Out of this world?

'Space Tourism: A Synopsis on its Legal Challenges' by Yanal Abul Failat in 1 Irish Law Journal (2012) 120-151 states that

 Following Dennis Tito's flight to space aboard the Russian Soyuz capsule in 2001, suborbital has become a new form of commercial activity. Fueled by an eager public and decreasing prices, the industry is rapidly expanding. Because the current space law regime was originally designed for governmental exploration, it is inadequate to handle the range of legal challenges emerging from this private commercial activity. This article therefore suggests that the current legal regime is incapable of sustaining the space tourism industry and that there is an urgent need for a new international convention.

As part of his discussion Failat comments that

In 2004, SpaceShipOne’s success in winning the X Prize offered an opportunity for further commercial development in the space tourism industry. Dr Aldrin, an Apollo 11 NASA astronaut said, ‘I think the [Ansari] X PRIZE should be viewed as the beginning of one giant leap’ for the industry. In 2009, Virgin Galactic began to provide suborbital commercial journeys after revealing the SpaceShipTwo — renamed the Virgin Space Station — which can carry up to six passengers and two pilots. This advent in space tourism raises challenges from a legal standpoint because such vehicles are of a hybrid nature: their function uses mechanisms of both aircrafts and space vehicles. Due to the design and purpose of these vehicles, both space law and air law may be applicable to such flights. This leads to uncertainty regarding the operation and application of the two legal regimes when dealing with registration and liability amongst other legal matters related to suborbital commercial flights Furthermore, the need to clarify this issue is now of prime importance given that the manufacturing of two-part vehicles has become common for the purposes of space tourism.

Accordingly, the objective of this section is to outline the current law and its deficiencies in this regard, and to ultimately suggest an adequate approach towards resolving this uncertainty.

A. Aircraft, Space Vehicle, or Both?

The classification of hybrid vehicles, such as the ones modelled after Space-ShipOne, revolves around the terms ‘aircraft’ and ‘space object’. With regard to the former, the International Civil Aviation Organisation defines an aircraft as ‘any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface’. There has not, however, been any universally accepted definition of the term ‘space object’ by international space law or its related texts. Therefore, any hybrid vehicle which travels in both airspace and outer space may also be included in definitions of the term ‘space object’. Furthermore, a ‘space object’ generally refers to ‘any vehicle intended to be active in outer space’. The commercial suborbital flights offered by space travel agencies fall under this general classification as the terms they use in their advertisements, such as space tourism, space travel, and space flight, illustrate the obvious purpose of the flight. Nevertheless, this may be disputed, as the general definition appears to be too narrow. Some believe that the term ‘space object’ does not refer only to vehicles but also to objects such as aerolites and cosmic dust.

The applicability of either term depends on the particular stage of the journey, as the method of operating the vehicles varies at different phases of a flight. By way of example, SpaceShipOne is lifted to an altitude of 15.24km by its carrier: the mother ship, WhiteKnightOne. At that point the two components detach, the mother ship returns and lands at the spaceport, and SpaceShipOne launches its rocket vertically to an altitude of approximately 100km above sea level. Thus, the vehicle operates as an aircraft for the first stage of the trip as it does in fact ‘derive support from the reactions of air’. But, in the other stages of the trip, the vehicle falls under the status of a ‘space object’ as it can only operate on rocket-mode propulsion. Presumably, therefore, air law applies to the space vehicle before detachment and to the mother ship after the separation, and space law applies to the object which operates on rocket-mode propulsion after separation.

B. Registration

In terms of registration, the approach referred to above requires the space vehicle to register the two components separately according to their classification. The registration of the component classified as an aircraft needs to conform to the Chicago Convention where, according to Article 17, the aircraft must register with its country of nationality. Such registration must be performed in harmony with national laws and regulations of the relevant state participating in the Chicago Convention. In contrast, the registration of the component classified as a ‘space object’ should be made under the Convention on the Registration of Launched Objects into Outer Space 1974 (‘Registration Convention’). Although in principle, Article II(1) of the Registration Convention imposes registration as an obligation, it offers flexibility of choice in relation to the state exercising jurisdiction and control over the ‘space object’. In situations involving more than one launching state, the parties shall ‘jointly determine which one of them shall register the object’ and agree on terms regarding jurisdiction and control of the objects in question  This must be done in conformity with Article VIII of the OST, which provides that, ‘[a] State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body’.

