19 December 2017

Product Lifetimes

What is a lifetime in relation to a product warranty under the Competition and Consumer Act 2010 (Cth)? The Australian Competition and Consumer Commission (ACCC) has reminded people that 'lifetime' refers to the consumer - put simply, the human animal - rather than to the shorter period of flourishing of a snail, gnat or other non-human animal or to the lifetime of electronic kit.

The ACCC reports that it has accepted a court-enforceable undertaking from consumer electronics manufacturer Belkin to honour claims under its lifetime warranty policies for the lifetime of the original purchaser.

It comments
 During 2016 and 2017, Belkin supplied certain products with a “lifetime warranty” or “limited lifetime warranty”. However, Belkin applied a policy of only repairing or replacing products under these warranties within the five years from the date of purchase.  
A disclaimer was not printed on product packaging but was referred to on Belkin’s website. Products affected by these “lifetime warranty” claims included wireless routers, switches and cables.
“Belkin has acknowledged that its lifetime warranty representations may have breached the Australian Consumer Law, which prohibits misleading or deceptive conduct and false or misleading representations about the effect of a warranty or guarantee,” ACCC Commissioner Sarah Court said. “Manufacturers must ensure consumers are not misled by warranty representations. If a business makes a lifetime warranty claim, they must be very clear about what this means with their customers.” 
In addition, Belkin has admitted that some products with lifetime warranties were likely to be non-compliant with the Australian Consumer Law because they did not include the wording required for use in any warranty against defects. 
Belkin has undertaken to correct its website and packaging to comply with this requirement.
Belkin cooperated with the ACCC’s investigation and has taken steps to resolve the ACCC’s concerns.
The specific Undertaking notes
Between about July 2016 and July 2017, Belkin made representations on the packaging of more than 130 types of its products that those products were sold with a “lifetime warranty” or “limited lifetime warranty”.
In fact, Belkin had a policy on repairing or replacing those products pursuant to the warranty only within five years of the date of purchase.
On its website, Belkin stated that these warranties applied for the lifetime of the product, which Belkin had determined to be five years, not the lifetime of the consumer. However, there was no material on or in the packaging of Belkin’s products informing consumers of this.
The ACCC considers that some consumers may have understood that a “lifetime warranty” or “limited lifetime warranty” applied for the lifetime of the purchaser, or a period longer than five years.

SnailSpace

Presumably in response to yesterday's report on the reidentification of health data noted here, the Office of the Australian Information Commissioner (OAIC) has released a statement that it is still investigating the 2016 health data breaches but is - of course - mindful of the importance of trust.

The delay is symptomatic of the OAIC's bureaucratic incapacity (regulatory capture exacerbated by under-resourcing after the year when Attorney-General George Brandis recurrently announced that the OAIC would be abolished but failed to get his legislation through the national legislature).

It adds weight to the UNSWLJ article by Burdon and Siganto on OAIC Own Motion Investigations.

