> Wsifran Chise Blog - Interdisciplinary Study of the Law - wsifranchise.info http://wsifranchise.info en j.d.maaskant@law.leidenuniv.nl Copyright 2017 2017-03-23T13:38:00+00:00 Who to vote for in these challenging times? - wsifranchise.info http://wsifranchise.info/articles/who-to-vote-for-in-these-challenging-times http://wsifranchise.info/articles/who-to-vote-for-in-these-challenging-times#When:06:00:00Z Many people do not yet know which party to vote for in the upcoming elections. To avoid escalation of conflicts it has become essential to choose individuals with balanced minds – politicians who are able to transcend a dualistic world view.]]>

This year there will be elections in several European countries and on 15 March it will be the Netherlands’ turn. The number of parties to choose from here is historically high, no less than 28. But even with such a huge choice many people have said they do not yet know which party they are going to vote for. Apparently, choosing the right political party in these times is far from easy. And how do you know you have made the right choice? After only one month of Trump’s presidency in the US, I’m sure many protest voters are already very much regretting their choice. They had listened to his many promises but had not taken account of his personality.

Focus on individuals

Therefore it makes sense to be more aware in advance what the likely consequences will be of a particular vote. I think the prime question for the coming elections (in whatever country they take place) is: do you want to contribute to an escalation of conflicts (on different levels) or do you genuinely want to contribute to a reversal of the process? Considering the current developments in world politics and the presence of a survival instinct in all of us, I bet not many people would seriously opt for an escalation.
To realize the reversal process, a decline in conflicts, I think it is more important than ever that – before we blindly accept the beautiful promises of the party programmes – we must first take a closer look at the individuals within the parties, starting of course with the party leaders. The current situation in the US, which is affecting the whole world, shows that it is essential to get individuals with reasonably mature, balanced minds on the influential positions. The party banner they operate under is not insignificant, but it takes second place.

Transcending dualism

For me, the central criterion is to vote for someone who personally knows the limits and dangers of a dualistic world view, and is also able to transcend it – thereby creating a mental space for building bridges. In a nutshell we can say that dualism is an expression of our ego consciousness, which is rooted in our heads, whereas transcending it means that our heart gets involved as well and is even allowed to take over. When this happens, we are bound to remember that in fact we have always been interconnected beings – connected to others, to the country, and to the world.

Reciprocity

That this deeper, connected side of ours is not just some fanciful idea we can witness in the fact that no one can live without breathing the air, drinking the water, and eating the food, which the natural environment keeps on offering us continually without asking anything in return. And the incredible amount of cultural wealth, created by people of previous generations and freely given to us, must also not be taken for granted. Transcending dualism means becoming aware of the importance of reciprocity: of being deeply grateful and considering it natural to offer something in return for all that has been given. This is essential wisdom for politicians who genuinely want to serve the inhabitants of their country and the natural world. It is my firm belief that only politicians who know at heart that we are interconnected beings can be trusted with making good decisions and creating good laws.

Avoiding bad laws and bad examples

I think we should avoid voting for politicians who are still largely missing this kind of wisdom. Observing today’s political developments we can see that ego-driven politicians are primarily identifying themselves with the Absolute Good and are recognising anything negative only in an absolute sense in other easily identifiable groups. Jungians would say they are projecting their inner shadow onto others. It should be clear to voters that politicians with this kind of dualistic mindset cannot serve anyone but themselves and should not be trusted with anything either – least of all with taking decisions and making laws that deal structurally with the problems in our society. And we should not forget that they are simply setting a bad example to all of us, by saying that it is OK to be like them – to be angry all the time, to be proud to exclude people, to project fear onto others – and that this is all there is to being human.

Balance and challenge

But of course there is a lot more to being human, and fortunately many people are aware of this. We should not underestimate the fact that a growing number of people on this planet have discovered the wealth of their inner potential, and know that the meaning of their life depends on developing this potential. They are continually working on transcending their own dualistic tendencies, on balancing their ego and their deeper interconnected side. They know that it is an exciting project that is never finished, and that there is also a real challenge in being involved in this. Because of this they have begun to feel more part of a rising Earth Community than of any particular country. (See my previous blog on this theme.) Naturally there are politicians who have picked up this ‘spirit’ as well and try to include it in their policies.

Finding the right candidate

How can we recognise these kinds of politicians? Simply by their sense of being genuinely grateful and compassionate, by their honesty and openness, by their peaceful intentions, by their cooperative nature, by the absence of any smart media strategies to trick us into voting for them, by the absence of hidden agendas. And, perhaps most importantly, by the fact that they only speak after they have listened! Personally I have spotted a few Dutch politicians who express these qualities to a reasonable degree. And, after having weighed the content of their party programmes as well, one of them will get my vote in March.  

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2017-02-22T06:00:00+00:00
Towards a European ban on microbeads - wsifranchise.info http://wsifranchise.info/articles/towards-a-european-ban-on-microbeads http://wsifranchise.info/articles/towards-a-european-ban-on-microbeads#When:14:19:00Z The Plastic Soup Foundation is campaigning to ban microbeads in cosmetics products. Students of the Leiden Advocacy Project on Plastic (LAPP) wrote a memo providing legal guidance on the prohibition of microbeads in the EU.]]>

Have you ever thought about plastic in your toothpaste? Probably not. It has been common practice for the cosmetics industry to add tiny little particles of plastic, called microbeads or microplastics, to everyday products such as shampoo, scrub products and toothpaste. Since the microbeads end up in our household waste water, they eventually end up in the ocean leading to environmental pollution on a global scale which is probably irreversible. The tiny size of the particles makes them hardly visible to the naked eye, so they are a more or less hidden threat to the environment and human health.

