Tfb edition1 final 17 04 2017 issuu by UTS Law Students' Society

DO LAWYERS DREAM OF ELECTRIC SHEEP?

The Full Bench Edition One 2017 Do Lawyers Dream of Electric Sheep?

Editor in Chief Ling McGregor

Editors Kiên Lê Board Liam Fairgrieve Tahniya Sheriff Maddi Turansky Vijhai Utheyan Emma Yazbek

Designers Megan Wong Rekha Dhanaram

Special thanks to Christina Knezevich (President) Katya Shliapnikoff (Vice President) Andrea Forsyth Print Portal Factory | Unit 4, 102-112 Edinburgh Rd Marrickville, NSW 2204 02 9557 6746 www.printportal.com.au The Full Bench is published triannually in Sydney by: UTS Law Students’ Society Room CM5A.01.09, City Markets Campus Cnr of Quay Street and Ultimo Road Tel (02) 9514 3448 Fax (02) 9514 3427 www.utslss.com

UTS Law Students’ Society © This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

Acknowledgement of People and Country The Full Bench and UTS acknowledge the Gadigal and Guringgai people of the Eora Nation upon whose ancestral lands our university now stands. We would also like to pay respect to the Elders both past and present, acknowledging them as the traditional custodians of knowledge for these places.

Images and illustrations Unless provided by the designers or commissioned specifically for the purpose of this publication, uncredited photographs have been sourced from royalty-free distributors, licensed under Creative Commons Zero.

Disclaimer All expressions of opinion published in The Full Bench are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. Want to contribute to the next edition? Email publications@utsslss.com

Do lawyers dream of electric sheep? 06 Private Parts Development in Australian privacy law and responses to data flows

The new front line

The checks and balances of Australia’s digital privacy; its prospects and shortcomings

It’s about time Australia tech up privacy laws

Drones flying high, you know how I feel

Cyber flashing: holding online harassment to a different standard

Why they won’t get my nudes

37 Rewiring

22 The Internet Protecting copyright: a legitimate exercise of intellectual property or a stifling step towards intellectual monopoly?

Why does everyone have a parrot on their shoulder? The charm and legal implications of digital piracy

Going down stream: countering illegal downloading

Static transmission: section 51(v) from wireless to wireless

Preservation through emulation: the copyright fight for the future of old video games

Internet jurisdiction and ISPs. Did you mean: who can restrict my online freedoms?

Legal technology and equitable access to law: what you don’t know about international students

Social media and the court system

Telepathic testimony

Can you teach an old dog NewLaw?

Future technologies: the demise of the lawyer?

51 The Usual

Hammertime

Comics

Trivy Council

10 words or less

Do Lawyers Dream of Electric Sheep?

Editorial With a nod to Phillip K. Dick, and motivated by law’s most popular buzzword, innovation, ‘Do Lawyers Dream of Electric Sheep?’ delves into technology and telecommunications. The first section, ‘Private Parts’, looks at privacy in the wake of cyber hacking, data breaches, and drones. Zach McLoughlin reviews contemporary regulations in response to scandalous and malicious incidents of personal data leaks. Francesca Arciuli examines customary law on cyber attacks, outlining their threat to national security. In ‘Why they won’t get my nudes’ and ‘Cyber flashing’, writers Brendan Hancock and Alice Zhang importantly scrutinise revenge porn and image-based harassment, at once laying bare the inadequacy of legal responses to these crimes and commenting on their broader social impacts. The second section, ‘The Internet’, delves into piracy, streaming, and all things online. Jason Corbett explores internet jurisdiction as it affects internet service providers, and underlines the repercussions that it may have on online free expression. Margaret Cai and Lily O’Keefe question our newfound complicity with piracy and streaming services, while Thomas Brennan laments limited access to video games in the wake of copyright laws. Our third section, ‘Rewiring’, deals directly with change - firms using apps, juries using social media, lawyers using artificial intelligence. In ‘Future technologies: the demise of the lawyer?’, Katie Nejaim presents an overview of technological disruptions to the legal landscape, and the concurrent opportunities that they may present. Emily Paterson asks ‘Can you teach an old dog NewLaw?’, investigating ways in which big firms and emerging companies are using technology to shape their practice. For something a bit different, Benjamin Keyworth’s ‘Telepathic Testimony’ is an ethical perusal of ‘truth’ in criminal trials, and posits ways in which new technologies could soon be used in courts to extract witness testimonies. We would like to extend a huge thank you to Megan Wong and Rekha Dhanaram, our immensely talented designers. Also, to Ryley Miller for his comic contribution and exceptional talent. Thank you to the 30 contributors who have made this publication; we know that

legal research and academic writing can be a lot of take on, especially during the summer holiday. We received an overwhelming amount submissions to the first edition, and are incredibly humbled to be publishing 60 pages of your research and opinions. While The Full Bench has traditionally been marketed as an academic publication, this year we would love to include more opinion pieces, satire, and comics. If you would like to contribute, please don’t hesitate to email us at publications@utslss. com. - The Full Bench Editors

Editors

Is the law adequately adapting to technological advances?

Ling McGregor Editor-in-Chief Say it to my face

Content warning: threats, sexual harassment, sexual assault In August 2015, Zane Alchin left over 50 comments on Facebook during a two-hour period. The comments, targeting young women, mostly contained obscene and threatening language, including: ‘you know the best thing about a feminist, they don’t get any action so when you rape them it feels 100 times tighter’, ‘do me a favour go home and slap [your] mother obviously your father never did it enough’, ‘You’ll be eating my cock till you puke’, and ‘If anything you’ve proven the only thing good a women’s mouth is useful for is to get face fucked till she turns blue then have a man hot load shot straight down it’. The defendant eventually pleaded guilty to using a carriage of service to menace, harass, or cause offence. The case gained significant media interest, however, much of the public

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commentary surrounding it led to two unfortunately common things: a misguided defence of free speech and victim blaming. With this in mind, and as the first case of its nature before Australian courts, the trial presented a valuable opportunity to mark online sexual harassment as legally and socially reprehensible. However, the rhetoric of the Court has largely been criticised as a set-back on this point. The decision was handed down in Downing Centre Local Court in July 2016, where Mr Alchin was sentenced to a twelve-month good behaviour bond. While the sentencing itself may have been appropriate, the Magistrate went on to reference a ‘vast over reaction by people including (the victim)’ to what he described as ‘mildly explicit comments’, and forefronted the undeserved pain experienced by the defendant due to the proceedings. Ultimately, such judicial commentary diminishes the seriousness of threats and sexism that women encounter on the Internet as mere ‘trolling’, and speaks volumes for the inadequacy of legal protections afforded in online spaces.

Vijhai Utheyan Editor Print print bang bang The Port Arthur massacre in 1996 was a turning point in Australian history when it comes to politics, society, and the law. If there are any of the Howard Government’s decisions or bills that most people support, regardless of where they fall on the political spectrum, it would be their gun reform legislation introduced following the massacre. While this piece of legislation can be said to have significantly prevented the use of firearms and deaths in future crimes, it can never bring back the 35 Australians who died that day. Firearms were a clear danger from the very beginning, and it is unfortunate that it took the deaths of 35 individuals to have the law react to this. As technology continuously and rapidly grows, the law attempts to catch up to it at a snail’s pace. Technology has given birth to a new danger, a threat that could have

history repeat itself. 3D printing has been revolutionary in countless forms. The benefits it provides are undeniable: cutting production costs, speeding up the production process, and providing groundbreaking techniques in the fields of housing and medicine, just to name a few. With the rise in investment in 3D printing, it is becoming cheaper and easier to acquire a printer. This, however, ignores a sinister side to 3D printing. Cody Wilson, Managing Director of American company Defense Distributed, uploaded blueprints of a firearm that can be printed using a 3D printer to the Internet. Multiple copies of similar blueprints exist online, and Australian authorities say that thousands of individuals within Australia have downloaded copies. Very little legislation exists nationally around the regulation of 3D-printed guns. New South Wales is the only state where legislation exists around this issue. It is an offence in New South Wales to possess a digital blueprint to create a 3D-printed gun with a punishment of up to 14 years’ imprisonment. Currently, only one person has been charged with such an offence. In other states, Victorian Police recently seized semiautomatic firearms from criminals who had printed them illegally in a warehouse. In Tasmania, police cautioned a man who had been using the blueprints to print handguns. The rise in 3D printed guns is creating an environment similar to that which produced the Port Arthur massacre, with technology continuing to develop at a pace the law cannot seem to keep up with. It is only a matter of time before a serious incident occurs. Hopefully, legislators have learnt from history, and will not be reactionary but instead seek to prevent the danger.

Tahniya Sheriff Editor Futuristic legal technology: what does it really mean for us? The current climate of technological innovation has sparked ongoing debate in regards to the implications it presents to several industries. Unsurprisingly, advances in legal

technology have revolutionised the conventional structures upheld by most firms, in which legal professionals, paralegals, and legal secretaries are prompted to become more proficient in various aspects of their daily tasks than ever before. The extent of legal technology is proven by an increase in firms’ interest to better streamline their internal processes, with many employing the process of e-billing and turning to litigation database management in an effort to systematically tackle the costs associated with the time-intensive process of reviewing documents. This contemporary shift has brought forward the concept of e-discovery, a platform which encourages firms of all sizes to better utilize their resources and adapt to the modern scope of law in practice. Consequently, a new host of electronic case management systems has spawned across the profession, allowing employers to store voluminous documents and access them with ease. The once linear model of searching, reviewing and analysing documents has appropriated a goal that many firms endeavor to achieve: a faster, smarter, and cheaper alternative. With this framework in mind, the budding synthesis of law and technology undoubtedly fuels interest in the definition of a ‘modern legal professional’. With many students aiming for the opportunity to work at a corporate level, there is exponential preference for those who have an adept understanding of digital literacy and have coding experience. The mediation of technology in lieu of websites and apps suggests that employees must attain more than an understanding of traditional legal principles if they are to thrive in the highly dimensional environment of legal technology. While the emergence of new technology is certainly exciting with the beneficial prospects it encompasses, it begs the fundamental question as to how much reliance and priority should be given to it in contrast to qualified legal professionals. Despite the continued influx of non-legal service providers, the delineation of legal service deliverables poses as a threat to areas of law that require human personnel and simply cannot be replaced by artificial intelligence. Thus, calls for preemptive action to construe a careful balance between

the law and technology are vital if a successful integration between the two is to be sustained in the present but more importantly, in the future.

Emma Yazbek Editor Extra, extra, tweet all about it Gone are the days of ink-stained hands, paperboys on bicycles, and sitting down to breakfast with the morning paper. In a world where 51% of people now consume their news through online newspapers and social media,1 the law is struggling to adapt, its long arm flailing behind journalists who are churning out 140 characters a tweet to quickly communicate news to their readers. While this is inevitably the way modern technology is heading, it is not necessarily the best method of distributing legal information to the public. Currently, the law relating to journalists in the courtroom is quite haphazard in that there is no federal regulation, and twitter journalism is left to the presiding judge’s discretion. For example, Cowdroy J of the Federal Court allowed media to live tweet the proceedings in Roadshow Films Pty Ltd iiNet Ltd (No.3),2 recognising the public’s right to be fully informed.3 This leaves the states with a regulation dilemma. In New South Wales amendments were made to the Court Security Act 2005 (NSW) in February 2013, to prohibit the ‘broadcasting or publishing sounds images or information by means of the internet’.4 The effect of these, however, has been softened by ‘bypass permissions’,5 as evidenced by the extensive coverage of the 2013 committal hearing of Ron Medich by investigative journalist Kate McClymont, who, while sitting in the courtroom, provided a daily Twitter feed detailing the proceedings. While there are undeniable benefits to Twitter journalism in terms of judicial transparency, there are also serious shortcomings. The social nature of a platform such as Twitter, where opinion sharing is rife, is dangerous in these circumstances as

Do Lawyers Dream of Electric Sheep?

witnesses who are yet to give evidence may be influenced by what they read from both commenters and journalists themselves who undoubtedly imbue their tweets with an element of subjectivity, regardless of their best efforts to remain objective.6 The limited character nature of Twitter also poses as a problem,7 as there is room for misinformation and misinterpretation of the facts by the public where contextual elements are lost due to limited word counts. Despite attempts to maintain transparency while also mitigating risk,8 including attempts to limit information leaving the courtroom, the law continues to lag behind social media court reporting. Without developed regulations, the general public continues to be at risk of being exposed to an abridged and misinformed version of what is often a very complex legal issue.

issues which sound futuristic but in fact present real and pressing issues at this moment. Revenge porn, cyber-bullying, online commerce, internet security, crossjurisdictional copyright laws; all of these issues are creating real problems for real people in 2017. So no, the reason that the law is lagging behind technology is not because technology is moving at a faster rate than our inherently reactive legislative process. The real cause of this problem is that some of those tasked with reacting cannot move past their conceptions of technological development as an abstract and peripheral hypothetical to see the urgency of major issues that are among us right here, right now.

Kiên Lê Board Editor What’s in a game? Online gaming regulations and stepping forward with technological law

Liam Fairgrieve Editor A weak connection the web can’t troubleshoot The biggest problem with the law in relation to technology might not be that it is reactive rather than pre-emptive. Indeed, one could argue that it is necessarily so, considering that our society’s biggest attempts at technological prediction have shown an imprecision that our legal system can ill afford (think: ‘Back to the Future’s 2015 hover boards instead of the Internet, or Marcus Clarke’s skilled urban horseman of 1977 instead of motor vehicles). It can be argued that the biggest problem that the law has is that, when tasked with reacting to a technological development, its gatekeepers do not always respond with the urgency or solemnity that the situation warrants. It is common knowledge that a majority of legislators and judges are of an older demographic – one for whom technological advances might not figure so prominently in their daily lives. For these people, it can become easy to superficially view new technologies as “futurology”; nebulous ideas, abstract hobbies, whimsical pastimes of the time-rich. But those who would rather focus the process of legal innovation on “bread-andbutter issues” must consider that, particularly to younger generations, these new technologies are bread-and-butter issues, increasingly vital in health, education, and nearly every commercial interaction. As the ensuing pages will show, there are many

In March last year, the Federal Court fined Valve, a company which manages Steam (the popular online platform for games) $3 million after ruling that the company breached Australian consumer law by not offering refunds between 2011 and 2014. To our slightly cooler, less nerdy, withless-time-on-their-hand-to-play-computergames readers, Steam essentially acts as the middleman for you to buy overseas online games and is primarily based on the US. Therein lies the problem. Over the course of the civil action, which started in 2014, Valve has maintained that they are an American company and as such had no obligation to be burdened by trivialities such as Australian consumer law with its wildly onerous regulations, like refunds. Valve also submitted that it does not ‘supply goods’ within the meaning in s 2(1) of the Australian Consumer Law.9 Not so, said Justice Edelman, who described Valve as having ‘a very poor culture of compliance in relation to Australian operations’, and dismissed three of their main contentions.10 ‘[Valve] formed a view without Australian legal advice that it was not subject to Australian law, and it was content to proceed to trade with Australian consumers without that advice and with the view that even if advice had been obtained that Valve was required to comply with Australian law the advice might have been ignored’.11

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Valve was found to have broken Australian consumer law as it in effect sold products (online games) to an Australian public without a refund policy. To my mind, this case highlights how section 18 of the Australian Consumer Law, with its emphasis on deceptive and misleading conduct, effectively creates of norms with regards to online conduct in trade or commerce. If this same approach could be taken to create norms of online conduct in other areas such as privacy and online freedom of expression, then I believe the law’s effectiveness in relation to technology would be vastly improved. Waiting hand and foot on the developers of online technology to self-regulate benefits the globalised market to the detriment of the Australian people and neither I, nor Justice Edelman, stand for it. I hope to see action on other areas sooner rather than later.

Maddi Turansky Editor Face on Hidden within the depths of Government databases lie around 100 million facial images. If you hold a passport or a driver’s licence, your face is on file. By implication, your face is also part of Australia’s national security weapon – the National Facial Biometric Matching Capability (‘NFBMC’). The NFBMC uses automated facial recognition technology to match a photograph of an unknown person against the millions of photographs stored in government records. Using an algorithm similar to those used in fingerprint scanning, this technology digitally compares the spatial and geometric distribution of facial features – your ‘faceprint’ – to confirm identity. However, facial recognition technology is far less invasive than fingerprint scanning and can be conducted from a distance, without individual knowledge or consent. This is where the controversy lies. In the words of Michael Keenan, Minister for Justice, the NFBMC will help put ‘a name to the face of terror suspects, murderers and armed robbers’. Although the fact of the matter is, the system puts a name to everyone’s face. Government agencies and law enforcement now have unprecedented access to biometric and biographic information, which historically was only collected upon arrival to Australia or when

charged with a crime. This inevitably brings the notion of privacy into question. If your passport, credit card, PIN or tax file number are compromised due to a security breach, they can be replaced fairly easily. It’s a different story with your facial features. If a biometric database is hacked, the information can be abused for the entirety of your life. It doesn’t end there though. The NFBMC has unrestricted access to photographs uploaded to the Internet and social media platforms, as well as still images captured from the thousands of CCTV cameras around Australia. On one hand, this is an example of modern technology solving crime, but on the other, it’s an almost Orwellian system of unwarranted mass surveillance. • Matt Liddy, ‘Australians don’t trust the news, except when it comes from their favourite sources’, ABC News (online), 16 June 2015 <http:// www.abc.net.au/news/2015-06-16/australians-digital-news-trust/6548232>. 2 Roadshow Films Pty Ltd v iiNet Ltd (No.3) (2010) 263 ALR. 3 Ibid, 215. 4 Court Security Act 2005 (NSW) s 9A(1)(c). 5 Court Security Act 2005 (NSW) s 9A(2)(f); Court Security Regulation 2011 (NSW) reg 6B. 6 Nic Christensen, ‘Journalist use of social media court an issue,’ Mumbrella (online), May 16 2013, <https://mumbrella.com.au/journalistuse-of-social-media-in-court-an-issue-155942>. 7 Catherine Gleeson, ‘Social media and the courts,’ (2013) Bar News: The Journal of the NSW Bar Association, 91, 55-56. 8 Court Suppression and Non-Publications Orders Act 2010 (NSW) ss 7-8. 9 Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 1553, 3-5. 10 Australian Competition and Consumer Commission v Valve Corporation (No 7) [2016] FCA 1553, 41. 11 Ibid. 1

President’s welcome Christina Knezevich President

The law is always struggling to keep up with the pace of change, and the evolving technological landscape is no exception. While our legal system is still adapting to encompass and regulate out-dated technologies, technological improvements advance onwards, unhindered by reference to a guiding moral compass. Welcome to the first edition of The Full Bench for 2017, where we will be diving into the ambiguous space between where technology starts and the law stops. The Full Bench is the academic journal published triannually by the UTS Law Students’ Society. The rapid advancement of technology unsettles much of the stability of our society, from big data disrupting any semblance of privacy, to the runaway self-improvement of artificial intelligence blurring the line between man and machine. Will tech replace lawyers themselves? How can national security face the challenges of cyber attacks? What will privacy mean, if anything, for individuals and consumers with the rise of big data? Not only will the future of legal education and the profession be examined, but also the very notions of human rights we hold now will be questioned. This edition will attempt to unpick these questions. In answering these questions, however, we also catch a glimpse of some of the opportunities technology brings. The scope for justice-minded innovation is as unbounded, including the development of apps which will make justice easier and cheaper than ever for anyone to access, and online dispute resolution for consumers against e-commerce companies. This edition reveals that the very technology that causes legal challenges produces just as many possibilities. So, wander through these pages and find out for yourself: what do lawyers dream of for the future?

