme of argumentation within which they are claimed to have no interests. 

This scheme of understanding does not, inevitably, accommodate different cultural interpretations of what death means. For example, some animistic beliefs maintain that ‘the spirit’ survives physical death and thus, within a particular cultural script, may be seen to be in possession of certain interests. But let us for the sake of argument agree that the dead have no interests. If that is the case, how can they possibly benefit from rights? I will return to interests and bene ts at the end of this chapter, but at this point I simply want to suggest that we advance further with the argument by exploring it empirically rather than philosophically. This means, following Durkheim ([1895] 1982), that we approach and interpret human rights as ‘social facts’: as values and norms that shape (permit and constrain) human action and that can, at some level, be observed and documented. This approach requires us to eschew metaphysical or philosophical ‘groundings’. It is much more prosaic. It maintains that human rights exist in the world insofar as people behave in accordance, and can be observed to behave in accordance, with the principles that human rights set out. After all, human rights are as much a practical activity as they are one of principle, and practical activity is as constitutive of rights as is (philosophical) reasoning. Such an approach would maintain that the dead have human rights insofar as people act as though they have rights, and would require an empirical demonstration of those actions, such as evidence of behaviour that is shaped by the idea that the dead have human rights. 

An immediate and obvious problem arises. The dead cannot be rights claimers, and neither can they be bearers of responsibilities. But, I would argue, they can be rights holders insofar as the living behave as if they have obligations towards the dead, treat them as if they have rights, and confer rights upon them in practice. Consequently, in order to answer the question‘do the dead have human rights?’ it becomes necessary to enquire into the behaviours of the living towards the dead. Specifically, it requires investigation of the histories, protocols, and practices out of which the human rights of the dead appear to be emerging, and any existing principles that appear to confer rights upon the dead. 

There is no single human rights document to date that explicitly refers to the human rights of the dead. However, what I show in what follows is that there are rich resources in history, law, and forensic practice that already bestow, if at times subtly, human rights on the dead. These resources suggest that the human rights of the dead already exist both in principle and in practice. My intention is to divulge and make visible this so far subtle range of resources and practices that point to the human rights of the dead by referring to (a) important histories such as the births of modern humanitarianism and human rights; (b) legal guidelines regarding the treatment of the dead, and (c) the regulations governing the forensic exhumation and identification of human remains. My argument is structured in three parts. The first part demonstrates how the dead were central to the histories of contemporary humanitarianism and human rights, the second part takes a look at legal codifications, specifically in International Humanitarian Law, of the ‘right’ treatment of the dead, and the third part investigates protocols used by forensic practitioners which govern the recovery and identification of the mass dead victims of war and atrocity.

Biometrics

'Glukhin v. Russia' by Monika Zalnieriute in (2023) 117(4) American Journal of International Law 695-701 comments 

 Glukhin v Russia is the first ECtHR decision on the use of FRT; it portends a strong foundation for further restricting how governments use FRT. For two reasons, however, there is little certainty as to the future of the ECtHR’s approach to mass FRT-surveillance in public spaces. First, the ECtHR tends to focus heavily on procedural safeguards - what I have called its procedural fetishism; and second, the case concerned Russia – a former Member State of the Council of Europe. In this case note, I argue that ECtHR’s trend towards procedural fetishism is particularly dangerous, for it legitimizes mass FRT-surveillance in public spaces, including when used to tackle protest movements globally. 

On July 4 2023, the Third Section of the European Court of Human Rights (ECtHR) ruled in Glukhin v Russia, that administrative conviction for a protester’s failure to notify Russian authorities of his intention to hold a solo demonstration, and the use of facial recognition technologies (FRT) to convict the protester, violated his rights to a private life and freedom of expression, guaranteed under Articles 8 and 10 of the European Convention on Human Rights (‘the Convention’ or ‘ECHR’). The use of FRT enabled authorities to track down the Russian national and arrest him within seven days of the alleged offence. Mr Glukhin was arrested, with CCTV and social media footage being used in administrative proceedings against him. The ECtHR found that the Russian Government’s actions violated Articles 8 and 10 of the Convention. 

This is the first ECtHR decision on the use of FRT; it portends a strong foundation for further restricting how governments use FRT. For two reasons, however, there is little certainty as to the future of the ECtHR’s approach to mass FRT- surveillance in public spaces.