Some experts maintain that the two systems discussed above can operate simultaneously. Other experts, however, are of the opinion that this approach is unworkable, and argue that both regimes are not compatible as they relate to two separate industries of dissimilar status and nature. This is supported by the fact that the aviation industry, unlike the space industry, is already fully established, regulated, and deals with nominal risks. In order to tackle this incompatibility, it has been suggested that only one registration should be allocated per vehicle under a de lege ferenda paradigm of the Chicago Convention.

C. Liability

Similarly, in relation to liability, a dual regime does not seem viable because the applicable regime will depend on circumstantial events. The point at which the ‘incident’ occurs will determine the legal position of the parties involved. This leads to uncertainty and inconsistency as to rights and obligations which could possibly arise during commercial flights on hybrid vehicles. Thus, a more appropriate solution would be to design a complete regime specific to the space tourism industry whilst taking into account the current framework of both air law and space law.As mentioned in the preceding parts, the rules established by the Liability Convention essentially constitute the space liability regime. Articles I and II of the Liability Convention provide that a country which either launches or procures the launch of a ‘space object’, or from whose territory a ‘space object’ is actually launched, shall be considered to be absolutely liable for any damage that is caused by the ‘space object’ on Earth or to other aircrafts that are already in flight. Then, with regard to any further damage that is caused anywhere other than the Earth’s surface, Article III of the Liability Convention imposes a fault-based subjective standard of liability.

In air law, the 1929 Warsaw Convention, as amended by the Montreal Convention, provides the liability framework for the international carriage of persons and property by aircraft. The Montreal Convention provides that a carrier is liable for death or bodily injury of a passenger, loss or damage to property, and damages caused by delay in the carriage. Furthermore, when damage is established, monetary reparation of up to 100,000 Special Drawing Rights can be provided. But, the Convention exonerates the carrier from liability if it can be established that the ‘damage was caused or contributed to by the negligence or other wrongful act or omission’ of a person other than the carrier.

The two regimes address liability in different manners and neither fully nor adequately regulate suborbital flights. For instance, in relation to private claims, the air law regime clearly has an advantage for the reason that, unlike space law, direct claims by individuals are possible. Furthermore, claims under the air law regime are preferable as decisions are reached through binding courts under either national tort systems or the international regimes. Nonetheless, the limits provided by the air law regime are not consistent due to the absence of international harmony in this regard.

Logs

From 'City Is Amassing Trove of Cellphone Logs' by Joseph Goldstein in today's NYT

When a cellphone is reported stolen in New York, the Police Department routinely subpoenas the phone’s call records, from the day of the theft onward. The logic is simple: If a thief uses the phone, a list of incoming and outgoing calls could lead to the suspect.

But in the process, the Police Department has quietly amassed a trove of telephone logs, all obtained without a court order, that could conceivably be used for any investigative purpose.

The call records from the stolen cellphones are integrated into a database known as the Enterprise Case Management System, according to Police Department documents from the detective bureau. Each phone number is hyperlinked, enabling detectives to cross-reference it against phone numbers in other files.

The subpoenas not only cover the records of the thief’s calls, but also encompass calls to and from the victim on the day of the theft. In some cases the records can include calls made to and from a victim’s new cellphone, if the stolen phone’s number has been transferred, three detectives said in interviews.

Police officials declined to say how many phone records are contained in the database, or how often they might have led to arrests. But police documents suggest that thousands of subpoenas have been issued each year, with each encompassing anywhere from dozens to hundreds of phone calls. ...

