Lex Ferenda

Michael Geist has a festive list of the A to Z in Canadian tech law for 2007. Published in the Toronto Star this week.

If you are a graduate student with an interest in the Internet (web science, cyberlaw, Internet studies, etc), the Summer Doctoral Programme as the Oxford Internet Institute (in association with various partners including the Berkman Center at Harvard Law School) may interest you. I was lucky enough to be a participant on the SDP in 2007 (it took place at Harvard then, but it’s back in the UUUK this year) and can recommend it without hesitation.

Further information here

Applications must be with the organisers by February 20th. What are you waiting for?

My own notes, reflections etc from the 2007 programme are here. In addition, I’d be very happy to answer questions from potential participants on what it’s like, what goes on, etc (although stressing that I have no role whatsoever in selection decisions!), either by way of comment to this post or privately (contact details in the top right).

SCRIPT-ed is the (newly re-subtitled) journal of law, technology and society edited at the AHRC Research Centre for Studies in Intellectual Property and Technology Law in Edinburgh. The final issue of 2007 has just been published on the Web - contents here.

Of particular importance is Chris Marsden’s article (PDF. DOC, HTML) on net neutrality (Net Neutrality and Consumer Access to Content), which includes a particular focus on the UK and European elements of neutrality. Those following the topic will know that Marsden is one of the handful of people that understand both the US-centric debate as it is and the more global perspective as it should be; the article, an overview and also a critique, will be an important reference, citation and starting point for a lot of work in the coming months, including my own.

Of less particular importance but it’s my party and I’ll self-promote if I want to, this issue also contains my review (PDF, DOC, HTML) of the New Directions in Copyright Law books. Complete with a Stephen Leacock reference. Thumbs up to the editors for not taking it out…

Of artistic importance is the lovely cover inspired in part by grey Scottish skies (surely not?).

All this, of course, is in the context of a very interesting editorial by Shawn Harmon and Wiebke Abel, where they set out a manifesto for the future development of the journal, including a new publishing schedule and additional locations of publication, updated Creative Commons licensing, an expanded mandate, a shiny website, and more. They also flag the upcoming conference (coming up, that is, in 2009!)

GOVERNANCE OF NEW TECHNOLOGIES: THE TRANSFORMATION OF MEDICINE, INFORMATION TECHNOLOGY AND INTELLECTUAL PROPERTY

An International Interdisciplinary Conference
March 29-31, 2009
University of Edinburgh

More information here. Be there - whatever the colour of the skies!

(Or perhaps pages, doctors, cheats? With apologies to Miami Sound Machine.)

Here we go again with the emergency legislation. PDF copy of the Health (Miscellaneous Provisions) Bill, published this morning. What’s it all about? (News coverage here, will add more).

1. The actual emergency

The Attorney General has apparently advised the Cabinet that there is a problem with certain bits of health legislation, in particular the Health (Corporate Bodies) Act 1961 which enabled the setting up of various boards like the Dental Hospital, St. James’s Hospital, the Crisis Pregnancy Agency, etc (I call them the 1961 Bodies in this post).

The explanatory memo to the ‘emergency legislation’ says that it’s article 15.2 that is causing the trouble: they don’t explain this any further, and I think this is a mistake. While I understand that the AG’s full legal advice won’t be disclosed, it would be useful to explain the problem in accessible terms, rather than hiding behind ‘a concern of unconstitutionality’.

Article 15.2 provides that “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

The most significant case on the interpretation of Article 15.2 is Cityview Press v AnCO [1980] IR 381, which dealt with a challenge to a training levy on companies; this article was discussed (as support for a challenge to a statute which gave the Minister considerable freedom in setting up the levy), and it was held that -

In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits - if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body - there is no unauthorised delegation of legislative power.

Emphasis added by me. So this is familiar first-year constitutional law, and the ‘principles and policies’ test is a well-known one (Justice Keane said it had “continuing vitality”. He said this in the Laurentiu case (1999), where part of the Aliens Act was struck down because it was similarly lacking in principles and policies, leaving it all to the Minister. (Incidentally, how many more provisions like this are there hidden in the statute book? Shouldn’t someone go and check?)

Now, the provision struck down (section 5(1)(e) of the Aliens Act 1935) in Laurentiu said:

The Minister may, if and whenever he thinks proper, do by order (in this Act refer to as an aliens order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens, that is to say … (e) make provision for the exclusion or the deportation and exclusion of such aliens from Saorstát Éireann and provide for and authorise the making by the Minister of orders for that purpose.

So what this means is that a provision of a statute that doesn’t contain guidance for the Minister, i.e. leaving it all up to him and her to deal with the matter, may be unconstitutional.

The relevant section of the 1961 Act is (I think) s 3(1) (and see s 5 which is relevant in explaining it, perhaps):

3(1). The Minister may from time to time by order (in this Act referred to as an establishment order) establish a body to perform functions in, or in relation to, the provision of a health service or two or more health services.

