Cobwebs and costs

An update on AustLII in 'Digitising and Searching Australasian Colonial Legal History' (UNSW Law Research Paper No. 2012-23) by Graham Greenleaf, Philip Chung, Andrew Mowbray & Brent Salter.

The authors comment that -

Australasia has a rich and complex legal history since the first European settlement, and our knowledge of legal practice and precedent in the colonies of Australasia is still developing. The Australasian Colonial Legal History Library project is an ARC-funded project being carried out by the Australasian Legal Information Institute (AustLII) since January 2012 with input from 18 legal historians from Universities across Australia. Cooperation with other parties who have already built invaluable and pioneering online resources for Australasian colonial law is an essential part of the project. 

AustLII is a free access online service which has operated since 1995 as a joint facility provided by UNSW and UTS Law Faculties, and now provides over 500 databases, with usage of over 700,000 page accesses per day. The Colonial Legal History Library project is therefore being built within a large and mature research infrastructure, and this presents challenges as well as advantages. In particular, many of the AustLII databases cover the whole period from the formation of a colony to the present, so the databases for this Library have to be ‘virtual’ databases extracted from this larger corpus.

The paper explains the construction, content and features of the first version of the Library, which as of July 2012 contains 12 databases including one case law database from each of the seven colonies (including New Zealand), some of which are ‘recovered’ cases from newspaper reports, the complete annual legislation to 1900 from three of the colonies, plus legal scholarship concerning the colonial era. These databases provide over 20,000 documents so far, and the Victorian Government Gazette 1851-1900 another 200,000. The Library also includes the LawCite citator, which allows the subsequent citation history of any colonial case to be tracked, including if cited by courts outside Australasia. The medium term aim of this part of the ARC project (which extends to 1950 in its full scope) is to include all legislation, reported cases, and cases which can be ‘recovered’, from the inception of each colony to 1900. Scholarship (old and new) and key source materials are also being added, as budgets permit. We hope that the Library will be a leader in the creation of legal history resources from the colonial era.

The US Information Security Oversight Office (ISOO) has meanwhile released its Report on Cost Estimates for Security Classification Activities for Fiscal Year 2011 [PDF], claiming aggregate classification costs of U$11.37 billion in 2011 -

The total security classification cost estimate within Government for Fiscal Year (FY) 2011 is $11.36 billion, an increase of $1.2 billion, or 12% from FY 2010. This figure represents estimates provided by 41 executive branch agencies, including the Department of Defense (DoD). It does not include the cost estimates of the Central Intelligence Agency, the Defense Intelligence Agency, the Office of the Director of National Intelligence, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, and the National Security Agency. The cost estimates of these agencies are classified in accordance with Intelligence Community classification guidance and are included in a classified addendum to this report. 

For FY 2011, agencies reported $1.4 billion in estimated costs associated with Personnel Security, a decrease of $154.47 million, or 10%. 

Estimated costs associated with Physical Security were $1.74 billion, an increase of $305 million, or 21%. 

Estimated costs associated with Classification Management were $352.4 million, a decrease of $11.8 million, or 3%. 

Estimated costs associated with Declassification were $52.76 million, an increase of $2.3 million, or 5%. 

Estimated costs associated with Protection and Maintenance for Classified Information Systems were $5.65 billion, an increase of $953 million, or 20%. 

Estimated costs associated with OPSEC [Operations Security] and TSCM [Technical Surveillance Countermeasures] were $128.97 million, an increase of $22.3 million, or 21%. 

Together, costs for Classification Management, Declassification, Protection and Maintenance for Classified Information Systems, and OPSEC and TSCM, make up the total cost for Information Security which is $6.18 billion, an increase of $965.85 million, or 19%. 

The FY 2011 estimated costs for Professional Education, Training, and Awareness were $502.51 million, an increase of $102.1 million, or 25%. 

Estimated costs associated with Security Management, Oversight, and Planning were $1.53 billion, a decrease of $13.98 million, or 1%. 

Estimated costs associated with Unique Items were $11.9 million, a decrease of $10 million, or 46%.

Media Pluralism

Alongside the Reuters Institute for the Study of Journalism Digital News Report 2012 noted in the preceding post I'm reading the complementary 54 page News Plurality in a Digital World report [PDF] by Robin Foster.

It offers a perspective on the Finkelstein and Convergence Reviews noted earlier this year.

The report comments that

News media have a significant role to play in supporting the effective functioning of a democratic society. There is a clear and widely accepted public interest in ensuring that measures are taken, where needed, to secure at least two key goals: first, that all citizens can access a range and diversity of high-quality news, opinion, and analysis from different sources, and second, that no single media owner can exercise undue power and influence over the political agenda. 