That article - 'The Privacy Commissioner and Own-Motion Investigations into Serious Data Breaches: A Case of Going through the Motions?' in (2015) 38(3) University of New South Wales Law Journal 1145 - commented
If the OAIC does not have the technical knowledge or skills to analyse the causes or methods for prevention of security breaches, or to assess technical details about how security breaches occurred, then it is not clear how the OAIC is able to conduct these investigations or assure itself that third-party expert reports are accurate, complete and based on the use of an appropriate standard of care. It is therefore difficult to determine how the OAIC can adequately say whether there has been any failure to properly protect personal information. 
Further
Our investigation of the six OMIs suggests that the OAIC’s decisions to commence the investigations were in response to media and were perhaps motivated by an interest in raising the profile of data breaches in Australia to support the introduction of a mandatory notification scheme. Whether this is in fact correct or not, there are clearly issues with the process followed in each investigation. In all of the OMIs, an ‘on the papers’ approach was used, based on written responses to largely generic requests for information. There was virtually no second-round questioning, independent evidence gathering or confirmation of the facts as asserted by the respondents, whether directly or via third-party investigation reports commissioned by the respondents. The decision-making process used is also not clear. The change in the outcome of the Medvet investigation, after the initial outcome was communicated to the respondent, in particular raises issues as to the basis for the OAIC’s decision-making in these cases. 
We assert that these issues arise, in part, as a consequence of the limited powers, skills and resources available to the OAIC at the time. Given the OAIC’s new powers and increased accountability, these issues may be addressed in future Commissioner-initiated investigations. However, without the allocation of significant additional resources, it seems unlikely that there would be any significant change in process. Reliance on third-party investigation reports commissioned by the respondent in a future investigation may not be an appropriate resolution. 
The OAIC is right to emphasise that the problem of data breaches is likely to remain. However, the examination of the six OMIs reveals that the investigatory approach adopted can lead to the situation where the OAIC investigators are simply going through the motions. On that note, given the issues we highlight in this article, the OAIC’s data breach investigations as a body of work are unlikely to be of assistance in regulatory efforts to prevent data breaches, unless significant changes are undertaken. Such changes would herald a major policy shift regarding the role of the OAIC, characterised by the need for a supported, adequately resourced and thus proactive Australian privacy regulator. In that regard, our examination of six relatively recent OMIs sounds a warning not just as to what has happened, but also for the future.
Alas, what was past is present. The OAIC's statement yesterday reads
The Australian Information and Privacy Commissioner is currently investigating the publication of the Medicare Benefits Schedule (MBS) and Pharmaceutical Benefits Scheme (PBS) datasets on data.gov.au. The investigation was opened under section 40(2) of the Australian Privacy Act 1988 (Privacy Act) in late September 2016 when the Department of Health notified the OAIC that the datasets were potentially vulnerable to re-identification. 
Given the investigation into the MBS and PBS datasets is ongoing, we are unable to comment on it further at this time. However, the Commissioner will make a public statement at the conclusion of the investigation. 
Realising the value of public data to innovations that benefit the community at large is dependent on the public’s confidence that privacy is protected. The OAIC continues to work with Australian Government agencies to enhance privacy protection in published datasets.

18 December 2017

Reidentification of Australian Health Data

Recalling past items on health data sharing (eg here and here) and restrictions on reidentification (eg here) it is interesting to see a solid Australian study of reidentification.

 'Health Data in an Open World' by Chris Culnane, Benjamin I. P. Rubinstein and Vanessa Teague comments
With the aim of informing sound policy about data sharing and privacy, we describe successful re-identification of patients in an Australian de-identified open health dataset. As in prior studies of similar datasets, a few mundane facts often suffice to isolate an individual. Some people can be identified by name based on publicly available information. Decreasing the precision of the unit-record level data, or perturbing it statistically, makes re-identification gradually harder at a substantial cost to utility. We also examine the value of related datasets in improving the accuracy and confidence of re-identification. Our re-identifications were performed on a 10% sample dataset, but a related open Australian dataset allows us to infer with high confidence that some individuals in the sample have been correctly re-identified. Finally, we examine the combination of the open datasets with some commercial datasets that are known to exist but are not in our possession. We show that they would further increase the ease of re-identification.
The authors note
In August 2016, pursuing the Australian government’s policy of open government data, the federal Department of Health published online the de-identified longitudinal medical billing records of 10% of Australians, about 2.9 million people. For each selected patient, all publicly-reimbursed medical and pharmaceutical bills for the years 1984 to 2014 were included. Suppliers' and patients' IDs were encrypted, though it was obvious which bills belonged to the same person.
In September 2016 we decrypted IDs of suppliers (doctors, midwives etc) and informed the department. The dataset was then taken offline. In this paper we show that patients can also be re-identified, without decryption, by linking the unencrypted parts of the record with known information about the individual. Our aim is to inform policy about data sharing and privacy with a scientific demonstration of the ease of re-identification of this kind of data. We notified the Department of Health of these findings in December 2016.
Access to high quality, and at times sensitive, data is a modern necessity for many areas of research. The challenge we face is in how to deliver that access, whilst still protecting the privacy of the individuals in the associated datasets. There is a misconception that this is either a solved problem, or an easy problem to solve. Whilst there are a number of proposals (Australian Government Productivity Commission, 2017), they need further research, development, and analysis. 
One thing is certain: open publication of de-identified data is not a secure solution for sensitive unit-record level data.
Our motivation in this work is to highlight the challenges and demonstrate the surprising ease with which de-identification can fail. Conquering this challenge will require open and transparent discussion and research, in advance of any future releases. This report concludes with some specific alternative suggestions, including the use of differential privacy for published data, and secure, controlled access to sensitive data for researchers.
SUMMARY OF RESULTS
Our findings replicate those of similar studies of other de-identified datasets:
• A few mundane facts taken together often suffice to isolate an individual. 
• Some patients can be identified by name from publicly available information. 
• Decreasing the precision of the data, or perturbing it statistically, makes re-identification gradually harder at a substantial cost to utility.
STRUCTURE OF THIS PAPER 
We first examine uniqueness according to basic medical procedures such as childbirth. We show that some individuals are unique given public information, and show also that many patients are unique given a few basic facts such as year of birth and dates of childbirth.
Although the data is only a 10% sample, we can quantify the confidence of re-identifications, which can be high. We use a second dataset of population-wide billing frequencies, which sometimes shows that the person is unique in the whole population.
We then examine uniqueness according to the characteristics of commercial datasets we know of but do not have. We find high uniqueness rates that would allow linking with a commercial pharmaceutical dataset. We also explain that, consistent with the ``Unique in the shopping mall,” (de Montjoye, Radaelli, Singh, & Pentland, 2015) financial transactions in the dataset are sufficient for easy re-identification by the patient’s bank.

