Ethical Identity Regulation?

The 290 page Security & Privacy: Global Standards for Ethical Identity Management in Contemporary Liberal Democratic States (ANU Press) by John Kleinig, Peter Mameli, Seumas Miller, Douglas Salane & Adina Schwartz is concerned with the ethical dimensions of identity management technology – electronic surveillance, the mining of personal data, and profiling – in the context of transnational crime and global terrorism.

The authors comment [PDF] that the ethical challenge at the heart of their study is

to establish an acceptable and sustainable equilibrium between two central moral values in contemporary liberal democracies, namely, security and privacy. Both values are essential to individual liberty, but they come into conflict in times when civil order is threatened, as has been the case from late in the twentieth century, with the advent of global terrorism and trans-national crime.

We seek to articulate legally sustainable, politically possible, and technologically feasible, global ethical standards for identity management technology and policies in liberal democracies in the contemporary global security context. Although the standards in question are to be understood as global ethical standards potentially to be adopted not only by the United States, but also by the European Union, India, Australasia, and other contemporary liberal democratic states, we take as our primary focus the tensions that have arisen between the United States and the European Union.

This tension provides a good example of the kinds of challenges involved in developing global standards. It is exemplified by the 2006 disclosure concerning the US government’s access to SWIFT transactions and the controversy that has followed it, as well as the earlier and ongoing controversy over the 2004 US–EU Passenger Names Records (PNR) agreement. It also makes itself known in the ongoing debate over national identity cards. The first two conflicts make it clear that, however difficult it may be to develop global standards for the management of personal data, such standards are needed and that every effort should be made to develop them or at least to implement procedures for addressing conflicts among them.

Naturally, authoritarian states do not share the liberal values underlying this project – values such as individual autonomy and privacy. Nevertheless, to the extent that such authoritarian states are evolving or are likely to evolve toward some form of liberal democracy, the results of this study will also be relevant to these states. Our purpose is to articulate standards and institutional initiatives that are sufficiently specific to determine – or at least substantially constrain – the requisite detailed security and privacy policies and prescriptions in national as well as international and transnational jurisdictions.

The project distinguishes itself from other work in this field in two major respects. Firstly, the multi-disciplinary team of experts brought together for this project has enabled the integration of: (a) ethical principles, (b) national and international legal considerations, (c) effective law enforcement practices, (d) oversight and accountability concerns and (e) knowledge of existing and emerging technology, such as database mining and knowledge discovery technology, in the development of a framework of determinate and feasible ethical standards for identity management technology in the global security context.

Secondly, the study has drawn on an international team of experts and focuses on common international standards and solutions, as befits the trans-jurisdictional and transnational nature of the problems to be addressed. Specifically, the project involves not only US personnel and institutions but also EU, Indian, and Australasian expertise.

Virtualisation

In following up the recent post on R v Peacock I'm impressed by the empiricism evident in 'Male Sex Work and the Internet Effect: Time to Re-evaluate the Criminal Law?' by Chris Ashford in 73 The Journal of Criminal Law (2009) 258–280, exploring UK law regarding sex work through an examination of Gaydar.

Ashford comments that -

Over 50 years after Wolfenden the new medium of the Internet offers one possible remedy to the apparent desire of the 1957 and present-day public to ‘clean up’ the streets. One site in particular has become the focus of the online world for gay men in England and Wales — Gaydar.

Gaydar is something of a phenomenon. QSoft Consulting, the company behind Gaydar.co.uk and its related URLs, states it currently has over 3.8 million members. This is an extraordinary number for a company first launched back in 1999 and which had 78,000 members back in November 2000, prompting Fountain to say of Gaydar in 2004: ‘previously, this much sex was available to you only if you were rich or powerful or famous’.

Gaydar is just one example of the consequences of what Cooper has called ‘the Triple A Engine’. According to Cooper, the Internet offers a triad of access, affordability and anonymity and in doing so, the Internet acts as a powerful force in the area of sexuality. Searching for escorts and sex workers from home offers access to thousands of escorts across the country from one central location.