What these measures should be is a topic of gathering significance, not just in the UK but the rest of the EU. Here we have relied on a ‘public-interest test’ which can be applied in the event of certain media mergers, plus a ban on large newspaper groups owning a significant proportion of the main commercial broadcaster, Channel 3. Elsewhere, caps on market share and media ownership are sometimes used, alongside public funding to fill any gaps in market provision (especially in broadcasting). 

But there are threats to commercial news provision, and plurality rules face stresses and strains. Caps on media ownership are very blunt tools when faced with the twin challenge of convergence and the increasingly uncertain long-term viability of the news sector as a whole. Public funding is under scrutiny and for some carries the risk of too much compliance or self-censorship. Even a media market as big as the UK’s may not in future be able to support the range of competing local and national news brands that have been available to date. 

Some hope that digital media will help to address this plurality gap. It has the potential to transform our consumption of news, and the way in which we engage in the democratic debate. It can help users find many more sources of news than ever before. Over time it may support new business models for high-quality news. But there are risks, too. New and powerful digital intermediaries, such as Apple, Google, Amazon, and Facebook are emerging. They can play a hugely positive role in facilitating wide and open access to news content. But the decisions they take could equally constrain or control access to news and affect the viability of third-party news providers. The scale and scope of their activities could have wider consequences for society as a whole. 

This report focuses on those digital intermediaries, examines their activities and their implications for plurality – now and in the future – and assesses options for addressing any concerns through changes to the existing plurality framework.

Foster argues that -

Digital intermediaries can be classified into four broad groups: news aggregators like Yahoo, search engines like Google, social media like Facebook, and digital stores/devices like Apple. They all bring news content from third-party providers to consumers, using a variety of digital software, channels, and devices. They are increasingly important providers of access to news. According to the recent Reuters Institute Digital News Report, 30% of online news users use search engines as one of the main ways they access news, 22% use news aggregators, and 20% use social media. 

The first group – news aggregators – are close to established news media in the way that they operate, providing carefully curated packages of news content for their users, and sometimes originating new content themselves. They should be treated in the same way as established news media when considering plurality, ownership, and press regulation. 

The other intermediaries – search, social, and apps – are rather different, being neither neutral ‘pipes’ nor full media companies. One way of thinking about these enterprises is as gatekeepers, controlling information flows, selecting, sorting, and then distributing information. In doing so, they have a potentially profound impact on how we take part in and think about our democratic society and culture. Their activities could have a bearing on plurality of news in four broad areas:

• their control of what might be thought of as distribution bottlenecks through which users access news; 

• the editorial-like judgements they make about the news content they link to or carry; 

• their role in shaping future economic models for news provision; 

• their inclination and ability to influence the political agenda.

Together, these could have an important impact on the range and diversity of news readily available to users in the UK – that is, on news plurality. 

Regarding distribution bottlenecks, it would be hard to argue that any of these intermediaries are as yet an ‘essential’ channel for news: news providers have other routes to market, and news consumers can find news on many different platforms. Nevertheless, as the importance to news of digital media grows – especially for some key demographic groups – their role will collectively become more critical. Decisions taken by these privately owned players could impact significantly on the public-interest goal of securing universal access to high-quality news. 

Regarding editorial-like judgements, most digital intermediaries do not currently originate news or make the sorts of editorial decisions that are the everyday currency of mainstream news providers. But their judgements and policies do affect the nature and range of news content that we have access to. To varying degrees, they sort and select content to provide news which is of ‘relevance’ to their customers, and decide which sources of news to feature prominently. Whether intentionally or not this can have an impact (positive or negative) on the range and diversity of news available to their users. They also take decisions about the nature of content they are prepared to link to or carry. Such decisions, as they affect privacy, fairness, and other content standards, are a matter of public interest. 

Regarding future economic models for news, digital intermediaries have so far had a mixed impact. They have helped news suppliers to find new markets, customers and revenue sources, but at the same time they have contributed to the disruptive effect of the internet on advertising markets and enabled disaggregation of news content, hence making it harder for news suppliers to make money. The future of commercial news provision will depend on news providers, with the cooperation of digital intermediaries, finding compelling and viable new propositions, such as apps for smartphones and tablets. 

Regarding political influence, it is clear that very large global companies like Google and Apple will increasingly expect to have a seat at the table when governments and regulators are considering actions which might affect their business interests. It is less clear (yet) whether any of these organisations has the inclination or means to get more involved in shaping the wider political agenda – in the manner of newspaper proprietors of old. Should they in future decide to acquire content companies or to invest in news media in their own right, this would give them more leverage in any such lobbying activity, and would be a plurality concern. 

