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Social services should not help man meet sex workers, judge rules
A judge has ruled that social services should not facilitate access to prostitutes for a man with learning disabilities who has a “high sex drive”.
The man, who is in his 50s, had become fascinated with female sex workers about a decade ago after developing a relationship with one, Mr Justice Keehan heard.
He is now in supported accommodation and in the care of Lincolnshire county council. The authority’s social services bosses had asked for a ruling on what was in his best interests with regard to “contact with sex workers”.
They did not intend to facilitate access to sex workers, either in Britain or in another country where payment for sexual services was legal, and Keehan agreed with that decision.
The judge, who is based in London, analysed the case at a hearing in the court of protection, where issues relating to people who lack the capacity to make decisions are considered, and has outlined his conclusions in a written ruling published online.
The man had said he had a “high sex drive” and found the “lack of access to sex workers” frustrating. Keehan said he accepted that the man, who was not identified, would be disappointed by his decision.
“I have due regard to [the man’s] wishes and desires,” said the judge. “But I have come to the clear conclusion that the local authority have adopted the right decision and approach, in not seeking to facilitate his contact with sex workers either here or abroad.”
He added: “I consider it would be wholly contrary to public policy for this court and for this local authority, to endorse and sanction [him] having sexual relations with a woman for payment.”
The judge said the man would also be at risk of damaging his health and being exploited – risks he did not understand – and social services staff might be in danger of prosecution.
“I entirely accept that [the man] will be, to put it mildly, disappointed by and he will undoubtedly not agree with my decision,” said Keehan. “Nevertheless, I am satisfied that the conclusions I have reached are in his best interests.”
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There Are Parasitic Wasps, and Then There’s the Crypt-Keeper
To deposit its eggs, the parasitic oak gall wasp pierces a leaf or stem with its ovipositor, a long tubelike organ that would be a stinger if this wasp were the kind that stings. The plant puffs and swells, forming tumor-like growths called galls. These serve as tiny nursery domes, known cutely (for a parasite) as crypts. Within each crypt, a wasp egg develops until it grows large enough to chew a hole into the gall’s crispy skin and emerge an adult.
Thus goes the life-cycle of Bassettia pallida. Unless the crypt-keeper wasp — Euderus set, a parasite in its own right — comes along.
The size of a pin, the wasp locates smooth, dome-shaped galls created by the other wasps. Then, puncturing the gall, it injects its eggs, beside or inside the young oak gall wasp. As both eggs develop inside the crypt, the baby crypt-keeper feeds off the body of baby Bassettia.
There’s more. Just as Bassettia begins chewing an escape hatch into the gall skin, Euderus stops it. Now the unfinished hole is too small to allow exit. Bassettia’s head becomes caught, plugging it like a cork. The head is visible from the outside, but it is unresponsive. A few days later, Euderus will crawl into the head and chew its way out, the victor: a parasite’s parasite.
The crypt-keeper wasp’s manipulation of its host and exit through its head was first described in the literature in 2017. But as scientists have studied it further, things have only gotten weirder.
It started when Scott Egan, an evolutionary biologist at Rice University who first described the crypt-keeper, began collaborating with Andrew Forbes, an ecologist at the University of Iowa.
Between 2015 and 2018, Dr. Forbes’s lab had collected more than 23,000 galls from oak trees in Iowa, the Midwest, New England, North Carolina and Texas. His team had hoped to learn about the diversity of gall wasp species and find galls that had been parasitized. But the more he talked with Dr. Egan, the more they suspected that the crypt-keeper was using multiple host species — unusual behavior among parasites, which are usually very specialized.
Dr. Forbes’ lab confirmed the hunch by rearing some wasps and their gall crypts in plastic cups within a chamber that simulated changing seasons. The parasitoid crypt-keepers did have many different species of hosts, and all the hosts had one key thing in common: the galls they occupied were small, smooth, non-woody, lacking fuzz or sharp spines — defenseless. These little crypts were perfect for Euderus’ keeping.
“Parasites or parasitoids are very specialized to a host,” said Anna Ward, a doctoral student in Dr. Forbes’s lab and lead author of the paper that reported this finding, which was published Wednesday in Biology Letters. “You’d think it was only attacking one host or a small subset. We were surprised to see that Euderus set was able to manipulate these very different hosts.”
That the crypt-keeper seeks victims based not on their kind but on the vulnerability of their homes suggests that assumptions about an organism’s behavior can sometimes cause people to miss important truths about how the animals really live.
“These interactions can help us understand our impact on the world,” said Ms. Ward. “With climate change, how can we know our true impact if we don’t even know what’s there?”
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California Lawyers Association Gears Up For Annual Meeting In Monterey
(Image via Getty)
Hundreds of lawyers will gather in Monterey this week for the California Lawyers Association’s second “Annual Meeting,” which offers one more action-packed day of activities than the inaugural gathering.
The three-day conference starting Thursday will feature one of its premier events on day one, as California Supreme Court Justices Ming Chen and Joshua Groban will be interviewed during a luncheon.
Chin, who was appointed in 1996 by Gov. Pete Wilson, is the longest serving justice. Groban, who was Gov. Jerry Brown’s last appointee to the court, assumed his role at the start of 2019.
“We have found our attendees and members really like hearing from the California Supreme Court,” said outgoing CLA President Heather L. Rosing. “They like to understand how it works, and they like to hear the behind-the-scenes stories. I think people are also very excited to hear from Justice Groban because they don’t know him yet.”
The first day will also feature an awards ceremony and opening reception at 5:30 p.m.
“The extraordinary individuals being honored by CLA represent the very best of the legal community and we at CLA are thrilled to recognize them for their achievements,” CLA Executive Director Ona Dosunmu said in a statement.
One of the highlights Friday will be constitutional scholar and UC Berkeley School of Law Dean Erwin Chemerinsky giving the annual Alexander F. Morrison Lecture during lunch. At night, attendees can partake in a dinner reception at the Monterey Aquarium.
A swearing-in ceremony for the new leaders of the California Lawyers Association and California Judges Association is scheduled for Saturday. Emilio Varanini will serve as the new CLA President and Orange County Superior Court Judge Tam Nomoto Schumann will be the new California Judges Association president.
The officers will be sworn-in by California Chief Justice Tani G. Cantil-Sakauye, who let Groban handle similar duties at the recent swearing-in of the State Bar’s new leaders.
Cantil-Sakauye will be a major part of the day’s events in another way too, as she will receive the Sandra Day O’Connor Award for the Advancement of Civics Education from the National Center for State Courts.
The last night of the conference will include the California Young Lawyers Association’s “BBQ, Brews and Bocce President’s and Chair’s reception.” (During a trivia contest at last year’s CYLA reception, I was thrilled to help my team correctly answer that award-winning producer David E. Kelley went to law school at Boston University, which is where I completed my undergraduate degree.)
The California Judges Association, Bench-Bar Coalition, and Conference of California Bar Associations will also be holding their annual meetings in Monterey this week.
The State Bar hosted the yearly gathering bringing a wide variety of members of the legal community together for more than 80 years before ceding the duties to CLA, which launched last year as a result of the bar’s 16 sections and the young lawyers association being split off by the state Legislature.
CLA’s inaugural annual meeting in San Diego was a rousing success, and Rosing said they are hoping for an even-better event in year two.
Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at [email protected] and found on Twitter @lylemoran.
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Could Gary Glitter really make hundreds of thousands from the Joker film?
According to the Sun, the two-minute use of Gary Glitter’s 1972 track Rock and Roll Part 2 in a key scene in Joker, which falls under a synchronisation licence, could make the convicted paedophile “hundreds of thousands of pounds”. He will make money, but perhaps not to the extent that is being presumed.
Two sets of rights have to be cleared and paid for here – one covering the sound recording and another for the publishing/song composition.
“The local company [that placed it in the film] will retain maybe 20% to 30% of the fee,” says a music lawyer and synchronisation expert, who has asked to remain anonymous. “Of the remainder, the local record company in the UK might take 60%. So Glitter could get maybe 30% of the fee on the recorded side and probably less on the publishing, because it is a co-write [with Mike Leander] and because the publisher is also taking a cut.”
Singer Gary Glitter, a convicted paedophile. Photograph: Will Oliver/EPA
The financials are more convoluted than the red-top headlines suggest, but they are nothing compared with the ethical conundrum.
“It’s really the job of the music supervisor to do the due diligence on it,” says Cliff Fluet, a partner at the law firm Lewis Silkin. “In the US, they would literally have no idea, or indeed care, about Gary Glitter.”
The song has different contextual associations in the US, having long been used in sports games, [known colloquially as The “Hey!” Song due to its chant] to gee up spectators. It is far removed from its association in the UK with a convicted paedophile.
