The UK mobile phone operator T-Mobile has reported the theft of its customers’ personal information. T-Mobile (and the UK Information Commissioner) say the employee(s) received substantial payments for the information.

If this happened in Ireland the employee would be guilty of an offence under The Public Bodies Corrupt Practices Act 1889, as extended by The Prevention of Corruption Act 1916.

The payment is a bribe.

Ireland and Slovakia sent their Justice ministers to the Council of Ministers. Each Minister cast a veto on a vote to introduce Directive 2006/24/EC.

Neither Minister noticed, as Advocate-General Bot now says, that he was attending a Community institution, as opposed to a Union institution.

Each had, of course, read the draft Directive (presumably) and there they saw it was replete with material proper to the Union (and not the Community). It was, in short all about “police and judicial cooperation in criminal matters”. It was expressly proposed by Charles Clarke in the light of the London bombings.
Terrorism, no less.
No common market in terrorism, then.
Right, definitely a matter for Title VI of the EU Treaty.
No, said the Commission Staff. It’s all about a level playing field in the world of commerce.

Ireland and Slovakia have a vote, but not a veto. Done and dusted, then.

What-ho, Advocate-General Bot says the same.

In fact, Directive 2006/24/EC is all about facilitating surveillance by Member governments through the telecoms system. It places a burden on the telecoms and that burden has a cost. But any police activity has a cost, and nobody has yet tried to argue that the cost of a social issue renders it an economic issue.

Bot and the Commission define things by their form, not their substance.

A small state in the EU has no veto if the Commission wishes to deny it a veto.

An institution that loses integrity is a lost cause. When the current Commission is gone from office matters like this will surface and destroy its successor.

The Hollywood police have a perennial problem and must have long ago found the solution. Suppose Cary Grant had got drunk and stabbed his neighbour. Should the police arrest Cary Grant? But that was not his name. His name was Archibald Leach.

Who has committed the crime? Archibald or Cary?

In DPP v Thomas [2006] IEHC the High Court pointed out that, (like Cary Grant), the defendant had chosen to be known by a name other than his real name. Therefore, summonses issued against him in his false name were validly issued and were in time.

What of Kirk Douglas? He changed his name legally to Kirk Douglas, from Issur Danielovitch. (Presumably by deed poll). Has the ground become more certain in his case? Perhaps he does not have a double identity any longer?

In fact, for persons, unlike inanimate things or concepts, double identity is not the usual problem in law; it is the theft of identity. For inanimate things, in law, double identity is common; “public place�, for instance, may have a different meaning in one piece of legislation compared to another.

Identity is not a simple thing. John Locke is credited with the first formulation of identity, in An Essay Concerning Human Understanding (1689), by reference to consciousness rather than the substance of soul or body.

For him, consciousness was memory. This has practical limitations. What of a person suffering from memory loss? If memory defines consciousness, which defines identity, how can we speak of “a person� as suffering memory loss? (This memory loss is different to the memory loss encountered by the Flood/Mahon Tribunal).

More seriously, he denies that identity is related to the body. A body may change and we accept the person has not. A body may have a particular appearance and not reflect the identity of the person. (“Trading Places� is based on this idea).

Possibly, identity is not coincidental with the person. A person may have several “identities�. Some commentators deny that “identity theft� is possible. In their view, what happens is the deception of a person or persons other than the person whose “identity� was stolen.

In Wicklow County Council v. Fenton & Ors [2002] IEHC 102 (31 July 2002) the High Court likened the owner of an illegal dump to a receiver of stolen property. Without a receiver there can be no profit in theft; without an illegal dump there can be no illegal dumping. The court accepted the principle advanced by the applicant Council that it did not have to prove negligence; that the state of mind of the Respondents was not required to be proved. The court endorsed the principle of “the polluter pays�, a principle found in Council Recommendation 75/436Euratom and specifically incorporated in Section 5 of the Waste Management Act 1996.

