Law – Page 52 – a sibilant intake of breath

Moral obligations to view advertising?

Normal users of the internet are frequently confronted with banner ads: often obnoxious graphics trying to hock all manner of products and services. More sophisticated users will now find themselves a bit surprised, when using a public computer, because they long ago stopped seeing these displays on their own machines. This trick is achieved through the use of the Firefox browser, the AdBlock plugin, and Filterset G. With these three pieces of code running, the vast majority of graphically based ads on the internet simply vanish.

Now, an editorial on CNet suggests that using such technology may be immoral. In effect, web sites are providing you with content in exchange for your pupils grazing ever-so-briefly across the advertisements that pay their bills.

While I don’t feel convinced one way or the other about the moral issues involved in this particular case, it is an interesting kind of moral problem. The nature of what is ‘theft’ in a digitized world remains an intensely disputed one. This is the fundamental product of going for a world where products cost a significant amount per unit (with additional costs for design) to one where things may cost a lot to design, but can often be copied for free. That goes for everything from pop CDs to New York Times editorials, and dealing with it is one of the more interesting legal and business issues of the present time.

A closer look at the War Museum controversy

Still pondering the controversy about the display in the Canadian War Museum, I decided to go have a look at it first-hand. On the basis of what I saw, I am even more convinced that the display is fair and balanced, and that it should not be altered in response to pressure from veterans.

Here, you can see the panel in question in its immediate surroundings:

This is one small part of a large area discussing the air component of the Second World War. A shot with a narrower field of view shows the controversial panel itself more clearly:

Here is a large close-up shot of the panel text. Nearby, a more prominent panel stresses the deaths of Canadian aircrew and the degree to which aerial bombing “damaged essential elements of the German war effort.” This alternative panel is located right at the entrance to this section of the museum.

If anyone wishes to comment to the museum staff, I recommend emailing or calling Dr. Victor Rabinovitch, the President and CEO. His contact information, along with that of other members of the museum directorate, is available on this page.

The ugliness of war

Today’s Ottawa Citizen has an article about how the Canadian War Museum is being pressured to change some of the text in its Bomber Command exhibit. Veterans had complained that it makes them out to be war criminals. The text reads:

“The value and morality of the strategic bomber offensive against Germany remains bitterly contested. Bomber Command’s aim was to crush civilian morale and force Germany to surrender by destroying its cities and industrial installations. Although Bomber Command and American attacks left 600,000 Germans dead and more than five million homeless, the raids resulted in only small reductions of German war production until late in the war.”

The museum consulted four contemporary historians, after complaints from the National Council of Veteran Associations, and they each affirmed the accuracy of the text. Two of them, however, lodged some complaint about the tone employed.

All this strikes at one of the tough moral questions that arises when you treat war as the subject of law. If the London Blitz was a crime, surely the bombing of Berlin, Tokyo, and Nagasaki were crimes as well. The targeting of civilians was a crime committed by those who chose where the planes should drop their deadly cargo. The dropping of the bombs was a crime committed by those who followed the illegal orders. (See: this related post) Alternatively, one can adopt the view that none of these undertakings were criminal. I suspect that neither perspective is a very comfortable one for those who were involved, but it seems difficult to come up with something both different and defensible.

In the end, it seems wrong to give anyone the comfort of thinking they were on the ‘right’ side and this somehow excused what they did. Their actions are equally valid objects of moral scrutiny to those of their opponents, though they are much less likely in practice to be thus evaluated.

None of this is to say that all the combatant states in the Second World War had equally good reason to get involved, nor that there is moral equivalence between the governmental types in the different states. What is hard to accomplish, however, is the translation of such high level concerns into cogent explanations for why former Canadian strategic bombers should be honoured while Germans launching V2’s into London should not be. The generally unacceptable character of the intentional bombing of civilians is firmly entrenched in international law; as such, the sensibilities of current veterans do not warrant changing the text.

[Update: 30 August 2007] Randall Hansen, an associate professor at the University of Toronto, has written a well-argued editorial in the Ottawa Citizen attacking the museum’s decision to change the wording.

Footprints all over the web – Google Web History

When I am online, I usually have at least one Google service open. At home, I usually have a Google Mail window open at all times, as well as Google Calendar. At work, it is only the latter. What I didn’t know until today is that whenever you are logged into your Google account, Google is tracking your web usage through a system called Web History. Accessing the system allows you to ‘pause’ the recording and even delete what is already there. While the listings disappear from your screen, there is good reason to doubt whether they vanish from Google’s records.

It is common knowledge that Google saves every search query that gets input into it, and does so in a way that can be linked to an individual computer. The web history service, however, has more troubling implications. Whether you are at work, at home, or at an internet cafe, you just need to be logged into any Google service for it to be operating. Since more than one computer can be logged into a Google account at once, and there is no indication on either machine that this is happening, anybody who gets your password can monitor your web usage, as well as your email and any other Google services you use. Given how common keyloggers have become, this should worry people.

