Law – Page 42 – a sibilant intake of breath

Internet footprints and future scrutiny

Both The Economist and Slate have recently featured articles about the increasingly long and broad trails people are leaving behind themselves online: everything from comments in forums to Facebook profiles to uploaded photographs. Almost inevitably, some of this content is not the kind of thing that people will later want to see in the hands of their employers, the media, and so forth. I expect that more savvy employers are already taking a discreet peek online, when evaluating potential hires.

The two big questions both seem to concern how attitudes will evolve, both among internet users in general and among scrutinizers like employers. It’s possible that people thirty years from now will view our open and informal use of the internet as roughly equivalent to the famously uninhibited sex had by hippies in the 1960s: a bit of a remarkable cultural phenomenon, but one long dead due to the dangers inherent. It is also possible that people will come to view the existence of such information online as an inevitability, and not judge people too harshly as a result. Less and less human communication is the ephemeral sort, where all record ceases once a person’s voice has attenuated. As a result, more of what people say and do at all times of their lives (and in all states of mind) is being recorded, often in a rather durable way.

Personally, I suspect that the trend will be towards both greater caution and greater tolerance. Internet users will become more intuitively aware of the footprints they are leaving (especially as more high-profile cases of major embarrassment arise) and employers and the media will inevitably recognize that almost nobody has produced a completely clean sheet for themselves. Of course, there will still be a big difference between appearing in photographs of booze-fueled university parties and appearing at KKK rallies. The likely trend is not that a wider range of activities will be excusable, but rather that more evidence about everything a person has done will be available.

We can also expect the emergence of more private firms that seek to manage online presence, especially after the fact. Whether that means bullying (or bribing) the owners of websites where unwanted content has cropped up, creating positive-looking pages that outrank negative ones, or stripping away elements of databases through whatever means necessary, there will be a market for data sanitation services. While some people are likely to push for revamped privacy laws, I don’t see these are likely to be much help in this situation. When people are basically putting this information out in public voluntarily, it’s not clear how legislation could keep it from being scrutinized by anyone who is interested.

A few related posts:

Torture, psychology, and the law

For the darkest day of the year, a couple of torture-related items seem appropriate. Firstly, there is this New York Times piece, which argues that senior officials from the Bush administration should be charged with war crimes, for authorizing and enabling torture. The editorial argues that there is no chance that prosecutions will be sought under an Obama administration, but that he ought to clarify the obligation of the United States and its agents to uphold the Geneva Conventions, as well as reverse executive orders that “eroded civil liberties and the rule of law.”

The prospect of high-level American decision-makers being put on trial for authorizing torture is so unlikely that it is a bit difficult to even form an opinion about it. At the same time, it is likely that nobody thirty years ago would have anticipated the trials at the International Criminal Tribunal for Rwanda (ICTR), International Criminal Tribunal for the former Yugoslavia (ICTY), or International Criminal Court (ICC). There is no clear reason for which high political office should be any impediment to being tried for war crimes, but it is very unclear how any such prosecutions would fare in the United States. It would certainly be seen as a ‘political’ act, and any connections with international law would likely be the targets for special criticism and scorn from some quarters.

The other story worth mentioning is an experiment conducted by Dr Jerry Burger, of Santa Clara University. It was a less intense re-creation of Milgram’s famous experiment on obedience to authority. Like Milgram, Burger found that a startling proportion of the population is willing to torture a fellow human being as part of a scientific experiment. This is when the only pressure placed upon the subject of the experiment is the authority of the actor pretending to conduct it. That naturally makes one nervous about what people would be willing to do when they felt an urgent and important issue justified it, as well as when far stronger sanctions could be brought against them if they did not proceed.

Power, oversight, and photography

As this disturbing alleged situation demonstrates, you may be ordered at some point to delete photographic or videographic evidence of an event without appropriate justification.

While there may be situations in which security concerns are justifiably paramount, there are also many situations in which those who have authority simply wish to avoid facing any accountability for their actions. Given the conflict of interest involved for those law enforcement officers on the scene, it seems prudent to retain any photographic or videographic evidence you have produced, even if you are asked by them to delete it.

After all, any impartial evidence that exists can only help in any subsequent official proceedings. The absence of such evidence is likely to strengthen the bias of impartial adjudicators towards those with authority, as opposed to those who simply happened to be witnesses.