“the polluter pays principle” means the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March, 1975 1 regarding cost allocation and action by public authorities on environmental matters;

Under Section 26 of the Waste Management Act 1996 the Environmental Protection Agency is obliged to incorporate the “polluter pays� principle into its national hazardous waste management plan.

The court found that the Respondents had been negligent on the facts and made orders for the remediation of the lands on which the illegal dump was found.

Consequently, liability under the Waste Management Act 1996 can be established simply by showing that there has been dumping on lands and that there is no authority for such dumping. The liability attaches to the occupier of the land; there is no need to show that the dumping took place during the period of occupation by that occupier.

The title to this post is incorrect. The concept of war crime shows this. I have written elsewhere that legal proceedings are not a search for truth. Nevertheless, in legal proceedings, as in war, there are limits to restrain the parties.

The Supreme Court marked its disapproval of failures by lawyers for the Defendant in Philp v Ryan and Bon Secours [2004] IESC. The court found that the 1st Defendant had altered his clinical notes. As altered, they appeared to show that the Plaintiff was to have a PSA test in 6 weeks. In fact no provision was made for such a test. The Plaintiff, who was suffering from prostate cancer, was misdiagnosed by the 1st Defendant. Eight months later the Plaintiff discovered the misdiagnosis and issued proceedings pleading that his life expectancy was reduced due to the Defendants’ negligence.

The 1st Defendant misled his lawyers and medical advisors. Consequently the Defendants’ defence was to the effect that the Plaintiff was responsible for the loss of eight months treatment and not the 1st Defendant.

Almost on the eve of the proceedings commencing, the 1st Defendant informed his lawyers what he had done. They did not correct the wrong impression and understanding of the Plaintiff’s lawyers as to the defence the Defendants intended to mount. The lawyers for the 1st Defendant continued to represent, in the manner in which the defence was presented, that the Plaintiff had been advised to have a PSA test and had failed to do so. The Supreme Court found that there was at least a suspicion that there was a deliberate attempt to keep the true facts from the [High] court.

Consequently the Court awarded aggravated damages to the Plaintiff, increasing the High Court award from €45,000 to €100,000.

There is good reason to say that Governments have little concern about the protection of personal data, as previously posted HERE.

In a similar critical mind, the House of Lords has proposed, as reported HERE, the criminalization of abuse or recklessness with respect to personal data.

The problem is considerable even at the level of mere carelessness as seen HERE.
An equally serious problem is abuse by State agencies and quangos; an example HERE.

As can be seen from the terms of the Regulation of Investigatory Powers Act 2000, to treat dog fouling or the like as a suitable cause to authorize surveillance is to act disproportionably to minor problems such as, well, dog fouling.

A zealot is never a reasonable person and seems capable even of shooting-oneself-in-the-foot behaviour, as seen HERE.

Luckily for bookmakers, probability is not reliably intuitive. What is the value of a random drug test? (No account is taken here of the legality or morality of the testing).

Possibly not much. See Example 2 HERE.

The Wikipedia writer concludes that, even with the positive result for a test 99% sensitive and 99% specific, it is still more likely that the person tested and testing positive, is not a drug user than that he/she is a drug user.

The reason lies in the context of the drug testing. It occurs as a random test where the likelihood of encountering a drug user is known and is, in the example, .5%. So, a positive result even for a test as accurate as the postulated test is not affirmative, even probably, of drug use.

Hmm, what is .5% of a Cabinet?

Barack Obama is a US citizen. This can be inferred from the fact that he is a candidate for nomination to run for President and, now, information that he applied for, and presumably got, a US passport (he is not from US Samoa).

The power to grant that passport lies with the US Government. That power connotes the power to keep the applicant’s personal details on file. That file, it can be inferred, is electronic. This can be inferred because the evidence that the file was accessed, and accessed unlawfully, consists of the IT record generated by each access. A person accessing the record must use a personal login code.

Unlawful access is no big deal.