People do not have to spend time, money and resources travelling around seeking out willing sex workers, rendering the use of the Inter- net for this purpose an affordable activity. There is the additional aspect of a perceived anonymity granted by the Internet. There is no risk you will be encountered driving into a red light district by disapproving friends, be seen entering a brothel by work colleagues or one’s own partner. In other respects, the advertisement nature of Gaydar profiles enables parallels to be drawn with the personal profiles and sex worker profiles offered in gay publications.

After insightful comments based on number crunching of Gaydar user profiles he notes that -

Eighty years ago, American sexologist, W. J. Robinson, commented

... it is fair to assume that [prostitution] will continue to persist in the future; but it will persist not because it always has; it will persist because it satisfies a definite and important biological need, and answers it in a way that no other present arrangement does..

Though written in the 1920s, it is a view that still holds true today. Technology is supporting the continuous operation of sex work and promoting the growth of new sex industries in online pornography and online exhibitionism. Moreover, Koken et al. noted in their study published in 2004 that male sex workers who have sex with other men ‘operate at the unique intersection of two major taboos: engaging in homosexual activity and the illegal exchange of sex for money’. English culture, however, both legal and social, has changed dramatically over the last decade, rendering homosexuality much less of a taboo, which makes it different to society in the USA at the time of that Koken et al. were writing.

It is perhaps therefore understandable that male-for-male sex work is not merely at the margins of the Internet, but can flourish on a ‘main- stream’ social networking site such as Gaydar, where users can find instant sexual encounters, an online masturbation exhibition, an escort and a plumber within the same virtual queer community.

The growth in technology has not led to the decline of real-world sex in favour of virtual sex despite the predictions of some and the emergence of new technology platforms such as Second Life. Yet technology does offer the possibility to move sex away from the streets. Walker et al. noted that the Internet can transform ‘visible’ crime into ‘invisible’ crime and if the UK government intends to follow the Swedish model of transforming sex work into an ‘invisible’ practice, the Internet may be its greatest tool. If, however, the aim of the UK government is to stop sex work, the search must continue.

It has not been the purpose of this article to contribute to the existing debates on whether the current legal position represents an over- extension of legal paternalism or offers important safety nets for those engaged in sex work. However, that debate must take far more account of the emerging and complex issue of same-sex male sex work that is supported and offered through the Internet.

His 'Queer theory, cyber-ethnographies and researching online sex environments' in 18(3) Information & Communications Technology Law (2009) 297-314 comments that -

Both the act and the commission of the act of sex have been transformed by technology. This has in turn led to emerging research that seeks to consider online research methods and methodologies that take account of the new medium, with a number of studies examining specific groups and the behaviour of those groups from a socio-legal perspective. This paper will seek to consider the application of queer theory to researching so-called ‘virtual’ or online sex groups. It will examine how the virtual spaces, and the researchers who survey them, are constituted. The ethical and practical issues that emerge in surveying these groups from a queer theory perspective will also be explored.

He goes on to note that -

Sex environments, and their intersection with law, whether it be in the areas of sex work or non-commercial public sex that I have explored, or other sites such as bathhouses and phenomena such as barebacking, have been traditionally difficult to access and study. The Internet has offered a valuable new tool to explore these locations and it has also been an important tool for these groups in the creation of ‘new space’ (Coomber, 1997). Developing approaches to this e-research, and the observation of virtual environments, remains an area of rapid development as researchers develop and explore new approaches to this social phenomenon (DiMarco & DiMarco, 2003; Hamman, 1997; Kanayama, 2003; Livingstone, 2003; Ward, 1999).

Riggle et al. (2005) have pointed to the growing popularity of online surveys and the need for an examination of issues specific to conducting online research in relation to lesbian, gay, bisexual and trans virtual communities. Although recent years have seen a number of online studies published that do examine specific LGBTQ issues (see for example Ashford, 2007, 2008, 2009), many of these surveys, including my own, often continue to operate within what I would term the ‘heteronoramative straightjacket’.