For record companies and publishers there is likely to be a blunt business decision underpinning it all. But should those convicted of crimes continue to earn money from their intellectual property? Simply put, copyright does not end if someone serves time. Phil Spector, a convicted murderer, continues to make money from River Deep – Mountain High and Be My Baby, while Glitter continues to make money from Hello by Oasis, due to its referencing of Hello! Hello! I’m Back Again.
One cannot presume this is news to the Joker team. Someone along the licensing chain should have sent up a red flag. How they morally square all this with Glitter getting any money is down to them. But, ultimately, expecting Hollywood or the music industry to prize ethics over earnings reveals a shaky understanding of the history of both.
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Social Mania
Back in the early days of his illness, before there was a diagnosis, I panicked with the appearance of every post. Would his friends desert him? Would everyone think our family was crazy?
Inevitably, people did ask questions. Desperate to protect Roland, my family agreed to keep answers vague: “stress,” “taking time off,” “family emergency.” We avoided labels, squirmed through euphemisms, focused on the fixable and walked on eggshells in his presence. I wanted to help Roland, but I also wanted everything to go back to normal. I didn’t know that this would become our new normal for over a decade.
Most people who suffer from bipolar disorder might have episodes that last days, or weeks. Roland, an overachiever even in mania, had episodes that lasted six months. There were hundreds of miles between us, but, during these bouts, I felt like we were in the back seat of our 1989 Honda Accord, throwing elbows at each other again. I’d reprimand him for going off his medications; he’d label me weak-minded. He’d call me 10 times in a row at work to demand money; I’d refuse. He’d threaten to cut off contact with our family; I’d use Facebook location services to track him and tattle to my parents. We’d hang up on each other, then five minutes later we’d do it all over again.
One day, Roland called me in a frenzy: “Facebook changed the algorithm! I used to get dozens of comments and likes on my posts. Now I get nothing!”
In fact, Facebook had started allowing users to control the content they see, and many people wanted to see less of Roland. Facebook is a mirror of society, after all: We showcase birthdays and babies, not unruly displays of mental illness.
But I never muted Roland. I came to need those posts, to dread the silence that followed them far more than I dreaded the mania. When he was posting, I knew he was still alive.
During his depressions, Roland would fall silent for weeks at a time, unable to get out of bed, caught in a dizzying suicide spiral. I’d hop on a flight to help my heroic parents and brother Ryan clean up the manic wreckage: vintage clothes piled high, business ventures gone wrong, strangers inhabiting Roland’s home. Every time my phone rang, I’d prepare to receive the news that Roland had killed himself.
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Justice Alito’s Got Jokes About Overturning Legal Precedents
(Photo by Alex Wong/Getty Images)
In case you had any doubt about how a sharply divided Supreme Court will play out over the next several years, Justice Samuel Alito is here to make sure you know petty barbs are now par for the course.
On Monday, the Court heard arguments in Ramos v. Louisiana. In a unique twist, both sides in the case are asking the justices to overturn the 1972 case Apodaca v. Oregon. Evangelisto Ramos, a man convicted of murder on a 10 of 12 jury vote, is asking the justices to formally incorporate the Sixth Amendment’s unanimous jury conviction requirement to the states. The state of Louisiana is also asking for Apodaca to be overturned, but they prefer the Court find there is no right to conviction by unanimous jury under the Sixth Amendment. And Justice Elena Kagan seemed perturbed at Louisiana’s position, as reported by Law360:
“You have this stare decisis, except you’re giving it away,” she said. “And I don’t know what to make of that because I would think what you would do is to say something like: This is an outlier in our incorporation doctrine. There’s no question that it is. But it has been an on outlier for 50 years. It has been completely administrable. It has been completely clear.”
Despite Justice Kagan’s grilling of the respondent over the abandonment of stare decisis, Justice Alito made sure to get in a dig at the expense of the liberal justices who have been disturbed over the majority’s ease in shedding precedent in other cases:
[Alito] lightly chided his liberal colleagues…. pointing out that “last term, the majority was lectured pretty sternly in a couple of dissents about the importance of stare decisis,” the Latin term for respecting precedent.
If there was any doubt to whom he was referring, Justice Alito said he was “thinking about the dissent in Franchise Tax Board and the dissent in Knick versus Township of Scott.”
In those two cases, Justices Stephen Breyer and Elena Kagan blasted the conservatives for overturning a pair of precedents governing state sovereign immunity and the Fifth Amendment’s takings clause. Their dissents also warned about “which cases the court will overrule next.”
I guess precedent matters to Alito when it means a convict might get out of jail. Or perhaps he just wants to get it out there early and often that breaking the eggs of precedent is part of making a Supreme Court omelet before the Court overturns Roe. Regardless, it seems obvious that, at least for the near future, snipping will simply be a feature of the Supreme Court.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
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‘We are hurtling towards a surveillance state’: the rise of facial recognition technology
Gordon’s wine bar is reached through a discreet side-door, a few paces from the slipstream of London theatregoers and suited professionals powering towards their evening train. A steep staircase plunges visitors into a dimly lit cavern, lined with dusty champagne bottles and faded newspaper clippings, which appears to have had only minor refurbishment since it opened in 1890. “If Miss Havisham was in the licensing trade,” an Evening Standard review once suggested, “this could have been the result.”
The bar’s Dickensian gloom is a selling point for people embarking on affairs, and actors or politicians wanting a quiet drink – but also for pickpockets. When Simon Gordon took over the family business in the early 2000s, he would spend hours scrutinising the faces of the people who haunted his CCTV footage. “There was one guy who I almost felt I knew,” he says. “He used to come down here the whole time and steal.” The man vanished for a six-month stretch, but then reappeared, chubbier, apparently after a stint in jail. When two of Gordon’s friends visited the bar for lunch and both had their wallets pinched in his presence, he decided to take matters into his own hands. “The police did nothing about it,” he says. “It really annoyed me.”
Gordon is in his early 60s, with sandy hair and a glowing tan that hints at regular visits to Italian vineyards. He makes an unlikely tech entrepreneur, but his frustration spurred him to launch Facewatch, a fast-track crime-reporting platform that allows clients (shops, hotels, casinos) to upload an incident report and CCTV clips to the police. Two years ago, when facial recognition technology was becoming widely available, the business pivoted from simply reporting into active crime deterrence. Nick Fisher, a former retail executive, was appointed Facewatch CEO; Gordon is its chairman.
Gordon installed a £3,000 camera system at the entrance to the bar and, using off-the-shelf software to carry out facial recognition analysis, began collating a private watchlist of people he had observed stealing, being aggressive or causing damage. Almost overnight, the pickpockets vanished, possibly put off by a warning at the entrance that the cameras are in use.
The company has since rolled out the service to at least 15 “household name retailers”, which can upload photographs of people suspected of shoplifting, or other crimes, to a centralised rogues’ gallery in the cloud. Facewatch provides subscribers with a high-resolution camera that can be mounted at the entrance to their premises, capturing the faces of everyone who walks in. These images are sent to a computer, which extracts biometric information and compares it to faces in the database. If there’s a close match, the shop or bar manager receives a ping on their mobile phone, allowing them to monitor the target or ask them to leave; otherwise, the biometric data is discarded. It’s a process that takes seconds.
Facewatch HQ is around the corner from Gordon’s, brightly lit and furnished like a tech company. Fisher invites me to approach a fisheye CCTV camera mounted at face height on the office wall; he reassures me that I won’t be entered on to the watchlist. The camera captures a thumbnail photo of my face, which is beamed to an “edge box” (a sophisticated computer) and converted into a string of numbers. My biometric data is then compared with that of the faces on the watchlist. I am not a match: “It has no history of you,” Fisher explains. However, when he walks in front of the camera, his phone pings almost instantly, as his face is matched to a seven-year-old photo that he has saved in a test watchlist.
“If you’re not a subject of interest, we don’t store any images,” Fisher says. “The argument that you walk in front of a facial recognition camera, and it gets stored and you get tracked is just.” He pauses. “It depends who’s using it.”
While researching theft prevention, Fisher consulted a career criminal from Leeds who told him that, for people in his line of work, “the holy grail is, don’t get recognised”. This, he says, makes Facewatch the ultimate deterrent. He tells me he has signed a deal with a major UK supermarket chain (he won’t reveal which) and is set to roll out the system across their stores this autumn. On a conservative estimate, Fisher says, Facewatch will have 5,000 cameras across the UK by 2022.