This can be inferred from the fact that, although there are criminal penalties for wrongful access of records, nobody is being prosecuted for the wrongful accessing of Barack Obama’s file. The applicable legislation is the Privacy Act 1974.

The relaxed attitude to the accessing of his file may be accounted for in several ways; firstly, the accessing was done under authority; secondly, anyway, as is known, the passport itself is not secure. (The modern US passport is biometric and contains an RFID chip. The chip can be read at a distance. The passport is supposedly shielded to prevent this but it is doubtful if it is effective.) Thirdly, so what? What is he complaining about? What can be in his passport file that he is anxious to hide?

I suggest the true reason is very deep; candidate or no, Barack Obama is, essentially, on the wrong side of an asymmetric relationship. The State has and owns the information it took from him and feels no obligation to him for that. In short, the Privacy Act 1974, like all such provisions anywhere, is a sop.

(As I have maintained HERE, the “State” is an abstraction. Its wrongful acts are the acts of its agents who should always be made answerable for those acts.)

In Ireland the equivalent provisions are found in the Data Protection Act 1988 and the Data Protection (Amendment) Act 2003. The latter was passed supposedly to transpose the provisions of Directive 95/46/EC.

These provisions are toothless. Essentially, they provide for the establishment of a regulator, the Data Protection Commissioner. If he (it has always been a he) receives a complaint he may investigate it. He is not obliged to prosecute an offender.

He may not have the resources to prosecute; he is, generally, dependent on the Government for resources. At least once in the recent past those resources dried up to almost nothing. (Arguably, the Commissioner is of a category of regulator as the Information Commissioner, but without the independence she has. The Government has been resolute in whittling away at her authority, mainly through the provisions of the Freedom of Information (Amendment) Act 2003)).

If Barack Obama were to lodge his complaint with the Irish Data Protection Commissioner there is every reason to expect he would be met by a Michael Mukasey response;

I don’t want to speculate but if somebody walked in here with a box full of evidence, they wouldn’t be turned away.”

Tea and sympathy?

The back news story of the Dublin Port Tunnel is not its faults; it is the role of the whistleblower/s.

It is a social good that the faults in the Tunnel (and more importantly, any attempt to ignore or conceal those faults) should become public.

Prime Time did not identify the source of the information disclosed in its TV programme. There is no need; that information could only come from within Transroute (or, possibly, but unlikely, NRA). Transroute [ironically its website is "under construction"] has, since the airing of the Prime Time programme, recognized SIPTU as the representative of Transroute’s employees working on the Tunnel. In short, the Prime Time insider/source is a Transroute employee, a member of SIPTU and a whistleblower.

The Government is formally committed to protection of whistleblowers but is stalling on its implementation in the form of a legislative compulsive-obsessive pattern of behaviour, seen HERE and HERE.

A piecemeal solution seems now the objective as can be seen HERE and HERE

Connected with this subject is the Government assault, [by the Freedom of Information (Amendment) Act 2003] on Freedom of Information principles.

For a history of FOI in Ireland (as of 2003) see HERE.

The Tunnel’s faults will be the news story when there is an accident, possibly a very serious one; whistleblowing is a mechanism to forestall such an event and is valuable for that reason.

Of one thing we can be sure; a government led by Bertie Ahern will not introduce legislative protection for whistleblowers.

(Which is not to say he is alone in his attitude).

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (18/2/2008)

1. There are currently three Motions before the High Court. They are, currently, appearing in Court 1 Distillery Church St. Dublin 7.

2. The first motion (in time) is the Motion of the Irish Human Rights Commission for leave to appear as amicus curiae.

3. The second motion (in time) is a motion from the State challenging, firstly, the locus standi of the Plaintiff to bring the proceedings and secondly seeking an order directing the Plaintiff to provide security for costs.

4. The third motion (in time) is a motion from the Plaintiff seeking, firstly directions as to the trial of the issues and secondly seeking an order of reference to the European Court of Justice.

5. These motions have been adjourned to 10th March 2008 for the purposes of deciding the time and order of trial of the issues arising on the Motions.