Katya Shliapnikoff Vice President (Education)

I’d like to extend a very warm welcome to our readers to the The Full Bench for 2017. For this year’s first edition, our contributors explore technology and telecommunications; these pages will take you from the controversial use of artificial intelligence to a scrutiny of ways in which the law is attempting to combat online sexual harassment. Technology and its impact on society brings many questions to mind. What will the legal profession look like in ten years’ time? Will the junior legal roles that law students fill exist in five years’ time? The constant evolution of technology may mean we will be working in areas of law that barely exist right now, while roles previously filled by law students are made redundant by new technologies. Further, we watch the legal system constantly being forced to play catch up and adapt to the changing technological landscape. Holes are endlessly opening where an individual’s rights come under attack as the role of technology continues to expand in our daily lives. How can our legal system continue to reform to keep up at the rapid pace of change and innovation? Publishing The Full Bench would be impossible without the incredible, hard work of our UTS LSS Publications Director, Ling McGregor, and the Subcommittee. Many thanks also go to all contributors and sponsors involved. I encourage you to flick through this publication and enjoy what your peers have put together!

Do Lawyers Dream of Electric Sheep?

The Full Bench

Developments in Australian privacy law and responses to data flows developments in australian privacy law and responses to data flows Zach McLoughlin examines contemporary developments in Australian privacy law in the wake of high-profile data breaches and the â&#x20AC;&#x2DC;vibratingâ&#x20AC;&#x2122; Internet of things.

Do Lawyers Dream of Electric Sheep?

Written by Zach McLoughlin

There are few words which evoke scandalous thoughts to the same degree as the phrase ‘data breach’. One of the most well-known cases, the Ashley Madison data breach of 2015, saw a hacking group threatening to publish the usernames, passwords, credit card information, and addresses of all 37 million users of the extramarital dating site. The hackers demanded that the site be shut down permanently. However, the data hostage crisis took a dramatic turn after the site’s owners refused this demand, ultimately leading to a $578 million dollar class action from the users who had previously paid for the ‘permanent deletion’ of their personal information, at least two suicides linked to the breach, and a $500,000 reward posted by Ashley Madison for information leading to the arrest of the hackers.1 More recently, US remote control vibrator company, We Vibe, settled a class action lawsuit for $3.75 million US dollars after it was discovered that the company was collecting and storing info-rmation about its customers ‘usage patterns’.2 The data vulnerable to access included not only the text chat logs and ‘custom vibes’ created by users, but included the capacity for an eavesdropper to seize control of the device through the vibrator’s linked app.3 Aside from the criminal ramifications of what could potentially constitute a sexual assault, the incredibly intimate nature of the communications is clearly beyond any cognisable interest of the manufacturer. These controversies conform to the great tradition of companies who collect, store, process, and in some cases sell data about users in a way which is completely out of step with community standards and expectations. So what is being done to regulate the retention of online data? First, some background. If you, like me, are one to leave items in your cart while shopping online, then you have no doubt noticed the ads of online retailers populating your Facebook feed or other screen real estate after having left their site. Sometimes this retention mechanism uses cookies, other times your IP address is stored on the server alongside your purchase, but one thing remains – this company knows who you are and what you like. If you save your details, make a purchase, or have a profile, then that retailer might also have your address, your name, and your order history. Enter, personal data. For most of us, the retention of personal data is a

convenience. The data is held by the company and is (quite innocuously) used for a marketing purpose, but this hasn’t always been the case with the use of personal information about individuals. Internment of Japanese Americans during World War II was only possible due to the co-operation of the census bureau in surrendering the ancestry information of American citizens,4 and it would be remiss to leave unmentioned the consequences of race disclosure during the same period in continental Europe. In this sense, information can be either: relevant for a specified purpose (think of advertising), or sensitive information about a person’s identity (race, religion, political affiliation etc.). Naturally, the response to developing technologies and the rise of automated information indexing has varied depending on each region’s privacy culture and historical experience, however the increasingly global activities of e-commerce are placing many businesses within the jurisdiction of multiple data directives. European regulations around personal data have evolved to contain explicit protections for the processing of data involving political affiliation, ethnic origin, and other beliefs which may render an individual subject to political discrimination.5 Other general protections to privacy fall within a human rights framework, where privacy is assumed and the state carries a general capacity to regulate private organisations who deal with European citizens’ data, regardless of their location. Regulations in the United States – where such protections are sorely needed given the extent of automatic data processing – are incredibly decentralised and, with the exception of California, severely lacking. While a constitutional right to privacy has been recognised in some case law, this right only protects against state actors, leaving the remainder of data disputes to be protected through the traditional privacy tort framework and through the ‘sectoral approach’ to data regulation, which combines private sector self-regulation with specific, reactive legislation about particular industries.6 The Australian framework is slightly more restrictive with the Australian Privacy Principles requiring Australian ‘APP Entities’ (pretty much everyone except ‘small businesses’) to collect only data which is required for that entity’s function, and to disclose where that data might be sent overseas or to another organisation. Additional protections on ‘sensitive information’ in line with the European model further restrict the collection of, inter alia:

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political, religious, and medical records of individuals.7 Complications then arise where a USbased company, let’s say Facebook, anal-yses your activity on the Sydney Bartender Exchange discussion group, and shows you sponsored ads for a Keep Sydney Open protest. Is that a political opinion, or is that because of your employment status as a bartender? What happens if an eavesdropper intercepts and copies this data without discovery for several years? The capacity of regulators to enforce the strict delineation of sensitive and regular data remains to be seen, and further legislative difficulties presented by the attribution problem in digital crime are leading to an intensely pragmatic regulatory response.8 This response is to police the data hosts, to stem the distribution of personal data, and commence the remediation of harm as early as possible. Recent amendments to the Commonwealth Privacy Act pertaining to mandatory data breach notification9 are likely only the start of a long line of policy changes where the onus is shifted onto the data host to protect users from, and in cases where it can not protect, to notify users of threats to their personal data rather than to deregulate the market and prosecute the eavesdroppers themselves. At the time of writing, proposed amendments are being debated in the Senate10 regarding the criminalisation of the reidentification of de-identified data. These amendments are unlikely to be successful unless the capacity of law enforcement to deter individuals from maliciously

procuring personal data can be proven, either through re-identification of public datasets or through unauthorised access to private storage – in either case an unlikely scenario. In summation, the malicious procurement of data protected by the above legal instruments is an increasing concern, as the retention of personal data is becoming more crucial to the strategy and operations of many bus-inesses, especially those operating online. The regulatory environment is likely to be shaped by an increasing onus on data collectors to protect info-rmation, rather than an allocation of resources to assist with the prevention of personal information’s malicious procurement, and in the case of de-identified data sets, on the development of de-identification tech-niques in the pursuit of pseudonymity as cyber attackers are inherently difficult to prosecute. We are also likely to see the emergence of very harsh penalties for noncompliance, and the tendency for early offenders to ‘be made an example of’ as lawmakers try to hide the fact that their bark is louder than their bite. A word to the wise: make sure your business has adequate privacy safeguards, and as always, Cave Canem.11 •

Continental European legislatures have increased their reach with statutes that empower local courts to prosecute foreign entities engaging with European citizens in e-commerce and data indexing. Some may argue this is a necessary development of cyber regulation, others, an imposition of restrictive national standards on to international law. Either way, cases interpreting these jurisdictional issues are the cutting edge of international cyber law. Some precedents to watch are: Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (Google v AEPD), Ligue contre le racisme et l’antisémitisme et Union des étudiants juifs de France c. Yahoo! Inc. et Société Yahoo! France (LICRA v. Yahoo!).

The Ashley Madison Hack -- A Timeline (2017) The State of Security <https://www.tripwire.com/ state-of-security/security-data-protection/cybersecurity/the-ashley-madison-hack-a-timeline/>. 2 We-Vibe Vibrators Maker Settles Data Collection Lawsuit For $US3.75 Million (2017) Financial Review <http://www.afr.com/technology/web/ security/wevibe-vibrators-maker-settles-datacollection-lawsuit-for-us375-million-20170314guy8qy>. 3 We-Vibe, Connected Vibrator Maker, Settles $3.75M Class-Action Suit (2017) CNET <https:// www.cnet.com/au/news/app-enabled-sex-toyusers-get-10000-each-after-privacy-breach/>.; 4 JR Minkel, Confirmed: The U.S. Census Bureau Gave Up Names Of Japanese-Americans In WW II (2017) Scientific American <https:// www.scientificamerican.com/article/confirmedthe-us-census-b/>. 5 Most notably the EU Data Protection Directive, DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, Article 8. 6 William J. Long and Marc Pang Quek, “Personal Data Privacy Protection In An Age Of Globalization: The US-EU Safe Harbor Compromise” (2002) 9 Journal of European Public Policy., Paul Rudo, The US’ Sectoral Approach To Data Protection - Enterprise Features (2017) Enterprise Features <http://www. enterprisefeatures.com/the-us-sectoral-approach-todata-protection/>. 7 Privacy Act 1988 (Cth) Schedule 1, Australian Privacy Principles, Office Of The Australian Information Commissioner - OAIC (2017) <https://www.oaic.gov.au/privacy-law/privacyact/australian-privacy-principles>. 8 The Attribution Problem In Cyber Attacks (2017) InfoSec Resources <http://resources. infosecinstitute.com/attribution-problem-incyber-attacks/#gref>. 9 Privacy Amendment (Notifiable Data Breaches) Bill 2016 (Cth) 10 Privacy Amendment (Re-identification Offence) Bill 2016 (Cth) 11 Beware of the dog. 1

Do Lawyers Dream of Electric Sheep?

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The new front line: the developing international framework for protecting cyber boundaries It started with the Morris worm; Francesca Elias Arciuli provides an overview of contemporary cyber attacks, and examines customary law in response to the threat that such attacks pose to national security.

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Written by Francesca Elias Arciuli It started with the Morris worm.1 Launched from the MIT computer system by Cornell student Robert Morris, it wheedled its way into nascent US cyber infrastructure, slowing computers down and rendering them useless. While Morris’ intent in launching the worm was unclear, the worm was not destructive in nature, and by exploiting the vulnerabilities of computer systems it forced them to be fixed.2 In any event, Morris was the first person to be convicted under the US Computer Fraud and Abuse Act, and went on to become a professor at MIT. A number of other, similar cyber attacks subsequently occurred in the early 2000s, including the 2006 hacking of NASA by ‘unknown foreign intruders’3 and the Titan Rain attack on US government computer systems over a period of three years since 2003. It was an attack in 2007, however, that marked one of the most infamous cyber attacks against a state’s infrastructure to date, and which arguably altered the international discourse – as well as the law – on cyber attacks. In April and May of that year, Estonian government cyber networks were subjected to a wave of ‘denial of service’ attacks which disabled government and corporate networks. The nation’s leading newspapers, bank and government communications were all targeted. Estonia, one

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of Europe’s most ‘wired’ countries, was crippled.4 The attack followed disagreements with Russia over the relocation of the Bronze Soldier of Tallinn and war graves in Tallinn. Although Estonian officials accused the Kremlin of being directly involved in the cyber attacks, there was no solid evidence that Estonia, NATO, or the European Commission experts could find to prove the involvement of the Russian government in the attacks. The primary concern propounded by government defense officials is that cyber attacks are a national security concern. Jaak Aaviskoo, who was the Estonian Minister of Defense at the time of the attack, stated that the Estonian attack represented ‘the first time that a botnet threatened the national security of an entire nation’.5 Former US Secretary of Defense, Leon E. Panetta, indicates the potential extent of this threat, stating that ‘a cyber attack perpetrated by nation states or violent extremists groups could be as destructive as the terrorist attack on 9/11’.6 Cyber attacks have been perpetrated every year since the Estonia attack, and a number of them have been against state infrastructure with the intent to collect information, such as the ‘Red October virus’,7 or with the intent of disrupting services, as evidenced by the hack of Ukraine’s power grid.8 Cyber attacks are now seen to represent a new kind of threat in which anyone with the knowhow and resources can attack a country through its ‘least protected border – the Internet’. 9 Legal framework under international law Since the Estonia attack, a number of legal advances have been made to hold perpetrators accountable for launching attacks against a state’s poorly protected, or at least vulnerable, cyber networks. The most concerted effort was the coming together of a number of global experts to produce the non-binding ‘Tallinn Manual’10 in 2013, and the ‘Tallinn Manual 2.0’11 in 2017. Both of these manuals are premised on the notion that cyber attacks do not operate in a vacuum and that existing international law applies to them. As such, states and non-state actors can be found liable for a cyber attack under public international law (‘PIL’) or international humanitarian law (‘IHL’) and can subsequently be found liable under the laws of state responsibility or international criminal law. The 2013 ‘Tallinn Manual’ focused on the most severe cyber operations which violate the prohibition on the use of force or entitle

states to exercise the right of self defense (under PIL), or those which occur during an armed conflict (under IHL). ‘Tallinn Manual 2.0’ expands the scope of analysis of the first manual to contemplate those which do not meet this high threshold and are encountered more regularly by states.12 It also examines cyber operations and their impact in the context of various aspects of international law including human rights law, space law, law of the sea, and diplomatic and consular law.13

While the manuals are not binding, they represent a codified application of existing customary law to the modern phenomenon of cyber attacks. This is particularly significant given that no international treaties have yet been signed between states to specifically prohibit cyber attacks under PIL or IHL, providing a regime for finding perpetrators liable. Yet while the legal framework may be taking shape, the reality is complicated. That cyber attacks may be routed through a state, launched from multiple users, and that perpetrators can make use of proxies, renders finding a state or entity liable for an attack problematic to say the least. The ‘Tallinn Manual’ attempts to address this by supporting a due diligence requirement of states in cyberspace in relation to the use by other states, hackers or terrorists of cyber infrastructure located in its territory.14 However, as the rules of the manual are not binding, and the methods of perpetrators are shown to be incredibly sophisticated, this is not a comprehensive solution. There are other areas of uncertainty. For example, under PIL, the use of force in the cyber context has no strict definition, making it difficult to discern the severity of the attack the subsequent course of action available to affected states and entities. There are also divided opinions as to whether the prevailing threshold for the attribution of an attack under the law of state responsibility is appropriate in the context of cyber attacks.15 That cyber attacks are a prevalent and valid concern for modern states and entities is of little surprise. However, the emerging legal landscape for cyber attacks, while developing rapidly, is also unsettled. Although any legal action by states and other entities against perpetrators of atta-

cks may not occur for some time, the response of the international community to ‘Tallinn Manual 2.0’ will hopefully clarify the status of the rules presented in the manuals. • NATO Review, Cyber Timeline, NATO (2013) <http://www.nato.int/docu/review/2013/ cyber/timeline/EN/index.htm>. 2 Christopher Kelty, ‘The Morris Worm’ (2011) 1 Limn <http://limn.it/the-morris-worm/>. 3 Ibid. 4 Joshua Davis, ‘Hackers take down the most wired country in Europe’, WIRED (21 Augsut 2007), <https://www.wired.com/2007/08/ffestonia/>. 5 Joshua Davis, above n 3. 6 NATO, above n 1. 7 NATO, above n 1. 8 Kim Zatter, ‘Inside the cunning, unprecedented hack of Ukraine’s power grid’, WIRED (3 March 2016) <https://www.wired.com/2016/03/insidecunning-unprecedented-hack-ukraines-powergrid/>. 9 Joshua Davis, above n 3. 10 Schmitt, Michael N (Gen. ed.) (2013), Tallinn Manual on the International Law Applicable to Cyber Warfare, New York: Cambridge University Press. 11 Schmitt, Michael N (Gen. ed.) (2017), Tallinn Manual 2.0 on International Law Applicable to Cyber Operations, New York: Cambridge University Press. 12 NATO Cooperative Cyber Defence Centre of Excellence, Tallin Manual – Research (2017) <https://ccdcoe.org/research.html>. 13 Ibid. 14 For more information, see Michael N. Schmitt, ‘In Defense of Due Diligence in Cyber Space’ (2015) 125 Yale Law Journal 68. 15 For more information, see Scott J. Shackelford, ‘State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem’ (2010) Conference on Cyber Conflict Proceedings. 1

Do Lawyers Dream of Electric Sheep?

The checks and balances of Australia’s digital privacy; its prospects and shortcomings What is metadata and who is retaining it? Tahniya Sheriff looks into the obligations of telco giants, and the rights of their consumers Written by Tahniya Sheriff

The introduction of mandatory data retention schemes has garnered ample interest by consumers to better understand the privacy rights that they are entitled to under the Telecommunications Act 1997 (Cth). Undoubtedly, many telecommunication giants such as Telstra and Optus have been pressed to adopt greater transparency in the manners in which they collect and retain consumer metadata. This article will explore the core features surrounding the telecommunications data retention laws, including the types of data to be retained, the authorised bodies with access to stored information, as well as any compliance issues in this spectrum. The burgeoning rise of changing data laws and technological integration has warranted a closer inquiry into the core purpose of our telecommunication service providers. A once trusted medium in streamlining phone calls, text messages, and access to the Internet now raises questions around the very integrity of our personal information and the possible legal implications which may stem from using it. What kind of data should be retained? Metadata is information about a communication, rather than the content or substance of a communication. Retaining this data is a lawful obligation for the telecommunications industry consistent with the objectives outlined by the Australian Government.1

The purpose Recent amendments under the Telecommunications (Interception and Access) Act 1979 (Cth) aim to standardise the types of telecommunications data collected and require service providers, including internet carriers, to retain this set of data for at least two years. Acknowledging past shortcomings of Australian security agencies, which ‘identified the lack of availability of data…to prosecute serious offences’, has heightened both awareness and action from government officials in the protection of the Australian public.2 Types of data collected and recent court decisions The new laws have compelled telecommunication service providers to collect data in relation to customers’ basic information, including general contact information, billing, and the initial contract agreement. While this data is readily accessible to consumers as per the statements on both Telstra’s and Optus’ websites, other aspects of data – including the location of communication (i.e. cell towers, wi-fi hotspots), source, destination, and time of a communication, as well as the stream of service utilised in the communication (i.e. social media, SMS, email etc.) – are concerning. This approach has triggered a need to delve in-to the specificities of what constitutes personal information under the Privacy Act 1988 (Cth), part-

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icularly in response to the recent judgment handed down in Privacy Commissioner v Telstra Corporation Limited [2017].3 This case emerged from an inquiry by one Telstra customer, Ben Grubb, who exercised his rights under the National Privacy Principle (‘NPP’) and sought access to his metadata.4 With the focus of this matter being on the ambiguous interpretation of ‘personal information’, the Court strived to analyse whether Grubb would be ‘identifiable’ from Telstra’s ‘network data’. The drastically narrowed definition put forward by the Federal Court of the term ‘personal information’ ultimately catalysed a ruling in favour of Telstra, but consequently presents an inconsistent framework of data privacy which is absent of clarity and a reliable level of safeguard for consumers. Access to retained data There are currently 14 criminal law enforcement agencies that may have access to retained data in the case of pursing various matters of the law.5 These agencies include the Australian Federal Police of each respective state, the Australian Competition and Consumer Commission, and the Australian Securities and Investments Commission, among many others. Cases in which telecommunications companies are lawfully obliged to disclose their customers’ data records are only deemed necessary in specific circumstances. These may include: a reasonable disclosure in all cases where there stands a need to enforce Australian criminal law; in relation to a missing persons case; or for the purposes of protecting Australian public revenue.6

Recent criticism of data retention enforcement The cascading uncertainty in this area of law is one which has only been publicised in recent years, but has since gained much attention as consumers have appropriated the comprising features that the data retention laws present to their private security. There is strong backlash from various lawyers and privacy advocates who fear that the budding emergence of these laws may be negatively utilised in matters of court such as civil cases – namely divorces or custody battles that contain vast amounts of sensitive personal information. However, a statement from AttorneyGeneral George Brandis aimed to diffuse this concern by stating that current provisions around access to data would deem this invalid. Former Prime Minister Tony Abbot recently advocated the main purpose of metadata to appropriately deal with ‘people who are ready to engage in horrific terrorist activity’.7 Despite this, many critics, including Edward Snowden, believe this is an inadequate approach in aiding terrorist and espionage investigations in Australia, as some data centres will be stored offshore and issues of hacking and data breaches present a major risk to both personal and national security.8 The future Going forward, there is no black and white answer or reasonable foreseeability of how the exponential progression of data retention laws and metadata collection will affect consumers in their day-to-day lives. Innately, these laws serve as an essential part of our

legal system in protecting the nationhood of Australia and countering possible terror attacks, and aiding investigations into child pornography or abuse that circulates online. However, increasing technological reliance and rapid advancements calls for immediate discussion to raise issues concerning the ambiguity of personal information, and seek clarification on laws that provide individuals a reasonable level of privacy protection, now more than ever. •

Australian Government, Data retention, <https://www.ap.gov.au/dataretention>. 2 Explanatory Memorandum to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth). 3 Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4. 4 Johnston, Mobiles, data and the meaning of ‘personal information’ (19 January 2017) Salinger Privacy <https://www.salingerprivacy. com.au/2017/01/19/federalcourtdecision/>. 5 Brabant, Salter and Walker, Australia Introduces New Telecommunications Data Retention Laws, (17 November 2015), Mondaq <http://www.mondaq.com/australia/x/444262/ data+protection/A 6 Ibid. 7 Tucker, New data retention laws begin today, this is what you need to know, (13 October 2015) Online Censorship <http://www.news. com.au/technology/online/new-data-retentionlaws-begin-today-this-is-what-you-need-toknow/ 8 Ibid. 1

Do Lawyers Dream of Electric Sheep?