A related concern to emerge during research for this report is connected with the increasingly important and pervasive role which – at least some – digital intermediaries play in the everyday lives of their individual users. This touches on, for example, issues of privacy, identity, social relationships, notions of acceptable behaviour, shared culture, and values. While not strictly relevant to this discussion of news plurality, and hence not covered in detail in this report, these wider concerns add to the case for including these enterprises in any overall discussion of plurality in its broader sense. 

Across all these areas, a common concern is how to ensure that intermediaries face appropriate levels of accountability to the UK public and parliament for their actions – actions which can have a profound impact on all our lives. They are large global players, and understandably approach their businesses from an international perspective. Some maintain only a nominal corporate presence in the UK. It will be an important challenge for policy- makers and others to find ways of ensuring that these intermediaries understand and fully engage with the UK’s own particular public interest and citizenship concerns in the area of news plurality and beyond.

In considering policy and regulatory implications Foster comments that -

A new framework for news plurality will need to last for at least the next decade. It must therefore reflect and respond to these four concerns. Policy- makers and regulators must pursue a balanced approach, taking care not to chill innovation or penalise success while acting where justified to address evident plurality concerns. A range of tools will need to be considered. Competition law should be the starting point, especially where concerns arise about the potential dominance of intermediaries and their ability to distort competition. A competitive market outcome may still leave plurality shortfalls, however. It does not guarantee either the range and diversity of news prized by most democratic societies, or the principle of universal access to such news across different networks and platforms. Additional measures may therefore be needed. 

This suggests a four-tiered approach:

• Securing effective competition: active use of existing competition rules to ensure that news consumers and suppliers are protected from any anti-competitive behaviour. 

• A new plurality dialogue, involving government, intermediaries and other relevant parties, to ensure that intermediaries understand and are fully engaged with UK citizenship priorities, and are properly accountable to the public. 

• Incorporation of digital intermediaries within the new plurality review framework proposed recently by Ofcom. 

• Consideration of remedies or backstop regulatory approaches, particularly in the area of access, that might be called on should intermediaries over time prove to be a threat to plurality.

News suppliers now have to deal with powerful digital intermediaries to distribute their content to users. The commercial terms on which they can do this will have a big impact on the future viability of high-quality news. These are in the first instance business negotiations, but could also have implications for longer term plurality if powerful intermediaries use their market power to restrict or distort competition. Using existing competition powers to secure effective competition in relevant markets should therefore be a key priority. These are complex and fast-moving markets, however, and competition processes can sometimes be lengthy. It will be important therefore to seek ways of ensuring that the relevant authorities have a good and up-to-date understanding of these markets, and that developments are kept under review to ensure quick and effective action in the event of any emerging concerns. Regular monitoring of market developments by a designated authority – perhaps the communications regulator – could be part of this process. 

There is an opportunity here, building on the initiatives some intermediaries have already taken, to engage them fully in the plurality debate and to ensure that their actions and policies are properly informed by the UK public interest. Three main issues could be on the agenda:

• how intermediaries will help secure universal access to a diversity of news; 

• how intermediaries will ensure that the news content they provide access to meets UK public expectations in areas such as accuracy, privacy, fairness, and compliance with UK laws (this could cover, for example, notification and take-down policies and any pre-approval processes); 

• how intermediaries will ensure that any decisions they take in these areas are properly accountable to the UK public.

The overarching principles should be open access, consistency with UK public expectations, transparency of policies, and clear accountability for any decisions taken. Intermediaries should be encouraged, as many do already, to publish the criteria used in making access decisions, including access to news. Search companies, for example, would be encouraged to publish in a clear and simple format the principles they use in designing search algorithms. Digital stores would likewise be asked to publish details of their approval processes and how they decide to give prominence to certain apps. 

In parallel, they should be encouraged to participate in sector-wide initiatives to help devise a transparent, coherent, and widely understood approach to content regulation as it applies to their unique roles, including news. This does not mean that intermediaries would be forced to take responsibility for all the content they provide access to, but that appropriate guidelines, codes, and processes would be put in place for the types of editorial decision they do take – whether in response to complaints about illegal content, or in applying any wider standards. 

In both cases, digital intermediaries should be encouraged to build on their current processes to put in place procedures for responding effectively to complaints and ensuring appropriate action is taken in the event of any breach of published criteria or codes. Such processes could include a clear route for content suppliers or users if they wish to complain about any significant and unexplained changes in search rankings or other forms of prominence, and any decisions to block access to content. 

