NonHuman Animal Personhood

'Litigating Nonhuman Animal Legal Personhood: Amicus Curiae Brief in Nonhuman Rights Project, Inc. v. Lavery' by Richard L. Cupp Jr comments 

The debate over nonhuman animal legal personhood, until recently only an academic controversy, has moved into the courts. Since late 2013 an animal rights organization named the Nonhuman Rights Project, Inc. (“NhRP”) has initiated several lawsuits in New York’s state courts arguing that as particularly intelligent animals, chimpanzees should be viewed as legal persons. The lawsuits seek to utilize common law writs of habeas corpus to require that the chimpanzees named in the lawsuits be moved from their present environments to sanctuaries that the lawsuits assert would provide greater freedom for the animals. The lawsuits do not assert that the conditions in which the chimpanzees are being kept violate animal welfare laws. Rather, they argue they argue that courts should declare chimpanzees to be legal persons with interests that require moving them to a sanctuary that the NhRP argues is a less restrictive environment. None of the NhRP’s lawsuits have been successful at any level thus far. In late 2015 the NhRP filed a second petition for habeas corpus regarding one of the chimpanzees, arguing that a published appellate decision from another department wrongfully rejected their first habeas corpus petition seeking legal personhood for the chimpanzee. The second petition was also denied by the trial court, and oral arguments on the NhRP’s appeal were heard in March, 2017. In its appeal the NhRP stated that the previous appellate decision they challenged “relied almost exclusively” on two law review articles written by the author. The amicus curiae brief below argues against the NhRP’s appeal, asserting that courts and legislatures should focus on enhancing human responsibility for animals’ welfare rather than adopting the radical and dangerous concept of animal legal personhood.

US Conceptual Art

The provocative 'Copyright's Illogical Exclusion of Conceptual Art' by Zahr Said in (2016) 39(3) Columbia Journal of Law & the Arts 335-354 argues that

copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection. There are of course both normative and descriptive questions around the copyright-ability of conceptual art; this Essay addresses itself primarily to the descriptive question of fixation, and whether works of art that contain change, by design, must be excluded.

Part I surveys the rationales for the fixation requirement and discusses the case law holding that works of art that change may still qualify for protection, culminating in the puzzling decision to the contrary in Kelley v. Chicago Park District. Part II offers a taxonomy of different kinds of conceptual art that could be seen as “inherently changeable,” and argues that these categories should be understood and treated distinctly. Finally, this Essay concludes that Kelley’s overly broad “inherently changeable” test threatens to exclude from copyright protection many different kinds of conceptual art on the basis that their changing or changeable nature renders them unfixed. Some of these works are analogous to the changing works that have been protected through copyright in spite of their internal change, like the video games, and some of them diverge in ways that might or might not be relevant for copyright law. I conclude that courts should be wary of relying on Kelley and should treat different kinds of conceptual art differently depending on what kind of art they are adjudicating.

Search, consumer protection and discovery

The incisive 'Profiling the Australian Google Consumer: Implications of Search Engine Practices for Consumer Law and Policy' by Angela Daly and Amanda Scardamaglia in Journal of Consumer Policy (forthcoming) comments 

Against the legal backdrop of proceedings against Google in various jurisdictions regarding the layout of its search results page, this article presents the results of a survey of a representative sample of 1014 Australian consumers, investigating their use of the Internet and specifically Google’s search engine, and the implications of these findings for consumer law and policy concerning the operation of search engines. The study is the first of its kind in Australia, despite litigation against Google in this jurisdiction for alleged misleading and deceptive conduct.

The survey findings indicate consumers have a lack of understanding about the operation and origin of the different elements of the Google search engine. In particular, the findings show particular confusion in relation to the operation and origin of Google's related vertical services. Such confusion seems to be more pronounced among older respondents and those without higher education qualifications, although the survey revealed some more surprising and unexpected results in terms of the demographics of confusion.

These findings are important for several reasons. Firstly, they identify and point to a gap in consumer knowledge about Google search that should be addressed, presenting an opportunity for consumer education in this area. Secondly, this research challenges the widely held assumption that the average (Australian) Internet user has a basic understanding about the operation and function of the Google search engine. Thirdly, the results leave open the possibility for further proceedings against Google in Australia on the basis of consumer law, the decision in Google v ACCC notwithstanding. This points to the potential for a more active role for consumer law in the digital ecosystem to address problems emanating from large and powerful platform providers such as Google than it previously has occupied.