The company also has a contract with the Brazilian police, who have used the platform in Rio de Janeiro. “We caught the number two on Interpol’s most-wanted South America list, a drug baron,” says Fisher, who adds the system also led to the capture of a male murderer who had been on the run for several years, spotted dressed as a woman at the Rio carnival. I ask him whether people are right to be concerned about the potential of facial recognition to erode personal privacy. “My view is that, if you’ve got something to be worried about, you should probably be worried,” he says. “If it’s used proportionately and responsibly, it’s probably one of the safest technologies today.”
***
Unsurprisingly, not everyone sees things this way. In the past year, as the use of facial recognition technology by police and private companies has increased, the debate has intensified over the threat it could pose to personal privacy and marginalised groups.
The cameras have been tested by the Metropolitan police at Notting Hill carnival, a Remembrance Sunday commemoration, and at the Westfield shopping centre in Stratford, east London. This summer, the London mayor, Sadiq Khan, wrote to the owners of a private development in King’s Cross, demanding more information after it emerged that facial recognition had been deployed there for unknown purposes.
In May, Ed Bridges, a public affairs manager at Cardiff University, launched a landmark legal case against South Wales police. He had noticed facial recognition cameras in use while Christmas shopping in Cardiff city centre in 2018. Bridges was troubled by the intrusion. “It was only when I got close enough to the van to read the words ‘facial recognition technology’ that I realised what it was, by which time I would’ve already had my data captured and processed,” he says. When he noticed the cameras again a few months later, at a peaceful protest in Cardiff against the arms trade, he was even more concerned: it felt like an infringement of privacy, designed to deter people from protesting. South Wales police have been using the technology since 2017, often at major sporting and music events, to spot people suspected of crimes, and other “persons of interest”. Their most recent deployment, in September, was at the Elvis Festival in Porthcawl.
“I didn’t wake up one morning and think, ‘I want to take my local police to court’,” Bridges says. “The objection I had was over the way they were using the technology. The police in this country police by consent. This undermines trust in them.”
Nick Fisher, CEO of Facewatch, a UK facial-recognition firm that started life as a way to track pickpockets in a London wine bar. Photograph: Karen Robinson/The Guardian
During a three-day hearing, lawyers for Bridge, supported by the human rights group Liberty, alleged the surveillance operation breached data protection and equality laws. But last month, Cardiff’s high court ruled that the trial, backed by £2m from the Home Office, had been lawful. Bridges is appealing, but South Wales police are pushing forward with a new trial of a facial recognition app on officers’ mobile phones. The force says it will enable officers to confirm the identity of a suspect “almost instantaneously, even if that suspect provides false or misleading details, thus securing their quick arrest”.
The Metropolitan police have also been the subject of a judicial review by the privacy group Big Brother Watch and the Green peer Jenny Jones, who discovered that her own picture was held on a police database of “domestic extremists”.
In contrast with DNA and fingerprint data, which normally have to be destroyed within a certain time period if individuals are arrested or charged but not convicted, there are no specific rules in the UK on the retention of facial images. The Police National Database has snowballed to contain about 20m faces, of which a large proportion have never been charged or convicted of an offence. Unlike DNA and fingerprints, this data can also be acquired without a person’s knowledge or consent.
“I think there are really big legal questions,” says Silkie Carlo, director of Big Brother Watch. “The notion of doing biometric identity checks on millions of people to identify a handful of suspects is completely unprecedented. There is no legal basis to do that. It takes us hurtling down the road towards a much more expansive surveillance state.”
Some countries have embraced the potential of facial recognition. In China, which has about 200m surveillance cameras, it has become a major element of the Xue Liang (Sharp Eyes) programme, which ranks the trustworthiness of citizens and penalises or credits them accordingly. Cameras and checkpoints have been rolled out most intensively in the north-western Xinjiang province, where the Uighur people, a Muslim and minority ethnic group, account for nearly half the population. Face scanners at the entrances of shopping malls, mosques and at traffic crossings allow the government to cross-reference with photos on ID cards to track and control the movement of citizens and their access to phone and bank services.
At the other end of the spectrum, San Francisco became the first major US city to ban police and other agencies from using the technology in May this year, with supervisor Aaron Peskin saying: “We can have good policing without being a police state.”
Meanwhile, the UK government has faced harsh criticism from its own biometrics commissioner, Prof Paul Wiles, who said the technology is being rolled out in a “chaotic” fashion in the absence of any clear laws. Brexit has dominated the political agenda for the past three years; while politicians have looked the other way, more and more cameras are being allowed to look at us.
***
Facial recognition is not a new crime-fighting tool. In 1998, a system called FaceIt, comprising a handful of CCTV cameras linked to a computer, was rolled out to great fanfare by police in the east London borough of Newham. At one stage, it was credited with a 40% drop in crime. But these early systems only worked reliably in the lab. In 2002, a Guardian reporter tried in vain to get spotted by FaceIt after police agreed to add him to their watchlist. He compared the system to a fake burglar alarm on the front of a house: it cuts crime because people believe it works, not because it does.
However, in the past three years, the performance of facial recognition has stepped up dramatically. Independent tests by the US National Institute of Standards and Technology (Nist) found the failure rate for finding a target picture in a database of 12m faces had dropped from 5% in 2010 to 0.1% this year.
The rapid acceleration is thanks, in part, to the goldmine of face images that have been uploaded to Instagram, Facebook, LinkedIn and captioned news articles in the past decade. At one time, scientists would create bespoke databases by laboriously photographing hundreds of volunteers at different angles, in different lighting conditions. By 2016, Microsoft had published a dataset, MS Celeb, with 10m face images of 100,000 people harvested from search engines – they included celebrities, broadcasters, business people and anyone with multiple tagged pictures that had been uploaded under a Creative Commons licence, allowing them to be used for research. The dataset was quietly deleted in June, after it emerged that it may have aided the development of software used by the Chinese state to control its Uighur population.
In parallel, hardware companies have developed a new generation of powerful processing chips, called Graphics Processing Units (GPUs), uniquely adapted to crunch through a colossal number of calculations every second. The combination of big data and GPUs paved the way for an entirely new approach to facial recognition, called deep learning, which is powering a wider AI revolution.
“The performance is just incredible,” says Maja Pantic, research director at Samsung AI Centre, Cambridge, and a pioneer in computer vision. “Deep [learning] solved some of the long-standing problems in object recognition, including face recognition.”
Recognising faces is something like a game of snap – only with millions of cards in play rather than the standard deck of 52. As a human, that skill feels intuitive, but it turns out that our brains perform this task in a surprisingly abstract and mathematical way, which computers are only now learning to emulate. The crux of the problem is this: if you’re only allowed to make a limited number of measurements of a face – 100, say – what do you choose to measure? Which facial landmarks differ most between people, and therefore give you the best shot at distinguishing faces?
A deep-learning program (sometimes referred to more ominously as an “agent”) solves this problem through trial and error. The first step is to give it a training data set, comprising pairs of faces that it tries to match. The program starts out by making random measurements (for example, the distance from ear to ear); its guesses will initially be little better than chance. But at each attempt, it gets feedback on whether it was right or wrong, meaning that over millions of iterations it figures out which facial measurements are the most useful. Once a program has worked out how to distil faces into a string of numbers, the algorithm is packaged up as software that can be sent out into the world, to look at faces it has never seen before.
The performance of facial recognition software varies significantly, but the most effective algorithms available, such as Microsoft’s, or NEC’s NeoFace, very rarely fail to match faces using a high-quality photograph. There is far less information, though, about the performance of these algorithms using images from CCTV cameras, which don’t always give a clear view.
People don’t understand how the technology works, and start spreading fear for no reason
Recent trials reveal some of technology’s real-world shortcomings. When South Wales police tried out their NeoFace system for 55 hours, 2,900 potential matches were flagged, of which 2,755 were false positives and just 18 led to arrests (the number charged was not disclosed). One woman on the watchlist was “spotted” 10 times – none of the sightings turned out to be of her. This led to claims that the software is woefully inaccurate; in fact, police had set the threshold for a match at 60%, meaning that faces do not have to be rated as that similar to be flagged up. This minimises the chance of a person of interest slipping through the net, but also makes a lot of false positives inevitable.
In general, Pantic says, the public overestimates the capabilities of facial recognition. In the absence of concrete details about the purpose of the surveillance in London’s King’s Cross this summer, newspapers speculated that the cameras could be tracking shoppers and storing their biometric data. Pantic dismisses this suggestion as “ridiculous”. Her own team has developed, as far as she is aware, the world’s leading algorithm for learning new faces, and it can only store the information from about 50 faces before it slows down and stops working. “It’s huge work,” she says. “People don’t understand how the technology works, and start spreading fear for no reason.”