Zalnieriute's 'Against Procedural Fetishism: A Call for a New Digital Constitution' in (2023) 30(2) Indiana Journal of Global Legal Studies argues 

Digital constitutionalism, to date, has been proceduralist; it has assumed that transparency and due process can temper power and attain justice for people vis-à-vis the automated state and powerful tech companies. So far, digital constitutionalism has also been very soft and blind to its own coloniality: Instead of deploying hard law, we are still looking for ways to pressure digital behemoths to self-regulate. We downplay US dominance, colonial exploitation, and environmental degradation caused by digital imperialism. Meanwhile, the power of tech companies has escalated. They now influence many aspects of our public and private lives, from elections to our own personalities and emotions, to environmental degradation. To be successful, the project of digital constitutionalism must resist a corporate agenda of procedural fetishism, a strategy to redirect the public from more substantive and fundamental questions about the concentration and limits of power to procedural microissues. Such diversion merely reinforces the status quo. 

To rectify the imbalance of power between people and tech companies, a new digital constitution must therefore try something different. It must shift its focus from soft law initiatives to tangible legal obligations by the tech companies. We must redistribute wealth and power not only by breaking and taxing tech companies, fortifying regulatory enforcement, increasing public scrutiny, and adopting prohibitive laws but also by democratizing big tech by making them public utilities and giving people a say how these companies should be governed. Crucially, we must also decolonize digital constitutionalism through recognition of colonial practices of extraction and exploitation and paying attention to the voices of Indigenous peoples and communities of the so-called Global South. With all these mutually reinforcing efforts, a new digital constitution will debunk the corporate and state agenda of procedural fetishism and will establish the new social contract for the digital age.,

Regulating AI

'Licensing high-risk artificial intelligence: Toward ex ante justification for a disruptive technology' by Gianclaudio Malgieri and Frank Pasquale in (2024) Computer Law and Security Review comments 

The regulation of artificial intelligence (AI) has heavily relied on ex post, reactive tools. This approach has proven inadequate, as numerous foreseeable problems arising out of commercial development and applications of AI have harmed vulnerable persons and communities, with few (and sometimes no) opportunities for recourse. Worse problems are highly likely in the future. By requiring quality control measures before AI is deployed, an ex ante approach would often mitigate and sometimes entirely prevent injuries that AI causes or contributes to. Licensing is an important tool of ex ante regulation, and should be applied in many high-risk domains of AI. Indeed, policymakers and even some leading AI developers and vendors are calling for licensure in the area.  

To substantiate licensing proposals, this article specifies optimal terms of licensure for AI necessary to justify its use. Given both documented and potential harms arising out of high-risk AI systems, licensing agencies should require firms to demonstrate that their AI meets clear requirements for security, non-discrimination, accuracy, appropriateness, and correctability before being deployed. Under this ex ante model of regulation, AI developers would bear the burden of proof to demonstrate that their technology is not discriminatory, not manipulative, not unfair, not inaccurate, and not illegitimate in its lawful bases and purposes. While the European Union's General Data Protection Regulation (GDPR) can provide key benchmarks here for ex post regulation, the proposed AI Act (AIA) offers a first regulatory attempt towards an ex ante licensure regime in high-risk areas, but it should be strengthened through an expansion of its scope and substantive content and through greater transparency of the ex ante justification process. 

Regulating AI is difficult. Complex technology, under-resourced regulators, substantial economic consequences, and high risks for fundamental rights all contribute to this difficulty. Thanks to the well-recognized “black box” problem, identifiable AI abuses are only the tip of an iceberg of problems.1 AI systems can be opaque, nonlinear, and unpredictable, and they evolve rapidly. This makes it difficult to keep ex post, reactive regulations up to date with the latest technological advances. Years-long litigation will also often fail to set relevant precedents and standards before major damage occurs. Meanwhile, many AI developers either lack legal expertise, or ignore potential legal problems, and they often have vastly more resources than the authorities supposedly monitoring and regulating them. 

These asymmetries cause many problems, pressuring governments to prioritize innovation (however destructive its effects) at the cost of fundamental sacrifices of societal values. Since jobs and growth are often far easier to quantify than, say, the negative effects of discrimination or disinformation (amongst the many harms unregulated AI can cause), inadequate regulations and enforcement are endemic to the field. In addition, AI regulatory frameworks cannot guarantee a good level of accountability of AI providers if they foresee small fines in case of AI misuse. A small dent in profits is not enough to deter bad behaviour; rather, it is treated as a cost of doing business. This can incentivize companies to take risks with their AI systems and prioritize profits over safety and ethical considerations. This would be understandable if AI were only a concern of a small number of scientists and laboratories. But it is now evident that the use of AI in business, policing, administration, and beyond, poses high risks to fundamental rights, such as privacy and equality, and can perpetuate and even amplify biases and discrimination, which can have a significant impact on individuals in a situation of vulnerability. 