The Plastic Soup Foundation

Since 2012, the Dutch NGO the Plastic Soup Foundation (PSF) has been campaigning for a European ban on microbeads in cosmetics. Although the campaign was initially inspired by environmental considerations, recent research has identified serious human health risks due to exposure to microplastics, for example through the consumption of seafood and other food products, drinking water and through the air. Commissioned by the European Commission, consultancy agency Eunomia identified three options to regulate microbeads: the Cosmetics Regulation, the REACH Regulation and the Ecodesign Directive. The Plastic Soup Foundation wanted to know whether these regulations are indeed suitable for accommodating a ban on microplastics and what procedures should be followed. The Leiden Advocacy Project on Plastic (LAPP) was requested to review the three options from a legal perspective.

Cosmetics Regulation

The Cosmetics Regulation is more or less applicable to all cosmetics products. It aims at a high level of human health protection while establishing an internal market for cosmetics. Since the Cosmetics Regulation only regulates the safety of a product during normal use, and thus not indirectly via the food chain or water, the product itself should pose a risk to the health of the user. This could be true for products containing microbeads such as toothpaste and lip gloss, which can be swallowed, and creams, which can penetrate the skin. The EU Scientific Committee on Consumer Safety plays a central role in assessing whether substances can be restricted or banned for use in cosmetics products. Restricting microbeads in cosmetics products requires at least one amendment to the Annexes and the standard legislative procedures of the EU will apply.

REACH Regulation

While the Cosmetics Regulation only applies to cosmetics products, the REACH Regulation regulates the registration, evaluation, authorisation and restriction of chemicals in general. The purpose of the REACH Regulation is to ensure a high level of protection of human health and the environment, as well as the free movement of substances on the internal market. There are several levels of restriction. A substance may be used under certain conditions or banned in a specific product category or - in the case of the most dangerous substances – may not be put on the market or allowed to be used at all. From a quick examination of the list of restricted substances, it appears that most of the substances are placed on the restriction list for reasons pertaining to risks to human health, primarily due to being carcinogenic or toxic for reproduction. This might give rise to the suggestion that plastic particles may not reach the severity threshold required by the REACH, but further research regarding the effects of microplastics on organisms including humans should clarify this. Moreover, a substance can also be restricted for environmental reasons, such as the persistence of substance. This could be the case for microplastics, because plastics are highly persistent and hardly degrade at all under normal circumstances. A first step in restricting microbeads under the REACH Regulation is the compiling of a ‘dossier’ on substances by the European Chemicals Agency. After assessments by several committees and multiple consultation rounds, an amendment must be adopted. Further scientific research regarding the toxicity and persistence of microplastics could be helpful in this procedure.

Ecodesign Directive

While the Ecodesign Directive was adopted in 2010 with the aim of improving the energy efficiency of products, it has been suggested that the directive is also suited to improving a product’s resource efficiency. Its preamble explicitly refers to ‘extending its scope beyond energy-related products’ and the Commission has called ecodesign pivotal in minimizing waste. By setting standards regarding waste treatment and recycling, the use of microplastics could be banned in certain product groups. But, before this can happen, an amendment must be adopted to include resource efficiency as a leading requirement for design standards. Hence, banning microbeads via the Ecodesign Directive requires multiple amendment procedures; first to amend the Ecodesign Directive itself and second to set standards for certain products.

Challenges  

As microbeads are increasingly being acknowledged as an urgent environmental problem, a quick solution is preferred. The three options studied all require multiple procedures and further implementing measures to establish a complete ban on microplastics in all cosmetics products, but also in other products  - very much a time-consuming process in the EU. To speed up the removal of microbeads from cosmetics products, the PSF also looked at the adoption of voluntary agreements with the European cosmetics industry. However, Cosmetics Europe, the European branch organisation, was very hesitant to discuss any branch agreement for reasons related to EU competition law. Voluntary agreements between manufacturers are regulated by the rules of EU competition law and huge fines have been issued for price fixing in the margins of a voluntary environmental agreement. Therefore, enthusiasm for branch agreements has generally faded. In our view, a voluntary phase-out of microbeads by manufacturers remains a possibility, but only under the strict conditions of EU competition law and only on a completely independent and voluntary basis. A further issue is the adoption of an all-encompassing definition of microbeads, as microbeads can consist of several kinds of microplastics. The definition of a substance is essential when incorporating it into a directive or regulation. National initiatives banning microbeads, such as those in the United States and Canada, may function as guidelines on that matter and will be further studied by LAPP.

While a definite solution may take some time, the current momentum for action on plastic pollution, as well as resource efficiency and the circular economy, should stimulate the European Union to act powerfully and effectively. At LAPP, we are honoured that our work is contributing and will continue to contribute to the campaign of PSF and other organisations for a ban on microbeads.