While much of this can be left to intermediaries themselves, experience of media self-regulation elsewhere suggests that there are advantages in having some form of statutory underpinning, to secure public trust and clear and independent accountability. There may therefore be a role for an independent body, such as Ofcom, to establish the basic principles and ground rules, to keep processes under review, and to take action in the event that they prove unsatisfactory. 

For UK policy-makers, a dialogue of this sort will help avoid the need for potentially intrusive regulation. For intermediaries it would help sustain public confidence in their activities, and, perhaps, help them develop models of good behaviour which could be adopted elsewhere. Digital intermediaries could also be challenged by government to voluntarily play a more proactive role in securing future news plurality. For example, they could be asked to help create a ‘breathing space’ for news providers to develop compelling new products by looking again at all aspects of their relationships with news providers, especially access to customer data. 

Alongside this, digital intermediaries should be incorporated in the new plurality framework proposed by Ofcom. They should be included in any future review of plurality, whether carried out periodically or triggered by a market event. In a plurality review, Ofcom could, for example, examine:

• the positive effects associated with digital intermediaries – improved access to a wider variety of news, multi-sourcing, etc.; 

• the potential risks to diversity, including the observed availability of news via different platforms, the ways in which search, social media,  and app stores are selecting and sorting news, and the impact of any ‘filter bubble’ effect.

In carrying out its assessment Ofcom could, for example, examine indicators of consumption and impact, such as the share of news consumed via intermediaries collectively and via any single intermediary, levels of user satisfaction and trust associated with intermediaries, and the extent to which intermediaries enable easy access to sources of impartial news and other news deemed to be of public interest. 

The conclusions of such reviews would indicate whether any measures needed to be introduced to help secure desired plurality outcomes. The legislative framework would need to be adjusted to enable such action to be taken – either directly by Ofcom (as with existing telecommunications regulatory powers) or perhaps via referral to the competition authorities. Such action would need to include plurality concerns arising from organic growth or change in the market, not just mergers or acquisitions. Consideration would need to be given to whether regulation was best formulated at a UK or EU level – given the cross-border nature of many intermediaries, the latter might be more appropriate. 

Ofcom, in its recent review of plurality measurement, has concluded that bright-line ownership caps would not be effective in securing plurality of news media. This is even clearer in the case of digital intermediaries, whose value to users often comes from scale or network benefits. Nevertheless, if plurality concerns are identified, Ofcom would need to consider the available remedies or actions it could take. The focus should be on ensuring transparent and open access to news. Approaches might include:

• A requirement that digital intermediaries should guarantee that no news content or supplier will be blocked or refused access, unless for legal or other good reason, such reason to be explained with reference to publicly available criteria. 

• A requirement that digital intermediaries should carry or link to in a prominent position a range of news content deemed to be in the public interest (for example, a search engine could be asked to list at least x different news sources on the first page of a search, app stores could be asked to provide appropriate prominence to public-interest news over a period of time). 

• Establish an independent review body which could audit access practices and take complaints.

Such steps could be taken after Ofcom has carried out a plurality review and found that there are significant concerns, and has also demonstrated that regulation will not impose any net costs. 

A risk of relying on periodic plurality reviews and specific remedies, however, is that there is a time delay between reviews and action, during which plurality could be significantly affected. An alternative approach, therefore, would be to consider some form of backstop regulation, either to secure fair and open access and/or to address media ownership concerns. A precedent for access regulation exists in the existing application of ‘must carry’ and ‘appropriate prominence’ rules to broadcast content on digital transmission networks and electronic programme guides. These might  be adapted to apply to some or all digital intermediaries, although designing appropriate rules will not be straightforward. 

Given the problems associated with ownership caps even in the established media, it is unlikely to be appropriate to consider fixed limits on ownership and control for intermediaries. However, cross-media ownership could be an exception to this general rule. As suggested earlier, if large digital intermediaries decided to move extensively into content production in their own right – perhaps through acquisition – then their ability to exercise political leverage might be enhanced. Consideration could be given, therefore, to formulating specific cross-media ownership constraints, which would seek to enshrine the principle that any company with a large market share (level to be determined) in ‘mediating’ activities should not also be a major player in content creation. The potential risk associated with any cross-media merger would, of course, need to be weighed against the opportunity that might be created to secure increased investment in high-quality content.

News Delivery

The 64 page Reuters Institute Digital News Report 2012 [PDF], based on a multi-nation online survey for the Reuters Institute for the Study of Journalism, suggests that "social media is now beginning to rival search as a gateway to news" and that social network services (eg Facebook) and email continue to be more important mechanisms for the delivery of news than Twitter.