The Daly & Scardamaglia article is highly commendable.

'Social Data Discovery and Proportional Privacy' by Agnieszka McPeak in (2016) 65(1) Cleveland State Law Review notes that

Social media platforms aggregate large amounts of personal information as “social data” that can be easily downloaded as a complete archive. Litigants in civil cases increasingly seek out broad access to social data during the discovery process, often with few limits on the scope of such discovery. But unfettered access to social data implicates unique privacy concerns — concerns that should help define the proper scope of discovery.

The Federal Rules of Civil Procedure, as amended in 2015, already contain the tools for crafting meaningful limits on intrusive social data discovery. In particular, the proportionality test under Rule 26 weighs the burdens of discovery against its benefits, creating important boundaries on discovery’s scope. Privacy burdens should be part of the proportionality analysis. By considering the privacy implications of social data discovery, courts can fashion fair and meaningful limits on its scope.

Aadhaar

'India’s Aadhaar scheme and the promise of inclusive social protection' by Amiya Bhatia and Jacqueline Bhabha in (2017) 45(1) Oxford Development Studies 64-79 examines

the promise of inclusive social protection central to India’s Aadhaar scheme, a national initiative using biometric information to allocate unique identification numbers to Indian residents. Aadhaar has reached over one billion people and promises to expand access to basic identification, improve enrolment in social protection and financial inclusion schemes, curb leakages, reduce corruption and address other gaps in India’s social protection architecture. However, the establishment of a national identification scheme does not of itself guarantee social protection. This paper assesses Aadhaar’s aims to achieve inclusive social protection through personal, civic, functional and entrepreneurial inclusion, and explores whether Aadhaar indeed fulfils these goals. Although it is too early conclusively to evaluate Aadhaar as a transformative contributor to social protection in India, there is much to be learned for transnational social protection from the scheme’s efforts to create a more inclusive system and to address the critical questions of privacy and state surveillance at stake.

The authors conclude

It is too early conclusively to evaluate the inclusiveness of Aadhaar as a transformative contributor to social protection in India. Certainly, the scale of initial voluntary enrolment is impressive, the range of functions brought within the scheme is expanding (with central government support and backup), and so far, despite some public statements to the contrary, Aadhaar eligibility has not been limited to citizens or even to legal residents of India. More quantitative and qualitative research is needed in order to understand how Aadhaar is being used in a range of contexts, and to what extent it delivers on the early promises of inclusion. And further work is needed to ensure Aadhaar does not compromise India’s birth registration system. If Aadhaar is not paired with improvements to social welfare programmes in India, there is a risk that biometric technology may become a data collection device, instead of facilitating social protection programmes aimed at reducing the economic and social vulnerability of poor and marginalized groups.

Aadhaar offers the benefits of technology to India’s social protection system – efficiency, scalability, a mitigation of corruption and leakages, improved data systems, and a portable system with national-level commitment and financial support. Evidence presented in this paper, however, suggests some early warning signs. Geographic enrolment remains uneven, mirroring national patterns of inequality and under-provision with the least well-served populations, regions and states also the least enrolled. Some reports highlight the disproportionate rate of Aadhaar registration among convicted populations in tribal areas against a backdrop of extremely low tribal enrolment overall. One study raises serious questions about the inclusiveness of Aadhaar for urban homeless populations lacking a permanent abode or intact ngerprints. Aadhaar addresses many delivery challenges, yet the questions of how social protection is designed, whether it is targeted, and how a beneficiary is defined require changes which lie outside the realm of improved technology and authentication. Aadhaar’s technology has also created the largest biometric database in the world without a corresponding codification of data protection provisions.