This week, the Met police revealed that seven images of suspects and missing people had been supplied to the King’s Cross estate “to assist in the prevention of crime”, after earlier denying any involvement. Writing to the London Assembly, the deputy London mayor, Sophie Linden, said she “wanted to pass on the [Metropolitan police service’s] apology” for failing to previously disclose that the scheme existed, and announced that similar local image-sharing agreements were now banned. The police did not disclose whether any related arrests took place.
Like many of those working at the sharp end of AI, Pantic believes the controversy is “super overblown”. After all, she suggests, how seriously can we take people’s concerns when they willingly upload millions of pictures to Facebook and allow their mobile phone to track their location? “The real problem is the phones,” she says – a surprising statement from the head of Samsung’s AI lab. “You are constantly pushed to have location services on. [Tech companies] know where you are, who you are with, what you ate, what you spent, wherever you are on the Earth.”
Concerns have been raised that facial recognition has a diversity problem, after widely cited research by MIT and Stanford University found that software supplied by three companies misassigned gender in 21% to 35% of cases for darker-skinned women, compared with just 1% for light-skinned men. However, based on the top 20 algorithms, Nist found that there is an average difference of just 0.3% in accuracy between performance for men, women, light- and dark-skinned faces. Even so, says Carlo of Big Brother Watch, the technology’s impact could still be discriminatory because of where it is deployed and whose biometric data ends up on databases. It’s troubling, she says, that for two years, Notting Hill carnival, the country’s largest celebration of Caribbean and black British culture, was seen as an “acceptable testing ground” for the technology.
‘The real problem is phones’: Maja Pantic, research director at Samsung’s AI Centre. Photograph: Karen Robinson/The Guardian
I ask Fisher about the risk of racial profiling: the charge that some groups may be more likely to fall under suspicion, say, when a shop owner is faced with ambiguous security footage. He dismisses the concern. Facewatch clients are required to record the justification for their decision to upload a picture on to the watchlist and, in a worst-case scenario, he argues, a blameless individual might be approached by a shopkeeper, not thrown into jail. “You’re talking about human prejudices, you can’t blame the technology for that,” he says.
After our interview, I email several times to ask for a demographic breakdown of the people on the watchlist, which Fisher had offered to provide; Facewatch declines.
***
Bhuwan Ribhu grew up in Delhi, in a small apartment with his parents, his sister Asmita, and many children who had been rescued from slavery and exploitation. Like Gordon, Ribhu followed his parents into the family business – in his case, tracking down India’s missing children, who have been enticed, forcibly taken or sold by their parents to traffickers, and end up working in illegal factories, quarries, farms and brothels. His father is the Nobel Peace laureate Kailash Satyarthi, who founded the campaign Bachpan Bachao Andolan (Save Childhood Movement) in 1980, after realising that he could not accommodate all of the children being rescued in the family home.
The scale of the challenge is almost incomprehensible: 63,407 child kidnappings were reported to Indian police in 2016, according to the National Crime Records Bureau. Many children later resurface, but the sheer numbers involved mean it can take months or years to reunite them with their families. “About 300,000 children have gone missing over the last five or six years, and 100,000 children are housed in various childcare institutions,” says Ribhu. “For many of those, there is a parent out there looking for their child. But it is impossible to manually go through them all.”
He describes the case of Sonu, a boy from India’s rural Bihar region, 1,000km from Delhi. When Sonu was 13, his parents entrusted him to a factory owner who promised him a better life and money. But they quickly lost track of their son’s whereabouts and began to fear for his safety. Eventually they contacted Bachpan Bachao Andolan for help. Sonu was tracked down after about two years, hundreds of miles from home. “We found the child after sending out his photo to about 1,700 childcare institutions across India,” Ribhu says. “One of them called us back and said they might have the child. People went and physically verified it. We were looking for one child in a country of 1.3 billion.”
Ribhu had read a newspaper article about the use of facial recognition to identify terrorists at airports and realised it could help. India has created two centralised databases in recent years: one containing photos of missing children, and the other containing photos of children housed in childcare institutions. In April last year, a trial was launched to see whether facial recognition software could be used to match the identities of missing and found children in the Delhi region. The trial was quickly hailed a success, with international news reports suggesting that “nearly 3,000 children” had been identified within four days. This was an exaggeration: the 3,000 figure refers to potential matches flagged by the software, not verified identifications, and it proves difficult to find out how many children have been returned to parents. (The Ministry of Women and Child Development did not respond to questions.) But Ribhu says that, since being rolled out nationally in April, there have been 10,561 possible matches and the charity has “unofficial knowledge” of more than 800 of these having been verified. “It has already started making a difference,” he says. “For the parents whose child has been returned because of these efforts, for the parents whose child has not gone missing because the traffickers are in jail. We are using all the technological solutions available.”
China has created digital prisons with this technology: you can’t use your credit card, your phone. But we are not China
Watching footage of Sonu being reunited with his parents in a recent documentary, The Price Of Free, it is hard to argue against the deployment of a technology that could have ended his ordeal more quickly. Nonetheless, some privacy activists say such successes are used to distract from a more open-ended surveillance agenda. In July, India’s Home Ministry put out a tender for a new Automated Facial Recognition System (AFRS) to help use real-time CCTV footage to identify missing children – but also criminals and others, by comparing the footage with a “watchlist” curated from police databases or other sources.
Real-time facial recognition, if combined with the world’s largest biometric database (known as Aadhaar), could create the “perfect Orwellian state”, according to Vidushi Marda, a legal researcher at the human rights campaign group Article 19. About 90% of the Indian population are enrolled in Aadhaar, which allocates people a 12-digit ID number to access government services, and requires the submission of a photograph, fingerprints and iris scans. Police do not currently have access to Aadhaar records, but some fear that this could change.
“If you say we’re finding missing children with a technology, it’s very difficult for anyone to say, ‘Don’t do it’,” Marda says. “But I think just rolling it out now is more dangerous than good.”
***
Debates about civil liberties are often dictated by instinct: ultimately, how much do you trust law enforcement and private companies to do the right thing? When searching for common ground, I notice that both sides frequently reference China as an undesirable endpoint. Fisher thinks that the recent disquiet about facial recognition stems from the paranoia people feel after reading about its deployment there. “They’ve created digital prisons using facial recognition technology. You can’t use your credit card, you can’t get a taxi, you can’t get a bus, your mobile phone stops working,” he says. “But that’s China. We’re not China.”
Groups such as Liberty and Big Brother Watch say the opposite: since facial recognition, by definition, requires every face in a crowd to be scanned to identify a single suspect, it will turn any country that adopts it into a police state. “China has made a strategic choice that these technologies will absolutely intrude on people’s liberty,” says biometrics commissioner Paul Wiles. “The decisions we make will decide the future of our social and political world.”
For now, it seems that the question of whether facial recognition will make us safer, or represents a new kind of unsafe, is being left largely to chance. “You can’t leave [this question] to people who want to use the technology,” Wiles says. “It shouldn’t be the owners of the space around King’s Cross, it shouldn’t be Facewatch, it shouldn’t be the police or ministers alone – it should be parliament.”
After leaving the Facewatch office, I walk along the terrace of Gordon’s, where a couple of lunchtime customers are enjoying a bottle of red in the sunshine, and past the fisheye lens at the entrance to the bar, which I now know is beaming my face to the computer cloud. I think back to a winky promise I’ve read on the Gordon’s website: “Make your way to the cellar to your rickety candlelit table – anonymity is guaranteed!”
Out in the wider world, anonymity is no longer guaranteed. Facial recognition gives police and companies the means of identifying and tracking people of interest, while others are free to go about their business. The real question is: who gets that privilege?
• If you would like a comment on this piece to be considered for inclusion on Weekend magazine’s letters page in print, please email [email protected], including your name and address (not for publication).
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Are 8 Out of 10 Women Really Wearing the Wrong Bra Size?
Walk into a Victoria’s Secret, and the hundreds of colorful, lacy options lining the walls and piled upon tables — bralette, demi-cup, wireless, racer back, sport, strapless — will swallow you. But before you grab a few bras to try on, you need to hedge your bets on what size you wear.
The staff at Victoria’s Secret, along with many scientists and even, famously, Oprah, say you have a 20 percent chance of choosing right. That number — the idea that 80 percent of women are wearing the wrong bra size — has been ingrained in the minds of shoppers for decades, becoming a puzzle that no one can seem to solve.
That’s because the statistic is bunk.
There Are No Size Standards
Researchers and retailers acknowledge that the 80 percent number isn’t foolproof, but they often use it to illustrate a widespread problem: ill-fitting bras.