To date, phone companies have appeared willing to accede to the Police Department’s requests for large swaths of call records. Memos issued Sept. 28 by the chief of detectives, Phil T. Pulaski, instruct detectives to prepare subpoenas for stolen phones assigned to AT&T, Verizon, T-Mobile or Metro-PCS. With these carriers, the police do not generally seek the victims’ consent; in fact, the subpoenas are executed without the victims’ knowledge. (It does not appear that subpoenas are issued when the stolen phone is served by Sprint Nextel. In those cases, detectives are instructed to ask the victim to fill out consent forms that authorize Sprint Nextel to release call records and location information to the police.) ...

Nationwide, cellphone carriers reported receiving about 1.5 million requests from law enforcement for various types of subscriber information in 2011.

Blackmail

In Latorre v R [2012] VSCA 280 a full bench of the Victorian Court of Appeal has allowed prominent fruit grower Vincent Latorre's appeal - from R v Latorre (Unreported, County Court of Victoria, Judge Hampel, 10 December 2009) - against his convictions for two counts of blackmail. A conviction for extortion was upheld. Latorre was resentenced to 7 years' imprisonment (non-parole 5 years) for the extortion offence and a number of other offences.

Using his 'mafia reputation' Latorre and associates intimidated businessmen and their families into handing over substantial amounts of money. The offenders engaged in assault, threats to kill and damage to property to ensure that payments were made.

Possibly not the sort of person from whom you'd want to buy apples, pears and grapes.

The judgment features the following information -

The applicant conducted a wholesale fruit and vegetable business based in Shepparton. Orsida, his brother Roy, and their wives Anne and Glennis owned three orchards in the Cobram region.

Luisa Racioppo (‘Racioppo’) was employed by the Orsidas in early 2004 for about six months. In mid 2004, Orsida made sexual advances towards Racioppo, who had been in a relationship with the applicant’s acquaintance, Vincenzo Mantovani. Vincenzo Mantovani overheard a telephone call between Racioppo and Orsida, found out about the earlier advances, and became enraged

Shortly afterwards, Orsida was advised by Nicola (Nick) Mantovani that telephone recordings existed of him talking to Racioppo. Nicola Mantovani made a demand for money in exchange for the recordings and said that otherwise the recordings would be played to Orsida’s wife.

A few days after the demand was made, Orsida went to Nicola Mantovani’s packing shed and handed to the applicant $10,000 in cash. The applicant did not hand over the tape, but told Orsida that it would be destroyed (count 1 – blackmail).

The Orsidas subsequently sustained substantial deliberate damage to their business on the following occasions:

(a) on 26 October 2004, approximately 1,600 fruit trees were cut down and irrigation pipes were damaged at the Orsidas’ Lonergan Road property;

(b) on 15 August 2005, the cool room plant at the Orsidas’ Cottons Road property was set on fire;

(c) on 31 August 2005, approximately 500 fruit trees were deliberately destroyed and irrigation pipes were damaged at the Orsidas’ Murray Valley Highway property;

(d) on 4 September 2005, a pump shed at the Orsidas’ Lonergan Road property was set on fire;

(e) on 25 September 2005, the cool room plant at the Orsidas’ Cottons Road property was again set on fire; and

(f) on 28 September 2005, the Orsidas’ partially completed packing shed at Schubert Street was set on fire. 

Soon after the fire at Schubert Street, Orsida contacted Michelangelo Diaco (‘Diaco’), who knew the applicant. Diaco told Orsida that he had spoken to the applicant and that the applicant required a $10,000 ‘negotiation fee’. Orsida handed $10,000 to Diaco in October 2005.

Diaco subsequently told Orsida that the applicant wanted more money. A payment schedule was agreed upon whereby Orsida would hand to Diaco $150,000 in instalments over two years (count 3 – blackmail). In accordance with that agreement, Orsida paid to Diaco $20,000 on 23 December 2005, $25,000 on 10 March 2006 and $5,000 on 10 April 2006. ...

In mid-November 2003, Thomas Corso had a consensual sexual liaison with Tammara Mantovani. Vincenzo Mantovani was Tammara’s cousin and a friend of Thomas Corso. He heard about the liaison and became upset.

On 13 December 2003, Vincenzo Mantovani, Carmine Mantovani (Tammara’s brother) and another man assaulted Thomas Corso.