Serious concerns exist about the scope for surveillance and control generated by the massive expansion of potential government access to personal data without the necessary legal or accountability framework. Lyon (2009) describes the ‘social sorting’ that ID card systems enable and opportunities for surveillance which come from having access to searchable and interconnected databases and to data mining techniques. A nine-country study of public perceptions of ID systems highlights the tension between public support for an efficient ID card system and anxiety about potential data misuse. In Canada, USA, France, Spain, Mexico and Hungary, there were acute public concerns about risk of misuse of data in relation to ID cards, when ID cards were associated with national registry databases containing additional data (Lyon, 2009). In the UK, public dissent defeated proposals for an integrated ID card as concerns were raised based about ‘data creep’ and potential privacy risks stemming from the possibility of integrating di erent databases (Beynon-Davies, 2006; Davies, 2005). In Greece, information about religion, profession and residence was initially included on ID cards and later removed by the national regulator (Davies, 2005). Although many countries have ID cards, only a few publicly disclose information about costs, implications, effects on civil liberties and the penalties of non-compliance (Davies, 2005). No such information is available for India, where at present. Enthusiasm for the inclusion potential of Aadhaar seems to far outstrip any concerns about surveillance or threats to personal privacy. Whether such concerns will grow as the system becomes entrenched and in the absence of a robust oversight and appeals mechanism remains to be seen.

Many have argued that Aadhaar is changing the logic of India’s social welfare system, and that biometric identity and the possibility of interoperability – one authentication system which can be used by many di erent institutions – signal a shift  in governmental rationality in India (Sarkar, 2014): ‘computerised biometrics, like its paper-based predecessors, is driven by the fantasy of administrative panopticism – the urgent desire to complete and centralize the state’s knowledge of its citizens’ (Sarkar, 2014, p. 518 quoting Breckenridge, 2005, p. 271). is search for the perfect enumeration or ‘legibility’ of a population can be connected to eighteenth- and early nineteenth-century ideas that subjects represent wealth and good governance requires measuring and counting (Merry, 2011). However ‘seeing better’ must be linked with ‘serving better’ for population knowledge to improve the delivery of social protection: "the premodern state was, in many crucial respects, blind; it knew precious little about its subjects, their wealth ... their very identity". (Scott, 1998, p. 2)

India’s operationalization of state welfare schemes is predicated on a newly transparent relationship between the state and its citizens. Biometric data and enrolment and enumeration efforts have created new hierarchies and allowed a series of interconnected actors to act as gatekeepers and stewards of India’s social protection system, and for bene ciaries or consumers to be governed by the use of biometric identification. These changes are influencing how social welfare is delivered and have triggered a shift  towards cash transfers and the creation of a welfare market, with multiple state and non-state actors providing, regulating and transferring welfare benefits (Khera, 2011; Sarkar, 2014). Although it is unlikely that Aadhaar alone will address the structural weaknesses in India’s social protection systems, universal identification can enable greater efficiency and transparency, helping schemes to reach their intended beneficiaries, and influencing the ease and delivery of these state-to-citizen welfare transfers. The changes Aadhaar catalyzes also have the potential to give banks and financial providers a much larger role in the delivery of education, health and employment services or subsidies as these providers become the distributers of cash. The state may shift  from being the direct supplier of social welfare schemes to disbursing funds or coupons (Sarkar, 2014) through a larger network of actors from both the public and private sectors, each of which brings their own agendas to the provision of social welfare.

It is possible that the current struggles to maintain the voluntary nature of Aadhaar enrolment will be unsuccessful, and obligatory Aadhaar registration may well follow. Future administrations may also insist on restricting Aadhaar eligibility to citizens or legal residents, a move which would signi cantly dent the programme’s universal and inclusive impact. For positive social protection objectives to be achieved in tandem with growing Aadhaar registration, the package of social protection schemes linked to the programme must be carefully designed and robustly implemented to bene t from Aadhaar. Transformative social protection can be a ordable while contributing to the fundamental policy goals of pro-poor economic growth and improved social equity (Devereux & Sabates-Wheeler, 2004). To have a sustained and decisive impact on prevailing inequities, underlying vulnerabilities need to be examined and resources reliably transferred through social protection programmes (Devereux, Mcgregor, & Sabates-Wheeler, 2011). For a comprehensive effect on the most vulnerable populations, these measures must proceed in tandem with a comprehensive strengthening of public services and programmes in order to address broader inequalities – efforts which Aadhaar, if appropriately utilized, could powerfully enhance.