One very helpful feature Google could implement would be the option to show when and where you last logged into your account. That way, if someone has been peeking at your email from London while you have been in Seattle, you know that it may be time to change your password. Also desirable, but much less likely to happen, would be a requirement that services like GMail store your information as an encrypted archive. Even if the encryption was based on your password and a relatively weak cipher, it would make it impractical for either Google or malicious agents with access to their information storage systems to undertake the wholesale mining of the information therein.

The final reason for which this is concerning has to do with cooperation between companies and governments. It is widely rumoured that companies including Microsoft and Yahoo have helped the Chinese government to track down and prosecute dissidents, by turning over electronic records held outside China. Given the increasingly bold snooping of both democratic and authoritarian governments, a few more layers of durable protection built into the system would be prudent and encouraging.

Predictable law exam complete

The international law has been written, and nobody who took the course can possibly complain about its content. Indeed, it was astonishingly predictable. They snuck on fourteen different possible topics, and I am pretty sure every one of them was either on a previous exam or taken directly from our reading list. As such, the main problem in each answer was effectively summarizing everything you knew about it, rather than wracking your brain in search of anything to write. I wrote on:

Why have international legal efforts to regulate the global atmospheric environment had such mixed success?
Is it proper for the World Trade Organization to be concerned with the elimination of economic inequalities within or between states?
What are the considerations that lead states to comply with provisions on international law?

I only heard after the exam that the assessors might be less than pleased about me answering a question so closely related to my thesis. If so, there is nothing that can be done for it now. Overlap is also a bit of a concern between the second question I answered on this exam and the second question I answered on yesterday’s theory exam. Clearly, I cannot write about either inequality or the WTO during tomorrow’s developing world exam. As such, it is probably go time to brush up on the security issues that exist in the developing world. Just nineteen hours or so away from being finished, now.

No crime to gobble

In the United States, there is a Presidential tradition of pardoning turkeys. Of course, it is dubious whether the turkeys had committed any capital offenses requiring a pardon beforehand. At least the tiger executed recently in British Columbia had done something that may have been criminal if done by a human. Birds of the genus Meleagris seem guilty of nothing more than being rather unusual looking.

The White House has an official photo gallery of presidents performing the ceremony. I like the shot of Truman. George Bush Senior seems oddly distanced from the proceedings. There is something a bit sick about “representatives of the turkey industry” presenting one bird to be spared in this way, while raising millions more in utterly degraded conditions and slaughtering them. It gives one a bit of insight into why Grant Hadwin wanted to cut down the one tree in B.C. being protected by the logging industry, while they were clear-cutting the rest of the province.

Christie precedent overturned

The Canadian Supreme Court seems to have overturned Christie v. AG of B.C. et al. This 2005 decision held that the poor could not be charged the 7% tax on legal services that existed in British Columbia at the time. In the Reasons for Judgment, the B.C. Supreme Court stated:

[The Act] constitutes indirect taxation and is a tax on justice contrary to the Magna Carta and the Rule of Law…

I am prepared to grant the following declarations: A declaration that the Act is ultra vires in the Province of British Columbia to the extent that it applies to legal services provided for low income persons.

The court held that those earning under $29,000 should no longer need to pay the tax. It also reimbursed, with interest, the $6,200 that had been seized from Christie for non-payment of the sales tax on behalf of poor clients.

Dugald Christie, the man behind the 2005 BC case, was a Vancouver lawyer who had dedicated himself to helping the poor get representation within the legal system. He died about ten months ago while bicycling across Canada to raise money for that cause. Prior to his death, Christie lives in a small room at the Salvation Army’s Dunsmuir House, where he apparently worked twelve hours a day encouraging lawyers to do more pro bono work. He founded the Western Canada Society to Access Justice, which consists of sixty legal clinics across British Columbia, and has since expanded into Saskatchewan and Alberta.

The Supreme Court has now held that:

“a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent’s contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law.”

I was surprised to see that a right to council isn’t actually included in section 11 of the Charter of Rights and Freedoms. The idea that a normal person can have a fair trial without legal council doesn’t seem a very plausible one.

Millennium Development Goal 7

Prompted by my international law and developing world revision, I had another look at the eight Millennium Development Goals which were adopted by the 192 UN member states in 2000, and which are meant to be achieved by 2015. All eight are quite ambitious and represent worthy ambitions and intentions.

Some of the goals give themselves over easily to quantitative evaluation. For instance, reducing the maternal mortality ratio by three-quarters. While there are the ever-present concerns about data quality and the danger of people fudging their numbers, at least there is an empirically verifiable objective being targeted.

The environmental category (MDG7) has the general heading “Ensure environmental sustainability” and among the most vague provisions in the whole list:

Integrate the principles of sustainable development into country policies and programmes; reverse loss of environmental resources.
Reduce by half the proportion of people without sustainable access to safe drinking water.
Achieve significant improvement in lives of at least 100 million slum dwellers, by 2020.

To begin with, ‘sustainable development’ is not as objective a concept as it is sometimes considered. If it requires a society that could continue to operate in its present form indefinitely, then no society that exists today meets the standard. Of course, the term ‘development’ contradicts the idea of stasis. So too does the inclusion of the term in the MDGs generally, since all of them would require large-scale changes in both domestic and foreign policies.