This ‘heteronormative straightjacket’ should be viewed in the light of Fine's (1993) work which pointed to a series of lies within ethnography that are widely disseminated in print, but known by ‘insiders’ to be false. Fine described these illusions as ‘essential to maintain an occupational reputation’. This may take the form of an absence of information rather than an outright lie but may be an element of the researcher that continues to be shielded from wider view. While Campbell's (2004) assertion that ‘I am less an academic gone native than a native gone academic’ is unusual in that it is in print, it is a statement that researchers may be more familiar with privately. The gay male academic who will use Gaydar or Craigslist in order to meet other men socially or sexually may appear ‘normal’ within the conference community but not within the published academic community. The queer academic almost goes through a process of castration as the words pass from an author's brain and on to the screen or page. Goode (1999) describes ‘thousands of ethnographers who have spent uncountable hours in close proximity with the people whose lives they shared and behaviour they observed, engaging in almost every imaginable activity with them, only a few dozen have had the courage to step forward and tell the world about their more intimate moments’.

Perhaps an earlier example of such can be found in John Alan Lee's 1978 text, Getting sex. The text sought to both explore and celebrate a range of sex locations from the disco and classified advert through to the bathhouse and tearoom/public lavatory, yet it was written with a degree of voyeuristic objectivity to the descriptions of the dynamics of the sex locations. As noted earlier, the later publication of Lee's diary online reveals his academic and personal lives and the inter-connectivity of the two.

Today's ‘cyber-ethnographies’ (Davis, 2009, p. 52) offer an opportunity to explore ‘sex’ and/or ‘sexuality’ at close quarters without engaging in corporeal acts of sex. Queering the body in cyberspace has become routinised and yet our responses to that and wider ‘cyber-ethnography’ issues remain under-explored.

Another such issue is the anonymity afforded by the Internet. Such anonymity may have been believed to enable users to create ‘false’ identities with perhaps the most extreme example being in the arena of inter-generational sex (Simpson, 2005) where people may lie about their age so as to enable them to interact with a group who would ordinarily reject them. More often though, the Internet is a medium of play through which identity can be explored (Turkle, 1995), or ‘queered’ beyond the bounds of the corporeal ‘reality’.

It is perhaps therefore, unsurprising that this anonymity can create dangers in terms of the accuracy of gathered data. Correll's (1995) study of bulletin boards was triangulated through follow up interviews on the phone or in person with many of her respondents but some respondents refused to take part in the follow up via either of these methods. There is a danger that such methods of triangulation, however well accepted by the research ‘community’, may be an attempt to force queer identity into orthodox moulds. ‘Truth’ in the virtual world is established by researchers through seeking to understand the ‘real’ or corporeal dimension to the space rather than appreciating the ‘truth(s)’ that may be grounded within the virtual space.

For the researcher, who may be constrained by their own ‘real world’ gendered or sexual identity (see for example, Berliner, 2008), the virtual space can offer an opportunity to queer their own identity, to create a ‘false’ identity or explore a dimension of their hidden self through the course of their research, yet this may be falsely viewed as ‘masking’ or a ‘smoke screen’ rather than an identity of equal ‘value’ or ‘worth’. Nor is the research limited by ‘real world’ assumptions and definitions of gender and/or sexuality.

The Internet also offers a range of advantages for the researcher in terms of the ‘intimacy’ of the Internet environment (McKenna et al., 2002) and the greater self-disclosure given to strangers outside one's own social circle (Derlega & Chaikin, 1977). This perhaps reflects the ‘liberation’ that can be found in overcoming the bounds of the corporeal and the perceived ‘safety’ that such an apparent separation of ‘virtual’ and ‘real’ identities may allow.

This space also offers an opportunity to overcome ‘gating features’ that may be present in the physical space, whether it be on the basis of appearance, visible shyness or social anxiety (McKenna et al., 2002), although virtual sex communities, threatened by the intrusion of the legal ‘real’ world are developing online strategies to ensure that only perceived ‘true’ members of a community, for example, the dogging/public sex community, can discover more sensitive information such as the corporeal identities of online users or the location of the corporeal meeting space.

These virtual sex environments also afford an ease with which to seek out and find those with similar interests and desires or indeed those interested in knowing about people's interests and desires. The use of these spaces by the police and other parties beyond the traditional player is arguably distorting the operation of the space. The presence of these lurkers creates challenges for the researcher in considering the precise nature of their impact on the active participants (Lindlof & Shatzer, 1998) and wider notions of privacy (see more generally Fenwick, 2000; McCullagh, 2008; O'Brien, 2008). The policing of some legal phenomena has already resulted in the use of websites as sites of surveillance for law enforcement officials where groups might otherwise be hidden (Ashford, 2007).