It’s about time Australia tech up privacy laws Written by Marcela Malicka

In August 2008, the Australian Legal Reform Commission (ALRC) released their final report entitled ‘For Your Information: Australian Privacy Law and Practice’. In response to this report, the Government has finally passed its newest piece of cyber law legislation: the Privacy Amendment (Notifiable Data Breaches) Bill 2016 (Cth) (‘the Bill’). The Bill imposes a compulsory notification requirement on organisations that have suffered a data breach. This Bill proactively implements an ALRC recommendation: that individuals affected by a data breach should be notified by the organisation. The underlying rationale is that of notifying individuals of a data breach, such that individuals can become aware that they may need to mitigate their risk. Furthermore, the Bill requires the organisation to notify the Australian Information Commissioner. This allows for private citizens and government agencies to track the consequences of breaches, and subsequently employ appropriate strategies to contain them. Unfortunately, the legislation is not without shortcomings and legal academics argue it could have gone further.1 The first criticism cited is that the method of notification required under the legislation is ambiguous.2 Section 26WL of the Bill permits those notifying individuals of data breaches to employ whatever communication method is regularly used by the organisation. In the modern era, this is usually by email. However, this provision disregards that the means of communications are also potentially subject to the breach itself. Furthermore, the legislation provides for situations where it is not practical to notify individuals or affected groups; there is no requirement of providing notice directly. Organisations in this situation will instead have to publicise a notification on their website. However, the Bill does not specify how

accessible this published notification must be.3 There is a risk that organisations will attempt, in early years of the legislation, to hide this in the ‘small print’ of their website or public notices. Organisations that fall within the scope of the legislation are the same as those regulated by the Privacy Act 1998 (Cth). Noteworthy groups which are not bound by the legislation include State government organisations and local councils – both of which are custodians of highly confidential data, and arguably more so than private sector organisations.4 Finally, arguably the biggest flaw in the new legislation is that it fails to address the issue that often data breaches are not immediately identified. Rather, data breaches are often detected after several weeks or months, if not years.5 This unfortunate reality means that any benefit provided by the compulsory notification requirement is in many circumstances nullified. The Australian government has proactively begun to address the lack of cyber law protection afforded to its citizens. However, the efficacy of the new legislation is yet to be proven – as Australian citizens are moving online, so must the law.

• Jai Galliott ‘New law will force some (but not all) organisations to reveal data breaches’ The Conversation (online) March 10 2017 <https://theconversation.com/ new-law-will-force-some-but-not-all-organisations-toreveal-data-breaches-73971> 2 Ibid. 3 Ibid. 4 Ibid. 5 Ibid. 1

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Technology, privacy, law.

Written by Kimberley Ching

When recreational drones entered consumer consciousness they became fast favourites with aviation hobbyists, Youtubers, and regular JB Hi-Fi aficionados. It seems like only yesterday that young, wide-eyed Timmy remotely sent his drone into Bunnings with a humble $10 and the hope of seizing a snag.1 Whether it be for recreational or personal use, the rate at which drones entered the market was no match for government regulation. This speaks to the old adage that while technology evolves at a rapid pace, the law meanders behind. The Civil Aviation Safety Authority (‘CASA’) have implemented standard operating conditions to regulate recreational drone use, however the problem does not seem to be with the technology itself, but the threat that it poses to one’s privacy. This article will identify the current regulations in place, and ultimately critique their efficiency in puttying the holes in Australian privacy protection and surveillance law.

Current regulations on drone use in Australia Current Australian regulations on drone use came into effect following a series of drone related incidents: a drone crashing into a car on the Sydney Harbour Bridge, a drone falling from the sky during a War memorial ceremony in Canberra, and a drone that came within 50 metres of a rescue helicopter on the Gold Coast.2 In response, CASA developed the following regulations for unlicensed, recreational drone users, under which drones: • Can only be flown during the day and not at night; • Can only be flown within one’s range of sight and nowhere further; • Cannot be operated to fly more than 120 metres above ground; • Cannot fly over populous areas e.g. beaches, parks and sporting ovals; • Cannot be operated to fly any closer than thirty metres from other people.3

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Whilst CASA have attempted to maintain the safety, protection, and well-being of the public, there is no guarantee that this safeguards their privacy. A drone user can intrude upon one’s privacy either deliberately or involuntarily. Whether it be for a mere two seconds or perhaps two hours, the potential for such an intrusion elucidates the fractured landscape of our privacy laws. The privacy laws in place Marked by their increasing accessibility and affordability, the rising use of drones is both a commercial success and a legislative fear. Termed ‘remotely piloted aircraft’ (‘RPA’), they are advantageous in that they often travel unobserved, can enter – or hover over – public property, and have the capacity to record and stream live images and sounds.4 They are costeffective nightmares that are capable of collecting information without any prior knowledge or consent from an individual being surveyed. As drones were introduced after the development of certain laws, there is no exact or sufficient avenue for recourse should a plaintiff seek redress. The available options include the Privacy Act5, the Surveillance Devices Act6, and common law torts of trespass or nuisance. However, in listing these, all are ineffective for the following reasons: Although the Privacy Act provides 13 principles which govern the method org-anisations should undertake to collect, manage and appropriately disclose information, the Act itself does not apply to the collection and use of the same information by private individuals. There is no parallel legislation that provides protection for the individual affected.7 The only pathway to redress through the Privacy Act is by lodging a formal complaint to the Australian Information Commissioner, where the outcomes may not entirely rest in your

favour. Further, various exceptions to the Privacy Act exist for certain stakeholders, which include but are not limited to small businesses, political organisations, and media organisations. The ultimate question becomes: who does the Privacy Act serve besides the individuals and organisations seeking to retain, collect, and disclose your personal information.8 The Surveillance Devices Act (Cth)9 is no different. While it does regulate the lawful use of surveillance devices by law enforcement agencies, it does not expressly prohibit the use of such devices. Prohibitions are found separately in state and territory statutes, however, the statutes are inconsistent – what may be deemed appropriate in one jurisdiction will vary in the next.10 Finally, a plaintiff may be able to seek redress through the tort of nuisance for an unreasonable interference with an occupier’s use and enjoyment of their land, which could be interpreted to include the use of RPA recording and surveillance. In order to claim for damages, the plaintiff must, however, undertake the difficult task of proving that the RPA intruded upon and affected their airspace at a height which is reasonably necessary for the ordinary use and enjoyment of the occupier.11 Conclusion Evidently, the legislation and common law protections that currently exist to curtail privacy threats posed by drones only go so far. In line with the Australian Law Reform Commission’s final report, the ‘Serious Invasions of Privacy in the Digital Era’,12 urgent reform is required to protect potential plaintiffs from the threats of RPAs. Whether it be a reconsideration of a common law tort of privacy,13 or a new, constitutional head of power, the law must evolve with the currents of technology and not against it.

Rebecca Johnston, ‘Did you get a drone for Christmas? Know the law before you take to the skies’, ABC News (online), 26 December 2016 < http://www.abc.net.au/news/2016-12-26/ know-the-drone-law-before-taking-to-theskies/8148604>. 2 News Limited, ‘Aviation Experts call for Drones to be registered and insured to prevent serious accidents’ (2016) <http://www.news. com.au/technology/aviation-experts-call-fordrones-to-be-registered-and-insured-to-preventserious-accidents/news-story/8f03709ea95aef29 0b5333522bfe2022>. 3 Civil Aviation Safety Regulations 1998 (Cth). 4 Social Policy and Legal Affairs Committee, Parliament of Australia, Inquiry into Drones and the Regulation of Air Safety and Privacy (2014). 5 Privacy Act 1988 (Cth). 6 Surveillance Devices Act 2004 (Cth). 7 Social Policy and Legal Affairs Committee, above n 4. 8 Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No. 123 (2014). 9 Surveillance Devices Act 2004 (Cth). 10 Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No. 123 (2014). 11 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490. 12 Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No. 123 (2014). 13 Australian Broadcasting a Lenah Game Meats Pty Ltd (2001) 208 CLR 199. 1

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Do Lawyers Dream of Electric Sheep?

Cyber flashing: holding online harassment to a different standard Written by Alice Zhang

According to the ‘Don’t Send Me That Pic’ report* published in March 2016 by Plan International Australia and Our Watch survey:

7 out of 10 young women agreed that girls are often bullied or harassed online 58% agreed that girls often receive uninvited or unwanted indecent or sexually explicit material such as texts, video clips, and pornography 51% agreed that girls are often pressured to take ‘sexy’ photos of themselves and share them 82% believe it is unacceptable for a boyfriend to ask their girlfriend to share naked photos of themselves 44% do not feel comfortable reporting incidents of abusive online behaviour

Content warning: Unsolicited images, sexual harassment. Receiving unsolicited dick pics appears to have become a very common and normalised part of women’s experiences online, whether it be while dating, chatting with friends, or generally going about their daily lives. A 2016 survey by Plan International Australia and Our Watch of 600 young women between 15 and 19 years old found that almost 60% agree that young women receive unwanted sexual photos, messages, and videos, often. Coined by some as ‘cyber flashing’, this behaviour is usually seen as just another blip in life that should be laughed off and forgotten – and currently, Australian law reflects our generally casual attitude towards unsolicited dick pics. Sending unwanted sexually explicit images online is generally not deemed unlawful under contemp-orary Australian legislation, except in certain circumstances. The Telecommunications Act 1997 (Cth), which prohibits using a carriage service to harass, offend or intimidate another person, may provide some protection against sexual harassment, however there have been no prosecutions under this legislation for image-based sexual harassment to date. Currently, sexual harassment is only unlawful in certain areas of public life under the Sex Discrimination Act 1984 (Cth) – areas of public life could include a workplace, an educational institution, or where purchasing goods and services. However, under this legislation, receiving images that constitute sexual harassment while on a dating site or dating app, for example, is not unlawful. Without clear and adequate courses of legal redress, many people choose to post the pictures that they have received online in an attempt to call out those sending them. However, this has the potential to lead to legal implications for the victim. In fact, victims

may also become perpetrators in the eyes of the law if they share the image to ‘call out’ the sender; in particular, under Victoria’s ‘revenge porn laws’, it is a criminal offence to maliciously distribute images of another person without their consent. However, is it yet to be tested in court whether a victim, in naming and shaming someone who first sent them unsolicited pictures, could be criminally tried for distributing the images in response. In Australia, there is a long way to go in regards to the law protecting bodily autonomy and consent, and the lack of laws protecting against unsolicited dick pics are just one example of where our legal system particularly fails to protect women. It seems the only immediate recourse is to block, delete, and report on social media. So where to from here? Perhaps the first step is to shift the way we, as a society, perceive and respond to unsolicited dick pics. Rather than placing the onus on victims to prevent further harassment, we need to challenge the culture that creates this behaviour in the first place. We need to recognise that this situation involves another individual (usually a cis man) exposing their genitalia in a way that has not been consented to, and this should be viewed equally as seriously as if that same person had walked up to your window, flashed you, and walked away. In doing so, we would simultaneously acknowledge that victims have a right to live freely of all forms of sexual harassment, and that they should be entitled to the protection of these rights under our legal system. The greater the push for this recognition to become mainstream, the faster our legal system will evolve to suit our ever-changing society.

*600 Australian girls and young women aged 15–19 were surveyed about personal safety and gender equality, including online safety. Responses to questions about online safety indicate that girls and young women in Australia report endemic levels of abuse and harassment online.

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Why they won’t get my nudes Brendan Hancock examines an increasingly prevalent, contemporary crime – revenge porn – and brings to light problematic areas of law which lack consistency and fail to afford protection to victims. Written by Brendan Hancock

The year 2017 is shaping up to be one hell of a ride for Australians who are strapped in the back seat while a conservative government, firmly at the helm, hurls us towards the bright future of 1974. Why 1974? It was a simpler time. A time when you could get away with blatant discrimination towards all those pesky minorities who are now causing such a fuss. A time when it was appropriate to single out an openly gay CEO of one of Australia’s largest companies for advocating for equality instead of just ‘sticking to his knitting’ (edit: it’s also apparently appropriate today). A time without Snapchat or those memes that all the kids keep talking about but I don’t really understand.

Do Lawyers Dream of Electric Sheep?

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Fast forward to 2017, and you’d be forgiven for thinking that many antiquated 20th century values are still appropriate. Racism under the guise of ‘free speech’ still rears its ugly head, made no more apparent than in our government’s persistent attempts to repeal section 18C of the Racial Discrimination Act on the same day as the United Nations International Day for the elimination of racial discrimination. Women are still blamed for dressing provocatively when they have been sexually assaulted. One particular offence has become increasingly prolific: the sharing of private sexual images of a person without consent, with a specific intention to cause that person harm – that is, revenge porn. Revenge porn encompasses a wide range of behaviours and motivations. The most common perpetrators of such offences are jilted partners who distribute or threaten to distribute private images to get ‘revenge’ on their partners. However, it is wider than this as people who even store images in the cloud can have images stolen and face extortion and embarrassment. The 2014 celebrity nude hack evidences this and led many to denounce the thefts as sex crimes. The victims of these crimes have had the images distributed by email to family, friends, workplaces and have seen the images posted on pornographic websites. One such site, myex.com (NSFW), encourages people to post pictures of ex-lovers, including personal information such as their name, age and location. They are usually captioned – ‘cheating slag’, ‘meet my whore of a wife’. A Queensland mother had men show up to her house after finding her phone number and address on one such site after a stranger posted photoshopped images of her on a forum. The man will not be charged under any revenge porn laws. They don’t exist in Queensland.

At the federal level in Australia, there has only ever been one charge in relation to ‘revenge pornography’; R v Daniel McDonald and Dylan Deblaquiere [2013] ACTSC 122. However, the requisite section under the Criminal Code Act 1995 (Cth) is too broad and therefore, seemingly inadequate. Looking at individual criminal provisions, there are only two states which have relevant provisions. In Victoria, the maximum penalty is two years imprisonment and in South Australia, it is punishable either by a fine of up to $10,000 or two years imprisonment. New South Wales is in the process of introducing similar legislation. The absence of federal legislation is one of the main concerns and in its absence, many perpetrators or cowards (whichever word you prefer) continue to get away with such crimes. Jurisdiction is also proving increasingly difficult. A recent case in South Australia, where hundreds of women allegedly had their images published on an online US discussion board, highlights the difficulty of pursuing crossborder prosecutions. So how do you legislate such a tricky area? Well look, I’m not about to say that you could stop revenge porn by telling victims that they shouldn’t take the photos in the first place. That would be an awful lot like saying that you can solve the global refugee crisis by turning back the boats. It’s stupid. The problem with this type of logic is that it fails to address the underlying issues and instead, focuses on perpetuating a system of blame on the victim. Unfortunately, Australia’s response to forms of sexual assault typically follow this pattern and look to blame victims for certain behaviour, rather than hold perpetrators accountable for their abusive actions.

When it comes to legislation, the appropriate response is not blaringly obvious. Currently, the first step is to try to remove the content. In the US (which is similar to Australia in that not every state has appropriate legislation for such crimes), an attorney by the name of Carrie Goldberg has successfully fought revenge porn by filing notices of copyright infringement. A person who takes a photo automatically owns the copyright, technically making it their property. The issue with this approach is that the images can be spread quickly, and filing copyright notices to each site is a tedious and expensive process. Alternatively, individuals can now also request Google and other search engines to block searches for such images. In the year following the introduction of section 33 of the Criminal Justice and Courts Act 2015 in the UK, there were over 1,100 reported incidents leading to over 200 people being successfully prosecuted under the new revenge porn laws. Under UK legislation, offenders now face up to two years imprisonment. One of the first individuals charged under the legislation was additionally ordered to pay compensation, undertake 100 hours of community work, and had a restraining order imposed on him. The absence of a consistent federal approach in Australia for an increasingly problematic area of law is worrisome. It’s unfortunate that the Australian legal landscape has failed to keep pace with changing times and changing behaviour. A consolidated federal approach would go some way in addressing the lack of legal redress that individuals currently have, but this should also be implemented in conjunction with community and educational campaigns.

It’s 2017. It’s about time our politicians acted like it.

Do Lawyers Dream of Electric Sheep?

The Full Bench

Protecting copyright: a legitimate exercise of intellectual property or a stifling step towards intellectual monopoly? Michael Tangonan examines amendments to Australian copyright legislation, and considers online infringement in the wake of live streaming, illegal torrenting and site blocking.

