‘The Sky is Falling!’ – Responses to the ‘Going Dark’ problem

The shared concern expressed in the two quotes below is that modern technologies provide criminals with a capability to evade investigation. This comment piece examines some of the policy and legal options available to governments and law enforcement agencies to try to address this concern. While accepting the claim that this phenomenon represents a real challenge to law enforcement agencies, we currently have insufficient evidence to show the true extent of the problem. What this piece does not accept is the implication contained in the quotes, and often made explicit by others, that the use of encryption represents a fundamental and irreversible shift in the balance of power between criminals and their investigators from what previously prevailed. Such claims tend to lack historical perspective, which is one of the themes of this 200th issue of Computer Law and Security Review.     

Clarity,surprises, and further questions in the Article 29 Working Party draft guidance on automated decision-making and profiling

The Article 29 Data Protection Working Party's recent draft guidance on automated decision-making and profiling seeks to clarify European data protection (DP) law's little-used right to prevent automated decision-making, as well as the provisions around profiling more broadly, in the run-up to the General Data Protection Regulation. In this paper, we analyse these new guidelines in the context of recent scholarly debates and technological concerns. They foray into the less-trodden areas of bias and non-discrimination, the significance of advertising, the nature of “solely” automated decisions, impacts upon groups and the inference of special categories of data—at times, appearing more to be making or extending rules than to be interpreting them. At the same time, they provide only partial clarity – and perhaps even some extra confusion – around both the much discussed “right to an explanation” and the apparent prohibition on significant automated decisions concerning children. The Working Party appears to feel less mandated to adjudicate in these conflicts between the recitals and the enacting articles than to explore altogether new avenues. Nevertheless, the directions they choose to explore are particularly important ones for the future governance of machine learning and artificial intelligence in Europe and beyond.     

Law enforcement access to personal data originally collected by private parties: Missing data subjects' safeguards in directive 2016/680?

Access by law enforcement authorities to personal data initially collected by private parties for commercial or operational purposes is very common, as shown by the transparency reports of new technology companies on law enforcement requests. From a data protection perspective, the scenario of law enforcement access is not necessarily well taken into account. The adoption of the new data protection framework offers the opportunity to assess whether the new ‘police’ Directive, which regulates the processing of personal data for law enforcement purposes, offers sufficient safeguards to individuals. To make this assessment, provisions contained in Directive 2016/680 are tested against the standards established by the ECJ in Digital Rights Ireland and Tele2 Sverige on the retention of data and their further access and use by police authorities. The analysis reveals that Directive 2016/680 does not contain the safeguards identified in the case law. The paper further assesses the role and efficiency of the principle of purpose limitation as a safeguard against repurposing in a law enforcement context. Last, solutions to overcome the shortcomings of Directive 2016/680 are examined in conclusion.     

Negotiating Access to Land in Nepal

In a rural agrarian economy like that of Nepal, land has traditionally been a primary source of livelihood and security, as well as a symbol of status. Thousands of poor farmers are completely dependent on land for their livelihoods, yet not all of them have access to or control over this fundamental resource. Negotiation for access to land has been a lengthy and complicated process. It remains so in the changed political context of Nepal, where increasing numbers of emerging actors need to be considered, often with conflicting claims and counterclaims. In this context the traditional ways of thinking need to be revised, both with regard to the negotiating process and the mechanisms of land reform, to accommodate the country’s recent and ongoing massive socio-economic transformation.     

El libre acceso a la información,las innovaciones tecnológicas y la publicidad de los actos Procesales

This paper raises questions about the Brazilian legal system, which takes to an extreme the constitutional principle (the Publicity Principle) requiring publication of legal cases, and is unable to properly distinguish between the need to publish judicial decisions, and the publication of documents and texts produced by the parties, thus endangering the protection of personal data, and representing a possible security risk to the State and society as a whole.     

A Response to the Critiques of Tobacco Sales and Tobacco Possession Laws

SUMMARY

Several researchers within the anti-smoking community have recently claimed that youth access tobacco programs are ineffective and drain limited resources. They make these claims because they feel that youth access programs do not affect teen smoking prevalence. Others have argued that anti-smoking interventions should not fine minors for possession of tobacco. In this last article, we provide a response to these arguments.     

How legislatures work – and should work – as public space

In a democracy, legislatures are not only stages for performances by elected representatives; they are also stages for performances by other players in the public sphere. This article argues that while many legislatures are designed and built as spaces for the public to engage with politics, and while democratic norms require some degree of access, increasingly what are termed “purposive publics” are being superseded by groups who are only publics in an aggregative, accidental sense. The article begins with a conceptual analysis of the ways in which legislatures can be thought of as public spaces, and the in-principle access requirements that follow from them. It then draws on interviews and observational fieldwork in eleven capital cities to discover whether the theoretical requirements are met in practice, revealing further tensions. The conclusions are that accessibility is important; is being downgraded in important ways; but also that access norms stand in tension with the requirement that legislatures function as working buildings if they are to retain their symbolic value. The article ends with two “modest proposals”, one concerning the design of the plazas in front of legislatures, the other concerning a role for the wider public in legislative procedure.     

Digital Britain – the final report

The final Digital Britain report was published in June as to set out the Government's final proposals and updating an interim version that has been published in January this year. This article builds upon an earlier article in [2009] 25 CLSR 263, which analysed the interim report in depth. The intention is not to repeat that earlier analysis, but rather update it and draw the reader's attention to those key areas of change.     

论我国司法鉴定人资格制度的完善

我国司法鉴定组织体系是在司法实践中形成的部门分设体制,在鉴定机构设置的原则、布局上呈现出多元化特点,存在司法机关内部鉴定机构、具有行政权背景的鉴定机构和面向社会服务的鉴定机构等三种类型的鉴定机构,由此导致对司法鉴定人实行职业资格与执业资格制度管理方面存在不尽完善之处。为确保司法鉴定人具有较高的业务水平、执业能力和规范执业,提高鉴定质量,有必要实行复合制的鉴定准入制度、建立健全鉴定业务的经常性培训交流与考核机制、建立法官对鉴定结论的实体审查制度和建立司法鉴定专家库等。     

TRIPS agreement and public health crisis in developing countries： Problems and solutions

While the health crisis in developing world has caused innumerable deaths, the balance between patent protection and public health attracts lots of debates globally. This paper examines the legal background for the access problems of essential drugs in developing countries, evaluates TRIPS agreement and the WTO decisions in theory, argues both patent protection for pharmaceuticals and TRIPS agreement are the genuine causes for the access problem, then attempts to provide some suggestions and evaluations for the possible solutions. Though the development of national pharmaceutical industries, adoption of early working exemptions, compulsory license, parallel import, acquirements of generic drugs and discount drugs, amendments of TRIPS agreement are all beneficial measures, the access problem may only be solved at an international level.