Cultural Challenges to Biotechnology: Native American Genetic Resources and the Concept of Cultural Harm

This article examines the intercultural context of issues related to genetic research on Native peoples. In particular, the article probes the disconnect between Western and indigenous concepts of property, ownership, and privacy, and examines the harms to Native peoples that may arise from unauthorized uses of blood and tissue samples or the information derived from such samples. The article concludes that existing legal and ethical frameworks are inadequate to address Native peoples' rights to their genetic resources and suggests an intercultural framework for accommodation based on theories of intergroup equality and fundamental human rights.     

National Security and the Press: The Government's Ability to Prosecute Journalists for the Possession or Publication of National Security Information

In 2006, then Attorney General Alberto R. Gonzales raised the possibility that journalists could be prosecuted for publishing national security information. In addition, the federal government's prosecution of two former lobbyists for the American Israel Public Affairs Committee (AIPAC) for possessing and disseminating national security information has been called an attempt by the government to prosecute individuals who behave like journalists. This article identifies existing laws under which the press could be criminally prosecuted for the possession and/or publication of national security information and describes how the courts have addressed those laws. The article concludes that while there is support for Constitutional protection for journalists in these cases, the Supreme Court of the United States is unlikely to interpret the First Amendment as protecting journalists from prosecution for possessing and/or publishing national security information. Therefore, the article contends that Congress should amend the statutes outlined herein to limit prosecution to instances when there is evidence of intent to harm the United States.     

A Potential Framework For Privacy? A Reply To Hello!

In Douglas v Hello! Ltd (No 3) , the Court of Appeal noted that one ramification of 'shoehorning' invasions of privacy into the cause of action of breach of confidence is that 'it does not fall to be treated as a tort under English law'. In contrast, this article contends that English courts should explicitly recognise and develop a framework for a tort of privacy, and outlines one possible version—comprising both privacy interests and the elements of the potential tort. The framework draws upon longstanding Canadian and United States jurisprudence, as well as recent fascinating Australasian decisions that have grappled with privacy claims. In reality, breach of confidence is becoming an unrecognizable cousin of the creature which Megarry J described in Coco v AN Clark (Engineers) Ltd in 1969. If, however, it is to be buttressed by a judicially-created tort of privacy, then that tort's elements must be capable of being feasibly articulated and applied.     

Profiling the mobile customer – Privacy concerns when behavioural advertisers target mobile phones – Part I

Mobile customers are being tracked and profiled by behavioural advertisers to be able to send them personalized advertising. This process involves data mining consumer databases containing personally-identifying or anonymous data and it raises a host of important privacy concerns. This article, the first in a two part series on consumer information privacy issues on Profiling the Mobile Customer, addresses the questions: “What is profiling in the context of behavioural advertising?” and “How will consumer profiling impact the privacy of mobile customers?” The article examines the EU and U.S. regulatory frameworks for protecting privacy and personal data in regards to profiling by behavioural advertisers that targets mobile customers. It identifies potential harms to privacy and personal data related to profiling for behavioural advertising. It evaluates the extent to which the existing regulatory frameworks in the EU and the U.S. provide an adequate level of privacy protection and identifies key privacy gaps that the behavioural advertising industry and regulators will need to address to adequately protect mobile consumers from profiling by marketers. The upcoming second article in this series will discuss whether industry self-regulation or privacy-enhancing technologies will be adequate to address these privacy gaps and makes suggestions for principles to guide this process.¹     

Protecting the privacy and security of sensitive customer data in the cloud

The global ubiquity of cloud computing may expose consumers' sensitive personal data to significant privacy and security threats. A critical challenge for the cloud computing industry is to earn consumers' trust by ensuring adequate privacy and security for sensitive consumer data. Regulating consumer privacy and security also challenges government enforcement of data protection laws that were designed with national borders in mind. From an information privacy perspective, this article analyses how well the regulatory frameworks in place in Europe and the United States help protect the privacy and security of sensitive consumer data in the cloud. It makes suggestions for regulatory reform to protect sensitive information in cloud computing environments and to remove regulatory constraints that limit the growth of this vibrant new industry.     