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Interdisciplinary Study of the Law, Public Law, 2017-02-17T14:19:00+00:00
Segregation and Dutch schools - wsifranchise.info http://wsifranchise.info/articles/segregation-and-dutch-schools http://wsifranchise.info/articles/segregation-and-dutch-schools#When:08:07:00Z How to maintain a peaceful society while pluriformity of population is growing? Fact finding concerning the role of freedom of education/Islamic schools and possible solutions to segregation, with a touch of Kwame Anthony Appiah are this blogs subject.]]>

How the Netherlands could profit from Appiah’s vision on identities

There is currently a lot of noise concerning Dutch schools, segregation, the growing pluriformity of the Dutch population and the issue of building and sustaining a peaceful society. It ranges from a general fear, felt by many and put into words by Wilders, that Islamic schools will educate children against integration in Dutch society.  And then there is this notion, held by many people, that the growing segregation between so- called white and black schools is due to Article 23 of our constitution, which grants religious schools the right to refuse children from a different background. 

Article 23 Constitution

For the past hundred years, the Netherlands has known a schooling system in which the State finances not only public schools, but also private schools founded by parents on religious grounds. This constitutional right is established in article 23. Today, two thirds of all Dutch children go to a school  that is at least officially religious (I will get back to this subject further later on). Many people fear that schools based on one denomination will try to indoctrinate their pupils with that particular religion, rather than teaching them open mindedness. Others fear that private schools will turn down pupils from a different denomination, thus further contributing to growing segregation.

Underlying this fear is the idea that a society needs all its inhabitants to share its most important values, and that different religions (especially Islam) have different values. This would result in schools with different denominations producing kids with different values, thus endangering the goal of maintaining a peaceful society.

Facts

Most religious schools are based on Christian denominations and, with the exception of a few schools based on fundamentalist protestant principles, these have all changed with the times and become very pluriform. Although officially Catholic or Protestant, they have in fact become secular. Their population is made up of a few kids with religious parents, many more kids with parents who have backgrounds in the official denomination, and many kids with secular parents or parents from a different denomination. Their teaching is pluriform in every sense of the word.

As for the fear that Islamic schools endanger the cohesion of our society: only 0.6% of Dutch kids attend an Islamic school and of the 43 Islamic schools, 80% are also pluriform in their curriculum. These numbers clarify how insignificant the problem is.

Is a focus on values useful in order to build a peaceful, pluriform society?

Kwame Anthony Appiah, a British Ghanaian philosopher, draws our attention to the fact that when we discuss values at a higher abstract level, we probably all have the same values: do not kill, do not steal, do not do harm onto others…who could object? It is only when values become thicker as he says, or more specific, that our opinions will diverge. And not only between cultures or religions. Even within one family the question of whether euthanasia is murder or merciful assistance can lead to big disputes. So the question of whether values are shared does not seem helpful when trying to find the key to peaceful cohabitation between people of different backgrounds.

Identities

Appiah implores us to pay more attention to identities and especially to the fact that each of us harbors many identities. Identities, according to Appiah, are a combination of what I would call roleplaying and (informal) membership of a group. When I am at work, I am usually first and foremost functioning in the role of an employee. But when I get a call at work that my child has been taken to hospital, my role as a parent – normally quite dormant in the workspace – all of a sudden takes over and I rush off to hospital.

Appiah makes the point that everybody harbors many identities that will sometimes conflict with each other, just as laws can conflict, and the context of the moment will help to determine which identity takes command. If my kid had only caught a slight cold, I would probably have left him with the housekeeper and stayed in the office.

Appiah contends that the same goes for things like citizenship and religion. He gives the example of his Ghanaian father, who was a practicing member of the Methodist church, but at the same time obeyed many of the religious rules of his clan. That same father was a convinced citizen of the world, whilst fighting for the independence of Ghana.

Identities can help us to meet the other

According to Appiah, our focus should not be on values but on understanding the other, “walking in his moccasins”, really meeting . He quotes Allport, whose research shows that just going to the same school or even living in the same neighborhood will not help. Children from different backgrounds need to work together on projects, discuss and explain to each other where they come from. But they will only listen to each other if they first search for a common identity. Be it love for football, French fries or philosophy, once two people have made contact through a common identity, it will be much easier to accept differences, to open up to the other’s perspective, to allow the other’s perspective to broaden their own.

Conclusion

So let’s stop worrying about article 23 causing segregation. It doesn’t, and Islamic schools are not the cause of segregation either. Let’s learn from Appiah, focus on common identities, and start organising more real meetings between people (especially school children) from different backgrounds, who normally would not interact. Perhaps schools can start forming partnerships with schools on the other side of the city and mixing kids on subjects like citizenship. After all, citizenship is something one can only learn by doing.

Next Step

How to sustain a peaceful society whilst the population is growing more and more pluriform is a fascinating subject. My next step will be to research this subject in more depth, not only in its legal and philosophical aspects, but also at a practical level. Appiah’s suggestion – based on research by Allport – has ignited a spark of interest in me. Not only to research further the issues of shared values and identities, and see if it could be combined with Wittgensteins theory of the overlapping mesh of features and family resemblance, but also to try and find a pragmatic and realistic solution to the challenge of segregation, not only in theory but also in practice. My aim is to capture the results in a dissertation. 

