Making the Law an Open e-Book

Greetings from the famous room N101 at the Australian National University where Tom Bruce and Sara Frug from the Legal Information Institute at
Cornell Law School are speaking on how readable the law is for non-lawyers. They have been working with Michael Curtotti and Eric McCreath at ANU. They have recently published papers on " Machine learning for readability of legislative sentences" and "Citizen Science for Citizen Access to Law".

Metadata Retention for Law Enforcement

There seems to be some confusion within the Australian Government as to what data retention policy has been decided on by the Cabinet. It might be useful if the Prime Minister and the Attorney General were to ask for a briefing from their departmental staff as to what "metadata" is, or they could ask the Minister for Communications.

The Australian Minster, Mr. Tony Abbot, said on Tuesday:

We also need legislation which I have commissioned the Attorney to prepare, which the National Security Committee of the Cabinet has commissioned the Attorney to prepare to ensure that we are best able to monitor potential terrorist activity in this country. Obviously with the usual range of safeguards and warrants but that will include discussions with the telecommunications providers about the retention of metadata....

From Joint Press Conference - Prime Minister and Attorney General, Canberra,Tuesday, 5 August 2014)

The Attorney General said:

Finally, as the Prime Minister indicated, I have also been asked to develop – in consultation with relevant stakeholders, in particular, in the telecommunications sector – a system of mandatory data retention. That legislation has been approved in principle and is in development from today and will be introduced into Parliament later in the year.  ...

From Joint Press Conference - Prime Minister and Attorney General, Canberra,Tuesday, 5 August 2014)

Unfortunately I have been unable to find a copy of the legislative proposal for retention of metadata. In a later interview the Attorney General, Mr George Brandis, did not appear to know what metadata was, nor what it was proposed to require telecommunications companies to retain:

Brandis: "The web address, um, is part of the metadata."
Journalist: "The website?"
Brandis: "The well, the web address, the electronic address of the website. What the security agencies want to know, to be retained is the, is the electronic address of the website that the web user is ... "
Journalist: "So it does tell you the website?"
Brandis: "Well, it, it tells you the address of the website."

From: Attorney-General George Brandis struggles to explain Government's metadata proposal, ABC Radio, 7 August 2014

The Parliamentary Library produced a good overview of the issues "Surveillance in society—global communications monitoring and data retention" (Nigel Brew, Australian Parliamentary Library, 2013). The Wikipedia's "Telecommunications data retention" entry is also useful.

The UK House of Commons recently passed laws on data retention (Data Retention and Investigatory Powers Act 2014, UK Government). This authorises the UK Secretary of State to require telecommunications operator to retain specified communications data for up to one year. A warrant may not be required to obtain the data, under some circumstances. What data can be collected is not specified in the act, except to say that it does not include "data revealing the content of a communication". In the Australian context this data is being called "metadata". For an explanation of meta-data, see my ANU course lecture notes: "Metadata" (From Metadata and Electronic Data Management, by Tom Worthington, for ANU Course COMP3410, Information Technology in Electronic Commerce, 2009).

Internet metadata which would normally be stored would be the Internet protocol Address (IP Address) of the computer data was being sent from, the IP Address it was being sent to and the date and time. The issue which the Australian Attorney General appeared to be unclear about was if just the IP addresses were to be stored, or if the web address (URI) was also to be stored.

To use an analogy, the IP address would be the street address of a library someone was visiting, whereas the web address would be the number of the book they borrowed (event the chapter they opened it at). My interpretation of the UK law is that the web address would be part of the content of the communication and therefore not permitted.

What the Australian government proposes is unclear. A good first step would be for the Cabinet, and the Attorney General in particular, to be briefed on the basics of how the Internet works.

Federal Court of Australia Working Electronically

The Federal Court of Australia is expanding its e-Lodgement system and offering sessions on it during June 2014. The Federal Court also has an eCourtroom, allowing some matters to be dealt with using text messages. Unfortunately the court is only providing this training face-to-face for these systems. As they are likely to be of most use for those without ready access to the physical court it would make sense to have on-line training in their use.