美国服刑人员诉诸司法之权利的宪法保护研究——以美国宪法判例为对象

在美国,服刑人员诉诸司法之权利是一项受宪法保护的基本权利。这一权利的基本权利性质并非来自于宪法文本的明文规定,而是由宪法判例加以确认的。从服刑人员诉诸司法之权利领域的案例法发展历程来看,美国联邦最高法院的司法判断决定了服刑人员诉诸司法之权利受到保护的层次、程度和范围,其中1977年的邦德斯案具有里程碑意义。虽然立法和行政对这一案例法的发展状况也产生了一定影响,但司法的独特功能是实现对服刑人员诉诸司法之权利进行宪法保护的根本保障。     

Business as Usual? Bail Decision Making and “Micro Politics” in an Australian Magistrates Court

Between the 1970s and 1990s, political scientists in the United States pursued a distinctive research program that employed ethnographic methods to study micro politics in criminal courts. This article considers the relevance of this concept for court researchers today through a case study about bail decision making in a lower criminal court in Australia. It describes business as usual in how decisions are made and the provision of pretrial services. It also looks at how traditionalists and reformers understood business as usual, and uses this as a critical concept to make visible micro politics in this court. The case study raises issues about organizational change in criminal courts since the 1990s, since there are fewer studies about plea bargaining and more about specialist or problem‐solving courts. It is suggested that we need a new international agenda that can address change and continuity in criminal courts.     

Privacy principles,risks and harms

The protection of privacy is predicated on the individual's right to privacy and stipulates a number of principles that are primarily focused on information privacy or data protection and, as such, are insufficient to apply to other types of privacy and to the protection of other entities beyond the individual. This article identifies additional privacy principles that would apply to other types of privacy and would enhance the consideration of risks or harms to the individual, to groups and to society as a whole if they are violated. They also relate to the way privacy impact assessment (PIA) may be conducted. There are important reasons for generating consideration of and debate about these principles. First, they help to recalibrate a focus in Europe on data protection to the relative neglect of other types of privacy. Second, it is of critical importance at a time when PIA (renamed ‘data protection impact assessment’, or DPIA) may become mandatory under the European Commission's proposed Data Protection Regulation. Such assessment is an important instrument for identifying and mitigating privacy risks, but should address all types of privacy. Third, one can construct an indicative table identifying harms or risks to these additional privacy principles, which can serve as an important tool or instrument for a broader PIA to address other types of privacy.     

Understanding search engines: A legal perspective on liability in the Internet law vista

This contribution discusses the legal dimension of search engines in an Internet law context, through both a global lens and a Turkish perspective. This paper introduces search engine liability in the growing Internet industry and the role of search engines in distributing and disseminating information. Next, this paper considers a global perspective on the legal dimension of search engines from United States case law, United Kingdom case law, and other European courts and legislation. This contribution then discusses the liability of search engines in the Turkish legal context. The conclusion provides an overall evaluation of the current status of search engine liability and prospects on its potential development.     

What Determines Judicial Prestige? An Empirical Analysis for Judges of the Federal Court of Australia

This article examines judicial citations to analyze the determinantsof judicial prestige in the Federal Court of Australia. Firstwe construct two alternative measures of judicial prestige forall current and retired judges of the Federal Court. Second,we regress these measures of judicial prestige on a series ofexplanatory variables covering age on appointment, appointinggovernment, prior experience, which law school the judge attended,how many law review articles the judge has published, gender,and tenure. We compare our results with those of previous studiesthat examine the determinants of judicial influence and prestigein courts in the United States and the High Court of Australia.One of the main contributions of the article is to provide evidencefrom an intermediate appellate court that can be used to testthe general application of findings as to what determines judicialprestige in the United States to courts in other countries withdifferent institutional frameworks.     

Global Privacy Concerns and Regulation-- Is the United States a World Apart?

The regulatory approach to privacy protection taken by many foreign jurisdictions is markedly different from that of the United States. The European Union (EU) best illustrates the international approach with its comprehensive privacy directive that applies to all EU members. By contrast, the approach regarding data privacy in the United States has been to pass industry-specific laws and often only in response to public outcry over some privacy concern. These fundamental differences have been the source of some conflict in international commercial transacting. Now that the global community is committed to eliminating terrorism, it remains to be seen if these different attitudes toward privacy by the United States and much of the rest of the world will affect global attempts to weed out terrorists. This article discusses the constitutional basis for most US policy approaches to privacy regulation. The article explains how the US constitution is the source for most of the differences between the US and international regulatory approaches to information privacy. Finally, the discussion addresses how new issues regarding privacy in the war on terrorism may be addressed by US Constitutional law.     

Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

Race and peremptory challenges during voir dire: Do prosecution and defense agree?

Recent litigation in state and federal courts in the United States suggests that black prospective jurors may be systematically excluded from sitting on trial juries through the issue of peremptory challenges during the voir dire process. Numerous trial and appellate cases have reaffirmed the importance of excluding prospective jurors without cause through peremptory challenges. An insufficient number of studies have examined peremptory challenge data to determine if a systematic bias against black prospective jurors actually exists. This study analyzes peremptory challenges issued by both prosecution and defense to determine if both adversary parties agree on the proclivity of black jurors to influence a jury verdict in a given direction. The study concludes that both prosecution and defense agree, as evidenced in the issue of peremptory challenges, that black jurors are prone to move a jury toward a verdict of acquittal.     