On 14 December 2003, Thomas Corso’s brother, Antonino Corso, assaulted Carmine Mantovani.

That evening, representatives of the Corso and Mantovani families met in an attempt to resolve the dispute. The applicant joined the families and told Antonino Corso that to resolve the issue, the Corsos owed him $100,000, half of it payable in two weeks and the remainder at the end of the fruit season (count 1 – blackmail).

In late December 2003, Antonino Corso gave the applicant $50,000 in cash. In April 2004, the applicant telephoned Antonino Corso and asked for the remaining $50,000. Antonino Corso said he needed a few more weeks and the applicant said, ‘Alright’. Antonino Corso did not pay the remaining $50,000.

Smells and spells

From today's Melbourne Age -

Mr Treylourne's Witchcraft Emporium in Burke Road, Camberwell - specialising in casting spells - has been open for business for six weeks. He sells no crystals or dream catchers - none of the New Age paraphernalia being flogged this weekend at the Mind Body Spirit Festival at the Exhibition Centre. ...

To make a spell, Mr Treylourne combines various herbs (he has 130 kinds and is looking to get 100 more) in a box and lights a charcoal burner. The customer then writes the name of his beloved or enemy or desired object, such as cash, on a piece of paper and spends a few moments focusing on their desire. When swollen with emotion, longing and belief, the customer drops the paper on to the burner. ''If it vanishes instantly, the spell has a good chance of working.''

He then goes to work uttering a Celtic phrase known as the ''charm of making'' while ringing a little bell that is meant to ward off bad spirits.

The customer then takes home the spell box, an amulet and a vial of oil for burning. ''We don't charge for the components, only the time.''

It's $60 for 30 minutes' work. 

Spell making pays better than law teaching, albeit the latter doesn't involve burners n bells.

The Emporium site indicates that

Spell crafting is the magical use of incantations, herbs and the forces of nature to produce your desired goal. There is neither good nor evil spell casting, there is merely the intention of the user.

Do what you will but harm no one!

Aleister 'Do what thou wilt shall be the whole of the Law' Crowley must be rotating in his grave like a rotisserie chicken with that expression of naughtiness.

The Camberwell spellmeisters go on to indicate that

Spells can be created to attract things into your life or redress an imbalance. Nature is about maintaining a balance, for every yin there is a yang, for every dark there is a light, and for every wrong there is a right.

Creating a personalized spell for each person requires an understanding of what you are trying to attract, for instance, wealth, health, love and happiness. Or remove from your life, for instance, cutting ties with relationships, bad luck, negative thinking and dark energies.

Crafting spells is not simply an act of waving a wand, burning a candle or saying bad poetry. For example, a love spell requires an understanding of what sort of love you want, for instance, is it romantic love? platonic love? or passionate love? For creating wealth, what sort of wealth do you want, for instance, a one off windfall or a promotion at work.

The master spell crafter will then tailor make a spell for your situation. The spell may include herbs, resins, oils or spell candles and will be made at the shop.

WGS

From the critique by Mark Rothstein in 25(5) GeneWatch (2012) 15-16 of the US Presidential Commission for the Study of Bioethical Issues Privacy and Progress in Whole Genome Sequencing report (noted here).

Rothstein comments that -

The report places too much emphasis on research and not enough on clinical applications. The research issues are relatively uncontroversial, because there is widespread societal recognition of the desirability of research utilizing WGS, so long as there is informed consent, data security, and other traditional protections. The clinical applications are less easily resolved. Certain uses of WGS are undoubtedly valuable, including for analyzing rare disorders, performing tumor genome sequencing, and determining pharmacogenomically appropriate medications. For other uses, however, such as predictive risk assessment for common, complex disorders in asymptomatic individuals, there is little current clinical utility and therefore WGS is difficult to justify.

Another weakness of the report is that it underestimates the potential harms that individuals may suffer as a result of WGS. Except for observing the burden of knowing about a condition for which there is no effective treatment, the report focuses solely on tangible harms, such as discrimination. Nevertheless, many individuals currently experience various psychological and social harms from traditional genetic testing (e.g., depression, anxiety), and the massive scope of WGS is likely to increase the number and severity of these intangible problems.