Sri Lanka’s post-war troubles

Greetings from the Australian National University in Canberra, where Kishali Pinto-Jayawardena is speaking on "Braving the seas: Sri Lanka’s post-war troubles". Pinto-Jayawardena argues that a climate of impunity existed in Sri Lanka for decades and remains after the end of the Sri Lankan Civil War, with the concept of justice loosing meaning. They argue that poor rural members of the Sinhalese, majority suffer along with other groups from government endorsed military oppression, the example of land takeover ("Is Sri Lanka a military state that devours land?", Kishali Pinto-Jayawarden, November 3, 2013, Colombo, Sri Lanka Guardian). Pinto-Jayawarden questioned if the Australian government's support for Sri Lanka's CHOGM meeting was in return for cooperation on the return of boat people. While Pinto-Jayawarden presneted no evidence, it should be noted that Australian Senator Lee Rhiannon was recently detained on a visit to Sri Lanka. In April I presented a paper at the 2013 International Conference on Computer Science and Education (ICCSE 2013) in Colombo, Sri Lanka. I visited universities and IT companies in Sri Lanka with links to Australia, the USA and the USA. So I asked Pinto-Jayawardena if such links were beneficial to the situation Sri Lanka, they suggested it was (which was a great relief to me).

Manual on Cyber Warfare Law

The "Tallinn Manual on the International Law Applicable to Cyber Warfare", edited by Professor Michael N. Schmitt (Cambridge University Press, 2013), is available free on-line from the NATO Cooperative Cyber Defence Centre of Excellence. 

Red Cross Removed from Medicare App

Three days ago I questioned the Australian Department of Human Services use of an icon depicting a medical worker with a red cross on their uniform to promote the "Express Plus Medicare" app in the Apple iTunes store. The use of the emblem of a red cross on a white background is reserved under Australian and international law for the Red Cross organization and authorized humanitarian work (Geneva Conventions). Unauthorized use of this symbol is a crime in Australia and internationally.

I noticed today that the red cross has been removed from the icon. There are other symbols which are commonly used to indicate medical services. The obvious solution in this case would have been to change the color of the cross. But removing the cross completely is an acceptable alternative.

Are US Drone Strikes Legal?

Professor Steven Ratner, University of Michigan Law School and Shahzad Akbar, Barrister, Foundation of Fundamental Rights (FFR) Pakistan, will discuss "Drone strikes, US policy and the law", at the Australian National University College of Law, in Canberra, 2 August 2013.

Steven Ratner: The United States government has offered a legal theory for the use of drones based primarily on the jus ad bellum concept of self-defense as well as jus in bello concepts of distinction and proportionality. The US position, now elaborated in a formal paper by the Obama Administration, combines traditional doctrines and new ideas. I will examine whether that policy is and should be the basis for a new set of legal regulations on drone warfare.

Shahzad Akbar: The United States government has been conducting drone strikes within the sovereign territory of Pakistan since 2004, in breach of a plethora of international and domestic laws. According to independent sources, these drone strikes have caused a large number of civilian casualties including those of women and children. I will discuss the impact of drone warfare on civilians in Pakistan and outline the various strategies adopted by the victims to seek redress.

What is Happening in the South China Sea?

Greetings from the Australian National University in Canberra, where Dr Christopher Ward is speaking on "South China Sea: The disputes and prospects for international law". His first point was that while the media concentrates on disputes between China and Taiwan, Philippines, Vietnam, Brunei and Malaysia, there are also disputes between all these countries. The disputes are due to possible oil and gas under the South China Sea. Disputes cover the Scarborough Shoal, Sprately Islands, Natuna Islands, Paracel Islands and the Gulf of Thailand.

China's claim to most of the South China Sea is based on the "Nine-dotted line", which was drawn up by the then Kuomintang government of the Republic of China in 1947. Dr  Ward pointed out problems with the vagueness of this claim. He explained that determining maritime claims are based on an area around islands, but this requires a determination first as to what is an island and who claims it.

Dr  Ward pointed out that Vietnam lost the Battle of the Paracel Islands to China in in 1974, however modern international law does not recognize a change of sovereignty by conquest.

Dr  Ward pointed out that the International Court of Justice does not take into account shows of military force, or existing mineral extraction in the area. He suggested that a dispute between all the claimants in the South China Sea would be two complex to resolve by the court. However, he suggests Arbitral tribunals might be used, as allowed under Internationale law. He described the Philippines request fro such a tribunal to be cleverly designed. There is a description of the case in "The Philippines v . China Case and the South China Sea Disputes", by Robert Beckman, Director, Centre for International Law, National University of Singapore, March 13-15, 2013.