I want my information back: evidentiary privilege following the partial birth abortion cases

In February 2004, privacy concerns captured the public's attention when the United States government, the defendant in a lawsuit challenging the constitutionality of the Partial-Birth Abortion Ban Act of 2003, sought to subpoena the medical records of patients receiving intact dilation and extraction (also known as "partial birth") abortions in six different hospitals and six Planned Parenthood centers across the country. Three different federal court cases explored the enforceability of the subpoenas. This Note explores the rationales used by the three courts in examining the privacy interests involved. It then suggests some possible solutions for systematically protecting medical information: a legal solution; a technological solution; and a combination of both. The legal solution involves creating a federal physician-patient privilege, similar to that enforced in many states and parallel to the federal psychotherapist-patient privilege. The technological solution requires the complicity of multiple jurisdictions to verify the necessity of revealing medical information. Taken together, these solutions can assist the government in protecting its citizens by imposing more checks on itself.     

Toward Normalization of Defamation Law: The U.K. Defamation Act of 2013 and the U.S. SPEECH Act of 2010 as Responses to the Issue of Libel Tourism

In the wake of several high-profile libel actions brought by U.S. celebrities and foreign businessmen in London because of more favorable defamation laws there, London was dubbed the “libel tourism capital of the world.” The U.S. response in 2010 was the passage of the SPEECH Act, preventing courts from enforcing libel judgments from foreign jurisdictions not providing the same level of protection as the United States. Similarly, in 2013 the United Kingdom responded to international and national criticism by passing the Defamation Act to address the loophole in its system that caused the abuse. Both acts have been criticized, the first for its aggressiveness, and the second for its conservative nature. This article examines the development of the law of defamation in the two jurisdictions and analyzes the content of both statutes, along with their criticisms, proposing international cooperation to address the issue of libel tourism.     

“If you’ve come a’seeking justice, no Irish need apply:”1 Irish Republicans, political asylum, and United States foreign policy

For over a century, Irish Republicans have sought and found legal refuge in the United States. Such individuals were rarely targeted by immigration policies for previous politically-motivated offences nor were U.S. extradition warrants granted. More recently, however, several Irish Republicans have faced prosecution, extradition, or deportation from the United States. This essay highlights the complex, relationship between the legal formalism of those proceedings and broader political considerations related to the requirements of the ‘special relationship’ between the U.S. and British governments. Despite an 18-month IRA cease-fire and the U.S. interest in promoting the peace process, the executive branch of the United States failed to provide any concessions in these legal proceedings that might have been beneficial to the peace process.     

Implementing the Key Components of Specialized Drug Treatment Courts: Practice and Policy Considerations

The perceived need for specialized drug courts emerged from the most recent "war on drugs." Courts were no longer able to handle such cases effectively because of an overwhelming volume of drug arrests and prosecutions. The increased emphasis on drug enforcement also revealed that many of the most serious criminally involved drug‐using offenders were undeterred by threats of incarceration, but were amenable to substance abuse treatment. Drug court professionals have identified several "key components" that must be in place for these courts to achieve their goals of reducing drug use and crime. Through the lens of these key drug court components, we examine the development and initiation of specialized drug treatment courts in Cook County (Chicago), Illinois. By exploring and documenting Cook County's experiences, we elucidate several of the basic policy and organizational issues surrounding the implementation and operations of specialized drug treatment courts in the United States.     

简析美国警察非法搜查第三人取得证据的效力

警察非法搜查第三人取得的证据是否具有证据能力，有关这个问题美国的实务界和理论界给出了不同的答案。目前美国联邦法院在处理这个问题时采用的是“隐私期待”标准，基本上倾向于“有效说”。但美国联邦法院的做法也存在着自身的缺陷，建议采用完善后的“限制无效说”。     

电视节目版式版权保护之法律困境和进路探索

电视台为追求高额利润,对其他电视台深受欢迎的电视节目进行复制、借鉴的情况时有发生。为维护自己利益,某些电视组织开始诉求司法部门给予自己的电视节目版式以法律保护。面对这个问题,欧美国家的法院在保护与否的立场上曾一度持否定态度。但近几年的司法判例结果显示这种立场正在发生变化,认可电视节目版式的版权属性,支持给予保护的观点逐渐占据上风。但电视节目版式版权保护在理论基础上仍存在争议。从已发生之判决来看,对电视节目版式除以版权路径给予保护之外,还可以寻求反不正当竞争法和商标法等相关法律给予保护。     

网络时代的隐私权──兼论美国和欧盟网络隐私权保护规则及其对我国的启示

随着网络和信息技术的快速发展,网络上的个人隐私权正在被严重地侵害,面对这种侵害,各国都致力于建立完善的网络隐私权法律保护体系。从比较研究的角度讨论美国和欧盟的网络隐私权立法保护模式和规则,并对我国网络隐私权的保护提出立法建议。