Written by Michael Tangonan

It is likely that you have, at some point, either downloaded or streamed a movie or series online without paying for it because it is, quite frankly, cheaper and easier. You can simply find the movie you are looking for on a particular website, and click to either play or download. You do not need to sign for a two-year lock-in contract, fill in forms, or give any credit card details. It’s instantaneous and simple, isn’t it? It’s quite a common habit among Australians to download or stream their entertainment instead of waiting for the physical versions to arrive, or for one of the major entertainment hubs, like Foxtel, to acquire it. Currently, Australians are ranked at the top for pirating ‘Game of Thrones’. It is not a great reputation that we have earned, but if it is the only show you are interested in, paying $20-50 per month in a lock-in contract would not be worth it. This view has been echoed by Lateline’s David Lipson in his commentary of Foxtel’s row over the Mundine v Green fight.1

Do Lawyers Dream of Electric Sheep?

Broadcast rights for the February 2017 Mundine v Green fight were purchased by Foxtel, which charged fees of around $60 to watch it. One viewer, Darren Sharpe, attended the fight and broadcasted the fight through Facebook’s free live feature to share the experience with his mates.2 During the streaming of the fight, a Foxtel representative phoned Mr Sharpe informing him that what his streaming was a criminal offence under the Copyright Act 1968 (Cth) (‘the Copyright Act’). Foxtel soon threatened legal action against Mr Sharpe, which was later retracted and replaced with supposed “education” regarding copyright instead. However, once Mr Sharpe shut his stream off, other viewers in the audience started their own. Mr Sharpe did not have a malicious motive to profit from the stream, nor did he want to create an underworld empire from illegitimate recordings of the fight. But these are the stereotypes of how people who engage in piracy are portrayed – that they are thieves, scumbags, and criminals. Rather, Mr Sharpe was a viewer who could empathise with his fellow viewers’ desires: to have instant access. Online infringement Assented to on 26 June 2015, the Copyright Amendment (Online Infringement) Act 2015 (Cth)3 (‘the Amendment’) gives rights-holders the ability to apply to the Federal Court of Australia (‘the Court’) for an injunction requiring carriage service providers (‘CSP’) to block ‘online locations’ which have the ‘primary purpose’ of facilitating copyright infringement. This could take the form of internet providers blocking customers from accessing websites which allow the illegal streaming or downloading of movies; for example, torrenting websites. The Amendment was created with the aim of granting rights-holders the ability to take action against the infringement of their rights, and especially against entities which operate overseas. Under its mechanisms, rights-holders bear the onus to give notice to both the CSP and the operator of the online location. However, the requirement for the latter may be waived if reasonable but unsuccessful efforts have been made to locate the operator. The Amendment does not specify a limit on the number of locations that can be listed in one location, so a rights-holder may potentially seek to block access to thousands of locations at once. The Court is granted a wide discretion in deciding whether to grant an injunction, which can include consideration of whether disabling access is a proportionate response, as well as whether it is in the public interest to disable access to the location.4 Copyright – the safeguard of ingenuity or the anathema of competition? Essentially, copyright is a bundle of economic rights (the so-called ‘intellectual property rights’) which give an owner the exclusive right to do certain things to the object protected by these

rights. Copyright is automatic upon creation of the relevant work, but to exclude others indefinitely and ensure its protection, the owner(s) may have to register the work to IP Australia. Only categories of objects listed under the Copyright Act are eligible to be protected. Industry groups have indicated some advantages and benefits of the passing of the Online Infringement amendment, with the most common argument being that it ensures that artists will be recognised for their work. However, it is also true that, although artists may be ‘recognised’, this does not guarantee that they will receive their fair share of the royalties. Copyright, by its nature, must be separated from the concept of authorship. This is best demonstrated when an author or creator of a piece of work does not hold the copyright to it. It is quite common for the owner and the author to be in an employer-employee relationship where all work conducted by the employee is considered the work of the employer, or that the employer holds all intellectual rights including copyright to that work. A straightforward example is found in common practice within the music industry, where large corporations generally own the copyright of an individual musician’s work. Another way for an author to lose their rights is if they are either commissioned by another to produce the work, or where a contract assigns the copyright to another party. These are most common in the printing industry, where authors may give up any rights to their manuscript by assigning all ownership to the publishing company. Testing the law – a trial by judicial fire The catalyst for the 2015 changes to Australian copyright laws came in the wake of a dismissal of the Roadshow Films Pty Ltd & Ors v iiNet Ltd (‘AFACT v iiNet’) case in 2012.5 The bench unanimously ruled against AFACT, holding that internet service providers (‘ISPs’) were not liable for customer’s breaches of copyright as they were a mere conduit of the process.6 The bench said there was no need to consider the copyright regimes in New Zealand or the UK in their determination.

After several years of lobbying, the online infringement amendment was then passed in 2015, granting license-holders greater rights to enforce their privileges. The new copyright regime was subsequently tested in the cases of Roadshow Films Pty Ltd & Ors v Telstra Corporation Ltd & Ors and Foxtel Management Pty Ltd v TPG Internet Pty Ltd & Ors, which were heard contemporaneously by the Federal Court. It resulted in a victory for the rights-

The Full Bench

holders, and led to a blocking of Australian access to The Pirate Bay, TorrentHound, Torrentz, IsoHunt, and SolarMovie.8 It was then announced in early March 2017 that the same rights-holders – Roadshow Films, Disney Studios, Warner Bros, and Twentieth Century Fox, just to name a few – would apply to block a further 74 sites, including Limetorrents, KissCartoon, WatchFree, Putlocker, Kinogo, and Megashare, with the next hearing on 23 March 2017. Should the Court grant this request like the first one, blocked sites in Australia would total 135 ‘piracy sites’.9

mainly only permit the sale of prescribed works, such as legislation, on the proviso it is not sold above the actual costs of copying. As demonstrated by the string of cases against ISPs, an application under the Amendment will require a willing applicant. Furthermore, should an application be filed in regards to sites such as WikiLeaks, the Court does have factors to consider under section 5, however as this has yet been untested, there is uncertainty whether a Court will be willing to pass orders blocking WikiLeaks.

Does this work and what does it mean for the consumer? While the blocks have been welcomed by leaders in the film industry, with Foxtel Chief Executive Peter Tonagh lauding the 2016 judgment as ‘another tool in the fight against international criminals,’ they have also been criticised by ISPs. Laurie Patton, CEO of Internet Australia, has questioned whether site blocking would work in Australia, considering that it has ‘failed elsewhere’, and denounced it as a ‘whacka-mole’ solution, and as more of a ‘PR stunt than a realistic solution’.10 Concerns were also expressed that users of such sites usually know what they want and how to find it, and that there will always be ways around site blocks, with the same sites returning under the guise of another domain name.11 There is also the concern of who will foot the legal bill every time rights-holders take the ISPs to court. The original 2016 judgment ordered the applicants to pay a portion of the ISPs’ compliance costs. However, when it comes to whether this would be repeated in the long term, there is much less certainty. If ISPs are to bear the cost, it is likely that they will then pass this cost on to customers, who may expect internet service price hikes.

What can we expect in the future? Ultimately, it would be unlikely for copyright holders to cease applications for ISPs to block sites which infringe their copyright. It seems that this motion is clearly gaining momentum, but whether this actually helps the issue will be a test of time. Should rights-holders continue on this path, the main question will be: who bears the costs of the operations? If it is the ISPs, we may expect an increase in service provisions costs; while judicial precedent has indicated that applicants have paid their fair share, the current case before the Federal Court may well change this. Alternatively, as suggested by Professor Nigel Phair from the University of Canberra, if rights-holders provide their ser-vices and works in a timely and accessible price, people generally do buy it legitimately. He provides the comparison with people stopping trying to bootleg music from iTunes when they dropped their songs to $0.99 each.12

Whistle-blowers as copyright-infringers? The amendments to the Copyright Act, and the ensuing litany of cases, raise questions as to whether leaked government information on sites such as WikiLeaks will be considered as an infringement of copyright. Prima facie, it would be covered under Part VII of the Copyright Act, which grants the Government copyright to any work, film, or sound recording made by or under the direction or control of the Government, and any work first published by or under the direction or control of the Government. There are exclusions under s182A of the Copyright Act, although they

The way forward ultimately depends on how rightsholders act in the shortterm, and what the reaction of consumers will be. Currently, consumers already have the option of paying for a virtual private network (‘VPN’) which effectively by-passes the block and region blocks generally. These are known to be used already for people residing outside of the United States to gain access to the US version of Netflix.13 What this is essentially doing is diverting the flow of purchases from Australia to overseas, as people would be signing up with overseas VPNs to continue their current practices. What is certain is that the judicial decisions that are established in the next few years in copyright law could either encourage

competitiveness between artists, writers, filmmakers, and cinemas, or it could stifle it and encourage the growth of the dominant service providers such as Foxtel, Netflix, and Stan in maintaining a monopoly over vast swathes of content otherwise inaccessible to the consumer without a two-year lock-in contract.

• David Lipson, Green v Mundine: How two blokes outsmarted Foxtel and why it should get on board (5 February 2017) Lateline ABC News <http:// www.bbc.com/news/world-australia-38876428>. 2 Greg Dunlop, The bruising clash over a Facebook Live stream (10 February 2017) BBC News Sydney <http://www.bbc.com/news/worldaustralia-38876428>. 3 Copyright Amendment (Online Infringement) Act 2015 (Cth). 4 See: Copyright Amendment (Online Infringement) Act 2015 (Cth) s 5 for all factors that the Court may take into account. 5 [2012] HCA 16 (French CJ, Gummow, Hayne, Crennen, and Kiefel JJ unanimous). 6 AFACT v iiNet [2010] FCA 24 [439] (Cowdroy J), affirmed in AFACT v iiNet [2011] FCAFC 23 (Emmett and Nicholas JJ, Jagot J dissenting), further affirmed in AFACT v iiNet [2012] HCA 16 [78] (French CJ, Crennan and Kiefel JJ), [136] (Gummow and Hayne JJ). 7 [2016] FCA 1503. 8 Ibid, Appendix A. 9 Lucy Battersby, ‘Movie studios seek internet providers to block a further 74 piracy sites’, The Sydney Morning Herald (online), 3 March 2017 <http://www.smh.com.au/business/media-andmarketing/movie-studios-seek-internet-providersto-block-a-further-74-piracy-sites-20170303gupyz9.html>. 10 philsandberg, Australian Court Orders Blocking of Content Theft Websites (16 December 2016) Content+Technology Asia-Pacific News <http://www.content-technology.com/ asiapacificnews/?p=12743>. 11 Ibid. 12 Above n 10. 13 Curtis Moldrich, How to get American Netflix in the UK with a VPN: Watch US Netflix on Mac, PC, iPhone and Android phone (7 March 2017) expertreviews < http://www.expertreviews.co.uk/ netflix/1404204/how-to-get-american-netflix-inthe-uk-with-a-vpn-watch-us-netflix-on-mac-pciphone>. For Australia, please see: Mark Gambino, Get American Netflix in Australia using these VPN instructions (6 May 2016) The NewDaily < http://thenewdaily.com.au/life/tech/2016/05/06/ get-american-netflix-australia-vpn/>. 1

Do Lawyers Dream of Electric Sheep?

Why does everyone have a parrot on their shoulder? The charm and legal implication of digital piracy A pirate with two eyes and two legs used to be called a rookie. Written by Margaret Cai

The vernacular shift towards characterising piracy as an affair of the digitally literate represents widespread complicity, and has resulted in a migraine for international lawmakers. An erosion of traditional beardand-parrot caricatures, in favour of the everyday-man, is curiously subversive, particularly when criminal discourse often indulges in stereotypes and scapegoats. Digital piracy is the modern phenomenon of illegally copying and downloading copyrighted media materials and software.1 It is pertinent then, that both the high seas and our online landscape are part of an international jurisdiction with manifest difficulties in being legally regulated or arrested.2 Alarmingly for lawmakers, digital piracy has become ‘the underbelly of globalisation’, where the actors are inherent products of our persistent pursuits in technological advancement.3 Its ubiquitous character propagates a culture where individuals are permitted to distance themselves from a narrative of culpability. So, here lies the problem: the curbing of mass infringements could be stifled by stricter legislation, but in doing so, we risk fundamentally undermining ‘the openness of the Internet, privacy, consumer security, innovation, and commerce’.4 America walks the plank, but doesn’t dive In true American fashion, the proposal of the Stop Online Piracy Act (‘SOPA’) in 2011 provoked a fractured discourse. On one hand, lawmakers promised to ensure the protection of their ‘creative class from thieves’.5 On the other, an unyielding

online community believed it would catalyse the undermining of due process and afford the AttorneyGeneral significant powers for censorship.6 The potential for any website which displayed even minor copyrighted materials to be blocked and erased from US search engines amplified cultural anxiety over likely abuses of power.7 Internet giants like Google and Wikipedia declared their opposition. The latter employed a content blackout – a strategy voted for and effected by its online community base of millions – to prevent Internet users from accessing its webpages.8 This was a profoundly symbolic play because it signified the strength of Wikipedia’s deliberative and democratic model. If Wikipedia editors could shape the outcome of an international website at a mesolevel, the mobilisation of many more people around the world would simply render the government measures costly and inefficient. Thus, the failed execution of the SOPA was fittingly attributed to the reality that effective erasure of all offending websites was impossible, and how the circumvention of any blocks would be ‘technically simple and universally available’.9 Australia struggles to rock the boat In 2012, internet service provider (‘ISP’) iiNet and media company Roadshow Films were involved in a High Court dispute over whether an ISP could be liable for ‘authorising’ copyright infringements.10 The court held that they could not.11 Two years later, copyright industries combined to create the fourth biggest industry in Australia, generating an eye-watering $111.4 billion within the economy.12 This revelation turned attention to our Copyright Act 1968 (Cth) and just how this presiding statute could be enlivened to cope with an increasingly unworried online community. The Copyright Amendment (Online Infringement) Act 2015 implemented a familiar strategy for such complacency. It imposed a legal mechanism for copyright holders and licensees to request that ISPs prohibit public access to any infringing material.13 This was later compounded by the proposal of a ‘three-strikes’ policy, a binding Industry Code.14 The policy empowered internet providers to reveal the details of any infringers to rights holders for legal action following their third infringement.15 This policy was, however, abandoned for being an incredible financial burden.16 The cancellations of both the Australian threestrikes policy and the United States’ SOPA reflects how digital rights management provides minimal impact on a grand scale. It reinforces Schultz’s assertion that ‘downloading…and trying not to get caught has nothing to do with civil disobedience’.17 Outside of this, the Australian Government has assumed a conservative position. Despite the issue demanding proactive public engagement by appealing to the human effects of digital piracy (like the deterioration of local music scenes) we have elected to adopt a reactive approach against legal contests – at an almost leisurely pace.18 Not surprisingly then,

The Full Bench

an appraisal of piracy yields a result familiar to white-collar crime – ‘the possibility of divergence between legal, social and political definitions of criminality’.19 Conclusion Currently, a quarter of all internet bandwidth across Europe, North America and Asia-Pacific regions is employed for copyright infringement.20 As Dent argues, regulation and the employment of mechanisms of command and control cannot be considered the ‘province of governments’ in respect to digital piracy.21 The biggest irony, which needs to be appreciated by lawmakers, is that individuals do not fit within neat archetypes of criminals and victims; many are simultaneously ‘creators, users and infringers of copyrighted materials’.22 The current climate surrounding digital piracy may compel Governments and other lawmakers to consider draconian measures. However, the Internet provides a paradigm where key companies like Wikipedia are sided with the everyday person. The middle ground thus appears to be one where the ethos itself changes, and lawmakers must acclimatise by seeking to change culture rather than attempting to out-smart technology. As long as governments continue their reactive and clinical approach to digital piracy, they may as well be looking for answers in the middle of the ocean.

Timothy Paul Cronan and Sulaiman Al-Rafee, ‘Factors That Influence The Intention to Pirate Software and Media’ (2008) 78, Journal of Business Ethics 527, 528. 2 Russell Smith, ‘Internet Piracy’ (1997) 65 Australian Institute of Crime 1. 3 Tilman Baumgärtel, A Reader in International Media Piracy (Amsterdam University Press, 2015) 15. 4 Stephanie Minnock, ‘Should Copyright Laws Be Able to Keep Up with Online Piracy?’ (2014) 12(2) Colorado Technology LJ. 523, 526. 5 Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317 6 Ibid. 7 Pamela Samuelson, ‘Can Online Piracy Laws Be Stopped By Laws?’ (2012) 55(7), Communications of the ACM 25. 8 Piotr Konieczny, ‘Wikipedia in the anti-SOPA Protests as a Case Study of Direct, Deliberative Democracy in Cyberspace’ (2017) 20(2), Information, Communication & Society 167, 181. 9 Samuelson, above n 7, 26. 10 Daniel MacPherson, ‘The Implications of Roadshow v iiNet for Authorisation Liability in Copyright Law’ (2013) 35(467), Sydney Law Review 467. 11 Ibid. 12 PWC, The Economic Contribution of Australia’s Copyright Industries 2002-2014 (2015) The Australian Copyright Council http://www.copyright.org.au/acc_prod/ACC/ Research_Papers/The_Economic_Contribution_ of_Australia_s_Copyright_Industries_2002-2014. aspx. 1

Amendments to Copyright Act Will Strengthen Copyright Holders’ Rights Online (29 June 2015), Clayton Utz https://www.claytonutz.com/ knowledge/2015/june/amendments-to-copyrightact-will-strengthen-copyright-holders-rightsonline. 14 Timothy Webb and Peter Key-Matuszak, ‘Internet Litigation’ (2015) 21(3), The IP Litigator 25, 25. 15 Ibid, p. 26. 16 Hannah Francis, ‘‘Three Strikes’ Scheme for Aussie Pirates Scrapped: Report’, The Sydney Morning Herald (online), 18 February, http:// www.smh.com.au/technology/technology-news/ three-strikes-scheme-for-aussie-pirates-scrappedreport-20160218-gmxie1.html. 17 Robert A. Schultz, Contemporary Issues in Ethics and Information Technology (IRM Press, 1st edn, 2005) 129. 18 Stefan Larsson, Susan Wnukowska-Mtonga, Måns Svensson and Marcin de Kaminski, ‘Parallel Norms: File-sharing and Contemporary Copyright Development in Australia’ (2014) 17(1-2), The Journal of World Intellectual Property 1, 5. 19 Ibid, 1. 20 Minnock, above n 4, 526 21 Ibid, 524. 22 Chris Dent, ‘Copyright As (Decentred) Regulation: Digital Piracy as a Case Study’ (2009) 35, Monash University Law Review, 348, 349. 13

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Do Lawyers Dream of Electric Sheep?

GOING DOWN STREAM: COUNTERING ILLEGAL DOWNLOADING WRITTEN BY LILY O’KEEFE

79%

Lily O’Keefe considers how streaming services could challenge consumer behaviour and potentially curb rates of illegal downloading.