Dr  Ward  suggested the obvious solution was for the countries to put their claims aside and agree to exploit the resources jointly, as with the Timor Sea Treaty between Australia and East Timor.

While international law play some role in such disputes, I suggest that military projection also plays a role. An arms race is taking place in Asia, with nations acquiring maritime weapons systems, including submarines, aircraft carriers, patrol aircraft, anti-ship missiles and ships. Australia has ordered two Canberra class Landing Helicopter Dock (LHD) ships and Hobart class air warfare destroyers. Only lacking are F-35B short takeoff and vertical landing (STOVL) aircraft to form a carrier battle group. Australia is already planning to order the conventional variant of the F-35, and as the recent decision to order the "G" variant of the F/A-18F shows, such decisions can be made quickly. The UK changed its order from the F-35B, to F-35C and then back to F-35B.

South China Sea and International Law

Dr Christopher Ward of Wentworth Selborne Chambers, will speak on "South China Sea: The disputes and prospects for international law "at The Australian National University in Canberra, 5:30pm, 20 June 2013.

South China Sea: The disputes and prospects for international law

Lecture

Thursday, 20 June 2013 - 5:30pm - 6:30pm

Speaker: Dr Christopher Ward, Wentworth Selborne Chambers (Sydney)

An introduction to the numerous and overlapping disputes in the South China Sea, and the international legal framework within which they sit.

Dr Ward is a barrister based in Sydney with an extensive specialist practise in public international law. He has appeared in many contentious cases in fields including maritime boundaries and human rights. He is a visiting Fellow at the Centre for International and Public Law at the ANU and is the President of the International Law Association (Australian Branch).

Use of Red Cross Emblem by McDonalds

Australian free to air TV channels are current screen a McDonald's advertisement for "McHappy Day". This features a building with a sign saying "Children's Hospital" and a red cross next to it. The use of the emblem of a red cross on a white background is reserved under Australian and international law for use by the Red Cross organization and authorized humanitarian work (Geneva Conventions). It would be a good idea for McDonald's to modify the advertisement to remove the red cross.

Teach Interviewing to Lawyers

The ANU College of Law Legal Workshop is recruiting 'standardised clients' to help train lawyers in interviewing skills. The university is looking for people to work on a casual basis helping teach interviewing. There will be an Information Evening 18 August 2011 in Canberra:

Help Our Junior Lawyers Learn

Standardized Client Initiative

Information Evening

Thursday 18 August 2011 6pm
Phillipa Weeks Staff Library
Level 1, ANU College of Law
Australian National University
Building 5, Fellows Rd
Acton ACT 0200

Would you like to be involved in an exciting new learning initiative at the ANU College of Law?

Are you interested in assisting the learning experience of
trainee lawyers?

Are you available to be at the ANU for whole teaching days at various times throughout the year?

Are you interested in assuming a ‘role’?

Would you like to be paid for your contribution?

If you answered YES to the above questions, and you have a non legal background, we would like to invite
you to be involved in this innovative educational development.

The Legal Workshop at the ANU is embarking upon a new and dynamic approach to teaching Interviewing Skills within the Graduate Diploma of Legal Practice.

Successful applicants will be trained to play the part of the client in the assessment of student lawyers. You will, therefore, also be assisting our lawyers of the future to communicate better with their clients!

Registration required by Friday 12 August 2011
E ceist@law.anu.edu.au T 02 6125 5588
Current ANU students are ineligible for this initiative
This information evening is free and open to the public
MO_###### | CRICOS# 00120C

War Crimes and the Law

Greetings from the Australian National University where Efraim Zuroff, Director of the Simon Wiesenthal Centre is speaking on "Bringing Nazi criminals to justice: the domestic and international law parameters". He will then be speaking 16 June in Melbourne and Perth.

Dr. Zuroff argued that the passage of time does not diminish a crime, nor should old age excuse it. He argued that the current generation owes it to the victims of past crimes. Also he argued that this acts as a strong deterrent against future such crimes.