Comparative Nudges

'Behavioral Insights All Over the World? Public Attitudes Toward Nudging in a Multi-Country Study' by Cass R. Sunstein, Lucia A. Reisch and Julius Rauber comments

Nudges are choice-preserving interventions that steer people’s behaviour in specific directions while allowing people to go their own way. Some nudges have been controversial, because they are seen as objectionably paternalistic. This study reports on nationally representative surveys in eight diverse countries, investigating how people actually think about nudges and nudging. The study covers Australia, Brazil, Canada, China, Japan, Russia, South Africa, and South Korea. Generally, we find strong majority support for nudges in all countries, with the important exception of Japan, and with spectacularly high approval rates in China and South Korea. We connect the findings here to earlier studies involving the United States, the United Kingdom, Italy, Denmark, France, Germany, and Hungary. The largest conclusion is that while citizens generally approve of health and safety nudges, the nations of the world appear to fall into three distinct categories: (1) a group of nations, mostly liberal democracies, where strong majorities approve of nudges whenever they (a) are seen to fit with the interests and values of most citizens and (b) do not have illicit purposes; (2) a group of nations where overwhelming majorities approve of nearly all nudges; and (3) a group of nations with markedly lower approval ratings for nudges. We offer some speculations about the relationship between approval rates and trust.

'The Curious Case of Choice Architect: Examining the Philosophical Inconsistencies of Libertarian Paternalism' by Francis Kuriakose and Deepa Kylasam Iyer comments 

Classical economics works on the principle that individuals are rational and make decisions to maximize their self interest. However in real situations, individuals face a conflict between rational and irrational selves leading to decision making that does not leave them better off. Libertarian paternalism proposes a solution to this rationality problem in an individual by conceiving a choice architect. Choice architect is a third party capable of arriving at what a perfectly rational choice would be and ‘nudges’ an individual towards making that choice. Libertarian paternalists claim that choice architect does not interfere with the freedom of an individual because the choices he offers are easily reversible, i.e, an individual can reject it at any given point in time. Libertarian Paternalism seems to offer the third way between absolute autonomy of individual choice (libertarianism) and third party intervention (paternalism). This paper argues that the conception of a choice architect comes out of a hasty commitment to reconciling libertarianism and paternalism by placing perfect rationality and autonomy in two separate individuals in the case of a single decision making process. The paper proposes alternatives to confront the rationality problem.

German Privacy, Harm and Dignity

'A Pantomime of Privacy: Terror and Investigative Powers in German Constitutional Law' (Washington &  Lee Legal Studies Paper No. 2017-5) by Russell Miller comments 

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German constitution (Basic Law) provides explicit textual protections that America’s 18th Century constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Article 1 of the Basic Law) and the free development of one’s personality (Article 2 of the Basic Law). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a “core area of privacy,” a “right to informational self-determination,” and a right to the “security and integrity of information-technology systems.” On closer examination, however, Germany’s burnished privacy reputation may not be so well-deserved. The Constitutional Court’s assessment of challenged intelligence-gathering or investigative powers through the framework of the proportionality principle means, more often than not, that the intrusive measures survive constitutional scrutiny so long as they are adapted to accommodate an array of detailed, finely-tuned safeguards that are meant to minimize and mitigate infringements on privacy. Armed with a close analysis of its recent, seminal decision in the BKA-Act Case, in this article I argue that this adds up to a mere pantomime of privacy – a privacy of precise data retention and deletion timelines, for example – but not the robust “right to be let alone” that contemporary privacy advocates demand.

'Data Privacy and Dignitary Privacy: Google Spain, the Right to Be Forgotten, and the Construction of the Public Sphere' by Robert Post comments

 In 2014, the decision of the European Court of Justice in Google Spain SL v. Agencia Española de Protección de Datos (“Google Spain”) set off a firestorm by holding that the fair information practices set forth in EU Directive 95/46/EC, which is probably the most influential data privacy text in the world, require that Google remove from search results links to websites containing true information on the grounds that persons possess a “right to be forgotten.” As a result of Google Spain, Google has processed 703,910 requests to remove 1,948,737 URLs from its search engine, and some 43.2% of these URLs have been erased from searches made under the name of the person requesting removal. The world-wide influence of Google Spain is likely to become even greater when the EU promulgates it General Data Protection Regulation (“GDPR”) in 2018.

At stake in Google Spain were both privacy values and freedom of expression values. Google Spain inadequately analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming “public opinion.” The creation of public opinion is essential for democratic self-governance and is a central purpose for protecting freedom of expression. As the rise of American newspapers in the 19th and 20th Century demonstrates, the press establishes the public sphere by creating a structure of communication that is independent of the content of any particular news story. Google underwrites the virtual public sphere by creating an analogous structure of communication.