The Full Bench

For a country that consistently boasts some of the world’s highest standards of living,1 it can be difficult to conceive that Australia has arguably the worst reputation for illegal online downloading (aka piracy) in the world.2 Citing issues with accessibility of online content, including timeliness and exclusivity clauses,3 a study conducted in 2015 revealed that 43% of Australians had illegally downloaded, compared with a fifth of the population in the United Kingdom.4 This culture of online piracy became especially evident during the landmark case of Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317, which stimulated international conversation on Australia’s status as one of the worst offending jurisdictions for infringement. So what can be done to return some of the shine to Australia’s tarnished reputation? Mimicking models in the UK and Europe, the Australian Government has sought to enforce legislation to combat online piracy, namely the Copyright Amendment (Online Infringement) Act 2015 (Cth), the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth), and the Copyright Notice Scheme Code. Despite these legislative changes, Australians continue to access illegal online content. Subsequently, due to the controversial Dallas Buyers Club case,5 internet services providers (‘ISPs’) are technically allowed to retain personal information and utilize it to enforce copyright against the downloader. This has not yet deterred Australians from accessing illegal streaming and torrent sites. This article will examine the shortcomings of legislative mechanisms in place in Australia, and suggest that the rise of streaming services will ultimately be responsible for a change in consumer behavior to effectively combat online piracy. The decision of Dallas Buyers Club raised lively debate in the Australian legal community over the scope and efficacy of legislative reforms put in place to address online piracy and copyright infringement. Theoretically, the Copyright Amendment (Online Infringement) Act 2015 (Cth)(‘the Act’) should eradicate illegal downloads, as it subjects sites which facilitate such activity to site blocking orders, which are implemented by ISPs. However, in practice, the influence of the Act is significantly less effective. The reasons for this are discussed at

length in the decision of Twentieth Century Fox Film Corp v British Telecommunications6 in the UK. In this case the counsel for British Telecommunications detailed how site blocking injunctions were merely causing online pirates to utilize other avenues, such as proxy servers, to overcome the site blocks.7 Further, repeat offenders, such as the website Pirate Bay, were also avoiding site blocking by regenerating their IP addresses and shifting locations on the web in order to evade the legislative mechanisms.8 With such simple and effective techniques for overriding the injunctions against piracy sites, it is not difficult to comprehend why legislation against illegal downloads and copyright infringements has been ineffective as a whole. However, a strong assertion exists that streaming services such as Netflix, Stan, and Presto will be the dominant force in combating piracy in Australia. Roy Morgan Research reported that in 2016, almost five million Australians (aged 14 years and over) have Netflix, and another 1.3 million subscribe to Stan or Presto.9 What is perhaps the most significant facet of the data collected is that 92% of the Netflix subscribers were using a paid version of the service,10 which shows a cultural shift towards Australian consumers electing to pay for a streaming service within the bounds of piracy legislation.11 In previous times, Australians have paid over $30 more than their US counterparts for accessing the same content through paid services,12 however today Content and Product Director at Stan, Nick Forward, says streaming is giving customers, ‘legal options for the first time at a more competitive price’.13 In the first year since launching in February 2015, Netflix had reached one in four Australians14 – this substantial growth further indicates a growing preference for consumers to access content via a legal service where possible. In conclusion, it would appear that as a result of the shortcomings of legislative mechanisms and data pertaining to the growth of streaming services, these services will drive change in consumer behaviour patterns, which could ultimately challenge the prevalence of online piracy in Australia more effectively than the current legislation.

Wright P, “Melbourne ranked world’s most liveable city for sixth consecutive year by EIU” ABC News 18 August 2016 available at www. abc.net.au 2 Davidson D, “Illegal downloading throttles Australia” The Australian 22 July 2015 available at www.theaustralian.com.au 3 Ibid. 4 Ibid. 5 Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317 6 [2011] All ER (D) 275 (Jul); [2011] EWHC 1981 (Ch) at [192] and Kino at [16]. 7 Logan C and Ip V, “Culture transcending the law: the future of internet piracy in Australia” Internet Law Bulletin July 2015 available at lexisnexis. edu.au 8 Farrell P, “Blocking Copyright-Infringing Websites Derided as Like ‘Whacking Moles’” The Guardian 10 September 2014 accessed 6 May 2015 available at www.theguardian.com. 9 “Five million Australians now have Netflix; Stan and Presto are still well behind, but growing” Roy Morgan Research 15 June 2016 available at roymorgan.com 10 Ibid. 11 Logan C and Ip V, “Culture transcending the law: the future of internet piracy in Australia” Internet Law Bulletin July 2015 available at lexisnexis.edu.au 12 Spencer G, “Watching TV in Australia: The Australian Delay Under the Microscope” 25 July 2014 available at reckoner.com.au 13 Frost B, “Will streaming services end piracy?” Media, Technology and Communication Law Bulletin August 2015 available at lexisnexis.edu. au 14 “Second wind lifts Netflix over 5.75 million Australians- but not everyone actually watches it” Roy Morgan Research 1 December 2016 available at roymorgan.com 1

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Do Lawyers Dream of Electric Sheep?

SECTION 51 (v) FROM WIRELESS TO WIRELESS WRITTEN BY LIAM FAIRGRIEVE

When Mrs Dulcie Williams failed to pay a small radio licence fee in 1934, it is unlikely that she would have foreseen that her matter would be cited as grounds for governmental actions eighty years later.

The Full Bench

It is even less likely that Mrs Williams could have foreseen that her minor infraction would remain as one of the leading cases applied decades later to technology of a scope that would have been unfathomable in the time of the humble wireless. Nevertheless, the matter of R v Brislan,1 which deals with radio (then a very new medium) with comical quaintness, remains good law in relation to new communicative media. The importance of the case hinges on its interpretation of section 51(v) of the Australian Constitution, which empowers the Federal Government to regulate ‘postal, telegraph, telephonic, and other like services’. The High Court held that regulations around radio transmissions fell under ‘other like services’, a provision interpreted to have been included in contemplation of new communicative media in similar need of regulation.2 The ensuing decades have seen a narrow body of case law develop around telecommunications. The matter of Jones v Commonwealth (No. 2),3 which was principally about the Victorian Government’s acquisition of land for use by the ABC, codi -fied that television fell within the ambit of section 51(v).4 It is also notable for the unhelpful fact that six High Court judges saw fit to pen judgements, each coming to different conclusions as to what constituted services alike to post, telegraphy, and telephony. So what does case law tell us about section 51(v) and the Internet? In short, not much. There has not yet been a High Court case which clarifies the position of the Internet as a ‘like service’, or the scope of the Federal Government’s powers to regulate it. Nevertheless, section 51(v) has long been accepted as justification for Federal Government regulations of the Internet.5 However, whether section 51(v) is the ‘correct’ rationale for regulating the Internet is immaterial because, either way, it would be helpful for a test case to precipitate a judicial discussion of the section 51(v) power as it relates to the Internet, and how the Federal Government should regulate it. This is because the current best answer to how the Federal Government should regulate the Internet is: the same way that they regulate radio and television. This approach is inadequate; while the Internet might legally be a ‘like service’, there are features wholly unique to it which differentiate it from other mediums. The first salient difference is that the case law derives from a time where governments

had a near-monopoly on telecommunications infrastructure. It is therefore possible that the authors of the Constitution never contemplated systems like the Internet – peer-to-peer mass communication facilitated by private internet service providers (‘ISPs’) without assistance from the Federal Government – before granting Canberra sweeping regulatory powers. It is worth noting that the radio and television spectrum, covered by the case law around section 51(v), remains owned and controlled by government entities.6 Stemming from this distinction are two more differences. ‘Old’ communicative media are all scarce resources, inherently limited by the finite nature of the radio spectrum or by the human resources capabilities of the postal service. It makes sense that the owner-operator of these services – the Federal Government – would have a role to play in the distribution and regulation of such a limited service. Conversely, the Internet is a theoretically infinite web of private networks growing rapidly and continuously. There is ‘room’ for everyone and everything here. This overlaps with the final difference, which goes to the nature of the regulation contemplated. Most historical regulations of telecommunications technologies involved sustaining a scarce resource, whether that involved radio and television licence fees (which are still in place for broadcasters even if no longer for ‘receivers’ like Mrs Williams),7 telegraph fees, phone bills, or stamps. By contrast, governments have gone further in the sorts of regulation proposed for the Internet – most notably in compelling privately owned ISPs to retain metadata gathered from their clients.8 This is not to suggest that data retention laws, or any Federal Government regulations of the Internet, are unconstitutional; merely that it is time for a new line of cases to refresh and update our understanding of section 51(v). The early optimism that the Internet might sustain itself outside of the concept of law has long subsided,9 with the rise of web illegalities, such as child pornography, cyber-bullying, scamming, and terrorism-planning. Nevertheless, the obiter of any test case involving the Internet is likely to shed light on how section 51(v) interacts with challenges unique to the present-day telecommunications paradigm, including privacy laws and private commercial contracts. For now, however, the case law guiding how governments should regulate the Internet remains one big “Error 404”.

(1935) 54 CLR 262. Ibid per Latham CJ, [13]. 3 (1965) 112 CLR 206. 4 Ibid per Kitto J, [8]-[9]. 5 Helen Roberts, ‘Can the Internet be regulated?’ (Research Paper No. 35, Parliamentary Library, Parliament of Australia, 1995-96), 25. 6 Australian Government, Australian radiofrequency spectrum plan (7 March 2017) Australian Communications and Media Authority <http://www.acma.gov.au/theacma/australianradiofrequency-spectrum-plan-spectrumplanning-acma>. 7 Dr Rhonda Jolly, ‘Broadcasting licence fees’ (Budget Review 2016-17, Parliamentary Library, Parliament of Australia, 2015-16), 29, 8 Telecommunications (Interception and Access) Amendment (Data Retention Act) 2015 (Cth). 9 Above n 5, 3. 1 2

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Do Lawyers Dream of Electric Sheep?

PRESERVATION THROUGH EMULATION the copyright fight for the future of old games WRITTEN BY THOMAS BRENNAN

The Full Bench

Video game emulation is prohibited under Australian copyright law. In the absence of legally sound methods to preserve and modify old video games. Thomas Brennan laments their loss of cultural impact in the digital age.

To the average consumer, it may sound rote to suggest that we live in a Golden Age of entertainment, especially considering the rise of internet streaming and more sophisticated methods of digital storage and delivery. From the outset, we can see that the Internet, and more specifically, physical and digital media platforms such as Amazon and Netflix, offers instantaneous and unprecedented access to films, books and music. In murkier waters, however, there exists the challenge of preserving and modifying video games.

Finding a legally sound method, which still provides conduits for the general public to access and enjoy video games, has been particularly unclear for those games that have been lost to time. A fundamental question is that of who the video games belong to, and what their prospects are in maintaining cultural impact in the digital age. If you don’t wish to pay exorbitant fees to a private collector for that copy of ‘Mario Kart 64’ you have been eyeing, the most immediate way to access old games is through emulation. Basically, emulators are software programs on your computer that imitate the hardware of an older console. To play games on emulators, however, you will also need to download ROM or ISO files, which involve programmers copying and pasting the games from their original medium to a new file. If the original medium happens to be a disc, you may also need an additional piece of software to trick your computer into thinking that there is an extra disc drive running the game. However, the principle remains the same.

Under the Australian Copyright Act 1968 (‘the Act’), the key issues video game distributors have with emulation aren’t with the emulators themselves, but with the ROMs and ISOs. Specifically, the Act states that intellectual property in the games belong to their creators and, as a result, the creators have the right to choose how their games are reproduced and distributed. If a person is not the owner of the game’s copyright and nonetheless willingly copies and redistributes it, they are technically infringing on the creator’s intellectual property, and may be subject to an injunction or to pay compensation for the creator’s loss. On the other hand, the Act also includes several safeguards which prescribe the legal use of ROMs and ISOs. For instance, ‘backing up’ game files on one’s computer for storage and security purposes is legal. As another example, the distribution of these files for educational and archival purposes is also permitted with the consent and sufficient acknowledgement of the distributor of the creator. The most significant safeguard under the Act is the principle of fair dealing, and the extent to which games can be reproduced and distributed for non-for-profit entertainment purposes in the public domain. However, the provisions under this principle only permit these games to be reproduced under extremely limited circumstances, such as for aforementioned educational purposes as well as for purposes of humour, criticism and news. Such legislation may seem overly dogmatic, and at present, it appears to be having adverse effects on the gaming industry. As just one example, the Western release of the critically acclaimed ‘Panzer Dragoon Saga’ in 1998 saw both a shockingly low amount of copies produced, as well as its creator, Sega,

Do Lawyers Dream of Electric Sheep?

subsequently losing its original source code. How, then, can old games at risk of physical obsolescence and obscurity be saved? For consumers, lawyers and policy makers, this challenge raises two questions: how has the legislation been applied, and secondly, what can be done to ensure fairer distribution online? In Australia, game companies are almost always hesitant to act on the illegal nature of ROMs and ISOs, since targeting individuals for distributing and obtaining these files usually results in a long, convoluted legal process. This process is also likely to result in a favourable outcome for the accused, either for the technical makeup of that game’s creation, or the complicated nature of the companies’ authorship (an integral factor to intellectual property in arts and electronics). Games that are unable to be re-released by their companies, and as a result unable to be enjoyed by new audiences otherwise, are known as ‘abandonware’. To grassroots websites and individuals dedicated to cataloguing games in this category, the archaic and nebulous legal process designs online emulation as the go-to destination for enjoying classic games. On the surface, the idea that some old games are abandonware, or are so old that their creators would no longer profit from their remaining copies’ resale, would deem such a marketplace morally ethical in the eyes of media copyright since it is not overtly affecting large, growing companies such as Nintendo or Sony. Indeed, game preservation can have the effect of creating communities of renewed interest in old games, sometimes to the extent that it is viable for superior versions to be produced for new audiences to enjoy. There have, however, been instances in America in which companies similar to Nintendo have successfully navigated laws, such as the Digital Millennium Copyright Act of 1998, to enforce takedowns of ROM collections and fan modifications to classic games. Interestingly, Nintendo’s past rival, Sega, has publicly embraced fan remakes of their games, going so far as to hire programmers of these remakes for their upcoming ‘Sonic Mania’. Nonetheless, the situation for companies and consumers in Australia remains frustratingly unclear. So what can be done?

Two years ago, in response to the complaints of online services such as Yahoo! and eBay, the Australian Law Reform Commission (‘ALRC’) published a litany of suggestions that seek to reform fair dealing into the broader standard of ‘fair use’. Essentially, fair use, similar to its implementation in America, will provide a flexible standard (rather than a rule) for courts to determine whether a company’s intellectual property is being sufficiently protected, whilst also weighing an individual’s specific use of that property against it. This flexible standard is beneficial as it involves a consideration of the interests of various parties, rather than barring users outright for failing to meet arbitrary standards. Currently, suggestions put forward by the ALRC largely permit individual uses of copyrighted material for the same general purposes outlined in fair dealing, such as education and comedy. Nonetheless, the aim of these suggestions — to determine just usage of media online — is an important response in outlining the archaic basis of Australia’s fair dealing rules and, ultimately, what they mean for game emulation. In light of these findings, it is this writer’s opinion that such amendments would constitute a crucial addition to current copyright law, ensuring that companies may protect classic games without burdensome or illogical treatment of online fans. In addition, game companies must also seek to create better, more efficient digital or physical platforms to deliver classic games if they wish to pair their protection of intellectual property with the goodwill of their fans. Until then, the archaic law governing online game emulation will continue to keep both companies and consumers on edge, obfuscating the survival of old games and the extent to which creators will want to protect them.

Through this lens, creating and downloading an old game’s ROM or ISO is legally reprehensible, but it may be the only way at present to ensure its survival.

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Internet jurisdiction and ISPs

restrictions of online freedoms.

With the stakes so high, what are the current legal mechanisms for determining internet jurisdiction? Australia has set the bar worryingly low. The High Court has held that, at least in the case of defamation, a plaintiff may sue a respondent extraterritorially, as it is taken that the concerned article is published in Australia if an Australian reader is simply Did you mean: who can able to access that article online.2 Whether this extends to other areas of law, however, restrict my online freedoms? is yet to be seen. In international law, there are Written by multiple jurisdictional tests, namely the Jason Corbett territoriality principle, the effects doctrine, the nationality principle, the protective principle, and the universality principle. However, these were developed often prior to and irrespective of the Internet and its accompanying challenges. Accordingly, they The Internet and its universality are at the often structured around an underlying have suffered much criticisms for being crux of modern society. It has allowed for commercial relationship between the inadequate. In the absence of international corporations to grow into global entities on consumer and corporation that is not treaties governing internet jurisdiction, we the one, commercial hand, whilst also immediately obvious in an ISP’s relationship are left, instead, to the sparse jurisprudence allowing for a revolution of channels of free with its user. which has surfaced from national courts speech, association, and the dissemination Secondly, the practical regulation of ISPs and instruments, mostly US and European, of information on the other, humanitarian engages human rights issues related to the as the issue becomes more prevalent. Whilst hand. free expression of both individuals and terminology differs between jurisdictions, However, as a vector for communication, corporations1 (yes, you read that correctly). they are largely underpinned by similar the universality of the Internet has itself Regulating ISPs invariably involves elements principles, namely the effects and created unique issues of jurisdiction. For of content censorship, takedowns, or inter- territoriality doctrines. example, a corporation is headquartered mediary liability – the act of which violates and based in one country, yet is able to online freedoms and represent a modern-day The effects doctrine operate in another over the Internet. Which manifestation of the heckler’s veto. The effects doctrine considers jurisdiction country has primary jurisdiction? What if This brings us to the ultimate issue with as a matter of remoteness. Under this a dispute is raised by a citizen of a country internet jurisdiction insofar as it relates to doctrine, jurisdiction is extended over receiving the corporation’s service? The ISPs: even if it is accepted that a country has corporations whose online activities intenpresumptive law student in you says the jurisdiction to arbitrate a dispute against tionally target a state with their content, ‘obviously the receiving country, that’s how a foreign ISP, to what extent should the law knowing that the effects of the content will commercial law works’, which is largely be enforced? More specifically, if an be felt in the state. correct. But let’s complicate things further injunctive remedy is issued against an ISP, An intentional direction of activities and say the corporation is an internet service such as a takedown order, it could be within towards a state, beyond mere passive provider (‘ISP’) like Google, Bing, Face- a jurisdiction’s legal instruments to allow the accessibility, is critical to the effects docbook, or Twitter. Who has jurisdiction then? takedown to be issued with an extraterritorial trine. The alternative would create an The answer is not as clear as it is with or even worldwide effect. But how would extraordinarily permissive regime whereby ordinary commercial businesses for two that practically work if the laws of another the basic hosting of a website online would reasons. country allow that content to be hosted allow any country to assert its jurisdiction Firstly, owing to the services that ISPs online (an issue of the comity of nations)? over the corporation. deliver, primarily as content hosts or Further still, what about the significant distributors, they do not automatically fall policy issues related to the enforcement of The territoriality doctrine into the category of ordinary commercial an extraterritorial takedown order? Indeed, The territoriality doctrine is ultimately businesses. This is because their source of such an order would violate the free a reflection of the principle of state commerciality is not always in the expression and free flow of information sovereignty. It allows states to prosecute substantive service they deliver. For exa- rights owned by the rest of the world, and if offences that occur within its borders, mple, Google does not profit from you or it becomes the case that a worldwide but also extends to offences that occur have a commercial contract with you simply takedown is issued and upheld, it has been outside a nation’s borders where there is for your act of googling something, nor does theorised to be capable of launching the a ‘substantial connection’ to that state’s Facebook for your posting a status. This world into an effective “race to the bottom”, interests or citizens. The bespoke corollary throws jurisdiction into doubt as it frustrates in which anyone, anywhere in the world to this principle is that states should the ordinary laws of commerce, which are could be subject to even the strictest hesitate to exercise their jurisdiction