Worth reading by legal scholars interested in new media and cyberspace.

Names

In Australian and overseas law codes about personal names serve to shape national identity, allocate risk and position individuals as subjects of the state.

The Age reports that Victorian Registry of Births, Deaths & Marriages figures indicate that 12,939 people in that state changed their names in 2010-11, with over 50,000 changes nationally.

Some new names are rejected by the registry on the grounds they are considered to be obscene or offensive, include numbers or symbols such as 1, @ or !, resemble an official title or rank recognised in Australia, such as a regal title, or are considered to be against the public interest and will cause confusion in the community. Names rejected in the past have included Batman and Jesus Christ.

The article states that -

Authorities say apart from the people who change their name every year, 900,000 others use at least one alias. In most cases, there are legitimate reasons for having a second name. Many women go by both their married and maiden names, some performers have stage names, some writers have noms de plume.

But there are fears a small proportion of people changing their names or creating aliases are doing so for nefarious reasons, such as to commit fraud.

A federal Attorney-General's Department spokesman said all jurisdictions across Australia were pursuing measures to ensure name changes were not being used to obscure criminal activity or mask bankruptcy.

The move includes national bans on name changes by registered sex offenders, limiting the number of name changes that can be made and requirements that requests will not be granted unless a registrar is satisfied the reason is legitimate.

Rejected name changes include -

Prime Minister
Pappa Smurf
Motorcycle Feelgood
Smart Arse
Cu L8r

In November last year NSW Attorney-General Greg Smith SC announced that -

The NSW Government is leading the way in a national crackdown on criminals changing their names to avoid detection, which will include an alert list for high-risk offenders. ... [He] hoped State and Territory Ministers would to agree to a 10-point plan developed by NSW when they gather in Launceston today ahead of a meeting of the Standing Council on Law and Justice.

Mr Smith said NSW was asked to report on ways of ensuring all jurisdictions had robust laws and processes in place, so there was no weak link that could be exploited by criminals and name-change information could be obtained in a timely manner.

There will also be a National Proof of Identity Framework and an electronic document verification system so registries that look after births deaths and marriages (BDMs) can verify people’s identity, and that they are not using illegal documents.

“Unfortunately some people change their name to conceal a criminal record, avoid detection by police, facilitate the commission of a crime or to simply create multiple identities,’’ Mr Smith said.

“This abuse of the system is a risk to the safety of the community and the police.

“The danger is heightened when you are talking about those convicted of serious crimes, such as pedophiles, moving interstate to escape detection and unleash their misery on unfortunate victims.”

Mr Smith said that under the strategy;

• All serious sex offenders must obtain approval before changing their name; 

• Police will be asked to provide an alert list for high-risk individuals to BDMs; 

• Prisoners and parolees will have to obtain approval and their supervising authorities will notify BDMs of the change; and 

• People can only change their name three times in a lifetime.

... “Inconsistencies between jurisdictions allow people to forum shop and find the place with the weakest safeguards,’’ Mr Smith said.

“This heightens the need for harmonisation in this area and these changes should go a long way to eliminating abuses of the system.”

The Communique issued after that intergovernmental meeting states that -

Change of name

Ministers agreed to consider implementing a best-practice approach to the change of name process in order to minimise abuse of the system, and agreed to remove this project from the agenda.

Law regarding self-characterisation and reinvention through name changes of course features some delights.

The New Mexico Court of Appeal in 2004 for example permitted Mr Snaphappy Fishsuit Mokiligon to change his name to Variable. A later petition to change his name to the F word Censorship was denied in Re Mokiligon, 2005-NMCA-021, 106 P.3d 584 (N.M. Ct. App. 2004), with the court citing the 'Misteri Nigger' judgment - Lee v. Superior Court, 9 Cal. App. 4th 510 (1992) - in holding that "one has a common law right to assume any name, and a right to engage in a social experiment, but one does not have a right to require the state to participate in the experiment, especially when the experiment involves epithets or vulgarities".