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Interdisciplinary Study of the Law, Public Law, 2017-02-16T08:07:00+00:00
Filing documents under KEI (Kwaliteit en Innovatie): what if you’re late? - wsifranchise.info http://wsifranchise.info/articles/filing-documents-under-kei-kwaliteit-en-innovatie-what-if-youre-late http://wsifranchise.info/articles/filing-documents-under-kei-kwaliteit-en-innovatie-what-if-youre-late#When:09:32:00Z The new KEI (Kwaliteit en Innovatie) programme has strict rules for filing documents on time. But there might still be an escape route if you’re late.]]>

The Dutch have every right to be proud of their leading position where digitalisation and innovation in the ICT field are concerned. This is especially the case with the Kwaliteit en Innovatie Rechtspraak (KEI) programme, which translates roughly as Quality and Innovation in Legal Procedures. The main scope of the KEI programme is that Dutch legal procedures should keep up with the increasing digitalisation of our society, and that judicial powers should benefit from the possibilities of faster and easier decision making.

KEI will be introduced in several phases over the course of 2017 and will bring with it quite a lot of changes. One of the most important changes entail the introduction of one universal basic procedure with one written process round. Both oral pleadings and the personal appearance of the parties themselves (comparitie) will become a thing of the past. The judge will assume more of a director’s role and there will be more room for passing oral judgment. Other changes include a whole new procedural law vocabulary to which lawyers, jurists and legal professionals will have to become accustomed.  For instance; the word “writ” (dagvaarding) will disappear, to be replaced by a digital convocation. The same goes for the petition in administrative law cases. Both are renamed as “process initiations” (procesinleiding).

An increasing dependence on digital systems naturally comes with the demand for systems that are reliable and stable. This digitalization and dependence on IT infrastructure, however, also creates a whole host of new and unprecedented legal issues. Suppose you’re a lawyer and it is your duty to compose an important procedural document within a very short time frame (sound familiar?). Who is responsible if, at that particular moment, your laptop crashes or the internet in your apartment block decides to go haywire? This dependency on the IT structure is exacerbated by the fact that in the KEI program, terms and deadlines are more strictly guarded than before: if you’re late, you’re late. So whereas the digitalization process of KEI aims to make the whole process of litigation more efficient, it also creates a dependency on the IT infrastructure; an infrastructure for which legal professionals can now be held accountable.  

Luckily, the new rules (Nieuw Rechtsvordering) offer a recovery option. A distinction is made between accountability and force majeure. An example of force majeure, for which you as a lawyer cannot be held accountable, might be a power grid failure, a widespread internet malfunction, or a malfunction in the systems of the court of law itself. That would in all probability amount to an excusable exceeding of the time limit for filing your procedural document (art. 30c lid 8 nieuw Rv).

But what if the problem is due to the fact that you haven’t charged your laptop in time, and left your charger at the office? Chances are that won’t amount to an excusable exceeding of the time limit (art. 30c lid 8 nieuw Rv). Or even worse: due to your own personal circumstances, you simply haven’t gotten around to composing your defense yet, it is already Sunday evening, you’re terribly late and it’s completely your own fault. Of course you’re prepared to put in some extra hours, but how can you remedy the situation?

In that case there is the option of art. 30c lid 6 Nieuw Rv (in administrative cases: art. 8:36a lid 5 nieuw Awb). This article refers to a situation in which you accidentally filed your procedural documents in hard copy instead of digitally. The judge may in that case grant you the opportunity to repair the legal error of filing your legal documents in hard copy instead of through the internet. That would basically amount to a night’s work with lots and lots of coffee, and filing a stack of hard-copy papers in the morning. Of course the court clerk will reprimand you for not filing your documents in the way you’re supposed to. But provided you don’t make any changes whatsoever (which is of course strictly prohibited and unethical), you still might have the option of filing your documents digitally as early as you can.

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Interdisciplinary Study of the Law, 2017-01-27T09:32:00+00:00
An old, dying Empire versus a rising Earth Community - wsifranchise.info http://wsifranchise.info/articles/an-old-dying-empire-versus-a-rising-earth-community http://wsifranchise.info/articles/an-old-dying-empire-versus-a-rising-earth-community#When:08:00:00Z Trump and his followers have shown that patriotism and imperialism are not dead yet. They are part of a larger populist movement, which is still small compared to the rising number of people who feel they belong to an Earth Community. ]]>

If there was one line of Trump’s inauguration speech on 20 January, that kept echoing in many minds – and in mine too –, it was ‘From this day forward it is going to be only America first’. I heard someone comment that this entire speech could have been held a year ago, because it still sounded as if he was campaigning for presidency. Indeed the tone of anger, opposition and struggle had not yet disappeared, and I’m sure it will persist, because the complete outlook of Trump is founded on it.

The old Empire song

Somehow this week the song Old England by the Waterboys from the 1980s quite often came to my mind. It emphasises that although ‘old England is dying’, ‘still he sings an empire song, still he keeps his navy strong, and he sticks his flag where it ill belongs’. Of course imperialism, which has always mixed well with patriotism, has been the driving force behind much of Western history and has also existed in America with its Manifest Destiny. And now that Trump has claimed America for the Americans first and wants to make it ‘great’ again, the empire turns out to be not fully dead yet.

Opposition and denial

It is no coincidence that this new manifestation of patriotism has emerged also in several other Western countries: Wilders who wants the Netherlands for the Dutch first, a Brexit Britain for the British first, and so on. Populist politicians answer the call of a lot of Western people who apparently feel confronted with a threatening development they must collectively oppose.
Although the ‘new patriots’ passionately put their fellow countrymen and women on a pedestal, and want to protect them badly from anything that comes from abroad, I think this is only a surface projection of a much deeper sense of inner denial: the denial of the ongoing development towards global interconnectedness and of a growing awareness of our embeddedness in the surrounding natural world. In this sense the new patriotism differs from its predecessors.