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extraterritorially; if they wish their own sovereignty to be respected, they must also respect the sovereignty of other states. These principles were recently engaged in the European Court of Justice (‘ECJ’) case of Google v Spain, a seminal decision on internet jurisdiction in the EU. In the US, they are the underlying principles behind the ‘specific jurisdiction’ test applied by US Courts. Google v Spain A Spanish citizen asked a subsidiary of Google Incorporated, Google Spain, to remove content relating to himself. Google Spain forwarded this request to Google Incorporated as Google’s subsidiaries do not have access to the data servers of Google where this data could be removed. Google Incorporated challenged the jurisdiction of the European Courts as it was incorporated and headquartered in the US. The ECJ found against Google, however, as its subsidiary in Spain (and all subsidiaries in the world) sold advertisements to local users and businesses in Spain. This satisfied the need for an ‘establishment’ that ‘processed data’ required for jurisdiction under the EU’s Data Protection Directive 95/46/EC. Presumably, this is a straightforward application of the territoriality principle as Google Spain exists as an incorporated physical entity within Spain’s borders, and a straightforward application of the effects doctrine as data processing (by way of procuring and filtering Spanish advertisements to Spanish users) is a clear intentional direction of commercial activities into Spain. The application becomes blurred, however, when you consider that the judgment ultimately allows for a country to assert jurisdiction where a subsidiary exists purely by virtue of its physicality, despite the fact that it does not technically operate in the data service its parent provides. The dispute in Google v Spain arose out of the search services that Google Incorporated provided, not the basic advertising that Google Spain provided. Google has since responded by removing the applicant’s data solely from Google’s European servers. European users, however, can still easily bypass this by switching to google.com at the bottom of the .es homepage. This also raises concerns about the practical effectiveness of regional takedowns or domain blocking based on geolocation identification, which can be easily circumnavigated by way of VPN or proxy technologies. US specific jurisdiction Specific jurisdiction under US principles operates similarly. A three-part test must be satisfied: first, the respondent must have intentionally availed itself to the privilege of doing business there; second, the claim must arise from the respondent’s activities in the country; and third, the exercise of jurisdiction must be reasonable.4

The third test on reasonableness is contingent on whether the website conducts its business online. Two methodologies have developed here. The first is the Zippo5 test which considers whether the interactivity of the website allows users to engage in commercial activity. The second is the ALS Scan6 test which found that online business exists in circumstances where the online activity creates in a person within the state, a potential cause of action cognisable in the state’s courts. Quite clearly, at least the first two elements of specific jurisdiction are synonymous with the intentional direction of activities principle underlining the effects doctrine. The overarching principle from this jurisdictional test, however, is that should a corporation intentionally conduct its commercial activities within a state and be able to profit from doing so (the reasonableness test), then the state’s consumers should be entitled to the protection of their state laws. This is the basic idea of state sovereignty projected by the territoriality doctrine. Conclusion The development of the law in the specific jurisdiction tests makes sense. As a three-tiered test, the threshold for satisfying jurisdiction is set high, which prevents countries from asserting jurisdiction arbitrarily. Further, the danger in asserting jurisdiction over a parent company purely by way of a physical subsidiary is avoided entirely as the test requires the actual commercial service of the parent to have reached the state’s shores, and the dispute to have arisen out of it (which, however, could presumably still be achieved by a subsidiary operating in marketing the primary service). Internet regulation, however, remains a separate issue for international free speech laws. A high threshold for the establishment of jurisdiction is one protection, however, a concerning trend of allowing extraterritorial worldwide takedowns and censorship has begun arising from Canadian courts (though some are currently on appeal).7 How long before other national courts do the same? • Autronic AG v Switzerland (1990) 12 EHRR 485 is just one example in which it was held that corporations have a right to the free speech protections under Article 10 of the European Convention of Human Rights. 2 Dow Jones & Co. Inc. v Gutnick [2002] HCA 56. 3 Case C-131/12 Google Spain SL and Google Inc. v Agencia Espanola de Proteccion de Datos and Mario Costeja Gonzalez [2014] ECR 317. 4 ALS Scan v Digital Services Consultants, Inc., 293 F.3d 707 (4th Cir. 2002). 5 Zippo Manufacturing Company v Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). 6 ALS Scan v Digital Services Consultants, Inc., 293 F.3d 707 (4th Cir. 2002). 7 A.T. v. Globe24h.com [2017 FC 114.]; Equustek Solutions Inc. v. Google Inc. [2015 BCCA 265.]. 1

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Do Lawyers Dream of Electric Sheep?

Legal technology and equitable access to law: what you don’t know about international students Speaking with Redfern Legal Centre, Sarah Avery brings to light some of the issues disproportionately affecting international students in Australia, and reviews ways in which technologies can be used to assist various groups in accessing legal education and remedies. Written by Sarah Avery

Technology is becoming a more diverse and effective way of bridging the gaps of accessibility for the some of the most disadvantaged in our community. Community legal centres are developing apps and building software to combat issues of inequity on an individualised and systemic basis. In 2011, Redfern Legal Centre (‘RLC’) identified the rising numbers of international students and migrant workers seeking legal services, largely for employment and discrimination advice, as well as visa-related issues. These legal concerns are often intertwined and the causes are systemic. The situation is further complicated by difficulties with language and a lack of understanding of the law. This led to the formulation of an advice service tailored specifically to address the complex legal needs of the international student community. RLC international student solicitor Sean Stimson says that international students seen by RLC’s student clinic experience specific vulnerabilities due to a range of factors including language barriers, unfamiliarity with Australian laws, and being away from support networks. ‘Language is the key barrier, as about 42 per cent of our clients require an interpreter, so we provide them in multiple languages. All of our data and research has shown that handing out pamphlets and

factsheets is outdated,’ Mr Stimson says. RLC worked on an innovative approach to provide international students with new avenues to access legal assistance through the development of a mobile app, ‘My Legal Mate’, which will provide multi-language interactive legal information. ‘(The) research indicates that the information delivery sector is experiencing a shift from analogue delivery models to interactive media, and an uptake in digital devices for communication and information dissemination. This is especially true for our target audience of young international students,’ Mr Stimson says. ‘This shift is an opportunity for RLC to progress its aims of providing access to justice by way of providing an interactive legal resource app. This innovative approach gives international students an effective, fast, and user-friendly pathway to addressing their legal needs.’ The app, which is expected to launch in mid-2017, acts as an information stream with tutorials and written materials provided to students to help them understand their legal rights. The diverse app gives students an interactive pathway which instantly directs them to individualised legal and non-legal remedies. It has been designed to cover the legal areas identified by students and service providers as

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being of greatest need, the most substantial of which is employment. Increasingly, employers are following a business model premised upon the underpaying of wages, meaning migrant workers need to work more hours to support themselves. Working students are then often unable to seek legal remedies, because in doing so they breach the 40-hour per fortnight legal limit on employment under their visa conditions. International students are also more likely to accept lower pay and shoddier working conditions than their domestic equivalents. Mr Stimson argues that the onus should not be on the student, but on the government to provide a just system for legal redress for international students. ‘If you have two same employers – one underpaying international students and one conforming to all the rules and regulations – the one exploiting students will have a competitive edge,’ Mr Stimson says. While the app will also initially advise international students on legal issues around housing and disputes with education providers, it is intended that it will eventually expand into consumer, credit and debt, discrimination, criminal law, domestic violence and family law. RLC envisions the final product as an innovative and effective ‘one-stop shop’ for legal advice for the 160,000 international students studying and residing in New South Wales. The app will be rolled out across the state, focusing at first on the Sydney region, through education providers providing the app to students during the enrolment and orientation process. It will have an extensive reach, with 12,384 international students enrolled at UTS alone in 2016.1 Mr Stimson says that apps like ‘My Legal Mate’ could build a strong community of international students from different cultures and social backgrounds who share similar legal issues. Mr Stimson believes that it is evident that the current technology landscape in legal services can do more to address a wide variety of audiences from different social and cultural backgrounds. These include examining information displayed to respective cultures to ensure that it does not offend but still provides needed information, and keeping information short and concise so that it can be reached without vast amounts of reading. Historically, this has been difficult, especially when legal service apps are designed to provide information. However, initial focus research conducted with the international students has found that this app’s approach of interactive video delivery

is engaging and effective. The use of this technology means that legal professionals can take a proactive approach to community legal education through continual software updates. ‘What we’re able to do is look at what else is happening in the international student space and quickly adapt the information,’ Mr Stimson says. ‘If they already have the app on their phone and it’s in their community language, they can keep updated very easily’. So while this is not a one-size-fits-all approach, for many it is revolutionising the often tiresome and inaccessible systems of provision of legal information. This is yet another example that shows that as the circumstances and needs of certain client groups change, so too must the profession’s approach to effective methods of engagement and access. ‘The next wave of information has always been delivering information through the Internet, [and] we need to make sure there is an equal playing field,’ Mr Stimson says. ‘‘My Legal Mate’ will provide the client with several key value propositions. We will use the latest technology to provide our viewers with a personalised interactive experience that will allow our clients to explore their rights and remedies.’ •

¹ University of Technology Sydney, Facts, Figures, and Rankings, updated 8/12/16 <https://www.uts.edu.au/about/university/factsfigures-and-rankings>.

Do Lawyers Dream of Electric Sheep?

Written by Annabel Kirkby

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The rise of social media has presented numerous challenges to the court system in Australia. Jurors can inappropriately use social media in a number of ways, for instance, by publishing information about the trial, seeking information relating to the trial, contacting parties involved in the trial, and also, to discuss the merits of the trial. It is undeniable that social media is here to stay, and therefore, we must ask what the courts are doing, or should be doing, to address the challenges that social media presents. Social media has proven to be problematic during trials, due to the opportunity that exists for jurors to use this platform in a manner which may jeopardise the defendant’s right to a fair trial. There have been many examples in recent years, both in Australia and abroad, where a mistrial has been called due to jurors posting or reading information about the trial on social media. In October 2016, the Supreme Court of Queensland was delayed in delivering their verdict of the Gable Tostee murder case as the judge needed to assess the defence’s call for a mistrial. This was in response to a juror who posted about the case on Instagram, uploading images of her coffee cups that she checked in at the court location, along with statements such as ‘I snagged a bad one…it will be a tough trial’. While this case was not found to be a mistrial, as the juror’s posts did not detail any of the content of the trial or deliberations of the jury, it did highlight the fine line between what is acceptable for jurors to post online and what crosses that line to render a trial invalid. The case also indicates a lack of understanding among some jurors as to what conduct is expected of them when using social media whilst serving as a juror. This lack of understanding is not necessarily uncommon; in the UK in 2008 a juror was dismissed when she created a Facebook post and asked other users to vote on what the verdict of the trial should be. Other examples include a 2011 case from the US where a juror was dismissed for sending the defendant a friend request on Facebook, or in 2010 when a Michigan juror was charged with contempt of court for writing ‘gonna be fun to tell the defendant they’re GUILTY’ on Facebook after the first day of the trial. Over 45,000 Australians are estimated to perform jury service each year, and it is highly likely that many of them use social media. As a result, Australian courts must have strategies to better educate jurors of the serious consequences for using social media in a way that may be detrimental to the trial. Examples of proposed strategies

include the adoption of a uniform approach to jury directions regarding social media, and that these directions should be written, detailed and frequently repeated to jurors. Other, more extreme ideas, such as banning social media use for jurors while they serve, have also been proposed. Howe-ver, banning social media use by jurors has been widely critiqued as an impractical solution which may infringe on the rights of jurors. Concurrently, it also has the potential to dissuade members of the public from undertaking jury duty and participating in the legal process altogether. Having a jury who take their duty seriously is essential if the courts are to achieve justice. Therefore, jurors must be aware of how to use social media in a way that will not jeopardise the trial they are involved in. It is vital that Australian courts develop strategies in response to this issue, particularly to prevent delays to justice and to avoid wasting time and money on mistrials.

to a so-called trial by social media, which in turn, can influence potential jurors. Overall, it is clear that the relationship between social media and the court system is complex, and there is no straightforward solution to addressing challenges it presents to fair legal processes in Australia. This is an area of law which requires ongoing monitoring and regulation in order to keep up with developing social media trends and technologies. •

Can social media have a positive role in court? There is a broader issue at hand relating to the need to educate the general public about the workings of the court. Many members of society perceive judges and courts as being ‘detached from the community’. Social media is a tool that the Australian court system could potentially use to its benefit by directly communicating with the public. The Supreme Court of Victoria, under the leadership of the Honourable Marilyn Warren, was one of the first Austra-lian courts to create social media accounts in 2011. Since then, other Australian courts, including the Supreme Court of NSW, have followed suit. While the presence of courts in social media ensures it easier for both jurors and the general public to access misinformation about cases and the general court processes, their publishing of accurate information also has the potential to minimise the mistrust of courts within society. However, if courts are going to use social media accounts to communicate with the public, it must be done carefully so that it creates a meaningful impact. Courts need to be alert to manage dangers such as unofficial shadow pages appearing that can make courts look ‘unprofessional’. As well as this, the content distributed on social media needs to be clear and easily accessible, particularly so that journalists can use the information to accurately report on cases. Clear case information published by courts is one step towards minimising misinformation about court cases leading

Do Lawyers Dream of Electric Sheep?

Telepathic testimony As brain-wave monitoring, functional MRI’s, and micro-expression tracking technologies continue to develop, Benjamin Keyworth questions whether their use will transcend the realm of science fiction and enter the court room. Written by Benjamin Keyworth

A typical courtroom scene: the defendant takes the stand, and before the watching eyes of the jury swears that they had nothing to do with the crime of which they are accused. Their sincerity is palpable, real enough to convince everyone in the room of their honesty – everyone, that is, except the prosecutor, who knows for a fact that they are lying because they can hear their heartbeat accelerate. If this sounds like something out of a comic book, that’s because it is – ‘Daredevil’, to be exact. Science fiction and superhero stories are littered with examples of such ‘enhanced’ information gathering, although they are more often set in dingy interrogation rooms rather than under the bright lights of an open courtroom. Psychics pluck answers straight from unwilling minds. The judges of the Yeerk Empire or Federation relive their generals’ lives through mind links and memory dumps. In ‘The Expanse’, the survivors of the Canterbury are questioned by a man whose drug-enhanced perception allows him to perceive their minute facial tells, like a futuristic re-imagining of the show ‘Lie to Me.’ All of these tricks make for good storytelling, and are interesting as plot devices, yet they can hardly be said to be relevant to our current legal system, or indeed any aspect of modern life. But what if they were? What if the day came when a

machine could accurately determine if somebody was lying? What if a drug could actually compel honesty? Would the Court accept such evidence for the sake of the truth, or would they hold back from violating the last great sanctum of personal freedom – the human mind – even if it meant that justice might not be done? The truth, the whole truth, and nothing but the truth, so reads the graph The use of lie detectors is not exceptionally new. Since its courtroom debut in 1935,1 polygraph testing – where a person is questioned while physiological factors such as heart rate, blood pressure, respiration, and skin conductivity are recorded (these days by computer) – has become a staple of crime dramas and reality television, and is used throughout the United States in some job screenings and background checks.2 However, despite what popular culture might have you believe, modern-day lie detectors remain far from perfect;3 even the phrase ‘lie detector’ is inaccurate, as the process involves inferring deception through the monitoring of physiological responses to questions, rather than the actual detection of any untruths. The question of accuracy also endures; while the American Polygraph Association claims decision accuracy

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Do Lawyers Dream of Electric Sheep?

rates of between 85 to 90 per cent,4 critics say the reality is only marginally better than a coin-flip,5 due in part to the fundamental fact that lying simply does not produce any unique, consistent physiological pattern across human beings.6 Courts, as a result, have generally been reluctant to admit polygraph testing into evidence.7 In NSW, lie detector-based evidence is explicitly barred from being accepted by the Court,8 building on case law which both rejects the notion that polygraph operators are expert witnesses, and rebuffs their encroachment on the determination of witnesses’ truthfulness – the sole province of the jury.9 Canadian courts have likewise declared polygraph evidence inadmissible,10 and even in the United States, where some jurisdictions will accept them,11 lie detector results are rarely accepted as valid or compelling evidence.12 Veritaserum What is true for lie detectors, legally and scientifically, holds double for so-called ‘truth serums’. While numerous chemical compounds have been historically touted as elixirs of honesty, none have been scientifically proven to compel truth-telling,13 at best eliciting in the administered an uninhibited output contaminated by deception, fantasy, garbled speech, and unconsciously repressed material.14 Accordingly, narcoanalysis as a technique for determining objective truth does not yet to exist outside crime fiction and occasional, inconclusive studies. An exception to this has arisen in several states in India, where law enforcement agencies allegedly continue to utilise ‘truth serums’15 despite the Indian Supreme Court ruling the practice unreliable, ‘cruel, inhuman, and degrading’.16 As a process generally abhorred in Western countries,17 one that is arguably cruel, inhuman or degrading to those it is used on,18 there is little case law to be found involving evidence gained through narcoanalysis. There are more cases referencing ‘truth serum’ drugs as part of someone’s delusions19 or illegal dosing of children20 than there are cases dealing with any lawful use by authorities or experts.

In general, the position of Australian courts on truth serums is the same as on lie detectors, namely that any evidence procured through their use is not only unreliable but also inadmissible, as it seeks to deprive the jury of their function of determining the truthfulness of witnesses.21 This stance is mirrored in New Zealand22 and the United States,23 where, even if the reliability of the evidence produced was not an issue, using a drug to compel someone to speak could potentially violate the Fifth Amendment right to silence.24

Observed, compelled, or stolen It is arguable that these reservations are grounded in technological concerns, rather than ethical ones. The idea that, ‘in the future, technology may be developed which will assist courts in the conclusive determination of issues of witness credibility’, is not inferred by Australian courts to be a bad thing, but rather as something which could relieve them of their need to ‘struggle with the aid of human estimation.’25 Nor is the court closed to expert opinion evidence merely because the technique, instrument or methodology has not been used in the court before.26 So while the question of whether a court can take from us a truth we don’t want to give remains, for the moment, hypothetical, as techniques for truth recognition – including brain-wave monitoring,27 functional MRI’s,28 and micro-expression tracking29 – continue to grow past their infancy, the issue of reliability may eventually fall away. This would leave the courts with a conundrum: should technology be used to its full potential at the expense of human input, or should the age-old function of the jury as the final arbiters of truth be preserved, potentially inciting error? It is impossible to know exactly how the law will progress into this uncharted territory. It may be that evidence of a person’s thoughts or reactions remains forever inadmissible, based on the inherent unreliability of the human mind. It may be that as lie-detection tests become more reliable, courts will come to admit them into evidence only on voluntary agreement between parties, as is already the case in some US jurisdictions,30 or that failing to submit such evidence will result in a negative inference being drawn.31 It may be that acceptability will rest on the method by which the examination takes place, with strapping an unwilling witness into a brain scanner or IV-drip being viewed as equivalent to torture,32 but passive sensors providing judge and jury with biometric readouts of the person in the witness box simply being an extension of the natural human ability to observe. It may be that a person’s thoughts could be declared legally privileged, even more so than lawyer-client correspondence, as they arguably contain a greater wealth of strategic legal information – a privilege deemed sacred, at least until a case arises which the court feels makes it necessary for this to be overruled. It may be that the courts will simply abandon any consideration of privacy at all and focus simply on finding the objective truth, combing thought without reservation, under the mantra of ‘you have nothing to fear if you have nothing to hide.’ Such concerns, luckily, are for now still the sole province of science fiction. But they are issues which nevertheless remain worthy of consideration, especially as one only needs look back at the advancements of the past hundred years to realise how quickly the threats of science fiction can become the promises of science fact. •

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You have nothing to fear if you have nothing to hide.