Dr. Zuroff lastly argued that holocaust denial was a form of anti-Semitism. He argued that the Prague Declaration, equates Communism and Nazis, in an attempt to excuse acts carried out in former Communist countries of Eastern Europe, by conflating it with acts under communism.

Currently I am reading Kerry Greenwood's book Trick or Treat. This is one of Greenwood's Corinna Chapman series, featuring a female baker and a her detective boyfriend. In this book they investigate treasure looted from the Jews of Thessaloniki in World War Two.

The question these issues raise for me is what role the International Criminal Court (ICC) will play in preventing possible future such crimes. However, the USA is concerned their military will be prosecuted and Israel objects to offenses of deporting population in an occupied territory. So these countries are not supporting the court.

Public Lecture
Bringing Nazi criminals to justice: the domestic and international law parameters

Efraim Zuroff is recognised as the world’s leading expert on tracking and bringing to justice the last remaining Nazi war criminals.
Following in the footsteps of the late legendary Simon Wiesenthal, Zuroff has earned the title of "The Last Nazi Hunter".

His research in the 1980s led to the discovery of hundreds of Nazi war criminals who fled Europe to the United States, South America, Australia, Canada, Great Britain and elsewhere.

In his latest book - Operation Last Chance: One Man's Quest to Bring Nazi Criminals to Justice –Zuroff details the many cases he has worked on and the methodology he uses to bring alleged Nazi warm criminals and their associates to justice, particularly focusing on the challenges faced with many key witnesses long since having died. ...

Data Protection in Japan

Greetings from the Australian National University, where Professor Andrew Adams, Centre for Business Information Ethics Meiji University (Tokyo) is speaking on "Information privacy & data protection in Japan". This outlined the work reported in his paper "The Development of Japanese Data Protection (with with Murata and Orito in Policy and Internet, 2010). He will also be speaking at the Cyberspace Law and Policy Centre, Teaching room 101, UNSW Faculty of Law building, Sydney, 1 pm, 15 September 2010. Andrew asserted that it was a myth that Japan does not have a concept of privacy similar to western countries. Japan introduced similar legislation to protect citizens privacy in government systems and later legislated on a national electronic identity card system.

Andrew described the "Uchi-Soto" (内外) concept of relationships in Japanese society. He then talked about vertical relationships within organisations, where information is passed up and down the hierarchy, more than a western country, but under strict social rules. He then discussed the origins of these social rules, with buildings with (literally) paper thin walls. Under the "as if" tradition, if you do not official know something, you act as if you do not know.

Andrew then discussed the Kanji data input problem. Government started using data entry in the 1980. But it was only after methods for simple entry of Kanji characters were made generally avialable in the mid 1990's that there was widespread input of personal data by companies. He argues that the property crash of 1989/90 and ongoing economic problems placed pressure on companies to make more use of their data holdings. At the same time the Japanese government had financial difficulties and so wanted better data to reduce costs and collect more taxes.

Andrew claimed that there was rumoured to be a 1940s proposal for computerized national identity database for Japanese citizens by the then US occupation government. Even a single tax number required the 1990 financial problems to be introduced. Japan already had several existing registration systems.

The Basic Resident Registers Network (住民基本台帳ネットワーク) or Juki Net (住基ネット) was the proposal for computerising some of these systems. In the late 1990s, companies were then able to send individualised junk mail and this then caused concern over the security of the government system. The government system was ruled constitutional by the Supreme Court of Japan in 2008, however concerns and limited political support is still holding up full implementation.

INFORMATION & HUMAN CENTRED COMPUTING SERIES
DATE: 2010-09-13
TIME: 16:00:00 - 17:00:00
LOCATION: CSIT Seminar Room, N101
CONTACT:duncan.stevenson@anu.edu.au

ABSTRACT:
There has been an academic myth since at least Benedict's 1940s "The Chrysanthemum and the Sword" that the Japanese have little or no sense of privacy. This myth has been challenged by a number of scholars in recent years, all of whom point out that while the exact details of Japanese people's concepts of the various kinds of privacy (bodily, surveillance, information) differ in detail to those of other countries, these ideas still exist, and in fact contain no greater difference than that between other countries such as Germany and the US.

One of the arguments put forward for the Japanese lack of a sense of information privacy was the limited Japanese data protection legislation of 1988 which only covered government use of data, leaving commercial use of data entirely to voluntary codes of practice. However, in 2003, the Japanese government introduced revised data protection legislation for the public sector and introduced legislation it publicly stated was hoped to bring Japan under the EU's third country export regulations.