In the 2004 Arkansas Sheppard v. Speir the court considered litigation between two unmarried parents over a child's name, with father gaining cistody and seeking to change the name to Samuel Charles Speir from Weather'By Dot Com Chanel Fourcast Sheppard.

Registration in the UK reportedly included change from George Garratt to Captain Fantastic Faster Than Superman Spiderman Batman Wolverine The Hulk And The Flash Combined. Various people have channelled Monty Python and changed to Tarquin Fin-tim-lin-bin-whin-bim-lim-bus-stop-F’tang-F’tang-Olé-Biscuitbarrel.

US Courts have made inconsistent decisions on applications to change to Santa Claus, with for example a rejection in Ohio and support in Utah. In 2001 the Utah Supreme Court permitted David Porter to rename himself as Santa Claus, commenting that -

Porter's proposed name may be thought by some to be unwise, and it may very well be more difficult for him to conduct his business and his normal everyday affairs as a result. However, Porter has the right to select the name by which he is known, within very broad limits.

The New Zealand Family Court in 2008 made a distressed girl a ward of the court to enable change of her name from Talulah Does The Hula From Hawaii. The Court noted that the NZ Registrar General of Births, Deaths and Marriages had blocked names such as Fish and Chips, Yeah Detroit, and Keenan Got Lucy. The NZ regime does not allow registration of names that would cause offence to a reasonable person, that are 100 characters or more long, that include titles or military rank or that include punctuation marks or numerals.

Litigation in Australia over names in passports, the electoral roll and the BDM registers includes

• Re Prime Minister John Piss the Family Court and Legal Aid v Department of Foreign Affairs & Trade [2000] AATA 1028,

• Re Nevil Joseph Brewer called "Abolish Child Support and Family Court" and Australian Electoral Commission (AAT 9 February 1996)

• Prime Minister John Piss the Family Court and Legal Aid v Electoral Registrar [2000] VSC 512 and 

• Informal v Chief Electoral Officer [1992] TASSC 2.

FCTC

Given current debate about Australia's tobacco products plainpaper packaging regime it is interesting to see 'Tobacco industry attempts to influence and use the German government to undermine the WHO Framework Convention on Tobacco Control' by Thilo Grüning, Heide Weishaar, Jeff Collin & Anna Gilmore in 21 Tobacco Control (2012) 30-38.

The article notes that Germany has been identified as one of a few high-income countries that opposed a strong Framework Convention on Tobacco Control (FCTC), the WHO's first global public health treaty. It examines whether the tobacco industry had influenced the German position on the FCTC.

Drawing on previously confidential tobacco industry documents the authors argue that -

The tobacco industry has identified Germany as a key target within its global strategy against the FCTC. Building on an already supportive base, the industry appears to have successfully lobbied the German government, influencing Germany's position and argumentation on key aspects of the FCTC. It then used Germany in its efforts to weaken the FCTC. The evidence suggests that the industry enjoyed success in undermining the Federal Health Ministry's position and using Germany to limit the European Union negotiating mandate. The tactics used by the tobacco industry included the creation of controversy between the financial, trade and other ministries on one side and the health ministry on the other side, the use of business associations and other front groups to lobby on the industry's behalf and securing industry access to the FCTC negotiations via the International Standardization Organization.

The evidence suggests that Germany played a major role in the tobacco industry's efforts to undermine the FCTC. Germany's position consistently served to protect industry interests and was used to influence and constrain other countries. Germany thus contributed significantly to attempts to weaken an international treaty and, in doing so, failed in its responsibility to advance global health.

Normativity

As a follow up to the recent post on R v Peacock I note '(Homo)Normative Legal Discourses and the Queer Challenge' by Chris Ashford in 1 Durham Law Review (2011) 77-98.

Ashford comments that -

Recent legal reform in English law has dramatically changed the legal status of the homosexual. Once a social and legal pariah, the contemporary queer finds themselves apparently benefiting from unprecedented legal rights. However, this article seeks to argue that these new-found rights - whether they be in the construction of the family, the workplace or in the operation of leisure - operate so as to enshrine in law a homosexual identity anchored in domesticity and Rubin’s conceptualisation of ‘good’ sex. This article seeks to explore the emergence of the new (homo)normative legal discourse and how two sexual phenomena - barebacking and public sex - continue to present socio-legal challenges to its operation.