The discussion of privacy, the main focus of the report, is incomplete. By emphasizing the risk of unauthorized uses of genomic information the report overlooks the substantial issue of lawful uses of information pursuant to compelled authorizations. This occurs when individuals are required to sign a broad authorization (releasing substantially all of their health records) as a condition of applying for a job, various forms of insurance, government benefits, or other matters. Each year in the U.S. individuals sign at least 25 million compelled authorizations, and the adoption of interoperable, comprehensive, and longitudinal electronic health records greatly increases the scope of disclosure and therefore the privacy risks. Unless these risks are addressed it is impossible to protect genetic privacy -- or more broadly, informational health privacy.

The report also contains an inadequate (and, in places, incorrect) discussion of applicable laws. For example, it states (on pages 66-67) that GINA “does not address the use of or access to genetic data. In other words, GINA is an anti-discrimination law; it does not provide comprehensive privacy protections.” This statement is incorrect. Section 202 of GINA prohibits an employer from requiring or requesting an individual to undergo genetic testing or disclose genetic information as a condition of employment. In theory, an employer cannot discriminate if it does not have genetic information; also, individuals will be more willing to undergo beneficial testing if the results will not be available to employers. The problem is that there is no practical way for custodians of health records to comply with a request to disclose everything except genetic information (which, under GINA, includes family health information). By calling attention to this problem, the Commission could have helped to hasten the development of necessary privacy-enhancing technologies.

Although the report is limited to broadly defined “privacy” issues, it is impossible to study privacy concerns without understanding the context in which WGS will be used. The adoption of WGS technology has the capacity to overturn numerous established practices in clinical genetics, and the report’s failure even to mention these applications is unfortunate. Three examples follow.

First, genetic screening of newborns and children is now limited to conditions for which medical intervention in childhood is necessary and potentially beneficial. The rationale for limited testing in childhood is that for adult-onset disorders that cannot be ameliorated in childhood (e.g., Huntington disease, Alzheimer’s disease), the child should be able to decide upon reaching maturity whether to undergo genetic testing. Routine, population-wide WGS of newborns and children would fundamentally alter this established policy. Such a change could have significant psycho-social implications, including privacy implications, and therefore requires thoughtful analysis.

Second, as the cost difference between a single genetic test and WGS is reduced to nominal levels, there will be pressure to undergo WGS in every situation where only a single test is needed initially. This “might as well” sequencing could be promoted by public or private payers as being more efficient than multiple tests, as well as by clinicians who believe the additional genomic information has clinical value. WGS will generate numerous incidental findings that would necessitate genetic counseling, surveillance, and privacy controls. It also could lead to a significant psychological burden that needs to be considered.

Third, the report does not address direct-to-consumer WGS. In addition to numerous regulatory issues, direct-to-consumer WGS raises such fundamental ethical issues as the conflict between autonomy and paternalism, nonmaleficence, justice, and privacy.

Gore

In R v Borg [2012] VSC 565 the Supreme Court of Victoria has sentenced a man to 23 years' imprisonment with a 19 year non-parole period for what one friend describes as "a good old-fashioned lipsmacking tabloid headline crime".

Borg had come to the false conclusion that his victim had informed police of the man's hydroponic marijuana cultivation activities. He wasn't happy. Quite soon, neither was his victim

Borg had shot the victim and then dismembered the body and burnt the remains. He then placed the remnants of the body into a tub of acid, disposed of various items in bush land and poured the contents of the tub into the ocean.

Alas, the victim had not been the informant. An anonymous female had informed the police of the marijuana crop via the Crimestoppers line and the man's co-offender made a complete confession which led to the man's arrest.

Lasry J noted that

according to what you told [associate] Spiropoulos, you picked [victim] Peter Rule up from his house and took him out for dinner. After dinner, you took him to a factory occupied by Corey Small in Campbellfield. You told Peter Rule that there was a gun hidden somewhere in the factory and that they should look for it. During the course of the search for the gun which you had described to Peter Rule, you produced the gun and shot him a number of times. You told Spiropoulos that you shot him six times in the head and four times in the chest.