5. An establishment order shall contain such provisions as the Minister considers appropriate defining the functions of the body established by the order in, or in relation to, the provision of the health service or health services to which the order relates, and the manner in which and the conditions under which the body so established may perform the functions so defined.

(As an aside it does seem that s 4 and s 6 of the 1961 Act are helpful in that they specifies certain things relating to staff/Board memebrship/administration that must be in such an order)

The method that they’re taking in this emergency legislation (incorporating the orders into legislation by reference) was challenged in the 2004 Leontjava case (which dealt with the Immigration Act’s cheeky fixing of the Laurentiu problem) and was discussed at great length - however it was found to be acceptable to go about remedying a problem this way. Basically, what happens is that the orders are deemed to have effect as if they were statutes, and all acts (subject to constitutionality) are confirmed.

For what it’s worth, I disagree with this approach; I think the point of Laurentiu should have encouraged the Oireachtas to take its constitutional responsibilities more seriously and simply making the problem go away by declaring that the orders should be treated as if they were legislation in the first place. That’s primarily a political and democratic-institutions point but there were some good (but unsuccessful) legal arguments made in Leontjava that the Court could strike down the supposed corrective measures; indeed, the High Court said so, and the State brought in new legislation in the gap between the High Court and Supreme Court decisions! This article by Rossa Fanning of UCD (PDF) explores the decision in more detail - but I stress that there is no question that the Oireachtas can legislative this way on this occasion. Whether they should is a different question…

2. Privatisation - not an emergency

There are further, serious concerns about things that are included in the Bill that have absolutely no connection with the constitutional issue.

For example, section 7 provides that various changes be made to the orders governing the 1961 Bodies (which are now to be considered as in the position of statutes!). In general, the changes made by the Schedule would replace the Minister with the HSE in various places, and reformulate certain Ministerial approvals as being instead with the HSE’s approval and the consent of the Minister and Minister for Finance. Furthermore, detailed provisions to enable two of the 1961 Bodies (St. James’s Hospital and Beaumont Hospital) to participate in proposed ‘co-location’ arrangements (a particularly controversial matter in the Irish health system). It is wholly inappropriate for these provisions to be included in this Bill in this fashion. It’s also worth noting that the grant of power is quite broad, as follows:

The Board may, with the consent of the Health Service Executive, enter into an agreement with one or more persons for the provision by any person (in this section referred to as the ‘private undertaking’) specified in the agreement, on land vested in the Board, of hospital services that are not paid for primarily out of public moneys.

This, of course, is a broad grant of power and is not limited to current political proposals that carry the cute name of co-location - let us not forget that. There are various other sections in the full page of provisions to facilitate these proposed activities by ‘private undertakings’, setting out the mechanics of such in more (albeit not particularly restrictive) detail.

This element should be debated and introduced separately and there are no constitutional reasons to introduce it alongside the correction of the more general problem with the creation of the 1961 Bodies.

3. And while you’re at it

One one hand, some elements of the Bill are necessary follow-ons from the main issue. For example, section 4 would repeal s 70 of the Health Act 2004 - this section allows for 1961 Bodies to be incorporated into the HEA - this (rightly) should not be possible as these are now ’statutory’ bodies. Section 8 would allow the Minister to continue to give money to 1961 Bodies (with 2 exceptions where this apparently isn’t planned anyway), s 9 keeps the C&AG involved which is a good thing.

On the other hand, sections 10-19 contain pages of separate and unrelated amendments to the Medical Practitioners Act (which was only passed this year!), and section 20 brings in some more (consequential) in a schedule. Will they get the debate they deserve?

And on top of that we have section 21 that’s apparently fixing a problem with the Health Act 2004 in respect of audits - as best I can work it out someone made a mistake in numbering when providing for tendering in a part of the Health Act 2007 and they may have accidentally messed up the existing provisions. And that’s what they are fixing. I think. All we’re told in the explanatory memo is that it’s a ‘technical amendment’. Thanks, lads.

Here’s a great article by David Pannick on the legal year that was 2007. Unfortunately, the people at the Times Online didn’t see fit to include any citations or links, so to remedy that bizarre omission, here they are.

El-Farargy v El-Farargy & ors [2007] EWCA Civ 1149

S v L ( online version here)

Re Judge Restaino and s 44 of the Judiciary Law (online version here)

Friends of Jesus v Tiberus et al (petition 965/2007: petition here)

State of Montana v Andrew McCormack (unreported, but copy included in a blog post here)

That’s all I can find - a lot of the others are comments in unreported proceedings or things said before a jury or in argument…

You know what it’s like. “How do I get a gift that will be unique and special this Christmas?”. Well, I spotted these two items on blogs I read recently, and I hope they help you in making that important decision this December:

• Uranium Ore from Amazon (seen at David Weinberger’s blog)
  
• USB Wine (seen at Michele Neylon’s blog

An article in CNET caught my attention - it was a damning review of a new piece of legislation in the US, the (awkwardly named) Securing Adolescents From Exploitation-Online Act (SAFE for short, of course - therefore preventing the development of the Anti-SAFE Coalition ). Declan McCullagh’s piece opened with this:

The U.S. House of Representatives on Wednesday overwhelmingly approved a bill saying that anyone offering an open Wi-Fi connection to the public must report illegal images including “obscene” cartoons and drawings–or face fines of up to $300,000.