14 December 2017

Lemons

The Australian Competition and Consumer Commission has released the final report from its market study into Australia’s new car retailing industry.

The report follows 18 months of research and consultation with industry and consumer groups, with  three key observations
  • car manufacturers need to update their complaint handling systems and improve their approach to the handling of consumer guarantee claims
  •  a mandatory scheme should be introduced for car manufacturers to share technical information with independent repairers 
  • new car buyers need more accurate information about their cars’ fuel consumption and emissions. 
Salient features of the report are -
Commercial arrangements between manufacturers and dealers
After review of a range of ‘dealer agreements’ (commercial arrangements between car manufacturers and dealers) the ACCC  concludes that dealers respond to consumer guarantee claims within the framework of the policies and procedures set by manufacturers.
ACCC Chair Sims comments
If manufacturers' policies and procedures don’t adequately recognise consumer guarantee rights, this can influence the behaviour of dealers in responding to complaints. ... We recommend that car manufacturers update their complaint handling systems to ensure consumer law is front and centre of relevant systems, policies and procedures. Conditions or obligations under the manufacturer’s warranty must not exclude or limit consumers’ rights.. We are concerned that some manufacturers impose unnecessarily complex warranty claim processes, leaving dealers inadequately compensated for repairs or remedies provided to consumers
Sims noted that  dealers have direct responsibility to provide remedies to consumers but they also have a right under the Australian Consumer Law to recover the reasonable costs of providing these from the car manufacturers when the manufacturer is at fault, with the ACCC foreshadowing action "if a manufacturer prevents a dealer from fulfilling their legal obligations under consumer law".
Sharing of technical information
 Independent repairers continue to have problems accessing technical information to repair and service new cars. The ACCC accordingly recommends introduction of a mandatory scheme requiring car manufacturers to share  technical information needed to repair and service new cars with independent repairers. Sims comments that "Any mandatory scheme must be available on commercially ‘fair and reasonable terms’, and have safeguards that enable environmental, safety and security-related technical information to be shared with the independent sector".
Fuel consumption and emissions
The ACCC recommends that the Federal Government introduce more realistic laboratory tests for fuel consumption and emissions, and an on-road ‘real driving emissions’ test to give new car buyers more accurate information. Research from the Australian Automobile Association (AAA) found that real-world fuel consumption is on average 23%  higher than official laboratory test results.
Sims commented
Our research shows fuel consumption is the third most significant purchasing factor for consumers after price and model. We are concerned that new car buyers are not receiving accurate information about fuel consumption or emissions performance.
The ACCC considers that there may be additional benefits to consumers from an Australian real-driving emissions test. It accordingly recommends that the Government’s Ministerial Forum on Vehicle Emissions consider the costs and benefits of an Australian real driving emissions testing program.

Privacy Publics

'The Public Information Fallacy' by Woodrow Hartzog comments 
The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.
In this article, I argue that the “no privacy in public” justification is misguided because nobody even knows what “public” even means. It has no set definition in law or policy. This means that appeals to the public nature of information and contexts in order to justify data and surveillance practices is often just guesswork. There are at least three different ways to conceptualize public information: descriptively, negatively, or by designation. For example, is the criteria for determining publicness whether it was hypothetically accessible to anyone? Or is public information anything that’s controlled, designated, or released by state actors? Or maybe what’s public is simply everything that’s “not private?”
If the concept of “public” is going to shape people’s social and legal obligations, its meaning should not be assumed. Law and society must recognize that labeling something as public is both consequential and value-laden. To move forward, we should focus the values we want to serve, the relationships and outcomes we want to foster, and the problems we want to avoid.