Supposedly around 20% of UK respondents said they "share news stories each week via email or social networks", with 55% of that cohort (ie a bit over 10% of the UK respondents)  shared a news link via Facebook within the past week. 33% had shared a link to news by email, against 23% via Twitter.

Twenty per cent, (one in five), now come across a news story via a social network, whereas 30% use search. Younger people are more likely to use social media rather than search to discover news – whereas for older groups it is the other way round. Email was found to be a popular choice with the over 45s (51%), while Facebook (71%) and Twitter (24%) "are the natural choice for young people" with only 10% of young people sharing news by email.

Key findings claimed by the Institute are that -

• There are significant differences in how regularly people keep up with the news across our surveyed countries. Almost 9 in 10 Germans access the news at least once a day compared with only 3 in 4 people in the United Kingdom. 
•  The rapid switch from print to digital in the United States is not being replicated exactly in European countries. Germany is showing the strongest allegiance to traditional viewing and reading habits and has the lowest levels of internet news use. 
• Online is the most frequently accessed form of news for young internet users – with television remaining most popular for older groups. In general those who’ve grown up with the internet are showing markedly different consumption habits online. They discover and share more news through social networks and show less loyalty to traditional media platforms. 
• Smartphones are starting to play a significant role in the consumption of news. One-third of Danish internet users access news stories via a connected mobile every week. More than a quarter of those in the US and UK do the same.
• The tablet is emerging as an important device for news consumers. Of tablet owners, 58% use the device to access news every week in the UK. They access a larger range of sources than other users, are more likely to pay for news content and over 40% say they find the experience better than a PC. In the UK, we find that some newspaper brands with paid apps do significantly better on a tablet than on the open internet – in terms of overall market share. 
• More widely, consumers remain resistant to paying for news in digital form. Propensity to pay for online news is lowest in the UK (4%) compared to the other markets and highest in Denmark (12%). 
• One in five of our UK sample share news stories each week via email or social networks – but in general Europeans are less enthusiastic than Americans about both the sharing of news and other forms of digital participation. 
• In the UK, news about politics is perceived to be less important – and celebrity news more important – compared to the other countries surveyed. 
• There is more interest in business and especially economic news in the UK and the US than in the European countries surveyed. 
• A relatively small number of people are disproportionately important in the creation, consumption, and distribution of news. We’ve identified a small group of news absorbed users in the UK who access significantly more sources of news, are more likely to comment on news, and twice as likely to share news. 
• The level of interest in foreign news in Britain is lower than in most of our comparator countries. Only 48% of British people place foreign news in their top five areas of interest, and this compares with 65% in Denmark, 64% in Germany, and 54% in France. The level of interest in the US, at 44%, is closest to that in the UK. If one were to assume that interest in foreign news might be correlated with levels of overseas diplomatic and military activity in each of the countries then the low US figure seems surprising, particularly alongside the very high Danish one. But interest in foreign news may also reflect people’s sense of interconnectedness, the degree to which affairs abroad are likely to impact on them directly, or for which they feel some affinity, as much as any direct relation with their government’s degree of foreign engagement.

Are the findings persuasive? Online polling was conducted by YouGov across five countries in April 2012. The Institute states that -

This is an online survey – and as such the results will under-represent older people's consumption habits, namely use of newspapers and TV.  It also excludes people who said they are not interested in news at all which in most countries was more than 10 per cent. All countries used the same methodology to allow for valid comparisons. Within our sample there were targets set on age and gender, region, newspaper readership, and social grade to accurately reflect the total population who are also online.

Indigenous Recognition

'A Referendum on Indigenous Constitutional Recognition – What are the Chances?' (Sydney Law School Research Paper No. 12/21) by Helen Irving notes that

 The Report of the Expert Panel on Constitutional Recognition of Indigenous Australians was presented to the Prime Minister in January this year. It includes many recommendations for constitutional change as well as for the referendum process. The Panel is emphatic that ‘achieving a successful referendum outcome should be the primary consideration of the Government and Parliament.’ Despite this, the Report devotes surprisingly modest attention to the history of Australia’s referendums. From what we know of the record, however, the Report’s confidence that its recommendations ‘are capable of succeeding’ is questionable. This paper considers the record, and concludes that the government would be unwise to put the Panel’s recommendations - at least in their current form - to a referendum. 

Irving comments that -

 The Panel, it is clear, has relied substantially on George Williams and David Hume, People Power: The History and Future of the Referendum in Australia.  This, unquestionably, is an authoritative source, and is by far the most thoroughly-researched in the large body of literature on Australia’s referendum record. But it is also a work of advocacy and serves the dual purposes of detailing the history of referendums and promoting a higher ‘Yes’ rate in the future. Its core premise, shared by almost all other referendum analyses, is that failures are aberrant. 