Moving towards an interconnected world

To put this in perspective the ideas of David Korten are interesting. In his book The Great Turning (from 2006) he has argued that ‘the way of Empire’, which has been around for 5000 years, is leading to environmental and social collapse, and therefore unavoidably we are moving towards an Earth Community. According to him, this process entails an entire transformation of our culture: ‘The turning from Empire to Earth Community has two primary elements. First is a turning from money to life as our defining value. Second is a turning from relations of domination to relations of partnership based on organizing principles discerned from the study of healthy living systems.’ (p. 295) It can hardly have escaped anyone’s attention that through the centuries there has been an ongoing movement towards globalisation, and that especially in our time the world is becoming increasingly interconnected.

A cultural synthesis and planetary awareness

Although with regard to globalisation the focus has often been exclusively on the economy, this process is even more significant in a cultural and spiritual sense: increasingly we have become familiar with the rich diversity of cultures on our planet, which have existed and still exist all over the world. In retrospect the Western world has even started to reevaluate the various indigenous cultures that it had struggled against so persistently for centuries.
This development has triggered human awareness in an unprecedented way: there is the promise of a global cultural synthesis in which the best from all cultures can be integrated – to become a true melting pot. And this happens in a context of an even larger planetary awareness, which has gradually spread since the pictures of earth made by the Apollo astronauts at the end of the 1960s have become transformative icons.

Fearful, defensive minds

But although the old Empire is definitely dying, it does not easily give way to the rising Earth Community, as the popularity of the populist movement clearly shows. The old collective identities, which have been handed down to us through the centuries, no longer fit and are even showing serious cracks. Yet it turns out that a large number of people seem unable to open their minds to the presence of these worldwide changes. Fearfully, they react by clinging even tighter to their secure collective identities, enlarging them, defending them at all cost. With the sad result that new walls are being erected and border controls are being reinstalled everywhere.

The damage done and the role of law

I think the increasing number of people who feel they belong to an Earth Community are aware of the tremendous damage that the Empire has caused and will continue to be causing under the rule of the populist movement. In particular, on a macro level the natural environment will continue to suffer badly. As is well known,Trump has denied that climate change exists. In this he is a real spokesman for the entire the populist movement: climate change is absent on any populist agenda. But now that it has become clear that in 2016 the global temperature has risen one full degree, who can seriously keep on denying the reality of climate change? That’s why it is high time to get ecocide recognised as a major crime, as suggested by Polly Higgins, and to get the rights of Nature or of Mother Earth recognised by all countries, as advocated by Cormac Cullinan.

Patience and hope

I have good faith that eventually the movement towards an Earth Community will be the stronger development which will prevail. We just have to be patient. In this respect the large-scale protests on the day after Trump’s inauguration – whose very diverse participants are representatives of the Earth Community – are quite hopeful. Surprisingly, he did not react, as though it hadn’t happened at all. But, as the saying goes, sometimes silence speaks louder than words…

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2017-01-25T08:00:00+00:00
“The bad” and “the good” of the ePrivacy regulation proposal - wsifranchise.info http://wsifranchise.info/articles/the-bad-and-the-good-of-the-eprivacy-regulation-proposal http://wsifranchise.info/articles/the-bad-and-the-good-of-the-eprivacy-regulation-proposal#When:12:59:00Z Earlier this January the European Commission published a proposal for a new ePrivacy regulation. The text first still needs to survive the legislative procedure, but some of the positive and the negative points can already be assessed.]]>

ePrivacy law protects the confidentiality, security and privacy of electronic communications. Just think about the calls you’ve made today and the emails you’ve sent. Now, imagine how you would feel if the content of your communication was intercepted and exposed. At the minimum this would cause you distress and you would probably consider having more face-to-face conversations in the future. But no one wants to give up the convenience of electronic communication. Clear and rigorous rules are therefore essential to ensure the privacy and security of our everyday communications. 

Earlier this January the European Commission published a proposal for a new ePrivacy regulation. This act will replace the 2002 directive and bring (sometimes clashing) national legislations closer to each other. Of course, the text first needs to survive the legislative procedure, but some of the positive and the negative points can already be assessed. 

In a recent post, an EU journalist Jennifer Baker pointed out “the good”, “the bad” and “the missing” parts of a draft regulation that went viral in December last year. Following her example, the goal of this contribution is to point out the pros and cons of the draft’s successor - the official proposal for an ePrivacy regulation.

The good

Traditionally, ePrivacy law pertained to electronic communication providers such as telecommunication companies and internet service providers (e.g. Dutch Ziggo). In recent years, more and more communication has been carried out via OTTs. OTT stands for over-the-top and refers to messaging apps such as Whatsapp and Skype. Although they offer various communication services, these apps do not have their own networks and instead make use of other companies’ infrastructures. Is this sufficient cause to treat them differently and keep them outside the scope of ePrivacy law? The EC doesn’t think so and has expanded the scope of the regulation, which now also includes OTTs.