Wikipedia, Leonarde Keeler (22 January 2017) <https://en.wikipedia.org/wiki/Leonarde_ Keeler>. 2 Matt Stroud, Will Lie Detectors Ever Get Their Day In Court Again? (3 February 2015) Bloomberg <https://www.bloomberg.com/news/articles /2015-02-02/will-lie-detectors-ever-get-theirday-in-court-again>. 3 National Research Council, The Polygraph and Lie Detection (Committee to Review the Scientific Evidence on the Polygraph, Division of Behavioural and Social Sciences and Education, Washington, DC: The National Academies Press, 2003). 4 Mike Gougler et al, Meta-Analytic Survey of Criterion Accuracy of Validated Polygraph Tech niques (The Ad-Hoc Committee on Validated Techniques, American Polygraph Association 2010-2011) 8. 5 Jennifer Vogel and Madeleine Baran, Inconclusive: The Truth About Lie Detector Tests (20 September 2016) American Public Media Reports <http:// www.apmreports.org/story/2016/09/20/ inconclusive-lie-detector-tests>. 6 American Psychological Association, The Truth About Lie Detectors (aka Polygraph Tests) (5 August 2004) <http://www.apa.org/research/ action/polygraph.aspx>. 7 Mallard v R [2003] WASCA 296 [373]. 8 Lie Detectors Act 1983 (NSW) s 6(1). 9 R v Murray (1981) 7 A Crim R 48. 10 R v Beland and Phillips [1987] 2 SCR 398. 11 Frye v United States (1923) 293 F 1013 [1014]; Aetna Insurance Company v Barnett Brothers Inc (1961) 289 F 2d 30; People v Monigan (1979) 390 NE 2d 562. 12 State v. Perry, 81 P.3d 1230, 1235 (Idaho 2003); United States v Scheffer (1998) 523 US 303. 13 David Brown, Some Believe ‘Truth Serums’ Will Come Back (20 November 2006) Washington Post <http://www.washingtonpost.com/wp-dyn/ content/article/2006/11/19/AR200611190 0891.html>. 14 George Bimmerle, “Truth” Drugs In Interrogation (22 September 1993) Central Intelligence Agency Historical Review Program <https://www.cia.gov/library/center-for-thestudy-of-intelligence/kent-csi/vol5no2/html/ v05i2a09p_0001.htm>. 1

Helen Pidd, Indian Police Still Using Truth Serum (6 July 2012) The Guardian <https:// www.theguardian.com/uk/2012/jul/05/indiatruth-serum>. 16 Selvi v. State of Karnataka (2010) 7 SCC 263. 17 “Truth” Drugs in Interrogation, above n 14. 18 Crimes (Torture) Act 1988 (Cth). 19 R v Mitchell [2012] NSWSC 1404. 20 Basto v R (1954) 91 CLR 628. 21 R v Tonkin & Montgomery [1975] Qd R 1. 22 R. v. McKay [1967] N.Z.L.R. 139. 23 Townsend v. Sain, Sheriff, et al. (1953) 372 U.S. 293, 307-308. 24 Ed Pilkington, Judge approves use of ‘truth serum’ on accused Aurora shooter James Holmes (13 March 2013) The Guardian <https://www. theguardian.com/world/2013/mar/12/judgeapproves-truth-serum-james-holmes>. 25 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) [1999] HCA 3 [88]. 26 R v McHardie and Danielson [1983] 2 NSWLR 733 at 763. 27 Yana Heussen, Ferdinand Binkofski and Jacob Jolij, ‘The semantics of the lying face - An EEG Study’ (September 2010) 77(3) International Journal of Psychophysiology 206. 28 Daniel Langleben et al, ‘Polygraphy and Functional Magnetic Resonance Imaging in Lie Detection: A Controlled Blind Comparison Using the Concealed Information Test’ (October 2016) 77(10) The Journal of Clinical Psychiatry 1372– 1380. 29 Thomas Pfister et al, ‘Recognising spontaneous facial micro-expressions’ (November 2011) International Conference on Computer Vision. 30 Mallard v R [2003] WASCA 296 [297]. 31 Weissensteiner v R (1993) 178 CLR 217; Azzopardi v R (2001) 205 CLR 50 32 Crimes (Torture) Act above n 18. 15

Do Lawyers Dream of Electric Sheep?

Can you teach an old dog NewLaw? Emily Paterson examines how emerging technologies are disrupting the traditional legal landscape, and questions how they may be used to respond to new competitors and changing expectations of both clients and employees. Written by Emily Paterson

We are all familiar with the law’s favourite buzzword, ‘innovation’, and law firms and law schools alike are increasingly investing in their technological literacy. This is an undeniably positive direction that the industry is moving in. However, questions remain as to whether or not technological developments alone are enough to guarantee BigLaw’s future share in the legal services market. A snapshot of progress King & Wood Mallesons has sponsored and run a #breakinglaw hackathon at the Queensland University of Technology, and soon, a similar event will be held at our home ground, the University of Technology Sydney. King & Wood Mallesons have also utilised the Neota Logic software to create an app which will assist international clients in determining whether a deal requires Foreign Investment Review Board (‘FIRB’) approval.1 A series of questions drawn from the FIRB legislation have been turned into an app which will enable a computer to determine whether regulatory approval is needed. MinterEllison, alongside Newport Capital, has formed TechTank, a platform for technology companies seeking to raise expansion capital to pitch their growth strategies to a panel of experts. Minter Ellison has also formed the SafeTrac group, which provides a range of online compliance training using interactive online courses.

Clayton Utz has also joined the app-making bandwagon with the launches of CU Safe and Dawn Raid. The first is a web-based app designed to provide a step-by-step guide to help employers meet their obligations during the first 48 hours after a serious workplace accident or incident. The second is designed to guide companies through a surprise visit from a regulator or investigator. Allens has their LawLab, a group of collaborative information and legal technology experts whose primary objective is to embrace new technology and utilise it to offer alternative solutions to their clients. In a slightly different direction, Allens has also launched Allens Accelerate, an online legal practice created to service Australian startup businesses by providing free legal documentation and cost sensitive advice. In our own backyard, Allens has joined forces with UTS and Neota Logic to run the Law Tech Challenge, where UTS students are utilising Neota logic software to design and create web-based apps which will provide a legal solution to an existing problem identified by a not-for-profit organisation. Gilbert and Tobin have followed suit and sponsored an elective course at the University of New South Wales where juris doctor students will undertake the same Neota program.2 Further, Gilbert and Tobin have made a financial investment in the legal startup firm LegalVision, joining forces to capitalise on LegalVision’s technology expertise.3

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This list is certainly not exhaustive and does not capture the entirety of developments occurring in the legal technology field. However, it remains to be seen whether isolated technological developments are enough to equip BigLaw with the ability to withstand the changing legal marketplace.4 Perhaps what is also required is the analysis and evaluation of the existing internal systems and structures within BigLaw. The path forward NewLaw, a term first coined by consultant Eric Chin in 2013, is used to describe emerging alternative legal service providers in contradistinction to BigLaw.5 NewLaw is considered to be an antithetical business model to traditional BigLaw firms, pioneering flat internal structures and flexible working arrangements for employees, as well as embracing technology to deliver efficient services and alternative techy solutions to their clients. As evidenced by their plethora of technological developments, BigLaw is seemingly embracing technology. BigLaw has more resources than NewLaw, and the creative capability to supersede NewLaw technological progression. Yet, it may be that as NewLaw evolves, BigLaw will lose the competition for talent. It may be that young lawyers will opt not to go down the traditional long and enduring path towards partnership if they are faced with an alternative. Keeping abreast of technological progress may not be adequate to ensure longevity if graduate lawyers are offered employment with smaller NewLaw firms, with similar technological literacy coupled with a greater chance of advancement earlier in their careers and diverse work. This is not bad news for BigLaw, as, my thesis rests on the belief that an old dog can learn new tricks. BigLaw is capable of evaluating their internal structures and evolving. Technology should be seen as a catalyst for change, rather than a driving force.6 Technological development allows for better project management, and for employees to work from remote locations. Platforms such as GoToMeeting, Pexip, Vsee and Google hangout allow virtual meetings to take place. In other words, there is less need for lawyers to be at their desks from early morning to late evening. Currently, a key cited difference between the BigLaw and NewLaw business models is that BigLaw attracts the top talent, which guarantees that the work produced is technically excellent.7 This difference could be eliminated if the working arrangements

at NewLaw firms become more enticing to talented law graduates. If BigLaw firms seek assurance that they will retain and continue to recruit the most talented graduates, they may need to do more than what they are currently. They may need to restructure to allow for fast-tracked professional development and utilise technology in a way which allows employees to have greater control over their working hours. Further into the future, BigLaw and NewLaw alike will have to embrace truly disruptive technology, which, unlike Richard Susskind claims, will not fully replace lawyers, but which will surely replace many functions of the traditional lawyers.8 This technology will not assist efficiency and supplement lawyers, but will entirely replace some functions. Lex Machina, owned by LexisNexis, is a legal analytics platform that originally provided strategic insights on intellectual property litigation based on the information mined from existing data. Now Lex Machina is branching into securities law, and security law litigators will too be able to use Legal Analytics to make data-driven decisions based on historical information gathered and analysed using machine learning and natural language processing.9 LexisNexis hopes to eventually expand Lex Machina to cover every practice area.10 Ross Intelligence is an application based on IBM Watson’s cognitive computing ability, which allows lawyers to research by asking questions in natural language, therefore making boolean searches and keywords redundant.11 Ross is able to sift through over a billion text documents a second and find the text which the user needs.12 Through cognitive computing, Ross learns from feedback given by the user, meaning that it will become smarter as it is used. So while Lex Machina and Ross will not replace lawyers entirely, they will, in the not too distant future, entirely remove the need for laborious research. Lawyers will remain relevant in the sense that they will be required to evaluate the data gathered and make arguments based upon that data, for now. It should be recognised that an important underlying assumption of this article is that NewLaw firms will become challengers to BigLaw firms, which will, of course, depend on the funds they can raise, and on existing, reputable lawyers transitioning from BigLaw to NewLaw, among other things. In contrast, it is not an assumption that the legal services industry is changing, as evidenced by the former part of this paper.

What is in question is whether the amount of adaptation occurring is adequate to account for new competitors and changing expectations of clients and employees alike. •

Nicola Berkovic, ‘King & Wood Mallesons turn to AI to meet client’s needs’, The Australian (online), 1 November 2016 <http://www.the australian.com.au/business/legal-affairs/king-wood-mallesons-turns-to-ai-to-meet-clientsneeds/news-story/2784a2f7f3948d9c213a63b9 6526f81c>. 2 Justice meets innovation in new UNSW Law course (21 February 2017) UNSW Sydney <http: //www.law.unsw.edu.au/news/2017/02/justicemeets-innovation-new-unsw-law-course> 3 Marianna Papadakis, ‘Gilbert + Tobin first investors in disrupter LegalVision’, The Australian Financial Review (online), 12 November 2015 < http://www.afr.com/business/legal/gilbert-tobinfirst-investors-in-disruptor-legalvision-20151 109-gkuixn> 4 Ibid. 5 Ilina Rejeva ‘What is NewLaw and How It Is Changing the Legal Industry Forever!’ on LegalTrek (26 April 2016) <https://legaltrek. com/blog/2016/04/what-is-newlaw-and-how-itis-changing-the-legal-industry-forever/> 6 James Gonczi, ‘Transforming the Legal Landscape: The NewLaw Philosophy’ (White Paper, LegalVision). 7 Dr George Beaton, Last days of the BigLaw businss model? (6 September 2013) Beaton Global <http://www.psc.gov.au/sites/default/files/ Relevance%20and%20Prof%20Associations% 20in%202026.pdf#page=50>. 8 Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (2008) (Oxford University Press 2008). 9 Lex Machina Expands Award-Winning Legal Analytics Platform into Securities Law (21 July 2016) Lex Machina https://lexmachina.com/ media/press/lex-machina-expands-platforminto-securities-law/. 10 Ibid. 11 Anthony Sills, ROSS and Watson tackle the law (14 January 2016) IBM < https://www.ibm. com/blogs/watson/2016/01/ross-and-watsontackle-the-law/>. 12 Ibid. 1

Do Lawyers Dream of Electric Sheep?

Future technologies: the demise of the lawyer? Written by Katie Nejaim

Without doubt there will always be a need for commercially oriented, business-savvy legal advice, but technology, artificial intelligence and machine learning will dramatically change the profile of tomorrow’s successful lawyer.1 - Matt Ward, Shelston IP Principal With the legal profession entering a period of unprecedented disruption by new technologies and artificial intelligence, all corners – from law societies, to universities, to private practice – agree that technology, and particularly developments in artificial intelligence, will play a monumental role in the future narrative of legal practice in Australia. However, does the technological boom necessarily herald the demise of the lawyer? It has been suggested that various technologies such as artificial intelligence are in fact ‘taking over’ the traditional roles of lawyers.2 The end of the junior lawyer? At the top of the endangered list appears to be graduate lawyers and paralegals, with many of the tasks traditionally designated to the junior lawyer now able to be performed by technology in half the time, with greater accuracy and, to the client’s delight, at a fraction of the cost. • Document review: document review is often a very time consuming and costly exercise for both firms and clients to

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undertake. With advancements in technology and artificial intelligence, hundreds of thousands of documents which once took weeks to be reviewed by a small army of paralegals and junior lawyers can now be reviewed and coded in mere hours.3 • Predictive technologies: in 1963, Lawlor, a pioneer investigator in the application of computer technology, modern logic and the law, proposed that computers would one day be able to analyse and predict the outcomes of judicial decisions.4 Almost 50 years later, Lawlor’s musings have become a reality, with the development of successful predictive models that have the ability to: analyse textual evidence extracted from published case law (including the facts, relevant applicable law, and the arguments presented by the parties involved); recognise patterns of judicial decision-making; and apply this to a factual scenario to determine an actual judgement. The first systemic study was conducted in 2016 in relation to models predicting the outcome of cases tried by the European Court of Human

Rights with 79% accuracy!5 • Artificially intelligent lawyers: in 2016 the artificial intelligence software, ROSS, was ‘hired’ by numerous law firms around the globe. 6 ROSS , dubbed a ‘super intelligent attorney’, is designed to respond to simple legal questions in ‘plain English’, comb through huge amounts of data in response to research tasks, and provide comprehensive supporting references to relevant statute and case law.7 ROSS has been designed to be as intuitive as a colleague, responding to normal manners of speaking instead of keyword-loaded fragments, with the ability to actually ‘learn’ how to best serve its users over time.8 Even the way junior lawyers are recruited and employed is now dictated by technology, with many of Australia’s top-tier law firms adopting a contextual recruitment system – or CRS, which employs a data-driven recruitment algorithm – to select its Summer Clerks for 2016/17.9 With technologies like those aforementioned slowly but surely ‘taking over’ the research and procedural work that young lawyers have traditionally ‘cut their teeth on’,10 presently existing issues such as the oversupply and complete saturation of law graduates in the legal sphere will only become further exacerbated, leading to fewer jobs in an already fiercely competitive market. A recent McKinsey study predicts a future where over 23% of lawyers’ work could be automated,11 with unemployment rates rising to as high as 79% as a direct result of such technologies.12 Furthermore, commentators such as the UK-based ‘NewLaw’ evangelist Legal Futures anticipate the ‘complete collapse’ of the law as we know it within 15 years at the hands of artificial intelligence.13 The end of the partner? Bob Murray, co-author of ‘Leading the Future: The Human Science of Law Firm Strategy and Leade-rship’, has a sneaking suspicion that the opposite may happen: ‘it will be the grads and younger lawyers who will be in great demand… and the present crop of senior and mid-level partners who will be in more danger of being put out to pasture’.14 The basis of Murray’s beliefs stems from two ‘quirks’ of the human system: ‘confirmation bias’ and ‘the Pavlovian approach’.15 Murray explains that confirmation bias is the tendency for human beings to only hear, or only pay attention to ideas and pieces of information that confirm their own

beliefs and assumptions.16 The Pavlovian approach posits that humans normally only decide to do that which has rewarded them in the past, and ignore data that indicates a different approach would be preferable.17 Host of the ABC show ‘The New Inventors’, James O’Loghlin, supports Murray’s musings, saying, ‘the biggest barrier to innovation isn’t technological or economical, it’s psychological: something I like to call habitual thinking’.18 Murray believes junior lawyers don’t come with so much of the ‘baggage’ that senior partners and associates tend to be lumbered with, and so find working in new ways easier.19 Surprisingly, Murray poses that experience and wisdom hold less stock than they use to before this ‘age of [technological] disruption’, and suggests the present crop of partners should leave the law to the youngsters who can take it in the new digital direction and ensure the law firm’s survival.20 Age of opportunity Julian Uebergang, managing director of Neota Logic (Asia-Pacific), argues that the ‘doomsday’ scenario of ‘robots taking away jobs from lawyers’ is a ridiculous overexaggeration.21 Many have advocated that technologies, like artificial intelligence, should be thought of as an exciting area of development and a ‘significant advantage’ for the legal space, allowing lawyers to put their time to better use, working more efficiently and effectively.22 According to Andrew Arruda, the CEO and co-founder of ROSS Intelligence, artificial intelligence, particularly ROSS, allows legal practitioners to ‘focus on advocating for their client and being creative rather than spending hours swimming though hundreds of links, reading through hundreds of pages of cases looking for the passages of law they need to do their job’.23 Furthermore, as global competition for clients sky-rockets, it is critical that law firms deliver work as cheaply and quickly as possible, and there is no doubt that replacing lawyers, who generally like to get paid for their work, with computers, will cut costs dramatically. However, technological developments in artificial intelligence aren’t just restricted to streamlining the business models of top-tier law firms or satisfying their high-end clients. According to the National Legal Aid body of Australia, currently only 8% of Australians qualify for legal assistance. 24 Subsequently, a large group of people who do not qualify for legal aid but cannot afford a lawyer, coined the ‘missing middle’, are seemingly left

abandoned by the Australian legal system.25 Bevan Warner of National Legal Aid claims future technologies such as artificial intelligence will give millions of Australians access to legal services where they previously may have been unable to afford representation.26 Warner believes artificial intelligence could close the justice gap, minimising the need for unnecessary and costly legal representation on a range of straightforward disputes and claims.27 According to Warner, ‘it’ll just change the way work is done – it won’t eliminate the need for third-party professionals… it will just bring them in as needed’.28 The Australian Legal Information Institute (AustLII), Australia’s most popular freeaccess resource for Australian legal information, is one such institution which has realised the uncapped potential of the legal digital revolution. AustLII is currently in the process of developing the ‘DataLex Project’, a free to access computer system which will simulate advice that a lawyer may give concerning a client’s legal rights, the type of argument a lawyer might make in court with respect to a particular matter, and decisions which a court might give with respect to a dispute before it.29 Future-proofing Irrespective of which side of the fence you sit on, one thing is clear: for the benefits of their clients, the industry, and the community at large, legal professionals need to harness legal technologies and engage in new ways of thinking so as to ensure they survive this digital revolution. Matt Ward, Shelston IP Principal, suggests that while such technologies are not making lawyers obsolete, the profile of ‘tomorrow’s successful lawyer’ is changing largely in response to rapid technological advancements.30 Ward says that whilst he does not believe products stemming from artificial intelligence will completely replace lawyers, as previously mentioned, such technologies already exist which have the capability to perform a significant proportion of the work currently delegated to lawyers, which will inevitably lead to fewer jobs in an already fiercely competitive market.31 Subsequently, Ward suggests that ‘law students should be seriously contemplating supplementing their degree with studies in computer programing’, as well as engineering or science, as he believes ‘there will be opportunities for those lawyers with specialist computer and business skills to take the reins of these technological tools’.32 Ward is not alone in his beliefs. Dean of Law at Bond University, Professor Nick James, echoes this sentiment, affirming that