“We were actually encouraged to talk about that statistic,” said Carrie Gergely, who worked as a Victoria’s Secret bra fitter and store manager from 2003 to 2008. Ms. Gergely recognized that the size on the tag wasn’t the real issue. Knowing how to look for the right fit was.
Women, she said, didn’t know how the cups were supposed to fit. They didn’t know where the chest plate between the breasts was supposed to lie, she said, and “they didn’t know how the straps were supposed to rest, or where it should hit on their back. They just had no concept of how they were supposed to wear the bra.”
Regardless, the “wrong size” became a mantra. One man, the plastic surgeon Edward Pechter, gets credit for it.
Dr. Pechter first published the statistic in small 1998 study, writing in Plastic and Reconstructive Surgery that 70 percent of women or more were wearing the incorrect bra size. The article outlined a new method for measuring breasts, with which he hoped to standardize sizing for augmentation and reduction surgeries.
But Dr. Pechter didn’t reach his estimate through surveying a large and diverse sample. Instead he used anecdotal evidence from publications like Good Housekeeping, Ladies’ Home Journal and the Playtex Fit Guide. (He also studied only women who reported wearing cup sizes AA through DDD. Today you can find bras in sizes up to an O cup.)
Jenny Burbage, a sports biomechanist at the University of Portsmouth in Hampshire, England, has made studying breasts (and how to support them) her life’s work. In one of her studies, “Evaluation of professional bra fitting criteria for bra selection and fitting in the UK,” Ms. Burbage noted that “it has been suggested that 70 to 100 percent of women are wearing the wrong size bra,” citing Dr. Pechter’s work along with few other small studies to reach that range.
“There aren’t many scientific papers available which have effectively looked at issues of bra fit and the number of women who may be wearing the wrong size bra,” Ms. Burbage said in an interview. Anecdotally, she sees “hundreds and hundreds and hundreds of women” who come through her lab struggling with fit issues.
Like Ms. Gergely, Dr. Burbage said the issue was not that people were simply wearing an incorrect size but that they often didn’t know how to check for the best fit. “Women are going to be different sizes in different bras,” she said. “I might have three or four different bra sizes based on what bra I’m wearing and what manufacturer that comes from.”
The lack of standardization can be frustrating, but it also gives women more opportunity to find styles and shapes that work for them.
The ‘Right’ Size
If fit is relative, why are retailers still fixating on the idea that the right size exists?
Online companies like ThirdLove and True&Co. promise that shoppers can find the perfect fit from their bedroom instead of a fitting room. Both ThirdLove and True&Co. call attention to their inclusive sizing and encourage women to shop via Fit Finder (ThirdLove) and Fit Quiz (True&Co.) tools, which recommend bras based on one’s breast shape, with names like “teardrop” or “bottom happy.”
It’s a new approach for the lingerie industry, with gender and size inclusivity outpacing hypersexualized marketing. But, like Victoria’s Secret, they insinuate the same thing: that you’re wearing the wrong size and that they can help you find the right one.
“We’ve always focused on this idea, ‘Are you wearing the right size?’” said Heidi Zak, the ThirdLove co-founder and chief executive. According to Ms. Zak, the company has consistently used the concept that people are wearing the wrong size in its marketing. She considers the statistic an invitation for shoppers to find bras that work, not an admonition.
“I think that we’re actually trained as women to be like, ‘If you don’t wear a cookie-cutter size, then there’s nothing for you,’” she said. To combat that sentiment, ThirdLove sells bras in cup sizes AA to I, including some half-cup options.
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Cora Harrington, the author of “In Intimate Detail: How to Choose, Wear, and Love Lingerie” and editor of the Lingerie Addict blog, eschews the oft-repeated 80-percent-plus number in her book. She couldn’t verify it, and she is not interested in repeating a figure that makes people feel as if they’ve failed before they even start shopping.
“I’ve heard that stat for at least as long as I’ve been writing about lingerie,” Ms. Harrington said. Phrasing bra fitting as a chore, she said, or as something women are doing wrong, or that they don’t really know their bodies very well, doesn’t “invite people to come in and learn more about bras.”
Think Beyond the Size on the Label
Ms. Harrington recognizes that shopping for a bra can be difficult but said there has never been a better time to do so. Online shopping means that people aren’t limited to the options in their neighborhood, and lingerie brands are now introducing lines in a greater range of sizes beyond D cups. (Rihanna’s Savage x Fenty line is doing it.)
Ms. Harrington recommends reading reviews on blogs or forums, trying on as many bras as possible and going to specialized shops where expert fitters can provide feedback and new options. She said that once you find a style you like, you can look for discounted colorways from previous seasons, but she also encourages people to support boutiques when they can.
Finding a bra that fits well is tricky not only because sizing varies by brand, but also because of how sizes are related to one another.
LaJean Lawson, a scientist and consultant for the Champion sportswear brand, explained that the cup size is usually based on the difference between the band and bust measurements (below the rib cage and over the fullest part of the breast). The cup is measured by volume, and, confusingly, that volume can stay the same as you move down a band size and up a cup size, or up a band size and down a cup size.
This is called sister sizing, and it means that, theoretically, a 34C could have a similar volume to a 32D or 36B. But bras may fit differently based on the shape of the bra and the band measurements, how your breast volume is distributed on your body and, again, by brand.
With all of those variables at play, you may be surprised to find that the size that works best for you is pretty different from what you’re wearing. To ease label shock, the site What Bra Sizes Look Like, an offshoot from a community on Reddit called A Bra That Fits, displays photos submitted by visitors to show how different sizes can look. When you’re shopping for yourself, stay open to trying various sizes.
Because there are so many variations in bra styles and sizes, finding a comfortable and supportive fit involves trial and error. (Wirecutter, the review site owned by The New York Times, has recommendations for how to shop for bras and check for fit.)
But it may also mean accepting that as your body changes during menstruation, pregnancy or regular weight fluctuations, your bra size may change. Experts like Linda Becker, the fitter at Linda’s bra salon in Manhattan, recommend rechecking your bra fit every six months to a year.
Ultimately, there is no shortcut to finding a good fit. But if your bra doesn’t fit, Ms. Harrington said, “the fault is not you.”
”I feel like if more companies and more brands were saying that, it might be easier for people.”
Let Us Help You
Finding a bra that fits well is tricky. Staffers at Wirecutter, the review site owned by The New York Times, spoke with a variety of experts, including lingerie shop owners, professional bra fitters and even a biomechanics researcher, to try to make sense of it all. Here are some tips and tricks they’ve learned in reporting about different kinds of bras. — Anna Perling
Most of a bra’s support comes from the band, and as such, the band should be snug. You want a few fingers’ worth (half an inch or so) of room at the back. If you can stretch a band farther away from your body, try a smaller band size. Fit the bra initially on the loosest setting so that you can tighten the band as the material stretches over time.
The band should sit parallel to the floor and not ride up. You can raise your hands above your head to check for fit here. If the band rides up, it may be too big, and if it feels uncomfortably tight, it could be too small.
Straps should be reasonably snug, not digging in or falling off. You can adjust the length accordingly.
Wires should not float off your chest, sit on the breasts or dig into your sides. If they do, try a larger cup size.
For underwire bras, the gore (the center piece joining the two cups) should lie flat on the center of your chest. If it’s floating off your body, your bra may be too big or too small (you can look for other fit signs to determine whether to size up or down), or you may just need to try a different style or brand.
Cups should contain the breasts evenly, without creating spillage or cutting into your sides or the top part of your chest. Gaping means you may need a different cup size or a smaller band size. Baggy or wrinkled cups are a sign that a bra is too big. Spilling over the top and sides means a cup is too small.
To make sure everything is sitting in your bra correctly, Iris Clarke of Iris Lingerie in Brooklyn recommends that you use the “scoop and swoop” technique. Once you have a bra on, lift a breast with your hand from the side, situating it in the cup and above the underwire, and then tuck or smooth the top of your tissue into the cup to let it settle. It sounds weird, but it makes a difference — breasts are dead weight, so you need to nudge them where you want them.
Because a person’s breasts can be of unequal size, Ms. Clarke suggests fitting based on your larger breast so that you aren’t spilling out of a cup.
For extra-tricky fits, some stores and tailors offer simple alterations for bra straps, bands or cups. Fees vary, so we recommend requesting a quote (or two).
A version of this article appears at Wirecutter.com.
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She’s 8 Years Old. Her Superpower? Creating Anti-Bullying Comics.
Jennifer Gilbert was there with her son Jackson, 9, a seasoned fan of Star Wars and Marvel Comics. Mrs. Gilbert discovered Loot over Labor Day weekend, and Jackson has become a once-a-week regular. She has seen the benefit of him finding peers with common interests. “It has built his confidence,” she said.