Consent and end-user control rights sit at the heart of the new proposal. For example, consent remains the key enabler to allow the processing of data (either content or metadata), to place tracking tools (such as cookies), or to send unsolicited communication (e.g. marketing emails or political messages). An interesting solution was proposed in Article 9(b): not only should end-users be given the possibility to withdraw their consent, they should also be reminded of this possibility at periodic intervals of 6 months. A similar user-friendly (or, some would say, paternalistic) approach appears in some other points, e.g., in Article 8(4) where standardised icons are proposed as a replacement for lengthy and complex textual information.

The bad

The first downside refers to the provision in Article 8(2)(b) that seeks to regulate the increasingly popular practice of wi-fi in-store tracking. Today, many retail stores are either experimenting with or actively using technology that uses your phone's Wi-Fi to track your movements around the store. Based on the information they collect, visitors might receive an email with a personalised offer. To protect personal privacy, the ePrivacy regulation proposal requires that providers engaged in such services display prominent notices to inform visitors about the tracking. How could this rule be implemented? For example, a store could hang up a big sign with the following text: Tracking going on! Switch off your phone if you do not agree with it. (Note: Simply disabling wi-fi connection does not prevent tracking.) If we disregard the fact that this approach is somewhat unsophisticated, we still run into a couple of troubling questions: Should Wi-Fi tracking be made that easy? Should stores be allowed to get away with simply hanging up a poster? How about individual consent for personal data processing (as the Dutch DPA suggested)? 

The second negative point of the proposal is the rule about privacy settings that should be offered by software permitting electronic communication. The draft proposal that was leaked in December required that any setting of terminal equipment (e.g. personal computer, mobile phone) must be configured in a way that prevents third parties from storing information in this equipment, or to use information that has been stored there. In essence, the requirement demanded that third party cookies, which are the backbone of the targeted advertising industry, should be blocked by default. The later proposal abolished this requirement and was somewhat watered down. Rather than requiring that the software is set to “do not track” mode, the official proposal only requires that it offers an option to do so.

Given the bad and the good sides of the proposal, we are now eagerly awaiting what the legislative process will bring. Hopefully the balance will tilt towards “the good”.

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Interdisciplinary Study of the Law, 2017-01-19T12:59:00+00:00
Investigating Cybercrime - wsifranchise.info http://wsifranchise.info/articles/investigating-cybercrime http://wsifranchise.info/articles/investigating-cybercrime#When:09:59:00Z In this blog post, the main results of the dissertation ‘Investigating Cybercrime’ are presented. ]]>

On 10 January 2017, I successfully defended my PhD thesis ‘Investigating Cybercrime’. In this blog post, I would like the share my main research results.

Cybercrime investigations

My study shows that in cybercrime investigations, evidence is often gathered by following the two digital leads of IP-addresses and nicknames. I explain how evidence is gathered, based upon these leads. In cybercrime investigations, law enforcement officials often encounter the three challenges of anonymity, encryption and jurisdiction. These challenges can leave law enforcement officials empty-handed in certain circumstances.

However, law enforcement officials can use digital investigative methods to deal with these challenges. The following four investigative methods are identified and further analysed in the study: (1) gathering publicly available online information, (2) issuing data production orders to online service providers, (3) applying online undercover investigative methods, and (4) performing hacking as an investigative method.

Regulating digital investigative methods on a national level

On a national level, my research shows that the identified digital investigative methods are not regulated in a foreseeable manner in the Netherlands. The reason is that the scope and manner in which investigative methods are applied are not sufficiently clear. In addition, I argue that the quality of the law for certain investigative methods is not adequate. The main and concrete results of my analysis are as follows:

  • The manual and automated gathering of publicly available online information should be regulated in detail, outside criminal procedural law. These regulations should indicate how data protection regulations should be applied in a concrete manner when these digital investigative methods are used.
     
  • The regulations for undercover investigative methods (both online and offline) should be improved by incorporating supervision by an investigative judge.
     
  • A warrant requirement should apply for obtaining traffic data and content data from online service providers. The category of ‘content data’ should be defined more clearly by the legislator or Public Prosecution Service.
     
  • Regulating hacking as an investigative power is necessary. The proposal to regulate this investigative method in the Computer Crime Act III is adequate. However, the investigative power is formulated in a rather broad manner and the legal consequences of its application to ‘disrupt cybercrime’ are uncertain.

Regulating digital investigative methods on an international level

On an international level, my research shows that the application of digital investigative methods are not sufficiently taken into consideration in mutual legal assistance treaties. States should realise and take into consideration that unilateral cross-border digital evidence-gathering activities already take place.

The application of digital investigative methods can endanger both State sovereignty and the legal certainty of individuals in certain circumstances. At the same time however, I argue that unilateral cross-border digital evidence-gathering activities should be permissible in certain circumstances. Ideally, States agree on what terms these evidence-gathering activities are allowed and protect the right and freedoms of the individuals involved in mutual legal-assistance treaties or on an ad-hoc basis. In the meantime, States should create a policy for their law enforcement authorities to determine under which circumstances unilateral cross-border digital evidence-gathering activities are allowed. I provide recommendations about these restrictions for the Dutch legislator.

Finally, I would like to say that it has been a pleasure performing research as a PhD Candidate at Leiden University. I will continue to do research in cybercrime, cybersecurity, digital investigations and privacy in the future.