When it comes to sheer vagueness, “reverse loss of environmental resources” must take the cake. What are ‘environmental resources?’ And what would ‘reversing their loss’ involve? With a few exceptions, such as the breakdown and slow recovery of stratospheric ozone, it is not terribly clear what this could mean. Even in cases where the general thrust of the idea seems applicable, such as reforestation or the protection of coral reefs from damaging fishing practices and increasingly acidic oceans, it doesn’t provide much in the way of guidance, or much of a standard for achievement.

Access to water

The second goal, about access to water, is much more in keeping with the qualitative targets that the MDGs generally seek to establish. A map of the world showing who has poor access to water and another showing the incidence of deaths from cholera demonstrates just how unequal quality and availability of water around the world is. All the technology required to provide safe drinking water to everyone exists. The degree to which the present situation is the result of a lack of will makes it a very appropriate target for a high-profile initiative like the MDGs.

While I have never believed that water is a likely cause for large-scale wars (countries that can afford to fight large-scale wars can afford desalination plants, which are expensive but cheaper than wars), there is every reason to believe that water will become a more acute problem in coming decades. One minor example is how a sea level rise of about 100cm could essentially eliminate Malta’s major sources of fresh water. Expect bigger problems in places like India or Bangladesh.

The Economist printed a good Survey on Water back in 2003. Accessing it requires a subscription.

Slum dwellers

Slums were mentioned here quite recently. Improving the lives of 100 million slum dwellers is certainly a worthy aim. As many as 1.2 million people may live in just the Kibera slum in Nairobi. In sub-Saharran Africa, where more than 70% of the urban population already lives in slums, the rate is growing at 4.53% per year. Improving their lives probably requires two sets of approaches. One is based around providing basic needs, including water, health care, sanitation, lighting, security, and education. The other is based around reforming legal systems. Providing secure title to land, for instance, would likely reduce opportunities for bribery, provide access to credit, and generally reduce the level of insecurity in people’s lives. Actually implementing either set of approaches is an awfully tricky proposition, not least because of entrenched interests that value slums as a source of bribes from those who live there as well as a source of cheap labour for the city in which they are embedded. That being said, there are potentially huge improvements in human welfare to be achieved from success in this area.

All told, there seem to be a lot of reasons to be hopeful about the MDGs. They demonstrate, at least, that there is universal awareness within the international system about some of the most pressing problems of the present day. There is likewise at least some energy and initiative being committed to their resolution. The extent to which such efforts are successful will probably have a big impact on the kind of world in which we find ourselves in fifty years time: one in which most of humanity has reached a situation in which their basic needs are met and their basic rights are respected, or one that may be even more unequal and conflict-prone than the situation at present.

Soon to be smokeless

A sign I passed this evening reminded me of how I will only be around to appreciate one day of the new UK smoking ban in enclosed public places, such as pubs. I would not hesitate to call it long overdue. It will make conditions better for people who work in pubs, improve overall health, and end the experience of smelling like an ashtray for days after spending any time in such places.

Of course, it will probably take months for the majority of the smell to seep out from chairs and curtains around the UK. Once that has happened, however, the UK will be a more modern and appealing place.

Obviousness and patents

This week, the US Supreme Court issued a ruling related to the ‘obviousness’ test in patent filing. The case – KSR Int’l Co. v. Teleflex Inc. (PDF) – hinged on whether an automatic adjustment device for an accelerator pedal created by KSR infringed upon the patents of Teleflex. KSR argued that the combination of technologies was obvious, and that Teleflex could not claim royalties.

In order to maintain a fair and beneficial system, the condition that patents cover non-obvious innovations is highly important. The whole reason for granting patents is to foster innovation by granting temporary monopolies to innovators. Patents are meant to include enough information to allow a skilled practitioner to actually make the thing being patented. Under this system, inventors are meant to be willing to disclose the nature of what they have accomplished so that it might serve to aid the investigations of others. In exchange, they get legal rights over their invention for a defined period of time. This trade-off hardly makes sense when companies are permitted to patent trivial innovations, such as the much ridiculed patent awarded to Amazon.com for ‘one click shopping.’

Recently, there have been a good number of cases where the patent system is accomplishing something quite unlike this ideal. ‘Patent trolls‘ acquire patents of a broad and obvious kind, then wait for another company to release a successful product that arguably infringes on them. More often than not, the objective is simply to receive some kind of payment in return for ending the legal hassle. Of course, this interferes with the processes of innovation, as well as undermining the general credibility of the patent system. RIM and Vonage have both recently been targeted by such suits.

It seems sensible that patent offices should be more aggressive in their interpretations of what it means for an invention to be ‘novel’ and ‘non-obvious.’ As such, they would reduce the occurrences in which someone is unfairly granted rights over an idea that many other people have likely come up with, but not bothered to go through the process of trying to patent. It would also reduce the danger of patent trolling, particularly if the courts recognize that such behaviour can be predatory, and that the patent system ultimately exists to serve the public good.

PS. Slashdot has commented on the Supreme Court ruling. Most of these entries are also relevant.