Long gone are the days when comic books were seen as a bad influence on young readers.
Last year, annual sales of comics and graphic novels in the United States and Canada reached just over $1 billion, according to estimates by ICV2, an online publication that covers pop culture, and Comichron, an online resource for comics research. Part of the $80 million increase from 2017 was attributed to sales outside of comic stores, which includes chain bookstores and major online retailers, with sales of graphic novels for young readers the biggest factor.
“Graphix, the imprint from Scholastic, has really turbocharged that part of the market,” said Milton Griepp, the chief executive of ICV2. The Graphix library includes “Bone” by Jeff Smith, “Dog Man” by Dav Pilkey and the memoirs of Raina Telegemeier. Her latest, “Guts,” about tackling fourth grade and coping with anxiety, has an initial print run of one million copies.
Another significant factor, Mr. Griepp said, are libraries, which have added more graphic novels to their collections over the years. “We in the comics business owe a huge debt of thanks to the librarians who have helped make this possible.”
Paul Levitz, a former president of DC Comics, has seen the industry go through many changes. Last weekend, he happened to be dining downstairs at Frank’s when he learned about Loot and ventured to the second floor to take a look. “Loot isn’t really a comic shop — at least not yet,” Mr. Levitz wrote in an email. “It’s more of a great art experience. With arts education in public schools fiscally challenged, it’s great to have folks like this stepping up to fill the gap.”
Since stepping down from his role at DC, Mr. Levitz has been teaching graphic novel courses at colleges. He said he was impressed by some of the material on offer for Loot’s cartoonists in training, including a binder of instructions for drawing facial expressions. “I wish I had some of those tools for my college course on writing graphic novels,” he added.
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Forgiving Your Brother’s Murderer
Amber Guyger (L), Botham Jean (R)
It’s rare in a murder case for the family of the victim to show mercy toward the convicted assailant.
Even though many people profess values of “turning the other cheek,” few of them, when confronted with the murder of their child, sibling, parent, or friend, ever reach a point when they can say, “I forgive you.”
Calls for “justice” for the person killed often become a rallying cry at trial and are mirrored by newspaper headlines. But “justice” is often synonymous with “revenge,” when there’s no room for considering the assailant as a human being with his own tortured story, who’s often sorry for what he did and will carry the burden the rest of his life.
That’s why what happened at the sentencing of former police office Amber Guyger last week in Texas was so surprising.
Guyger was found guilty of killing Botham Jean, her upstairs neighbor. After returning from a long shift on the job, Guyger parked on the wrong level of her complex and mistakenly entered Jean’s apartment rather than her own. Believing him to be an intruder, she shot him. (I wrote about this last week and predicted, because of how well she did testifying, that she would be convicted of manslaughter rather than murder. But I was wrong. What I didn’t know was that in her testimony, she admitted she intended to kill Jean when she shot him. Jurors read this as an admission of guilt.)
Texas is among a handful of southern states that permits the jury (as opposed to the judge alone) to determine what sentence the defendant should receive. In many cases, it makes sense for a jury to decide the sentence in keeping with what the community feels at the time, as opposed to mandatory-minimum sentencing thought up by legislators sometimes decades earlier. In this case, the prosecutor wanted Guyger to receive a 28-year sentence. The jury, however, decided 10 was enough and the judge agreed.
Sentencing included impromptu testimony given by the deceased’s 18-year-old brother, Brandt Jean. During a victim-impact statement, Brandt took the stand and detailed how he felt about his brother’s death and what he thought of the defendant. Surprisingly, he called for mercy and not revenge. He said he wanted the “best” for Guyger and, in a dramatic moment that left even the judge teary-eyed, asked if he could come down from the witness stand and hug Guyger in open court. He was permitted to do so, and the ensuing video became a news and social media sensation.
The jurors, who’d already decided that 10 years was a fair sentence, felt vindicated in their decision.
youtube
According to the Jean family lawyer, Brandt never intended to say anything at the sentencing but was moved at the last moment to state his position. It was unexpected, heartfelt, and showed a remarkable amount of courage to recognize the suffering of the defendant in the midst of his own suffering. (The judge, also, did something unusual. Following sentencing, she left the bench, hugged the defendant, and handed her a bible. I can’t imagine that ever happening in New York.)
Outside the courthouse, protestors denounced the 10-year sentence as too short and imposed only because the victim was black and the assailant white, but Brandt stuck to his position — putting Guyger in jail wouldn’t bring his brother back.
Out of the mouth of babes.
Hating the person who killed a sibling and carrying that hate forever doesn’t make anyone better or lessen the grief. Closure is important, and for those few with the compassion to forgive, perhaps closure comes quicker with forgiveness.
I have my own high-profile sentencing this week in the murder of “Junior” Lesandro Guzman Feliz. My client, Manuel Rivera, was 18 years old at the time, and although on the scene and pictured in a video of the event, he never intended that “Junior” be killed. His story and Junior’s intersected in one horrible moment of violence a little over one year ago. It will now result in each family losing their son as my client will be sentenced to a minimum of 20 years to life, potentially without the possibility of parole.
I had another murder case where my client’s mother and the victim’s mother were in court the same day, sitting just a bench apart. The victim’s mom wore a T-shirt with her son pictured on it. The two women didn’t know each other, but I introduced them. I didn’t know what would happen.
Within seconds, they stood, hugged, and cried, mourning the shared loss of their children.
Somehow it felt more humane, even in the midst of the tragedy, to do that rather than ignoring or hating each other forever.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.
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Waterloo university case sheds light on after-the-fact accommodation
That decision will be appealed, the university announced. Poziomka, a partner at Ross & McBride LLP in Hamilton, Ont., and 1st Vice-President of the Board of Directors of ARCH Disability Law, was not involved in the case, but says he personally thinks the decision has important implications.
For example, Poziomka says, the court “takes it to the next level” in its consideration of what an educational institution must do when considering grades, and also what a second, subsequent institution should consider.
“I think the decision is helpful. It clearly sets out that there is a duty to accommodate — after the fact — in education cases, where a disability that may not be known at that time has impacted somebody’s grades and ability to carry out future educational opportunities,” he says. “It’s interesting because it goes so far as to say, ‘Maybe you don’t consider grades at all.’”
Without considering grades, there may be few indicators for institutions to consider, so it may require a balancing act on the part of the university, he says. As it stands now, the decision is also a reminder about when the duty to accommodate can be triggered, says Poziomka.
“A lot of lawyers — and clients and employers — take issue with the notion that after something happens, there still may be a duty to accommodate. Whether it’s in the employment or educational context,” he says. “The takeaway with this case is to highlight in the service context with education, there is a post-incident duty to accommodate. It’s not enough to just say, ‘Well, we didn’t know about it at the time, so there’s nothing we can do.’”
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Religious discrimination bill could protect workplace bullies, critics warn
Legal academics and the Diversity Council have warned that the Coalition’s proposed religious discrimination bill is unworkable for employers and will thwart policies designed to create safe and inclusive workplaces.
In a joint submission, the academics warn the bill’s proposed ban on workplace policies regulating religious speech would leave employers in the invidious position of having a duty under occupational health and safety laws to create safe workplaces, but being restrained in their ability to prevent bullying.
The Australian Chamber of Commerce and Industry has warned the bill does not properly define religion, meaning that Indigenous spirituality could be excluded by the common law definition while “esoteric or emerging religions” are protected.
The draft bill would prevent employers from having codes of conduct that ban religious speech in the workplace or on social media, on the grounds that such a ban would indirectly discriminate on the grounds of religion. The provision exempts large employers only if they can show they would suffer “unjustifiable financial hardship” without the rule.
The academics’ submission – coordinated by Liam Elphick and Alice Taylor and signed by Professors Beth Gaze, Simon Rice and Margaret Thornton – noted the effect of the section is that religious speech “would have greater protection from employer intervention than any other statement or expression”.
For example, an employer with a code of conduct banning employees from publicly engaging in controversial political debates would not be able to impose the rule on a religious employee who wanted to oppose marriage equality. A gay employee, however, would be restricted from publicly supporting it.
“There are also workability issues in how an employer can factually prove that a conduct rule is ‘necessary’ to avoid unjustifiable financial hardship, considering the very high standard required to prove necessity,” the academics said.
The academics warned the clause exempting religious speech from federal, state and territory discrimination protections would create an “unworkable situation for businesses in regard to employment”.
“Work health and safety laws impose a positive duty on employers to prevent bullying, and discrimination laws require businesses to provide their services free from discrimination, yet [the exemption] would authorise bullying and discrimination,” they wrote.