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2017-01-11T09:59:00+00:00
Constitutional gymnastics to stay in power… or to leave? Elections in the DR Congo - wsifranchise.info http://wsifranchise.info/articles/constitutional-gymnastics-to-stay-in-power-or-to-leave-elections-in-the-dr http://wsifranchise.info/articles/constitutional-gymnastics-to-stay-in-power-or-to-leave-elections-in-the-dr#When:08:00:00Z Will the Democratic Republic of Congo head towards its first democratic transition of power in history? Or will president Kabila remain in power? This blog analyses the role of Congo’s Constitution in the postponement of the presidential elections.]]>

Towards the end of 2016, the Democratic Republic of Congo (DRC) hit the newspapers for violence related to elections that are not taking place. Why this upheaval about something that is not happening? In this blog I briefly discuss the constitutional gymnastics used by the ruling president, Joseph Kabila, to stay in power and some key events that took place.

When former president Laurent-Desiré Kabila was killed in 2001, he was succeeded by his son Joseph. In 2006, Joseph Kabila was elected for the first time. He was re-elected for his second term in 2011. Since the Congolese Constitution only permits two terms there should have been elections again in 2016. Yet Kabila is clearly reluctant to do so and had a trick up his sleeve, referring to a legal loophole in the Constitution that reads: “At the end of his term, the President remains in office until the effective installation of the newly elected President” (my translation). This begs the question: what if elections are not held? Can the incumbent then legitimately remain in office? Naturally, the article has been quite vehemently contested by opposition parties. But in May this year, the Constitutional Court ruled that indeed Kabila could stay in power until the inauguration of a new president.

Given Congo’s troubled past and present, one could be forgiven for thinking that Congo’s political opposition and citizenry would be too cynical to refer to laws to question its ruler. But the opposite is true. To support its position, the opposition refers to articles 73 (on when elections should be scheduled) and 75 (on the replacement of the President with the President of the Senate under specific conditions). In their protests, social movements refer to constitutional article 64: “All Congolese have the duty to thwart any individual or group of individuals who took power by force or who exercises in violation of the provisions of this Constitution. Any attempt to overthrow the constitutional regime is an imprescriptible crime against the nation and the state. It is punished in accordance with law” (my translation).

Protests about the pending elections have been occurring since January 2015. Elections should have been scheduled by September 19, 2016, at the latest. When the deadline passed, people took to the streets showing yellow cards to call for Kabila to step down. When his constitutional term expired on December 19, 2016, more protests followed during which people showed red cards and blew whistles to indicate the end of the presidential match. The protests were anticipated, and the regime took repressive measures resulting in 34 confirmed deaths, and close to 300 arrests of political opposition members and civil society representatives. On Sylvester’s eve a deal was finally brokered between the presidential majority and the opposition parties. There were two important conditions: presidential elections before the end of 2017, and no constitutional changes to enable Kabila’s third term.

The question now is whether people will accept the prolongation of Kabila’s term until the end of 2017 and whether elections will indeed take place as agreed. With less than 8 % of the population supporting Kabila, Congo and Congo observers are holding their breath. Will Kabila himself sign the long-negotiated agreement (and not only the government’s spokesperson)? Will social movements accept the deal? Will the country’s first peaceful democratic transition be made possible, or is a violent transition inevitable? The dust has clearly not yet settled.

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Interdisciplinary Study of the Law, 2017-01-07T08:00:00+00:00
British Columbia Court of Appeal Says Law Society Unreasonable For Denying Christian Law School - wsifranchise.info http://wsifranchise.info/articles/british-columbia-court-of-appeal-says-law-society-unreasonable-for-denying http://wsifranchise.info/articles/british-columbia-court-of-appeal-says-law-society-unreasonable-for-denying#When:12:00:00Z British Columbia Court rules BC Law Society was unreasonable in refusing to accept a Christian law school. It denied the school because it discriminated against LGBTQ. It required students to sign a code of conduct that did not recognise marriage equality.]]>

On November 1, 2016, the British Columbia Court of Appeal (BCCA) unanimously held (5-0) that the Law Society of British Columbia’s decision not to approve Trinity Western University’s School of Law was unreasonable. The LSBC refused to accredit the school because of TWU’s admissions requirement that students sign a Community Covenant Agreement (CCA). The CCA expected students to agree to only engage in sexual activity within the marriage relationship of one man and one woman.

This decision is a major win for TWU’s accreditation battle. Two other provincial courts of appeal results were split. In Nova Scotia, the Court of Appeal ruled in favour of TWU, but in Ontario the Court of Appeal ruled in favour of The Law Society of Upper Canada (LSUC).  The Ontario Court held that the LSUC only had to consider the religious freedom rights of TWU and that whatever decision it made would be reasonable. The Ontario Court also agreed that the offensive TWU CCA was evidence of that reasonable decision.

However, the BCCA decision rejected the Ontario decision. A decision-maker must not be persuaded on an argument based on feelings.  “While there is no doubt that the Covenant’s refusal to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the LGBTQ community, and we do not in any way wish to minimize that effect,” said the Court, “there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs, absent … ‘hate speech’ … that could incite harm against others.” Further it said, “Disagreement and discomfort with the views of others is unavoidable in a free and democratic society.”