He argues that -

despite over forty years passing since the legalisation of ‘homosexual acts’ between men, the law continues to create a sexual closet for those identities that not only defy the (hetero)normative but the emergent assimilationist (homo)normative. This process of closetisation extends to the self-defined heterosexual too. The emergence of dogging among heterosexuals has similarly produced an act that defies the (hetero)normative and in so doing, attracts the attention of the police.

The good queer stays home with their civil partnered ‘hubby’. A penchant for Gaydar might be tolerated so long as it leads to safe sex indoors, but the he outdoors remains trapped in a legal discourse that defines it as ‘bad sex’, and anti-homonormative, evocative, as with bareback sex, of a homosexual history that does not easily sit with the new legally re- constructed homosexual. ...

Politically, the division in legal responses to sexuality in recent years can be explained as the emergence of a new paradigm. Former British Prime Minister, Tony Blair noted in his memoirs that

in the old days, a Conservative was hard line on law and order and on ‘political correctness’ issues like immigration and gays. The left-winger was liberal, the right-winger illiberal. My generation had defined a new paradigm: what you did in your personal life was your choice, but what you did to others was not.

Unfortunately, this simplistic utilitarian argument becomes more complex with variable constructions about public and private. Any act is arguably private until someone else views it, and thus the question is one of propensity towards being public or private. Public ‘open air’ sex, may be as public or private as sexual acts in a commercial sex club or sauna, with people as likely to come upon a scene as a child might in the home. It is the cultural construction of certain spaces as locations of ‘bad sex’ that renders them the focus of law. Similarly, the act of bareback sex is in the confines of a silent relationship semi-acceptable, yet the public celebration of barebacking is to position the act in the public consciousness and thus render it transgressive.

Blair’s former ‘spin doctor’, Alastair Campbell, indicates in his diaries that Blair may have had similar difficulties with the constitution of families, a ‘public’ definition of a series of relationships between individuals, rather than how people actually live their lives. Campbell notes one incident on the BBC Today programme in 1996 in which Blair was described as being ‘... a bit of a disaster area ... he got a bit caught on gay couples and whether that constituted a family’.

The emergence of a (homo)normative narrative that seeks to exclude queer challenges, whether they take the form of bareback sex or public sex is perhaps unsurprising. Since the ‘legalisation’ of homosexuality in 1967, a process of assimilation has been taking place. Harding likens it to the Borg, characters in the popular science fiction franchise, Star Trek, their slogan: ‘You will be assimilated ... Resistance is Futile’ seems somewhat apt.

However, it is perhaps worth adding that Bronski has commented that assimilation has historically, been ‘not an equitable exchange’. He has argued that a ‘more honest’ paradigm of assimilation is ‘the protection payoff’ rather than the populised notion of a ‘melting pot’. For many immigrants to America, a new name, and an adjustment to identity and customs were necessary in order to become ‘American’. Similarly, to become first tolerated, and then accepted, queer ‘immigrants’ have been forced to adapt and conform to an ever-evolving paradigm of (homo)normativity. Yet, this process has also created the queer refugees. Those who desire public sex and those who seek to queer the HIV/AIDS narratives surrounding bareback sex are all rejected, and cast out. These groups defy the (homo)normative paradigm and the law becomes case as a tool of coercion and punishment.

Today’s immigrant queers, the acceptable gays of the (homo)normative, serve to exert further pressure on their former compatriots, encouraging them to join them in the brave new land of gay adoption, same-sex marriage and employment protection.

These legal changes perhaps reflect Weeks’ observation that ‘our culture has all too readily justified erotic activity by reference to something else – reproduction or the cementing of relationships usually – and has ignored the appeal of the erotic as a site of freedom, joy and pleasure’.

Afraid or just underwhelmed

I'm struck by 'Drug tests find favour in white-collar sector' in today's SMH (here) and 'Tipples at work face testing times' (here). Both in the same paper. Both by Melissa Davey. Both very very thin. The difference is that the paragraph order has been changed. Perhaps the item's simply a work in progress ... or the SMH getting more bang for it's buck, with double exposure (presumably to the delight of the quoted enterprise) of the same content about the dangers - oh be afraid, be very very afraid - of employees ingesting substances.