Digital Rights Advocacy

'The Israeli Digital Rights Movement's campaign for privacy' by Efrat Daskal in (2017) 6(3) Internet Policy Review [PDF]
explores the persuasion techniques used by the Israeli Digital Rights Movement in its campaign against Israel’s biometric database. The research was based on analysing the movement's official publications and announcements and the journalistic discourse that surrounded their campaign within the political, judicial, and public arenas in 2009-2017. The results demonstrate how the organisation navigated three persuasion frames to achieve its goals: the unnecessity of a biometric database in democracy; the database’s ineffectiveness; and governmental incompetence in securing it. I conclude by discussing how analysing civil society privacy campaigns can shed light over different regimes of privacy governance.
Daskal comments
The digital era has expanded the boundaries and meanings of basic human rights such as freedom of expression, the right to privacy, and the right to information. These changes have triggered constant deliberations between national governments, global internet corporations, inter- and nongovernmental entities over the scope of these rights (Benedek, 2008; Kay, 2014). This paper focuses on one of these actors: civil society organisations which advocate for digital rights, also known as digital rights advocates. These organisations advocate for computer and internet-related civil liberties on parallel tracks: on the one hand, they confront governments and internet corporations in the constitutional, political, and judicial arenas, and on the other, educate the public about their rights. Thus, they are among the few social actors with the potential to challenge and sometimes even change the rules decided upon by powerful social actors (Breindl, 2011; Postigo, 2008).
In order for them to achieve their goals, digital rights advocates have to persuade other stakeholders, including the public. Yet such persuasion is not easy and usually requires them to reframe issues to their advantage. This is why, for example, the American Electronic Frontier Foundation (EFF) frames copyright issues as issues of fair use in order to legitimize expanding consumer privileges in copyrighted works (Postigo, 2008). This is also why, when dealing with net neutrality digital rights advocates worldwide have recently framed their campaigns as essential to saving the internet (Fernández Pérez, 2015; Kosoff, 2017; Panwar, 2015). Yet, only few studies explored in depth the persuasion techniques used by digital rights advocates, especially concerning the right for privacy (Bennett, 2008). This study wishes to contribute to the literature in the field by asking: “what are the persuasion techniques employed by Israel’s Digital Rights Movement organisation (DRM) in its campaign for privacy and against the biometric database in Israel?”
To do so, I have analysed the organisation’s textual products and involvement in legislation initiatives, judicial rulings, and public discourse in 2009-2017. This research sheds light on the role civil society organisations can play in constructing the boundaries of digital rights. Second, it contributes to the literature dealing with the right to privacy in a specific sociocultural context. Finally, it deepens our understanding of the global issue of privacy governance. In what follows, I will elaborate on the role civil society organisations play in protecting digital rights, especially the right to privacy. I will then address the Israeli case, and present the research questions and methods. My findings will describe the main activities of the DRM against the biometric database, as well as the persuasion techniques employed thereby. I will conclude by discussing how the study of civil society privacy campaigns can assist in conceptualising and understanding issues of privacy governance