Australian Chamber of Commerce and Industry (Acci) submitted that an employee’s religion, beliefs and practices “may not be readily apparent” to employers, making it “highly foreseeable” that an employer may unintentionally discriminate against them.
It proposed a defence or exemption for unintentional breaches to prevent an “unfair” legal liability.
The Diversity Council’s chief executive, Lisa Annese, said the bill “would impair organisational efforts to implement diversity and inclusion policies” and would confuse businesses.
Annese said religious people should be protected against discrimination because of their faith. “But at the same time, we know that using that faith as a reason, genuinely held or not, to discriminate against others isn’t good for inclusion,” she said.
Annese suggested the bill would create “absurd situations” where homophobic comments are protected when made by an employee of a religious background but not when made by a non-religious employee. “The only people who win in this scenario are the lawyers.”
The Uniting Church LGBTIQ+ Network also complained about the ban on employer conduct rules, warning it would have “significant unintended consequences”.
It said employees would be licensed to tell a single mother that they are “inappropriate parents” or to tell a LGBTIQ employee “they are praying for them every day that they will be made whole as a straight person”.
The network recommended the ban be scrapped or replaced with a more balanced provision recognising “employees who have gained a higher profile due to their employment do have a higher level of responsibility to their employers”.
The religious discrimination bill has been panned by the Australian Human Rights Commission and civil society groups including the Equality Campaign and Public Interest Advocacy Centre, who warn it provides greater protection for religion than other protected attributes, overrides other discrimination laws and allows medical practitioners to refuse treatment.
Even the conservative Sydney Anglican diocese has opposed the law in its current form, warning it would force Anglican youth camps to host Satanist masses at its campsites and has the “perverse effect” of encouraging companies such as Qantas to threaten to withdraw sponsorship to justify restrictions on religious speech in cases like Rugby Australia’s sacking of Israel Folau.
On Wednesday a group of about 150 Muslim organisations called for a higher protection against vilification on the grounds of religion in the bill.
The groups noted Muslim Australians do not have the same level of protection as ethnic communities, which are protected from conduct that “offends, insults, humiliates or intimidates” based on race under section 18C of the Racial Discrimination Act.
They called for a provision to prevent conduct which “harasses, vilifies or incites hatred or violence against” another person based on their religion, arguing this would prevent violence without precluding religious debate.
On Thursday Liberal senator Amanda Stoker rejected the idea of extending 18C-type provisions to religion, which the Muslim groups did not propose. She told Sky News “you don’t want to stray into something that could end up becoming a de facto blasphemy law”.
Stoker said religious people should be protected from violence but not “fair game criticism of religious beliefs”.
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Canada – Level 1: Exercise Normal Precautions
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Iris van Herpen Designs for Nature
LEIDEN, the Netherlands — The imposing red stone edifice rises from an otherwise empty area in this old Dutch city like a mesa in the American West, bound — round and round — with what looks like a white ribbon.
Get closer, though, and you will discover that the ribbon is actually about 3,300 seamless feet of white concrete friezes with fossil-like patterns inspired by erosion on the volcanic island of Lanzarote, in the Canaries. It seems an extraordinary accessory for the building, until you learn it was designed by the 35-year-old Dutch couturière Iris van Herpen, for the new addition to the renovated Naturalis Biodiversity Center, the Netherlands’ natural history museum.
“I don’t see a difference between architecture and fashion,” Ms. van Herpen said, taking in the finished building for the first time on a sunny July morning. “They can really talk to each other.”
There are fashion designers who find inspiration in museums. And designers who underwrite the renovation of museums. And designers who open their own museums. But there are few, if any, who have worked directly with architects to create a museum.
Ms. van Herpen, however, is not your ordinary designer. Several times she has visited the Large Hadron Collider, the world’s largest particle accelerator, at CERN, the European Center for Nuclear Research, near Geneva, and used what she saw and experienced there to inform her work. In 2011, she collaborated with the London-based architect Daniel Widrig to create a white 3-D-printed bolero in swirling nautilus shapes. In 2012, she was the first (with the help of the American-Israeli architect Neri Oxman of the Massachusetts Institute of Technology’s Media Lab) to produce a fully flexible 3-D printed dress. And in July, she partnered with Anthony Howe, an American kinetic sculptor, to produce the closing piece of her couture show in Paris: a corset minidress with feather wings that spun as the model walked.
“Calling Iris a designer is nomenclature,” Mr. Howe said backstage before that show at the Élysée Montmartre. “She’s an artist who happens to make things that fit on the human form. Yes, it has everything to have to do with a model, a human form. But what she does is way beyond that. Way beyond.”
Still, Ms. van Herpen does produce clothes one can wear — about 100 pieces a year, each of which cost from $20,000 to more than $100,000, and are purchased and worn by prominent women. Cate Blanchett walked the red carpet last year as jury president of the Cannes Film Festival in a fluttering laser-cut and laser-bonded van Herpen gown that had been made for her and lent for the occasion. Much of the rest of the designer’s work ends up in museum collections, or retrospectives; she has two new exhibitions pending: in 2021 at the Musée des Arts Décoratifs in Paris, and in 2022 in an undisclosed location.
Her existence is monastic: the studio, a rough-hewed space in an old warehouse at Amsterdam’s former lumber port, is small, spartan and staffed with a clutch of other millennials — mostly women. A former ballerina, Ms. van Herpen is lean, soft-spoken and reserved; she dresses in secondhand finds and wears little makeup. Branding and a global retail network are not part of her five-year plan. (She probably doesn’t have a five-year plan.) It is the addition of outside projects, like designing costumes for the Paris Opera Ballet or working on the biodiversity center’s renovation, that keep her engaged as well as afloat financially.
That’s why, when Neutelings Riedijk Architects of Rotterdam won the 2013 competition to renovate the original Fons Verheijen-designed museum, as well as to construct a new five-story, 400,000-square-foot addition, they emailed Ms. van Herpen — and she immediately agreed.
Michiel Riedijk, the project’s lead architect, said, “We wanted to evoke nature in all its elements — biodiversity, geology, tectonics — and not do so in a straightforward 19th-century manner.
“Hence, Iris.”
Her work, he said, embodies “the notion of permanent change,” and “the beauty of nature.” It has, he added, the same focus as the museum, with its collection of 42 million items (museum officials called it one of the world’s largest), from a T-Rex skeleton to butterflies.
The architects already had decided to clad the building, inside and out, with a rust-red travertine from Iran. “They showed me that stone and I fell in love with it,” Ms. van Herpen said. “The crystals, and color formations — it was beautiful. Then they showed me the skeleton of the facade, with the glass, and I wanted what I did to grow out of that.”
She proposed a series of custom panels, eventually totaling 263, made of concrete and white marble powder. She drew the designs by hand and on the computer, and once she figured out where to place each one, redrew the ends so they would meet flawlessly, like a good tailor properly joining plaids at the seams.
To the eye, the panels look a bit like fossils, and like lava flows — “like pleated silk, in a way,” Ms. van Herpen said. To the touch, they are cashmere soft, with a faint layer of fine dust. In essence, the building is like a body: The window frames are the skeleton; the travertine stone, the flesh, and Ms. van Herpen’s ribbon as tendons. “It really does feel alive,” she said.
Though she has long admired architecture, and has worked with architects, Ms. van Herpen said she was surprised how wildly different the rhythms are between her métier and architecture, and how decisive one must be when constructing a building as opposed to a dress.
“Fashion is very fast-paced, and there are fittings, and changes — the design is always evolving,” she said. “But this is such a long process. And you have to be sure about what you choose, because once you go into production, there is no way back. There is no way of changing your mind.”
She took in the building again, and shook her head. “I have even more respect for architecture than I did before,” she said with a laugh. “And I have realized I will never be an architect.”
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Orbán’s Misapprehension of Liberalism – Law & Liberty
Are conservatives in Europe and the United States still prepared to defend liberal democracy? There are ominous signs that their willingness to do is waning.
Gaining clarity about this question requires a brief discussion of terminology. As is the case with the term “liberal education,” the “liberal” in “liberal democracy” means something very different from the political stance of the Democratic Party or of House Speaker Nancy Pelosi (D-Calif.).
The noun “democracy” means “the rule of the people.” This can take the form of what James Madison in Federalist 10 calls a “pure democracy,” which Madison defines as “a society consisting of a small number of citizens, who assemble and administer the government in person.” But this ancient version of democracy has never been seriously advocated for large, modern societies.