Prior relevant posts:

[18 December 2008] Zoom has posted an update about this matter.

Rich and poor, under the Kyoto Protocol

This article in Slate makes a convincing case that the definitions of rich and poor states under the Kyoto Protocol make no sense and produce distorted outcomes:

The original climate negotiators had a simple way of defining wealth. First, they took the list of 24 countries that were part of the Organisation for Economic Co-Operation and Development, a pre-eminent club of wealthy, democratic, free-market states that was formed in 1961; these included the United States, most of Western Europe, Japan, and a few others. Then they added several states of the former Soviet Union, like Russia and Belarus, as well as a handful from Eastern Europe, like Poland and Slovenia. This was basically Cold War logic on cruise control: First World and so-called Second World countries were rich; Third World countries were poor. The Kyoto Protocol, concluded six years later, maintained the same division. Rich countries agreed to institute caps on their greenhouse-gas emissions while poor countries agreed to do nothing.

The resulting deal had its flaws then. It makes absolutely no sense today. Belarus, for example, is lumped together with the rich countries, despite a GDP per person of about $10,000. As a result, it has an emissions cap like those in place for Europe and Japan. Kuwait, meanwhile, is considered poor. That means the oil-rich emirate is spared any obligations, despite the fact that its residents are about five times wealthier than the Belarussians.

Future climate deals will need to do a better job of distinguishing between those who have already developed and become wealthy (largely on the basis of CO2-generating greenhouse gas emissions) and poor states that are likely to suffer the worst effects of climate change after contributing disproportionally little to its emergence.

It makes sense to shift some states from the poor category to the rich one, and vice versa. It also makes sense to establish a special category for states that are (a) major emitters (b) relatively poor and (c) experiencing relatively rapid growth in emissions. An effective climate change treaty will need to address emissions from these states (such as India and China) as well as those from unambiguously rich states like Canada, Australia, and the United States. While the biggest issues in relation to the very poorest states concern how people will adapt to climate change, starting all major emitters (regardless of wealth) on the path to low carbon economies is the only way to avoid the worst consequences of climate change. Of course, establishing a new category doesn’t answer the tricky moral question of who ought to pay how much, in order to achieve the stabilization of atmospheric greenhouse gas concentrations.

Private Copying Tariff increase

Canada has increased its Private Copying Tariff on writable CDs from 21 cents to 29 cents. Supposedly, the purpose of the tariff is to pay artists back for unauthorized copying. In total, the levy generates about $30 million per year. 66% of the revenues go to eligible authors and publishers, 18.9% to eligible performers, and 15.1% to record companies. That being said, the tariff does not give consumers a clear right to make copies of their music. It certainly will not do so if the new copyright bill tabled by the Conservative Party becomes law.

It is clearly unfair to assume that all writable CDs will be used to copy commercial music. It is also clearly odd to levy the tax on CDs but not DVDs, and to not make clear what rights are conveyed by the existence of the tariff.

Hopefully, we will see this system rendered more rational through future government policies and court decisions. Whatever your feelings on the ethics of copyright, the current arrangement is an ugly muddle.

The coalition and Canadian democracy

My friend Mike has written an interesting post about Canada’s ongoing political situation, and the possibility the Conservative minority will be replaced by a Bloc-supported NDP-Liberal coalition:

stephen harper, who is huge fan of blind canadian patriotism à l’américaine, has taken it upon himself to re-align the country along more populist lines. the frightening thing is that he does not just do this through legislation (i.e. “screw the scientists; safe-injection sites have to go!”), but he does it by changing the icons of our national heritage (i.e. “it’s not a coalition; it’s a coup d’état!”). basically, harper is applying the traditional centralised power of the prime minister’s office in a manner that is reminiscent of the american political system. in other words, he’s playing baseball with a hockey stick.

herein lies the rub (and the danger): what stephen harper is doing in this scenario is pretending that he not only has a parliamentary majority (which he doesn’t), but also that he can govern by divine right since his government was directly elected. this is incorrect, and he knows it.

Since it is interesting – and because I am too busy to write anything substantive today – I suggest that readers go have a look at the whole post. It makes a good case for both better understanding of Canada’s existing political system and traditions and for some ways in which they could be usefully modified.