Jurimetrics

'Judging the Judiciary by the Numbers: Empirical Research on Judges' by  Jeffrey J. Rachlinski and Andrew J. Wistrich in (2017) 13 Annual Review of Law and Social Science asks
Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.
The authors comment
Judges are the axle on which the wheels of justice turn. They manage pretrial proceedings, mediate settlement conferences, rule on motions, conduct bench trials, supervise jury trials, take guilty pleas, impose criminal sentences, and resolve appeals. In the process, they find facts, make or apply law, and exercise discretion. Judges wield enormous power and society therefore rightly expects much of them. Judges must be fair minded, impartial, patient, wise, efficient, and intelligent (Wistrich, 2010). They must set aside their politics and their prejudices, make rational decisions, and follow the law. (See, e.g., American Bar Association, Model Code of Judicial Conduct, 2011, Rules 1.1, 1.2, 2.2, 2.3, 2.4, 2.5, 2.8). But is it possible for judges to perform as we expect?
The answer to this question remains somewhat uncertain. Twenty years ago, Lawrence Baum (1997, p. 149) concluded, “Despite all the progress that scholars have made, progress that is accelerating today, we are a long way from achieving truly satisfying explanations of judicial behavior.” Much more research has been conducted since then, but judicial behavior still remains something of a mystery. Some scholars argue that judges behave rationally but make decisions that further their self-interest ( Epstein et al. 2013). That assertion, however, raises as many questions as it answers: What do judges see as their self-interest? Are fairness and impartiality their primary goals? What incentives do judges really face? After all, they rarely lose their positions and seldom get promoted. And even if judges primarily strive for fairness and impartiality, do they achieve these goals?
Research on human judgment and choice indicates that most people face cognitive limitations that lead them to make choices that do not consistently further their own ends (Ariely 2009). People commonly rely on intuition and simple shortcuts (or  heuristics) to make choices (Kahneman 2011). Heuristics can be effective and surprisingly accurate (Gigerenzer and Todd 1999), but can also lead to predictable mistakes when over-applied or misused. These problems plague professionals as well. Research on doctors, dentists, accountants, futures traders, and others shows that they all fail to live up to an idealized standard of judgment in many settings ( Ariely 2009). It would be surprising if judges are any different.
The available research on judges suggests that they sometimes f all short of the lofty ideal to which society holds them. A growing body of research supports the conclusion that although judges are often excellent decision makers, they have vulnerabilities. At the outset, we know that in some areas of law, judicial decisions are too chaotic. A study of immigration asylum decisions, for example, reveals that some judges grant asylum in a high percentage of cases while others almost never grant asylum (Ramji-Nogales et al. 2007). Asylum outcomes thus turn on the random assignment of a case to one judge or another. Decisions concerning whether to grant leave to appeal or to allow release on bond in immigration cases are similarly erratic ( Rehaag 2012; Ryo, 2016). Concerns about variation in conviction rates have also long haunted criminal law (Weisselberg and Dunworth, 1993). Even in criminal sentencing decisions in federal court, in which a highly structured set of guidelines cons trains judges, variation remains robust ( Scott 2011). Judges do not seem to decide as reliably as might be hoped or expected. Worse still, the variation does not just arise from chaos or a lack of meaningful standards, it arises from systematic vulnerabilities in how judges think.
This article surveys the empirical research that assesses whether judges live up to the standards of their profession. The evidence accumulated to date reveals that judges fall short in predictable ways. First, as the legal realists feared, judges’ personal characteristics influence their decision making. Specifically, the research indicates that when cases raise issues that are salient to judges’ personal characteristics, they do not consistently put their characteristics aside. Second, judges overreact to mechanisms of accountability, such as appellate review, retention, and promotion. Third, judges rely too heavily on intuitive ways of thinking that can be misleading. Fourth, in making decisions, judges sometimes rely on factors outside the record, including inadmissible evidence, their emotional reactions, and prejudices.
To be fair to judges, they labor under a great deal of academic scrutiny. The existing research on judicial decision making probably focuses too heavily on judicial failings. Scholars conduct their research with an eye towards showing that judges are politically motivated or biased. This is understandable, given the ideal of neutral judging that society expects from judges, but the emphasis on deviations likely makes judges seem worse than they are. The research includes several studies in which judges adhere to an ideal norm of neutrality, and we certainly include these in our review. No studies really provide usable estimates of how many cases are skewed by politics, prejudice, or other misjudgment, and the research does not support a means of making a reasonable estimate. The circumstances under which judges deviate from the norm are nevertheless worth exploring, not to make judges look bad, but to identify potential ways they might improve.
In reaching our conclusions, we review a diverse array of both experimental and field studies of judicial decision making. We set aside judges’ autobiographies and biographies, interviews of judges, careful parsing of individual opinions, and judges’ own accounts of how they make decisions. Such undertakings can provide valuable insights, but our focus lies on systematic empirical accounts of judicial decision making. These include archival studies of actual decisions and experiments or simulations using hypothetical cases. Although most research on judges emphasizes decisions of the US Supreme Court (especially since the Second World War), our focus lies with the state courts, lower federal courts, and a handful of international studies. Although the US Supreme Court is important, of course, it resolves few cases and represents only a tiny window into the judicial decision-making process. Each of the studies we incorporate into our analysis involves vastly more judges than the 39 people who have served on the Supreme Court in the last 70 years. The focus on the Supreme Court also tends to emphasize the role of politics in judging. Political influence is only one way judges can fail to meet the demands of their roles. We discuss this concern but expand upon it.