Prof Adams of Meiji University will present recent joint work with Murata (also of Meiji) and Orito (of Ehime) on the Japanese Sense of Information Privacy, historically and how this has been effected by computer and networking systems, and the broader political background to the development of the 2003 data protection legislation.
BIO:
Professor Andrew A Adams Professor at Graduate School of Business Administration, and Deputy Director of the Centre for Business Information Ethics Meiji University, Tokyo, Japan http://www.a-cubed.info/

Review of Austrlaian e-Discovery Laws

The Attorney-General, Robert McClelland, announced a Review of Discovery Laws to Improve Access to Justice (10 May 2010).This will particularly look at the use of technology (e-discovery) to speed it up the discovery process in civil litigation.

The Federal Court of Australia carried out a review of its procedures on e-discovery in 2008 and issued revised guidelines in 2009. Australian work in this area appears to be in advance of the U.S. Court’s Federal E-Discovery Rules. There is also an OASIS LegalXML Electronic Court Filing Technical Committee. , which produced a latest draft of a standard for Electronic Court Filing (ECF) v4.01 in January 2010.

Terms of Reference

The 2009 report by the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System examined access to civil justice in the federal system from a system-wide, strategic perspective. In considering barriers to justice in relation to court based dispute resolution, the Taskforce noted the high and often disproportionate cost of discovery and recommended further enquiry on the issue.

I refer to the Australian Law Reform Commission for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 the issues of:

• the law, practice and management of the discovery of documents in litigation before federal courts;
• ensuring that cost and time required for discovery of documents is proportionate to the matters in dispute, including but not limited to:
  • the effectiveness of different types of discovery orders
  • the effectiveness and enforceability of requiring parties to identify and disclose critical documents as early as possible
  • the effectiveness of different costs orders
• to limit the overuse of discovery, reduce the expense of discovery and ensure key documents relevant to the real issues in dispute are identified as early as possible;
• the impact of technology on the discovery of documents.

In conducting its inquiry, the Commission’s objective is to identify law reform options to improve the practical operation and effectiveness of discovery of documents. In particular, the Commission shall have regard to:

• alternatives to discovery;
• the role of courts in managing discovery, including the courts’ case management powers and mechanisms to enable courts to better exercise those powers in the context of discovery;
• implications of the cost of discovery on the conduct of litigation, including means to limit the extent to which discovery gives rise to satellite litigation and the use of discovery for strategic purposes;
• costs issues, for example cost capping, security for discovery costs, and upfront payment; and
• the sufficiency, clarity and enforceability of obligations on practitioners and parties to identify relevant material as early as possible.

Collaboration and Consultation

In undertaking this reference, the Commission should:

• have regard to the experiences of other jurisdictions, including jurisdictions outside Australia, provided there is sufficient commonality of approach that any recommendations can be applied in relation to the federal courts; and
• consult with key stakeholders including relevant courts and the legal profession.

Timeframe

The Commission will report no later than 31 March 2011.

From: Review of Discovery Laws to Improve Access to Justice, Media Release, Attorney-General, Robert McClelland, Australian Government, 10 May 2010

Registration of Education Agents in India and Australia

The Indian government is reported to be drawing up laws for registering education agents sending Indian students abroad. Australian universities work through authorised education agents (such as agents for ANU), but currently education agents are not licensed in Australia. Perhaps Australian and India should draw up complementary legislation and have a common registration system for agents. It is not clear how regulations would cover students doing courses over the web. As an example students in India and China can do COMP7310: Green ICT Strategies at ANU without leaving home.

Federal Court Guidelines on e-Discovery

The Federal Court of Australia issued "The use of technology in the management of discovery and the conduct of litigation" 29 January 2009 (Practice Note No 17). Justice Teague might also consider these of use for his royal commission into the Victorian brushfires. The guidelines set out the use of electronic documents in court proceedings. This is intended to be used a significant number of the documents in a case are electronic (usually 200 or more) and so handling them electronically will speed up the process and lower costs.