Do Lawyers Dream of Electric Sheep?

while core knowledge and intellectual rigour is and will always be essential to the legal profession, law students, graduates, and junior lawyers must complement this with an understanding of, as well as the ability to engage with, the ever-evolving digital environment.33 Subsequently, the next generation of legal practitioners should consider themselves warned that if they wish to ‘futureproof’ their ability to gain employment, rather than succumb to the disruption of the 21st century digital tsunami, resilience, lateral thinking and entrepreneurialism is critical.34 Amidst this rhetoric, some still believe the impact of the new technological age on legal practice is not all it appears. Many consider it likely that in the not so distant future, experienced human lawyers will increasingly use their years of legal study and experience to ‘babysit’ robot lawyers – checking over the output of artificial intelligence systems, or providing at least some skerrick of the ‘human touch’ to subjective legal advice for clients. 35 Conclusion It is irrational to deny that traditional legal practice needs to develop and evolve in order to meet the needs of both the current and future legal environment. While some believe technology will lead to the extinction of the lawyer, others see the digital revolution as a realm of new opportunities (even if that means using their hard-earned legal degrees to babysit their robot colleagues). However, Michael Stoanovic has raised the ultimate question: when the reasoning of the man on the Clapham omnibus is often elusive to even the finest human legal minds, can we really expect it to be grasped by the likes of ‘super intelligent’ robo-lawyers?36 •

Emma Ryan, Future legal professionals will require more than a law degree, 11 November 2016, Lawyers Weekly, http://www.lawyersweekly .com.au/news/19974-future-legal-professionalswill-require-more-than-a-law-degree. 2 Emma Ryan, Ready, set, go, 24 January 2017, Lawyers Weekly, http://www.lawyersweekly.com. au/features/20426-ready-set-go . 3 Emma Ryan, Robo-lawyer doom and gloom ‘overcooked’, 13 September 2016, Lawyers Weekly, http://www.lawyersweekly.com.au/news/19548 -robo-lawyer-doom-and-gloom-overcooked . 4 Aletras et al, ‘Predicting judicial decisions of the European Court of Human Rights: a Natural Language Processing perspective’, (2016). 5 Ibid. 6 Chris Weller, The world’s first AI lawyer was just hired at a law firm, May 17 2016, Business Insider Australia, https://www.businessinsider.com. au/the-worlds-first-artificially-intelligent-lawyergets-hired-2016-5?r=US&IR=T . 7 Stephane Leriche and Michael Stojanovic, The dawn of the artificially intelligent lawyer, 21 March 2016, Lawyers Weekly, http://www.lawyersweekly. com.au/opinion/18184-the-dawn-of-the-artificiallyintelligent-lawyer . 8 Above n6. 9 Melissa Coade, Year in Review: The headlining acts, 24 January 2017, Lawyers Weekly, http://www. lawyersweekly.com.au/features/20425-year-inreview-the-headlining-acts . 10 Above n7. 11 Stefanie Garber, The future of practice, 9 June 2016, Lawyers Weekly, http://www.lawyersweekly. com.au/opinion/18731-the-future-of-practice . 1

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Bob Murray, The end of junior lawyers?, 22 November 2016, Lawyers Weekly, http://www. lawyersweekly.com.au/opinion/20019-the-endof-junior-lawyers . 13 Above n11. 14 Above n12. 15 Above n12. 16 Above n12. 17 Above n12. 18 Above n2. 19 Above n12. 20 Above n12. 21 Above n3. 22 Above n3. 23 Above n6. 24 Stefanie Garber, Artificial intelligence poised to close the justice gap, 7 July 2016, Lawyers Weekly, http://www.lawyersweekly.com.au/news/ 18957-artificial-intelligence-poised-to-closejustice-gap . 25 Ibid. 26 Ibid. 27 Ibid. 28 Ibid. 29 Alan L Tyree, The DataLex Project, 15 October 2015, AustLII, http://austlii.edu.au/~alan/boston. html . 12

Above n1. Above n1. 32 Above n1. 33 Above n9. 34 Above n9. 35 Above n7. 36 Above n7. 30 31

Do Lawyers Dream of Electric Sheep?

STOP. HAMMERTIME. Should robots be given legal rights? A report commissioned for the government of the United Kingdom has suggested that robots may demand their rights in the future.1 Asimov’s Laws In his 1942 short story ‘Runaround’, science fiction author Isaac Asimov devised Three Laws of Robotics with regard to androids, at the time imagining human-like robots which would need a set of programming rules to prevent them from causing harm to humans. Despite significant technological advances in the past 75 years since the rules were conceived, Asimov’s laws continue to guide the regulation of robots, including in the South Korean Government’s proposed Robots Ethics Charter of 2007. Asimov’s three rules underpinning the ethics of coding are: 1. A robot may not injure a human being or, through inaction, allow a human being to come to harm; 2. A robot must obey the orders given it by human beings except where such orders would conflict with the First Law; 3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws. The main reasoning behind these rules is that robots should follow top-down laws to prevent them from harming humans. On the flip side, as artificial intelligence develops, roboticists now question whether we should build machines that not only follow laws given to them by humans, but also have the capacity to develop morality by learning and reasoning from their own intelligence. Robots could be categorised as ‘moral agents’ in situations where they are autonomous, their behaviour is intentional, and they are in a position of responsibility.2 Another component that then arises is whether or not a ‘moral’ robot – an agent capable of making conscious decisions – should also be treated as a moral patient with its own inherent rights and worth, which leads to the question of how we should be treating them. Concepts of morality are central to this debate; the act of giving rights to a thing is a ‘strong form of moral consideration’, as it implies that the thing has inherent worth.3 But

Written by Ling McGregor

how much does our morality depend on not only how we value an entity, but our own social setting? Unless short on hobbies, we generally don’t find ourselves questioning the morality of the humble vacuum cleaner or television – or indeed any machine made to serve us. Would we be more sympathetic to humanoid robots made to interact with us? In 2015, Canadian roboticists released an invention called Hitchbot onto the streets of the United States, intending for it to travel from Salem, Massachusetts to San Francisco by hitchhiking with an outstretched thumb, endearing gumboots, and voice-prompted conversation.4 In previous experiments across Canada and Europe, the machine reached its destinations, however on this trip it disappeared. It was found next to a brick wall in Philadelphia with its arms and head torn off, leaving its creators and supporters saddened.5 Do we view robots made to help humans more sympathetically? A centipede-like robot was built at the Los Alamos National Laboratory for the purpose of clearing landmines – it was designed to crawl forward until all of its legs were blown off. However, a colonel in Arizona ordered that an army test run of the machine be stopped, as he found the violence ‘inhumane’.6 How does this impact the way we feel about other artificially intelligent robots intended for military use, such as drones, or more humanoid combatants currently being developed, when their main purpose is to hurt, and not help, humans? A psychologist and naturalist, Kate Darling, questions our moral culpability in this area. In her experiment, participants were given small robots called Pleos, and instructed to name and interact with them.7 The participants were then told to tie up the Pleos, which whimpered, and bludgeon them to death. Most people hesitated – some refused, some protected the machines from others, one removed the robot’s batteries to spare it from pain. Darling found that the natural tendency of people is to empathise with things that are lifelike, that have backstories, or that carry human traits. She explains, ‘there is concern that mistreating an object

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that reacts in a lifelike way could impact the general feeling of empathy we experience when interacting with other entities’.8 Put another way, the moral conflict of torturing a robot has less to do with what a robot is, and more to do with what we fear in ourselves; when confronted by difference, our moral limits sometimes reach only as far as our species. Against moral rights For some, the debate ends here. A robots’ lack of biological structure fundamentally prevents them from being classed as moral beings – they are mechanisms and tools rather than members of the community. Legal subjects have rights and duties, giving them legal personhood. On the other hand, legal objects do not have rights and duties. At the moment robots fall into classes of property, and not personhood. Emerging rights However, in 2016, a working group on emerging technologies at the World Commission on the Ethics of Scientific Knowledge and Technology (‘COMEST’) stated, ‘depending on future advances in this research area, one should not exclude the possibility of future robots’ sentience, emotions and, accordingly moral status’.9 A Preliminary Draft Report of COMEST on Robotics Ethics was prepared in response to the rapid development of highly intelligent autonomous robots, which are likely to challenge our classification of beings according to their moral status. While robots may be far from ‘ethical agents’ and may not take on human characteristics exactly as science fiction suggests, the report highlights the importance of considering robots that undertake routine, repetitive, and hazardous mechanical tasks, as well. In particular, the report focused on the view that ‘it is likely that malfunctioning of today’s sophisticated robots is capable of inflicting significant harm to a very large number of human beings (e.g. armed military robots or autonomous robotic cars going out of control)’, ‘the question is, therefore, not only if roboticists ought to respect certain ethical norms, but whether certain ethical norms need to be programmed into the robots themselves’.10 The report outlined that ‘robots’ autonomy is likely to grow to the extent that their ethical regulation will become necessary, by programming them with ethical codes specifically designed to prevent their harmful behaviour (e.g. endangering humans or the environment)’.11 Harm and liability Aside from the moral conflicts raised by this

debate, the substantial focus remains on questions of liability. In mid 2015, a robot killed a contractor at one of Volkswagen’s production plants in Germany; the 22-yearold man was setting up the stationary robot when it grabbed and crushed him into a metal plate. While initial conclusions indicate that human error was to blame, German news agencies reported that prosecutors were considering whether to bring charges, and if so, against whom.12 The incident raised significant questions about liability, which many say will become more common as our dependence on technology grows, and our interactions with artificial intelligence become more frequent. Approaching personhood In May 2016, the European Parliamentary Committee on Legal Affairs released a draft report with recommendations on the civil law rules on robotics. The inquiry questioned whether or not sufficiently sophisticated robots should be regarded as natural persons, legal persons (like corporations), objects, or animals. The report proposed that rather than attempting to place sophisticated robots into an existing definition, it would be more appropriate to establish a new category; ‘electronic persons’. The Committee considered the advantages of creating a new category with its own specific features and implications for the attribution of rights and duties, including liability for damages. Under the proposed category of ‘electronic person’, robots could be considered a combination of both legal subject and legal object.13 The current EU directive 85/374/EEC – liability for directive products regulates liability for harm by robots to an extent, but only foreseeable damage caused by manufacturing defects. Under this directive, a product is defective when it does not provide the safety a person is entitled to expect, and in such cases, a manufacturer is responsible. However, this may be limiting as technology develops, as robots come to learn and adapt in unpredictable ways making it hard for a manufacturer to foresee the potential harm that may arise. This could render general rules on liability, including contractual and tort liability, insufficient in future. In the meantime, and until such time that robots are made self-aware, the report directs that Asimov’s Laws must be regarded as being directed at the designers, producers and operators of robots, since those laws cannot be converted into machine code. •

¹ United Kingdowm Government, Office of Science and Innovation, Robo-rights: Utopian dream or rise of the machines?’ (2006). 2 John P. Sullins, ‘When Is a Robot a Moral Agent?’ (2009) 6, International Review of Information Ethics. ³ Mark Coeckelbergh, ‘Robot rights? Towards a social-relational justification of moral consider ation’ (2010) 12, Ethics and Information Tehnology, pp 209-221. 4 Hitchbot, ‘About Hitchbot’ 15 December 2015 <http://mir1.hitchbot.me/about/>. 5 Matt Novak, ‘US Hitchhiking Robot Lasts Just Two Weeks Because Humans Are Terrible’ on Gizmodo (2 August 2015) <https://www.gizmodo. com.au/2015/08/hitchhiking-robot-lasts-justtwo-weeks-in-us-because-humans-are-terrible/>. 6 Nathan Heller, ‘If animals have rights, should robots?’, The New Yorker (online), 28 November 2016 < http://www.newyorker.com/magazine/ 2016/11/28/if-animals-have-rights-should-robots>. 7 Nur Lalji, ‘Can We Learn About Empathy From Torturing Robots? This MIT Researcher Is Giving It a Try’, Yes Magazine (online), 14 July 2015 < http://www.yesmagazine.org/happiness/shouldwe-be-kind-to-robots-kate-darling>. 8 Heller, above n 5. 9 Social and Human Sciences Sector, ‘UNESCO science experts explore robots’ rights’, UNESCO media services (online), 15 September 2016 < http://www.unesco.org/new/en/media-services/ single-view/news/unesco_science_experts_ explore_robots_rights/>. 10 World Commission on the Ethics of Scientific Knowledge and Technology, Preliminary Draft Report of COMEST on Robotics Ethics, UN doc SHS/YES/COMEST-9EXT/16/3 (5 August 2015) para 109. 11 Ibid para 110. 12 ‘Robot kills worker at Volkswagen plant in Germany’, The Guardian (online), 2 July 2015 < https://www.theguardian.com/world/2015/ jul/02/robot-kills-worker-at-volkswagen-plantin-germany>. 13 Kyle Bower, ‘Robot rights: at what point should an intelligent machine be considered a ‘person’?’, The Conversation (online), 7 February 2017 < https://theconversation.com/robot-rightsat-what-point-should-an-intelligent-machinebe-considered-a-person-72410>.

Do Lawyers Dream of Electric Sheep?

The Full Bench

“I THOUGHT PEOPLE WERE JOKING WHEN THEY SAID LAWYERS HAD NO CONSCIENCE”

Do Lawyers Dream of Electric Sheep?

The trivy council Australian laws gone wild

In the declining world of post truths, fake news, and mom’s spaghetti, one UTS law student dares to bring obscure legal trivia to the masses. Kiên ‘Notorious Facts’ Lê Board has five fast and furious law facts from the whimsical world of OZ.

Written by Kiên Lê Board

1. 50 shades of Western Australian potatoes Our first step on the road to good intentions is this tidbit from Western Australia. According to the Marketing of Potatoes Act 1946 (WA) – a law still in effect to this day – it is an offence to be in possession of more than 50 kilograms of potatoes without a license for commercial transportation.1 Feeling peckish for potatoes? Watch out! The penalty for breaking this law is a fine of up to $2,000 for a first offence, and $5,000 for any subsequent offence in addition to an amount up to twice the value of the potatoes themselves. 2. First rule of Queensland club Stopping off at Queensland now, we come across a bizarre Criminal Code designed to curb driver rage. Under section 281 of the Code: ‘It is lawful for a person in charge of a vehicle on a journey and for any person acting by his or her authority to use, for the purpose of maintaining good order and discipline on board the vehicle, such force as the person or such person acting by his or her authority believes, on reasonable grounds, to be necessary, and as is reasonable under the circumstances’.2 Pass me the AUX cable is all I’m saying. 3. Fake News

Marketing of Potatoes As Einstein once said, ‘whoever is careless with the Act 1946 (WA) s 22. truth in small matters cannot be trusted with matters 2 Criminal Code Act that are great’. Were these his last words on the 1899 (QLD) s 281. Arab-Israeli conflict? Steamy letters to his secretary? Summary Offences Act 2005 (SA) s 21. 4 Summary Offences Act 2005 (SA) s 58B 3

Or was he simply predicting decades in advance the thinking behind one of Queensland’s laws regulating truth and classified ads? Of that I cannot be completely sure, but in Queensland it is illegal to publish a notice or advertisement that falsely reports, expressly or by implication, that a child has been born, a person has died, a funeral is planned or has

occurred, a couple has become engaged, are about to marry, or have been married, or that a job is available. You can be fined a maximum of ten penalty units or imprisoned for six months.3 4. Ice ice baby: keeping cool in South Australia Ever wondered what you could or couldn’t do with a fridge in South Australia? Section 58B of the Summary Offences Act 1953 (SA) states: ‘A person must not sell or hire, or offer or expose for sale or hire, a refrigerator, ice chest or icebox having in it a compartment of a capacity of 42.5 litres or more unless that compartment is so constructed or equipped that every door or lid can be opened easily from the inside of the compartment when any lock or catch that can be operated from the outside of the compartment is fastened’.4 I guess now you know. 5. Victorians vacuuming I know what you’re thinking. You’ve just arrived in Victoria after a long day’s drive around Australia. What is the first thing you do? Start vacuuming the carpet. You’re not a pleb. But be weary, brave traveler. The Victorian Environment Protection (Residential Noise) Regulations forbid those who partake in any afterhours vacuum debauchery that results in ‘unreasonable noise’ from a residential property between 10pm and 7am Monday to Friday, or between 10pm and 9am on weekends and public holidays. You’ve been warned. And that’s it. Thanks for travelling with us around the pit stops of Australian legal trivia. Thoughts? Complaints? Injunctions? Join us next time as we do THE WORLD.

The Full Bench

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10 words or less ‘The internet is becoming an increasingly regulated environment. There is a duality to this regulation: it provides a means to justice and upholds the law in cases of commercialism, crime, etc. but on the other hand, it restricts the very freedoms upon which the internet was established. The liberties of the internet-user are becoming increasingly limited and squashed by this new wave of technology and data related legislation.’ - Thomas Miletich With this in mind, we asked our readers to answer the following questions in 10 words or less:

1. In your view, is the Internet over-regulated or under-regulated? Or are governments getting it right? ‘Regulation is inevitable. What matters is clear and informed need.’ - Jason Corbett ‘Under-regulated in parts not being accessed by the general population.’ - Lucas Velcic ‘Internet regulation seems complaint-based, but how many people complain?’ - Jonathan Hetherington ‘Governments are limited in their ability to control social media.’ - Rebecca Karpin

2. If you could pass one law relating to a recent technological innovation, what would it be? ‘Denying Facebook from accessing search histories - I don’t need brunch recommendations.’ - Kimberly de Costa ‘Clear regulation in regards to drones and privacy.’ - Lucas Velcic ‘Facebook should be limited in its ability to track users.’ - Rebecca Karpin ‘Personal Privacy (Internet & Data) Act.’ - Thomas Miletich ‘Deliveroo drivers should be given a minimum wage.’ - Kat Abbott

‘The Internet’s cross-jurisdictional nature suggests that effective regulations are non-viable.’ - Jack Collins

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‘Sacrificing privacy for freedom is not freedom at all.’ - Tamim Rahimi

Heh heh heh 57

Do Lawyers Dream of Electric Sheep?

Edition One 2017 Do Lawyers Dream of Electric Sheep?

The Full Bench Like ‘The Full Bench’ on Facebook for all things TFB related. For those interested in contributing, triannual callouts for submissions are made to members via social media, email, and our weekly newsletter, ‘The Buzz’. For more information on how to contribute, or for any other queries, please contact the 2017 Publications Director, Ling McGregor at publications@utslss.com.