On a related note, Watawa Life has a photo of ‘Hotties for Harper’ protesting against the coalition on Parliament Hill.

[Update: 28 January 2009] As of today’s Liberal response to yesterday’s Conservative budget, it seems the possibility of a coalition is dead, at least for now.

Video on copyright in Canada

Why Copyright? Canadian Voices on Copyright Law is a 50 minute film about copyright in Canada, produced by Michael Geist and Daniel Albahary. It is largely a response to the Conservative government’s deeply problematic proposed copyright legislation.

Equitable copyright laws are an important issue. In the first instance, that is due to the overwhelming importance of information, who controls it, and who can do what with it. Secondly, it has to do with societal decisions about what kind of conduct is acceptable, who enforces the rules, and what the consequences for violating them can legitimately be. Rules on when technical means of copyright enforcement can be legitimately circumvented are especially important, since that is a new sort of right potentially being extended to content owners. As such, the balance between the societal interest of fair use and the content owner’s claim to protection needs to be evaluated in a more profound way than has occurred so far.

As with many of the new developments on this issue, I found out about it through BoingBoing.

Climate change mitigation cost-benefit analysis on different timescales

Peter Lilley, a British Member of Parliament, seems to have rather missed the point of climate change legislation. He is kicking up a fuss about how the UK’s Climate Change Bill might have costs larger than benefits in the period between now and 2050. Of course, the whole point of climate change mitigation is to avoid the worst effects of climate change and not leave future generations with a severely damaged planet. Almost by definition, the majority of the benefits associated with such an approach will accrue in the distant future.

Even if mitigating climate change has serious net costs between now and 2050, we still need to do it, at least if we care at all about the welfare of future generations and the integrity of the planet. That being said, we can certainly hope to mitigate effectively at a relatively low cost (taking advantage of mechanisms like carbon pricing to secure the lowest cost emission reductions first). We can also work to maximize the co-benefits of climate change mitigation, such an enhancing energy security and reducing other types of air pollution.

It is also entirely possible that we will end up spending more money on climate change than we should have, or than would have been possible if we had taken the best possible approach from the outset. To use an analogy, it is possible for a speeding car to brake too sharply to avoid hitting a pedestrian. Doing so jostles the driver and may damage the car, but it is a less undesirable outcome than braking too hesitantly and ploughing right into the person. When you are making a decision with important consequences and lots of uncertainty, erring on the side of caution and expense is the prudent and ethical approach.

PickupPal and unhappy bus companies

Is a web-based service that helps those with spare seats hook up with those willing to pay for rides “facilitating the operation of an illegal transportation service?” The Ontario Highway Transport Board has decided that it is, in a case brought against PickupPal by unhappy operators of bus lines.

While I can see how liability issues arise in relation to safety, it doesn’t seem appropriate for the board to fine and try to shut down this service. As someone who travels frequently by Greyhound, I know that bus service in Canada could stand some competition-driven improvement. This sort of decentralized commerce seems like a pretty good way to reduce the environmental impacts of inter-city travel. After all, having a passenger or two travelling along with you does more for your passenger-kilometres per tonne of carbon dioxide emitted than buying a more efficient vehicle probably would.

While I can see the reason for the bus companies’ grievance – after all, they need to pay a fair bit to comply with commercial transport laws – on balance their complaint seems anti-competitive and likely to be environmentally harmful.

Sierra Club legal victory on coal in the US

In an exciting development, the Environmental Appeals Board of the U.S. Environmental Protection agency has handed down a ruling that effectively freezes construction of as many as 100 new coal-fired power plants around the U.S. The ruling requires new coal plants and expansions of existing ones to include “Best Available Control Technology,” and it seems that it will be up to the next administration to define what that means. The ruling directly impacts permits for 30 new plants in the seven states directly regulated by the EPA planning process, as well as all projects on Indian Reservations.

This will be a good opportunity for the Obama administration to demonstrate its commitment to building a low-carbon economy. That being said, it will also be a major challenge. The coal industry is large and powerful in the United States, and some regions are more than 90% dependent on coal power. Forcing them to introduce expensive (and, in some cases, largely untested) new greenhouse gas mitigation technologies will require a lot of political courage.

The full decision (PDF) is available online.