This is not the only perspective available. It could alternatively be argued that section 128 serves as a type of ‘plebiscite’ with legal consequences. It invites Australian voters to say whether or not they agree with a particular proposal for constitutional change. The people are asked: the people respond. If a referendum fails, this reflects the people’s opinion. Seen in this light, the failure of a referendum on indigenous recognition, as the Panel recognised, would be doubly distressing. 

A dispassionate examination of the chances of success is therefore essential. ‘Talking-up’ the referendum may be a legitimate strategy in promoting a ‘Yes’ vote, but it must be grounded in reality. Fatalism is equally unscientific. The statistical record tells us nothing, in itself, about the chances in an individual case. Failure is not the default. It is the decision of the voters, on each occasion.

Irving concludes that

 The Report’s recommendations reflect a tentative confidence. A reader, unfamiliar with the literature, might conclude that, while that the referendum hurdle is high, the reasons for failure are fairly well understood. This would be a mistake. It is true that a substantial amount of research has been done on the referendum record (although the Report does not capture this as well as it might have). We know a lot about the data, the nature of the campaigns, the media coverage, and so on. But it would be misleading to assert that we know an equal amount about the reasons people vote one way or another. There is no ‘scientific’ explanation of referendum success. There are a number of well-worn hypotheses, and a good deal of conjecture. This does not mean that the familiar explanations are necessarily wrong, simply that we do not know with any level of precision or certainty. 

What we know is that referendums are defeated if there is an appreciable level of opposition to the proposal. The government would be ill-advised to proceed with a referendum in the absence of unanimity – at least nem con - in the parliament. It should be equally wary, if there is any indication of substantial public opposition. We know that education and information programs, no matter how well resourced or long-running, cannot be relied upon to turn around opposition. Indeed, a swing towards the ‘No’ vote in the course of a referendum campaign is much more likely. 

The hypothesis that those who ‘don’t know’, will ‘vote No’ is appealingly simple (and provides referendum opponents with a handy slogan), but it is misleading. It assumes its own conclusion, namely that the proposed changes are inherently worthy, and that rejection reflects misunderstanding of their worth. As noted, this explanation does not fit easily with the data or the history of referendum campaigns. We do have a few inferential guidelines, as well as recourse to sensible intuitions, but these can also lead us to conflicting conclusions. Australia’s referendums have happened over a long span of time. On almost any measure - social, political, demographic, legal – immense changes have occurred, and the character, predisposition, and values of the people have changed. Even to compare 1967 with 2012 is ‘unscientific.’ 

This is not to say that proposals for a new referendum cannot learn from the record. Some hypotheses are better than others, and these, it is hoped, will help guide a government’s decision whether or not to go ahead in the first place. While George Williams’s recommendation of a ‘sound and sensible proposal’ is tendentious (a flaky proposal, by definition, will not appeal to voters, assuming there can be agreement on its flakiness), it does put its finger on something upon which everyone can agree. A majority of people will (probably) vote ‘Yes’ if the proposal reflects a combination of settled norms and comfortable aspirations. A tentative, but judicious, understanding of what the record reveals, combined with a ‘gut’ sense of what the Australian people are likely to support (assisted by well-designed opinion polls), is the best guide to the chances of success. 

From this perspective, if the proposed alterations recommended by the Panel are separated, the chances will vary, depending on the question. The Panel, however, should be much less confident than its Report suggests about the likelihood of success if its proposals are put in the form of a single question.

Prohibition

'The New Prohibition: A Look at the Copyright Wars Through the Lens of Alcohol Prohibition' by Donald Harris in University of Tennessee Law Review deploys the prohibition meme, commenting that

Over the past decade, copyright holders and content providers have increased legislative and judicial protection for copyrighted works and have concurrently increased enforcement efforts. Much of this has been directed at curbing massive filesharing. Despite the tremendous amount of resources expended in such efforts, filesharing continues at unabated and never before seen levels. Filesharing continues and enforcement efforts has failed because neither the laws nor the copyright industry’s efforts take into account the immense resistance and civil disobedience engendered by efforts to prevent a considerable segment of society from recognizing the reality of the Internet. Moreover, such enforcement efforts also fail to address the evolving nature of copyright. Rather than continuing to impose on society laws that society feels are both unjust and illegitimate, new copyright laws much reflect current societal morals and norms. These current norms suggest that filesharing is here to stay. As such, this Article offers a different look at the controversy surrounding the filesharing. 