The Practice Note cites document provided on the court web site for:

1. Default Document Management Protocol for 200 to 5,000 e-documents,
2. Advanced Document Management Protocol for more that 5,000 documents,
3. Pre-Discovery Conference Checklist
4. Pre-Trial Checklist
   
5. Glossary
   

Online Arbitration

In May 2008 I attended a conference on ICT Ethics. One of the speakers at the conferences was Phillip N. Argy. He is one of the new breed of global cyber arbitrators who decide who owns a web address. Phillip has a new web site, where he has listed some of his decisions. One of the more notable cases concerned the The Wiggles.

ps: One of the other speakers at the conference was Justice Michael Kirby. I asked him about how Australian lawyers would cope with the type of online arbitration used by WIPO. He joked that this might be a job for him when he retired from the bench. More seriously he commented that lawyers should look to technology to help with processes but some serendipity may be lost in the process.

Federal Court IT Guidelines Delayed until 2009

The Federal Court of Australia's "Guidelines for the Use of Information Technology in Litigation in Any Civil Matter" were due to be revised by 1 July 2008, but have now been delayed until 2009:

In 2007 the Federal Court commenced a comprehensive review of Practice Note No 17 with the assistance of a consultant, Ms Jo Sherman.

Following extensive consultations with litigants, legal practitioners and others, a draft Practice Note and related materials were finalised by Ms Sherman and referred to the Court's National Practice Committee in mid 2008.

These draft documents are now being reviewed by the Court in light of recent case management initiatives (including the legislative reforms in this area proposed by the federal Attorney-General) and further comments provided by litigants, legal practitioners and others with an interest in the use of technology in legal proceedings.

It is expected that a number of changes will be made to the documents, and that the final versions will be formally released in early 2009....

From: Review of Practice Note No 17 - Guidelines for the Use of Information Technology in Litigation in Any Civil Matter, Federal Court of Australia Practice News No. 59, October 2008

Federal Court of Australia guidelines on electronic discovery

The Federal Court of Australia is revising and extensively expanding its guidelines on e-Discovery: "Document Management, Discovery and the use of Technology in the conduct of Litigation" . The new guidelines were due to come into effect 1 July 2008, but appears to have been delayed for more consultation (latest draft is Revision 7, 1 July 2008). Until then the guidelines issued 20 April 2000 are being used: "Guidelines for the use of information technology in litigation in any civil matter".

Discovery is the process by which parties to a civil court case look for relevant information the other party may have. This used to involve a visit to an office and lost of photocopying. With e-discovery the emphasis is on searching electronic record archives, email and other databases. Rules are needed to prevent the legal process being swamped with irrelevant detail.

As well as the "Practice Note" itself, there is a checklist, glossary and two document management protocols. The Advanced Document Management Protocol (ADMP) is intended for where there are more than 5000 Documents expected:

1. PRACTICE NOTE 17 - As updated 30 June 2008
2. PRE-DISCOVERY CHECKLIST - As updated 30 June 2008
3. GLOSSARY - As Updated 30 June 2008
4. DEFAULT DOCUMENT MANAGEMENT PROTOCOL - As updated 30 June 2008
5. ADVANCED DOCUMENT MANAGEMENT PROTOCOL - As updated 30 June 2008

One Legal Knowledge Management System for the Australian Government?

The Department of Foreign Affairs and Trade has issued request for expressions of interest for a Legal Knowledge System. As with recruitment, there doesn't seem to be any good reason why all Australian Government agencies couldn't use the same software, if not the same system. It seems unlikely that legal issue would be handled differently in DFAT than in other agencies.

Category 43230000 - Software
Close Date & Time 11-Aug-2008 2:00 pm (ACT Local time)
ATM Type Expression of Interest

Description

DFAT is seeking Expressions of Interest for provision of a system and associated support services which will:

• provide workflow support for legal matters which enables the tracking, management and reporting of these matters, including external and Departmental actions and enquiries;
• provide storage, management and access to a range of legal knowledge and materials including templates (e.g. letters, contracts, deeds), precedents (e.g. past advice) and legal instruments. Access must include comprehensive search facilities; and
• provide an integrated system for legal activities, with a ‘portal’ or home page style entry point which includes links to external websites.

...

Frtom: EOI for the provision of Legal Knowledge and Matter Management System software and related support services, DFAT08-DID-028, Department of Foreign Affairs and Trade, 16-Jul-2008