With regard to privacy values, EU law, like the law of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by Article 8 of the Charter of Fundamental Rights of the European Union. Data privacy is safeguarded by fair information practices designed to ensure (among other things) that personal data is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it applies whenever personal information is processed. Its object is ensure that persons retain “control” over their personal data. Google Spain interprets the Directive to give persons a right to have their personal data “forgotten” or erased whenever it is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine.” It is not necessary to show that the processing of such data will cause harm.

In contrast to data privacy, Article 7 of the Charter of Fundamental Rights of the European Union is entitled “Respect for Family and Private Life.” Article 7 should be interpreted analogously to how the European Court of Human Rights interprets Article 8 of the European Convention. Article 7 of the Charter therefore protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate or mortify them. The privacy at issue in Article 7 follows a normative logic that tracks harms to personality caused by violations of civility rules. Article 7 protects the same privacy values as those safeguarded by the American tort of public disclosure of private facts. It protects what we may call “dignitary privacy.” Throughout the world, courts protect dignitary privacy by balancing the harm a communication may cause to the integrity of a person against the importance the communication may have to the public discourse necessary for democratic self-government.

The instrumental logic of data privacy is inapplicable to public discourse, which is why both the Directive and GDPR categorically exempt journalistic activities from the reach of fair information practices. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. It was therefore a mistake for Google Spain to apply the fair information practices of the Directive to the Google search engine.

But the Google Spain opinion also glancingly mentions Article 7, and in the end the opinion creates doctrinal rules that are inconsistent with the Directive and roughly reminiscent of those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. The opinion is pushed in the direction of dignitary privacy because courts have for more than a century sought to impose the values of dignitary privacy on both public discourse and the press. Although the normative logic of dignitary privacy is in tension with freedom of expression, because it limits what can be said, it is not ultimately incompatible with a right to freedom of expression insofar as that right seeks to foster democratic self-government. Public discourse cannot become an effective instrument of self-governance without a modicum of civility.

The Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. It inadequately theorizes both the harm a Google link might cause and the contribution a link might make to public discourse. If it had more clearly applied the doctrine of dignitary privacy, moreover, Google Spain would not have held that the right to be forgotten should apply to Google and not necessarily to the underlying websites to which the Google search engine creates links. Google Spain would not have outsourced the enforcement of the right to be forgotten to a private corporation like Google. Only government agencies are authorized to determine the balance between civility and freedom appropriate for these underlying websites.

Robots, Liability and Accidents

'The Rise of Robots and the Law of Humans' (Oxford Legal Studies Research Paper No. 27/2017) by Horst Eidenmueller is characterised as an

ttempt to answer fundamental questions raised by the rise of robots and the emergence of ‘robot law’. The main theses developed in this article are the following: (i) robot regulation must be robot- and context-specific. This requires a profound understanding of the micro- and macro-effects of ‘robot behaviour’ in specific areas. (ii) (Refined) existing legal categories are capable of being sensibly applied to and regulating robots. (iii) Robot law is shaped by the ‘deep normative structure’ of a society. (iv) If that structure is utilitarian, smart robots should, in the not too distant future, be treated like humans. That means that they should be accorded legal personality, have the power to acquire and hold property and to conclude contracts. (v) The case against treating robots like humans rests on epistemological and ontological arguments. These relate to whether machines can think (they cannot) and what it means to be human. I develop these theses primarily in the context of self-driving cars – robots on the road with a huge potential to revolutionize our daily lives and commerce.

'Products Liability and the Internet of (Insecure) Things: Should Manufacturers Be Liable for Damage Caused by Hacked Devices?' by Alan Butler in University of Michigan Journal of Law Reform (forthcoming) comments

Despite the fact that discussions of liability for defective software go back more than forty years, there is no clear consensus on what theory governs liability for damage caused by ‘onnected devices’ (or the ‘Internet of Things’). However, the proliferation of IoT devices may be the catalyst for a new field of ‘connected devices’ products liability law, which could provide a good model for determining liability for several reasons. First, attacks on IoT devices can and have caused significant damage to property and are highly foreseeable given the widely acknowledged insecurity of connected devices and numerous high-profile attacks. Second, IoT devices are, in many cases, capable of being updated and secured remotely by the manufacturer, and patching well-known security flaws could significantly reduce the risk of future attacks. And third, holding manufacturers liable for downstream harms caused by their insecure devices is well aligned with the purposes of products liability law—to minimize harm by encouraging manufacturers (as a least-cost-avoider) to invest in security measures.