With the BCCA decision 18 judges (6 in BC; 6 in ON; 6 in NS) have heard the TWU case. Twelve have ruled in TWU’s favour. The six that went against TWU were all in Ontario. This is telling. The Ontario Courts have adopted the interpretation of the Charter that was publicised by the law deans in a letter to the Federation of the Law Societies of Canada. Law Dean Bill Flanagan’s letter stated, “Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools.”  There was no acknowledgement of the necessary religious exemptions of generally applicable law. This has resulted in what William Galston calls “civic totalism.”  The law deans were willing to broker no other view of discrimination but their own.  Five members of the BC judiciary have rejected that view of constitutional law. That is sobering. Up until now, the deans and their faculty have controlled the narrative on TWU. Not anymore. The BCCA decision can be interpreted to mean that the law deans’ view has been reviewed and found wanting.

The 5-0 holding of BC’s highest court is an articulate and substantive ruling on the reasonableness of protecting religious freedom, while, at the same time, ensuring that sexual equality rights are protected and only minimally impaired. It stands as a game changer in this long TWU saga. The Supreme Court of Canada will now have to decide not only between two distinct treatments of TWU’s right to accreditation, but between two distinct interpretations of constitutional law. Given the intellectual depth and sound reasoning of this decision it will go a long way in TWU’s favour at the country’s highest court.

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Interdisciplinary Study of the Law, 2016-12-22T12:00:00+00:00
Will the real you please stand up! - wsifranchise.info http://wsifranchise.info/articles/will-the-real-you-please-stand-up http://wsifranchise.info/articles/will-the-real-you-please-stand-up#When:07:00:00Z Everywhere collective identities are struggling with other identities. They are mere substitutes, however, for the personal identity we are born with – whose development is justly protected as a human right and is the antidote to the crises facing us.]]>

When a good few years ago Maxima, before she became Queen of the Netherlands, stated publicly that she had searched for, but not found, the ‘Dutch identity’, it caused a lot of heated discussion. Since then this discussion has continued and it has turned out that it is not limited to the Netherlands: nowadays it hits a sensitive nerve with people all over the world. With the election of Trump in the US, the rising popularity of populism and protective nationalism in almost every country, we can see how we are struggling on a global scale with our sense of identity. Calls are now being made to protect it, to distinguish it from other identities. And what happens if we lose our identity? Can we then search for it and reclaim it? To deal properly with this issue, we must first get a clear picture of what we are actually talking about.

A dualistic identity

I think the sort of identity that Maxima was talking about and which is also central to the debates in the media, is what I would like to call a dualistic identity. It is collective and exclusive in nature:  it tells people which group of similar thinking people they belong to and which easily identifiable groups they definitely do not want to belong to. It even owes its very existence to a constant confrontation with the other identities and refutation of their ideas. Today we witness all around us how people with a dualistic identity see enemies everywhere and welcome polarisation.

A personal identity

There is also good news: fortunately a dualistic identity does not express something very deep. It is only ego-driven. People clinging to it are often unaware of the fact that in them there has always existed and still exists a completely different kind of identity, a very individual, authentic and ever-evolving one. An identity that everyone is born with it, potentially, and no one but ourselves can transform into an actuality.
The American archetypal psychologist James Hillman has written interesting books about this kind of identity growth: The Soul’s Code and The Force of Character. In them he shows that the core of our character, the ‘acorn’, is present from the day we are born, but often takes a lifetime to develop and reveal itself fully to the outside world. It is an individual challenge that is offered to everyone and expresses something far deeper than ego.

Open, cooperative and connected

Hans Andersen’s story of the Ugly Duckling beautifully illustrates the development of the personal identity. As the story shows, this development is not always easy, but gradually reveals who we actually are, the authentic person living inside, the unique individual who is unlike anybody else. A personal identity is inclusive and cooperative, open to others and the world. However individual in nature this identity might be, paradoxically it does not feel separated from the world: it feels very much connected to the larger whole – the nonhuman realm which stretches out beyond all human groups.  

Recognised as a human right

It is telling that the Declaration of Human Rights (Art. 22 and 29) only mentions the right to develop a personality – a personal identity. It is an important recognition of the fact that we all have unique individual qualities that must be treasured and given the freedom to develop. There is a lot of wisdom in this protection: unique beings by definition deserve our respect. It also makes sense in relation to other human rights, like the freedom of expression (or speech). We can only trust people with well-developed personal identities with the freedom of expression.
In this respect it is understandable that the dualistic identity is not recognised as a human right. People clinging to this kind of identity, focused on a struggle with others whom they have reduced to a mere category, do not have the mental space to simultaneously respect other people’s rights or freedom.

(Getting rid of) substitute identities

When we inspect the two types of identity a bit closer, we can see that the dualistic identity really is a substitute identity. When we have lost touch with our authentic, evolving personal identity, however, we still are vaguely aware that there is something important lacking in our life. That is when collectives, from soccer teams to (populist) political parties to even whole nations, can easily step in to fill the gap with their dualistic identities – which are always static blueprints, resisting any change.
And once again there is some good news:  people today are increasingly becoming aware that in the present political ‘climate’ – where attention has shifted again to tightening border security and potential enemies instead of to the far more comprehensive issue of ‘climate change’ – this clinging to static, collective identities is not only giving people a false sense of security, but can even become destructive on a global scale. The sheer worldwide sense of shame and fierce protests surrounding the election of Trump must be seen in this light.

In a sense, we should be glad that Queen Maxima was unable to find the Dutch identity. This can truly be seen as a message of hope. The real antidote to the crises facing us today is that we collectively start cherishing the development of our diverse personal identities.

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2016-12-14T07:00:00+00:00