The modern type of regime found in the United States and other leading contemporary democracies accepts the sovereignty of the majority, but not its right to rule in an unconstrained or unrestricted fashion. Various protections of the rights of individuals and minorities constrain majority rule, and these protections are grounded in a constitution and the rule of law. It is this species of limited government that has long been called liberal democracy.
Though in modern practice, majority rule and the protection of individual rights often go together, they haven’t always. This point was underlined back in 1997 by Fareed Zakaria, in a much-cited essay in Foreign Affairs entitled, “The Rise of Illiberal Democracy.” Zakaria’s central point was that many of the new democracies that had emerged since the 1970s had successfully instituted free elections but were not performing very well in terms of guaranteeing individual rights and the rule of law. By calling such regimes “illiberal democracies,” Zakaria was indicting them for their failure to become liberal (or constitutional) democracies. His implicit argument was that liberalism so understood was of greater value than popular government—indeed, that the latter was choice-worthy only if accompanied by the former. This generally reflected the high esteem in which individual rights and the rule of law were held at the time. Except among Islamists, very few voices were raised in opposition to liberalism.
Today, of course, the situation is very different. Liberalism is widely attacked and authoritarianism is surging. One clear indicator of this shift is the fact that “illiberal democracy” has been transformed in some quarters from a term of denigration to a proudly proclaimed slogan. This has largely been the work of the man visiting with President Trump in Washington today, Hungarian Prime Minister Viktor Orbán, who as early as 2014 began embracing “illiberal” as a positive description.
More recently, Orbán boldly stated that “there is an alternative to liberal democracy: it is called Christian democracy.” And Christian democracy, he added, “is not liberal. Liberal democracy is liberal, while Christian democracy is not liberal; it is, if you like, illiberal.”
Orbán cites three key issues to explain how his brand of “Christian democracy” differs from its liberal counterpart: 1) Liberal democracy favors multiculturalism, while Christian democracy “gives priority to Christian culture”; 2) liberal democracy is pro-immigration, while Christian democracy is anti-immigration; and 3) liberal democracy “sides with adaptable family models” rather than with the Christian family model. With respect to each of these three issues, Orbán emphatically states that the Christian view can be categorized as an “illiberal concept.”
By drawing this sharp distinction between liberal and Christian democracy, Orban wishes to make support for liberal democracy seem inseparable from support for multiculturalism, open immigration policies, and nontraditional family structures such as gay marriage. Historically, of course, this has not typically been the case. Until the last half-century, many liberal democracies tended to be fairly strict in terms of family law. Apart from settler countries such as the United States, Canada, and Australia, liberal democracies were not very welcoming toward immigrants, and the countries that did accept large-scale immigration tended to favor assimilationist rather than multicultural approaches to integrating newcomers. Even today, substantial numbers, if not majorities, of voters oppose multiculturalism, gay marriage, and lax immigration policies but continue to support liberal democracy.
In the past, it was generally accepted that citizens may take opposing views on these matters without ceasing to be good liberal democrats, and that such controversial issues should be decided on the basis of a free and open political process. Orbán, however, is attempting to convince Europeans who find themselves on the conservative side of these social issues that they are being ill-treated and disrespected in contemporary liberal democracies. He seeks to conflate the term “liberal” as it is used in the phrase “liberal democracy” with the term “liberal” as it is used to characterize the left side of the political spectrum in the United States. He thereby suggests that liberal democracy is an instrument of progressivism that conservatives have no interest in supporting. Orbán’s effort to blur these two different meanings of liberalism gains some purchase from the fact that the “Brussels elites” he is fond of attacking tend to hold views close to those of U.S. progressives on social and cultural issues.
The attempt to identify liberal democracy as such with U.S.-style progressivism also fits neatly with Orbán’s efforts to demonize the Hungarian American billionaire George Soros. Soros is a strong supporter of liberal democracy but also is committed to a range of policies favored by American progressives. Thus, at the same time that his philanthropies make generous grants to organizations working on behalf of freedom and against authoritarianism around the world, he is also among the largest funders of the U.S. Democratic Party and of nongovernmental organizations on the Left.
Since last year, Orbán has been heralding the May 2019 elections to the European Parliament as an opportunity to “wave good-bye . . . to liberal democracy and the liberal nondemocratic system that has been built on its foundations.” Elections for the European Parliament have typically been boring affairs, with voters more focused on national than on Europe-wide concerns. This year, however, Orbán and his fellow populists have sought to make these elections a referendum on immigration and related issues.
Orbán’s Fidesz Party has long been a member of the center-right European People’s Party (EPP), the largest grouping in the European Parliament. Because of its illiberal policies, including its efforts to infringe upon the independence of the judiciary and the media, the Fidesz government has stirred huge controversy within the ranks of the EPP. When the European Parliament voted last year to cite Hungary for a “serious breach” of EU values, the majority of EPP parliamentarians voted against their Hungarian colleagues. And in March, the EPP overwhelmingly voted to suspend (though not expel) Fidesz from membership in the group.
Orbán has been unwilling thus far to give up Fidesz’s membership in the EPP, which he hopes to drive in a more illiberal direction. But he has also indicated that, depending on how events unfold, he may be prepared to abandon the EPP to join a new grouping of populist and anti-immigrant parties. The outcome of the parliamentary elections is likely to determine which course he decides to take.
The rise of Orbán-style populism and illiberalism has divided the Right not only in Europe but around the world. Those who support Fidesz and Jaroslaw Kaczynski’s ruling Law and Justice party in Poland tend to be driven by the policy preferences and the common enemies that they share with these parties and thus to downplay their authoritarian tendencies. But some conservative intellectuals go further—they essentially endorse Orbán’s view that liberal democracy is the enemy of conservatism.
Two recent books that have been well-received by many conservatives illustrate this drift: Why Liberalism Failed, by Notre Dame professor Patrick Deneen; and The Virtue of Nationalism, by Israeli political theorist Yoram Hazony. Both these books are hostile not just to contemporary American-style liberalism but to liberal democracy as such. They not only attack “classical liberals” like F.A. Hayek and the work of the American Founders, but are especially dedicated to refuting the philosopher at the fountainhead of the liberal tradition, John Locke.
In writing about the “failure” of liberalism, Deneen makes it clear that his target is the liberal democratic principles on which the United States was founded. He calls contemporary progressivism and conservatism two sides of “the same counterfeit coin.” For his part, Hazony explicitly criticizes those conservatives who have risen “in defense of liberal democracy” and have viewed its preservation and strengthening as “the historic task of American conservatism.” He emphatically opposes those who “see conservatism as . . . the ‘classical’ and most authentic form of liberalism.”
Today most conservatives in Europe and the United States undoubtedly still prefer liberal democracy to any other form of regime, but it would be rash to assume that this preference is fixed in stone. Not only are prominent political leaders like Orbán trying to turn conservatives against liberal democracy—so are well-respected intellectuals on the Right. There is likely to be a continuing struggle on the Right over this fundamental issue, and its outcome may well be decisive for the future both of conservatism and of liberal democracy.
This post is drawn from a longer essay published in the January 2019 issue of the Journal of Democracy under the title, “Illiberal Democracy and the Struggle on the Right.”
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Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live
Now its 12th year, The Law Department Operations Survey, presented by the Blickstein Group, has been the definitive resource for benchmarking and building understanding around the profession since well before the concept of “legal operations” even entered the general industry parlance.
The LDO Survey provides law departments with a consistent platform to benchmark themselves against their counterparts and industry peers. This survey is intended for the top person in legal ops organizations and addresses subjects ranging from ALSPs, Artificial Intelligence, Technology Effectiveness, Alternative Fee Arrangements, and more than 100 additional data points.
If you are your organization’s operations head, please participate in this year’s survey and receive exclusive access to the complete results, an unparalleled resource of insight into KPIs and reporting, eDiscovery best practices, legal spend, law department management strategy, and more. (A publicly available report on the survey’s findings will be published later in the year.)
TAKE THE SURVEY HERE.
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Ontario Bar Association names Ryerson University’s Legal Innovation Zone as innovator-in-residence
The Ontario Bar Association, through its president Colin Stevenson, has appointed Ryerson Legal Innovation Zone as the 2019 to 2020 OBA innovator-in-residence.
Each year, the OBA appoints an innovator to help deliver tools, services and supports to assist lawyers and law firms in serving their clients and to improve justice in the province, the association said in a statement. The program was launched in August 2018, with Peter Aprile, founder of Counter Tax Lawyers, as the first appointee.
“Chris Bentley and his team at the LIZ have earned a reputation as one of the world’s leading legal innovation hubs,” said Stevenson. “They were an obvious choice as this year’s innovator-in-residence to work with the OBA in delivering essential tools and services that are tailored to a full range of practice resources and levels of technological sophistication.”
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