One of the versions begins with the bang -

If you think a couple of glasses of wine at lunch or taking a few sleeping pills before bed is OK because you work a desk job or do not operate heavy machinery, take heed.

While workplace drug testing is legislated in the mining and transport industries, more white collar industries are showing interest, according to a drug testing service.

''In one case a fatigued office worker put an electric stapler through his thumb, while in a separate incident a worker came back from lunch after a couple of drinks and got his tie caught in a paper shredder,'' said the Australian Workplace Drug Testing Services director, Tony Graham.

While not legislated in most workplaces, office staff are being asked to fill up little white cups and get tested, Mr Graham said. The amount of drug tests his company carried out increased 25 per cent last year.

The other version leaves the shredder and stapler to the end of the article.

Tests are up by 25%? Whahoo! The SMH gives no indication of the baseline or relativities. Was Mr Graham's company (elsewhere promoted as "Totally Professional - Legally Defensible - Workplace Alcohol & Drug Testing Services") doing 500 or 500,000 or 5,000,000 tests? We don't know. Does the company have a major chunk of the market? Is it growing at the expense of Medvet - the entity that also proclaimed its professionalism and compliance with testing standards? Again, no indication.

What about privacy, employment and other law regarding workplace substance testing? No indication. No discussion.

Overall, it's disappointing journalism, the sort of writing that's prone to appear in the media 'silly season' when staff are on leave and editors are scratching for filler.

Less egregious repackaging by the SMH is evident in 'Implants advice off the mark' and 'Toothless health watchdog dithers on implants as women worry', an article by Michael Moore criticising the Therapeutic Goods Administration's handling of the implants scandal in France. Moore correctly highlights questions about regulatory incapacity at the TGA (noted here and here).

Hicklin and Peacock

I'm looking forward to reading the judgment in R v Peacock, the UK case in which a vendor of erotica has been found not guilty of an offence under the Obscene Publications Act 1959 [PDF]. Mr Peacock had been charged under that Act with distributing DVDs featuring scenes of "extreme gay sex acts". His acquittal after a jury trial involved the legal test of whether those images would “tend to deprave and corrupt” the viewers, a test dating from R v Hicklin (1868) LR 3 QB 360 at 371.

Cockburn CJ in that case stated that

I think the test of obscenity is this, whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.

As I've written elsewhere, that test was used in the UK and elsewhere for a century as the basis of restrictions on comics, film, poetry, paintings and novels (including what we might now regard as some of the leading - or merely more famous - works of modernist literature). The Australian Customs (Prohibited Imports) Regulation prior to 1984 for example prohibited importation of material that was "indecent or obscene or was likely to encourage depravity".

In discussing Peacock obscenity law specialist Myles Jackson, an obscenity law specialist, commented that

Perhaps illogically, of these sexual acts, fisting and urination are completely legal to perform in real life; and thus it is only the representation of these acts on film which may be considered obscene and therefore attract criminal liability.

The UK Crown Prosecution Service relied on guidelines that identify images of consensual “sadomasochistic material which goes beyond trifling and transient infliction of injury”, “torture with instruments”, “activities involving perversion or degradation” and “fisting” as potentially being suitable for prosecution. Non-consensual activity also - and more reasonably - attracts prosecution.

In R v Penguin Books Ltd [1961] Crim. L.R. 176, the 'Lady Chatterley Case', Byrne J glossed 'deprave and corrupt' as

to render morally unsound or rotten, to destroy the moral purity or chastity; to pervert or ruin a good quality.

In Peacock the jury determined that the acts in question did not “tend to corrupt or deprave those who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”. In essence, although some acts are not what everyone might choose to watch - or engage in - after a long day at work they were probably not going to deprave adults who were aware of the content of the videos, chose the videos on that basis and quite possibly had engaged in such acts themselves. The consumers for Mr Peacock's products were thus not 'innocents' who would be led astray when encountering particular graphics and language that relate to what many UK adults actually do.

The decision coincides with the ALRC's inquiry into content classification and a Senate inquiry.