Ah, good, I said to myself. This will be a useful addition to the debate on wifi sharing, which I’ve been thinking about (here, here). And so I read on. And there is some criticism of the proposal and some discussion of the type of images that would be covered. And yes, there’s an attempt to talk about those brought within the scope of the legislation, like this:

That broad definition would cover individuals, coffee shops, libraries, hotels, and even some government agencies that provide Wi-Fi. It also sweeps in social-networking sites, domain name registrars, Internet service providers, and e-mail service providers such as Hotmail and Gmail, and it may require that the complete contents of the user’s account be retained for subsequent police inspection.

That seems even more promising (in terms of understanding the legal position of various types of Internet industry players as well as individuals), although there is a further article including rebuttal from the proposer of the legislation.

There’s a big problem with all of this, though. The definition in the bill (HR 3791) relates to those who act

“while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce”.

This sounded awfully familiar, and it wasn’t just the use of ECS in European law that rang a bell. And yes, it turns out that this is a pre-existing legislative formula (see for example 18 USC 2703 on the disclosure of customer records); the definitions themselves are contained in 18 USC 2510 (ECS) and 18 USC 2711 (RCS).

So, no new definition. Got that?

Now, next question. How significant of a legal change is this proposal??

Well, let’s look at the existing provisions of Title 18, §13032b:

(1) Duty to report.— Whoever, while engaged in providing an electronic communication service or a remote computing service to the public, through a facility or means of interstate or foreign commerce, obtains knowledge of facts or circumstances from which a violation of section 2251, 2251A, 2252, 2252A, 2252B, or 2260 of title 18, involving child pornography (as defined in section 2256 of that title), or a violation of section 1466A of that title, is apparent, shall, as soon as reasonably possible, make a report of such facts or circumstances to the Cyber Tip Line at the National Center for Missing and Exploited Children, which shall forward that report to a law enforcement agency or agencies designated by the Attorney General.

And now back to this new legislation

(a) Duty To Report.—

(1) In general.—Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any facts or circumstances described in paragraph (2) shall, as soon as reasonably possible—

(A) complete and maintain with current information a registration with the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline operated by such center, by providing the mailing address, telephone number, facsimile number, electronic mail address of, and individual point of contact for, such electronic communication service provider or remote computing service provider; and

(B) make a report of such facts or circumstances to the CyberTipline, or any successor to the CyberTipline operated by such center.

(2) Facts or circumstances.—The facts or circumstances described in this paragraph are any facts or circumstances that appear to indicate a violation of—

(A) section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography; or

(B) section 1466A.

See the italicised sections there? Yes, they duplicate the existing legislation - and I accept that the reporting obligations etc are being beefed up, in a way that I disagree with, but it is totally unfair to accuse the drafters of a sloppy definition - they are carefully following the existing template and cannot be faulted for that.

This type of approach to legislation on technology is deeply harmful to a proper understanding of technological issues by parliamentarians and drafters. When such outrage is voiced over a particular aspect that is not being amended, simply because many bloggers or activists don’t check the existing law before slamming the new one (see here for a previous rant of mine on this topic - I think focusing criticism on reenacted sections rather than broader problems gives a free pass to governments), how can we expect any kind of serious conversation between the more legally inclined and the more technologically inclined?

I don’t mean to dismiss McCullagh’s second article - he does refer to the existing Title 18 provisions and clearly did more background research for this piece than for the original - and my real worry is with the chatter that followed his original article, the assumption that there was a nasty piece of legislation creating new terrible obligations for WiFi sharers. If there is a problem (and I think there are many), the problems are with the existing body of law and even if this particular law was abandoned, they would still exist. Indeed, even the lead paragraph of the second article, raising fear on $300,000 fines for failure to report, spectacularly misses the point that failure to report the exact same alleged offences under existing legislation already carries a penalty of up to $100,000. With no change in the definition of who needs to deal with this.

I agree that the definitions of potentially illegal material are too broad but these definitions, too, are (a) existing definitions from other legislation and (b) already covered in the reporting obligations in their broad form. Again, failure of this proposal will not change one comma of the overreaching definition. So all those articles about cartoons and family photos and more have a point - it’s just that many of them have the wrong point!

By the way, for some interesting examples (from caselaw) of what is and isn’t an ECS or RCS, see this helpful page from CyberTelecom here, based on Dept. of Justice information.