This Article argues that legislators, commentators, and the copyright industry must entertain laws that embrace filesharing, and seek other ways to incentivize artists and other creators. The Article traces Alcohol Prohibition of the 1920s and 1930s as an historical example of laws that were inconsistent with the vast majority of society’s morals and norms. Looking back, one can see many similarities between the Alcohol and Filesharing Prohibitions. The Article suggests, then, that lessons learned from the failed “noble experiment” of Alcohol Prohibition should be applied to the current filesharing controversy. Doing so, the Article advocates legalizing certain noncommercial filesharing. A scheme along these lines will comport with societal norms and will force new business models to replace outdated and ineffective business models.

Own Goal?

Australian Attorney-General Nicola Roxon seems to have mistaken an own goal for kite-flying, judging by comments in today's Sydney Morning Herald.

In an article for this month's Privacy Law Bulletin (or snippier pieces here and here) I questioned wide-ranging proposals for 'rationalising' national security law and requiring business to retain telecommunication traffic data for a two year period.

Those proposals are disappointing because the issues have been explored in depth on several occasions in different parliamentary inquiries without gaining much support.

The proposals are also disappointing because they are accompanied - and apparently justified - by a notably thin (indeed misleading) discussion paper from the Attorney-General's Department. The urgency of the consultation can be attributed to political opportunism or merely to ineptitude within the Department and the Minister's Office. If we are going to reshape the privacy landscape and strengthen the powers of a range of agencies it is important that law reform take place on a properly informed basis, rather than being rushed in a way that disregards consideration by the legislature and consultation with the community, including bodies such as the Law Institute of Victoria that have highlighted problems in the past.

Under the heading 'Roxon doubts over security plans to store web history' the article states that -

 "The case has yet to be made'' for a controversial plan to force internet providers to store the web history of all Australians for up to two years, says the Attorney General, Nicola Roxon, who has acknowledged the financial and privacy costs of such a scheme. 

She expressed her reservations in an interview with The Herald in what may be a sign the government does not have the appetite for forcing through Parliament the most controversial proposal among more than 40 national security proposals. 

The proposals, if passed, would be the most significant expansion of national security powers since the Howard-era reforms of the early 2000s.

It is true that the case made by the discussion paper is unpersuasive, not least because of its vagueness. 

The SMH states that -

Regarding data retention, Ms Roxon said she had some sympathy for the view of national security agencies, but said: "I am not yet convinced that the cost and the return - the cost both to industry and the [civil liberties] cost to individuals - that we've made the case for what it is that people use in a way that benefits our national security." 

"I think there is a genuine question to be tested, which is why it's such a big part of the proposal." 

 The article goes on to comment that -

This view will be greeted with some apprehension by one of the main advocates for such a regime, Neil Gaughan, who heads the Australian Federal Police High Tech Crime Centre. 

"If we don't have a data retention regime in place we will not be able to commence an investigation in the first place. And it's already getting increasingly difficult," he said. Opposition to such laws in Germany - the government has declared them invasions of privacy and forbidden them - has left the German federal police agency the Bundeskriminalamt or BKA a laughing stock, Assistant Commissioner Gaughan said.

Asst Commissioner Gaughan might want to do his homework. The German Constitutional Court - applying EU law and the German Constitution - rather than the German Government held over-reaching law to be invalid. Law enforcement in Germany continues: the nation isn't a wild west in which police are unable to act. Wiretaps are permissible within the German legal framework. It is thus disconcerting to read that

"No one can work with them internationally," he said. "If I go to Germany with an inquiry about who called who, when and why, they can't tell us. It's causing the BKA all sorts of problems."

 Evidence to a current inquiry in Germany noted here might suggest that bureaucratic ineptitude rather than unprecedented legal constraints is what causes people to laugh at Germany's spooks and feds.

The SMH article also notes that

 The committee investigating the proposals has already reacted to complaints that four weeks allowed for submissions from the public was not long enough. It announced yesterday that it was extending the deadline by a fortnight.

Privacy Notices

Recent posts in this blog have referred to frameworks for consent in online transactions and notions of 'visceral notice'.

'What happens to my data? A novel approach to informing users of data processing practices' by Bibi van den Berg & Simone van der Hof in (2012) 17(7) First Monday notes that -

Citizens increasingly use the Internet to buy products or engage in interactions with others, both individuals and businesses. In doing so they invariably share (personal) data. While extensive data protection legislation exists in many countries around the world, citizens are not always aware (enough) of their rights and obligations with respect to sharing (personal) data. To remedy this gap, users ought to become better informed of companies’ data processing practices. In the past, various research groups have attempted to create tools to this end, for example through the use of icons or labels similar to those used in nutrition. However, none of these tools have gained extensive adoption, mostly because it turns out that capturing privacy legislation in simple, accessible graphics is a complicated task. Moreover, we believe that the tools that were developed so far do not align closely enough with the preferences and understanding of ordinary users, precisely because they are too ‘legalistic’.