Australia moved away from Hicklin - see for example the acerbic comments by South Australian CJ Bray quoted in 'Depravity, Corruption and Community Standards' by Richard Fox in 7(1) Adelaide Law Review (1980-1981) 66 [PDF] - from 1948 onwards, with Fullagar J in R v Close [1948] VLR 445 [PDF] commenting that 'obscene' had nothing to do with corrupting or depraving susceptible people: it described what is offensive to current standards of decency and not that which may induce sinful thoughts.

In Crowe v Graham (1968) 121 CLR 375 Barwick CJ indicated that material was indecent if "having regard to the manner and circumstances in which it was presented, it would offend the modesty of the average man or women in sexual matters". Windeyer J indicated that the question was whether contentious material transgresses the contemporary standards of decency of the Australian community.. A shift to a 'reasonable adult' test reflected a notion of 'community standards' ("the standards of morality, decency and propriety generally accepted by reasonable adults") and a recognition by a contemporary liberal democratic state that consenting adults have divergent tastes.

Fox for example notes that -

His Honour maintained a biting criticism of the deficiencies of the law which, if it did not directly shape, at least gave rational direction to the revamping which took place. His theme was twofold: first, in an age of moral pluralism diversity had to be tolerated. The law was not designed to make nor was it capable of making men virtuous. Its proper concern was not private morality but public propriety and decorum. Its aim was to define the minimum standards of citizenship and no more. Secondly, insofar as prohibitions had to be predicated on such shifting standards as the current level of public tolerance of sexual expression, the courts had to be open and receptive to the enlightenment of research and should not excessively rely for knowledge on intuition and introspection.

In Popow v. Samuels (1973) 4 SASR 594 Bray commented on the 'obscenity' of films sold to male adults -

I think it was only intended to arouse and only likely to arouse erotic impulses in men. I do not think any of the material has a tendency to induce the commission of sexual crime. It does not incite to sadism or violence. I do not think that the arousal of erotic feelings in an adult male is itself an offence. Advertisements, films, literature at the present time notoriously, continuously, clamourously and blatantly appeal to the erotic instincts of men. I cannot think that that offends contemporary standards of morality. There would surely be louder and more effective protests if it did. I think that the tendency of this material is to induce erotic thoughts and impulses in adult males, these being the relevant audience. I think it would succeed with some, perhaps, if that is the test, with a significant proportion, of such males. It would undoubtedly fail to do so in many cases, either for reasons of good taste or because of the inadequacy of the material. The mere arousal of erotic impulses does not, in my view, in any relevant manner tend in itself to deprave or corrupt. There is, to my mind, something ludicrous about the application of such portentous words as "deprave" and "corrupt" to these trivial and insipid productions. ...

No doubt ... there was a time when anything tending to induce people to behave in a manner contrary to the Christian code of sexual ethics, and I mean by that absolute chastity outside monogamous marriage, or even to question the validity of that code, could be held liable to deprave or corrupt. That cannot, in my view, be said today. Not all sexual immorality within the meaning of that code can be said to deprave or corrupt ... and I would add that "deprave" and "corrupt" are strong words, not apt to include what society would regard as indulgence in a reprehensible but excusable peccadillo.

Peacock is concerned with commercial dissemination of the videos. The decision does not mean that it is legal to create, distribute or possess criminalised content (notably child pornography).

It should be read in the context of UK law such as R v Brown [1993] 2 All ER 75, aka the Spanner Case, in which the UK court took a different stance to same sex versus straight sex consensual S&M on the basis of a Hicklin-era offences against the person statute. It should also be read in conjunction was past policing action, for example the abandonment in 1998 of action by the West Midlands police against the University of Central England and publisher Random House over a book of photographs by Robert Mapplethorpe. The Crown Prosecution Service eventually decided that there was no realistic prospect of a successful conviction. The police had expressed concern regarding photos with similar themes to those in the Peacock case, offering to take no further action if the publishers, and the University (which held a copy of the book in its library) agreed to destroy all the copies of the book and the photos. The potential defendants refused. The CPS announced that there was "insufficient evidence to provide a realistic prospect of conviction against any person or company", noting that a book must tend to deprave or corrupt a significant number of the people who see it. That was considered by the CPS to be "highly unlikely", as the two offending pictures were published along with 380 others and most of the people who would be interested were art students or artists.