You later rang Spiropoulos and told him to purchase 15 bottles of bleach, some garbage bags and rags which Spiropoulos then did. This was late on a Sunday night. You later directed Spiropoulos to meet you at a factory in Campbellfield owned by Corey Small and to bring the items that Spiropoulos had purchased. 

You and Spiropoulos then spent an hour and a half or more cleaning up at Corey Small’s factory following the killing of Peter Rule. The body of Peter Rule was in the boot of your motor car and you had finished at the factory in Campbellfield you then drove to the factory in Thomastown. By this time is was the early morning of the following day and you instructed Spiropoulos to return to the Thomastown factory the following day and he did so. By the time he arrived you had set about burning the body of Peter Rule to the extent that only ashes were left. During that process a chain saw had been purchased to assist with dismembering Peter Rule’s body. The process of destroying Peter Rule’s body lasted as long as three days. Part of that process also involved placing the remnants of Peter Rule’s body into a black tub and then mixing acid into it. After the process had been completed you and Spiropoulos travelled to the area of the Great Ocean Road in the vicinity of Anglesea and Lorne where various items were disposed of by being concealed in the bush and the contents of the black tub were washed into the ocean. New clothes were purchased in Lorne at a menswear shop which could be linked to both you and Spiropoulos. After returning from that area, there was then cleaning of motor vehicles and later, to conceal any trace of what had happened at the Thomastown factory the floor was washed and repainted.

In conclusion Lasry J commented that -

The murder of Peter Rule was a planned, calculated killing and was particularly callous. You have denied you were involved in the killing and continue to do so. The jury’s verdict means they rejected your denials and so do I. Peter Rule was enticed to a location where you had planned to kill him and you did so. This was a killing with a significant amount of premeditation and planning involved and those factors in themselves make it bad enough. But the brutal degradation of Peter Rule’s body, which I accept was for the purpose of concealing what you had done, was dreadful and is a significant aggravating factor as your counsel properly conceded. 

In addition, this was a killing which occurred for the purpose of preserving your hoped for income from the illegal growing of cannabis. Had it not been for the fact that Michael Spiropoulos could not cope with his own conscience, the whereabouts of Peter Rule’s remains might never have been known. I respectfully agree with the submission made by the prosecutor that this is very serious offending and requires clear denunciation of what you have done. As for deterrence both specific and general, both you and the community needs to be reminded that the law will not tolerate individuals resorting to behaviour involving gross violence like yours to protect expected financial benefits from other illegal activity.

Holymoly

I'm waiting on news of trade mark litigation in Denmark, where ultra conservative Roman Catholic religious institution Opus Dei is suing a small board games maker that - presumably influenced by the very same forces of darkness that are manifest in this blog - markets a game titled Opus-Dei: Existence After Religion.

Dema Games, which has a Danish trade mark for its product, is responsible for an atheist-flavoured "philosophy-themed, strategy-based game" in which - but of course - the player with the most points wins. The religious institution is apparently seeking damages - probably enough to shut down Dema - along with an end to the game and the associated mark.

The games company won a UK domain name dispute in 2009 in an arbitration judgment [PDF] that is worth reading.

In Australia the local branch of Opus Dei - the Prelature of the Holy Cross and Opus Dei in Australia - complete with an Australian Company Number (ACN 053818929) has the Opus Dei mark in four classes:

Class 9: Computer, Electrical and Scientific Products - Electronic publications, educational films, tapes, cassettes and other electronic material 

Class 16: Paper Goods and Printed Material - Printed matter, newspapers and periodicals, books and other printed publications, instructional and teaching materials 

Class 41: Education, Sport, Culture - Religious, spiritual, theological, philosophical, community and social educational, information and training services 

Class 42: Computer, Software and Scientific Services - Religious, spiritual, theological, philosophical and spiritual research and services including pastoral counselling 

Would unwary consumers be confused and mistake the offerings of the prelature with the card game?