In this paper we discuss a user study conducted to gain a better understanding of the kinds of information users would wish to receive with respect to companies’ data processing practices, and the form this information ought to take. On the basis of this user study we found a new approach to communicating this information, in which we return to the OECD’s Fair Information Principles, which formed the basis for (almost all) data protection legislation. We end the paper with a rudimentary proposal for an end user tool to be used on companies’ Web sites.

They comment that -

One of the interesting findings of the survey we conducted (section 1) was that the informational wishes of end users neatly align with the requirements laid down in data protection law: end users tend to want to be informed of the same information processing issues (what information is processed, passing information on to third parties, processing purposes etc.) as the legal demands that companies need to meet. On some level, of course, this is not surprising: if all goes well legal requirements mirror the demands of the people they aim to protect, or at least align with these demands. However, other attempts at improving the accessibility of privacy statements, or companies’ data collection and processing practices, have never started from this finding. As we have seen, for example in the icons developed in the PrimeLife project, these generally start from the assumption that the intricacies of data protection legislation have to be communicated — in great detail — to end users to inform them of the many, many hazards and pitfalls they may (legally) encounter when sharing data in online environments. In contrast, our survey reveals that end users’ expectations remain at a much more general, and much less legally detailed level. 

This led us to the idea of going back to the origins of (almost all) of the data protection legislation that is available today: the OECD Guideline, composed in 1980, on the ‘Protection of privacy and transborder flows of personal data’, also known as the Fair Information Principles. These Principles form the basis of the European Data Protection Directive, along with most of the data protection legislation of the Member States. There are eight basic principles in the OECD Guideline, ranging from a Collection Limitation Principle (also known as the data minimization principle: one can only collect those data one needs to complete a certain action, and no more than that), the Data Quality Principle (data should be accurate and up to date), and the Purpose Specification Principle (data may only be collected and processed for specified purposes). 

As said, the survey revealed that users look for precisely these types of information when engaging with companies who set out to collect and process their data. This is why we rephrased the key principles in the OECD Guideline in everyday language and used those as our starting point. 

In the previous section, we concluded that many of the existing initiatives to improve the communication of privacy policies either provided too much information at a single glance for end users to process (icons, labeling) or too little (the Privacy Bird). To avoid this, we decided to opt for a layered approach, which does contain all the information an end user may wish to receive, but not at first glance. Moreover, we decided to use words rather than a single image such as the Privacy Bird to avoid oversimplification. We placed eight core concepts, related to the Fair Information Principles, on the spokes of a wheel .... This wheel can be placed on a company’s Web site .... Clicking the wheel makes the spokes rotate, so that each of the eight topics can be studied by end users should they desire to do so. 

The spokes have the following labels:

Limited collection: this is the OECD’s ‘Limited Collection Principle’ 

Data quality: this is the ‘Data Quality Principle’ 

Clear purposes: this is the ‘Purpose Specification Principle’ 

Limited use: this refers to the fact that data shall not be used for purposes other than the ones specified, but also to the fact that data shall be stored for a limited period of time. 

Safe & secure: this refers to the OECD’s Security Safeguards Principle, which stipulates that data should be stored in a safe and secure way. 

Consent: this is actually not a part of the Fair Information Principles, yet has become a key feature of existing data protection legislation, which is why we chose to create a separate label for it. If this demonstrator were to be developed further into an online tool, to be posted on companies’ Web sites, one could imagine that clicking this spoke would not only give end users access to the stored consent form regarding their data, but possibly even a direct means to change or revoke their consent. 

Third parties: this also is not an explicit part of the Fair Information Principles, yet plays an important role in existing data protection legislation. Moreover, the survey revealed that users attach great value to being informed about whether or not their information is passed on to third parties. This is why we created a separate spoke for this theme. 

Hold us accountable: this refers back to the OECD’s Openness and the Accountability Principle, which states that users ought to have the right to hold a data controller accountable, and have insight into what data is processed and by whom.

We have chosen these labels because they are intuitive and easy to understand — even if end users do not click on the spokes to find out more information, they are still informed of a company’s data collection and processing practices on a minimal level. 

Clicking on the wheel enlarges the image. Next, clicking on the individual spokes enables users to access second and even third layers of information, where they receive more and more in–depth information about each specific aspect of the processing. The information becomes more ‘legalistic’ with every layer the end users access. What’s more, in some cases end users may even exercise their rights directly through the use of this tool