This paper will criticise policymakers’ over-reliance on ex post legal measures, including fines and penalties, and will advocate for AI licensure, taking inspiration jointly from the European Union's General Data Protection Regulation and the proposed AI Act, but going well beyond these approaches. Their approach might not prevent harm from occurring in the first place. A more proactive approach, ex ante rather than ex post, would require companies to meet certain safety and ethical standards before deploying AI systems, would be more effective in preventing harm and ensuring accountability. While the GDPR has essential principles for AI justification (including fairness and purpose limitation), it is generally more based on an ex post approach, since there is no requirement for prior administrative authorisation for high risk data processing. On the other hand, the proposed AI Act is based on an ex ante model (conformity assessment before commercialisation), but that model might prove limited in its scope (the rigid list of high-risk AI systems might be not adequate), substance (the proposed draft does not refer to, e.g., a fairness principle) and transparency (there is no duty to disclose the ex ante justification statement to the public). 

A key regulatory tool for an ex ante regime is licensure. Under a licensing system, products, services, and activities are unlawful until the entity seeking to develop, sell, or use them has proven otherwise. High-risk AI's documented and potential harms indicate a strong case for a licensure regime here. Under our proposal, to obtain a license, a high-risk AI provider must certify that its AI system meets clear requirements for security, non-discrimination, accuracy, appropriateness, and correctability before it is commercialized. Such a standard may not seem administrable now, given the widespread and rapid use of AI at companies of all sizes. But such requirements could be applied, at first, to the largest companies’ most troubling practices, and then gradually to other applications of AI. Under such a regime, AI providers may, for example, be required to demonstrate basic practices of fairness, accuracy, and validity once they have used an AI system in use by, or affecting, over 1 million people. Since government often charges fees for licenses, this system may also prove effective at providing much-needed resources to regulatory bodies now struggling to keep up with the AI revolution. 

Our proposal builds on existing scholarship and regulatory proposals and practices. Scholars have argued that certain data practices should not be permitted; licensure would help ensure that they are indeed prohibited. Rather than expecting underfunded, understaffed regulators to overcome monumental black box problems after harm has been done, responsibility could be built into the structure of data-driven industries via licensure schemes that require certain standards to be met before large-scale data practices expand even further. Licensure should spur fundamental quality improvements in the realm of product-based and services-based AI, including automobiles, aircraft, logistics, smart infrastructures, financial and employment recommendations, and scoring. There is increasing concern about the validity of the data used in AI and the algorithms it is based on. Rather than addressing all these concerns in an ex post way via tort-based judicial actions or audits and litigation by regulators, the ex ante approach of licensure must be part of the regulatory armamentarium. There are some wrongs that can arise out of AI that are too serious to be recompensed ex post. 

In addition, a solely ex post approach can create unnecessary risks for fundamental rights of consumers and end-users. Suppose that after a period of time of intensive use of an AI system (e.g., an App) by a massive number of consumers, regulators find that AI-driven app violates the law. A possible sanction might be to block the app and prevent those people to continue using that system. However, considering the period when the app was largely used, people might experience the need of that app, based on a psychological, economic or functional dependency from that AI system. Such harms occurred after the Italian ex post prohibition of Replika and ChatGPT, where many users experienced emotional distress and similarly significant adverse effects after that the Italian DPA prohibited those AI-driven systems. To be sure, the Italian moves here were warranted. Nevertheless, regulators’ ex post approach created the paradox that both keeping an AI system in use and prohibiting it risked either harming or reducing the utility of individuals. By contrast, conditioning the burden of proof on AI providers to provide a justification of fairness, safety, non-discrimination, and integrity ex ante would prevent such troubling double binds, and many other problems. 

Beyond its value in preventing avoidable harms and double binds for regulators, a licensure regime for AI would also enable citizens to democratically shape technology's scope and proper use, rather than resigning themselves to forces beyond their control. To ground the case for more ex ante regulation, Part 2 catalogues the limitations of ex post approaches in the regulation of AI, while Part 3 examines the substantive foundation of licensure models by elaborating a jurisprudential conception of justification. Part 4 addresses the institutional dimensions of our licensure proposal and addresses objections. Part 5 concludes with reflections on the opportunities created by AI licensure frameworks and potential limitations upon them. This paper focuses mostly on the EU law. However, when formulating its proposal, it makes a necessary comparison with other legal systems, where the models of ex ante prohibition and licensures are already a reality or where the legal discussion can already offer some important food for thought.