Journal articles on the topic 'Human reproductive technology Law and legislation United States'

The right to conceive and bear children has been protected both in law and in policy. Human society has from its earliest time valued children and defended procreation as a basic right.Modern health technology offers the possibility of conception to the estimated 2.5 million infertile couples who may wish to have children. For these persons, infertility treatment offers the hope of having children, an activity deemed basic and essential in human society.In general, the state has been reluctant to directly interfere in the reproductive decisions of individuals. However, the state may act to increase or reduce access to reproductive services in a variety of ways. For example, recent legislation regulating fertility clinics affects the distribution of assisted reproductive technology (ART) in the United States. The purpose of this paper is to describe this legislation, project its probable effects on the distribution of ART services, and analyze these effects based on distributive theories of justice.

The purpose of the research is to formulate the general guidelines for the transformation of human rights as a result of global threats. The methodological framework was the methods of comparative legal research, which showed the general trends in the development of the human rights legislation under the influence of global threats. By the example of the responses of states to the terrorist attacks that occurred on September 11, 2001, it is shown how legislative innovations expanding the powers of law enforcement agencies and special services have led to the revision of the content of such basic human rights as the right to privacy and/or the right to personal inviolability. Highlighted is the concept of the “war on terror” (formulated by the United States President in 2001), which allows terrorists to be treated as representatives of a belligerent but without providing any international guarantees enshrined in the provisions of the international humanitarian law. The consequences of the introduction of biomedical technologies, that are aggressive towards humans, are presented, namely the creation of chimeric organisms that contribute to blurring the interspecific boundaries; creation of a genetically modified organism – human embryo; the development of an artificial uterus capable of bearing a human fetus practically from the time the male and female reproductive cells join. The results consist in the identified trends in the development of legal institutions, such as the formulation of new human rights often replacing or distorting the content of basic recognised human rights enshrined in the key international documents and constitutions of the countries of the world; bypassing the legal prohibitions established over the past decades by introducing relativism and assessing any situation from the point of view of the conditions for its occurrence. The novelty of the research lies in the authors’ position and is formulated as follows: the modern system of human rights is facing a serious crisis. Failure to effectively respond to symbolic challenges and threats is one of the factors necessitating the need for monitoring many regulatory documents. But a significant reason for the backlash also lies in the fact that we are at the turn of an era when technology shows humanity the possibility of correcting the very nature of Homo sapiens.

Scholars of differing political affiliation and the President's Council on Bioethics have called for regulation of assisted reproductive technology (ART) that would emulate many aspects of the regulatory system of the United Kingdom, in particular that of the Human Fertilisation and Embryology Authority. Specifically, scholars and the Council have argued that research in the U.S. involving gametes and human embryos lacks consistent oversight. While the Centers for Disease Control and Prevention (CDC) produces an annual ART success rate report, submission of data is guaranteed only by the promise that non-responders will be noted as such in the appendix of CDC's report, and most ART clinics publish success rates on the Internet in a much more recognized forum: website advertising. Moreover, U.S. law does not require licensing or accreditation of infertility programs and few regulations govern embryo research. While the large majority of clinics report their success rate data, and many follow practice standards and apply for accreditation from private agencies, these practices are strictly voluntary. Clinics failing to report their success rates face no legal consequence.

The governance of reproductive science is fraught with controversy in nearly every jurisdiction across the globe. Worldwide, legislators and policy makers have struggled to craft meaningful and ethical parameters for the regulation of this new and evolving area of biotechnology. In most countries, it is agreed that some form of regulatory oversight over reproductive technologies is necessary. There is far less consensus, however, as to the type of regulatory structure that should be established. Recent debates over reproductive science have focused on two of the most controversial practices in this area: embryonic stem cell research and cloning technology. Specifically, interested parties have struggled over whether these practices are so egregious that they should be altogether prohibited, or whether they ought to be permitted, but subject to particular legislative limits and regulatory oversight.The difficulties that most countries have experienced in devising legislation pertaining to embryonic stem cell and cloning research emanate from the moral ambiguity that characterizes this area of science.

Employers and unions in Canada are more and more being brought under a common code of behaviour with regard to disputes occurring after a contract is signed. Law makers have determined the shape or form and established the jurisdiction of the arbitration itself. After having given reference to the appropriate Canadian legislation for the settlement of disputes, the author turns to the United States and describes the composition and functioning of the American Arbitration Association. The last section of the article is devoted to the possible application in Canada of the principles and procedures of the American system concerning the settlement of justiciable disputes and account is taken of certain law and tradition differences existing in this country.

In this article, the authors investigated the regulatory acts and laws governing surrogacy in Ukraine. The concept of “surrogacy” was also considered and the absence of fixing of this term at the legislative level was established. In addition, it was determined that the necessary condition for the implementation of the method of surrogacy is the genetic link of the spouse or one of the couples with an unborn child. It follows that the surrogate mother should not be genetically related to the child. However, the legislator doesn’t prohibit bearing the pregnancy of close relatives of future parents (sister, mother, aunt, cousin, etc.). This work also focuses on the definition of the legal nature of the contract concluded between the surrogate mother and the infertile couple for artificial insemination by the method of surrogacy. As a result, this agreement is similar to the civil service agreement. The publication also analyzes the state registration procedure for a newborn baby that was born using the method of surrogacy. The peculiarity of the procedure for registering a newborn baby conceived in this way is the presence of a certificate and statement. The certificate proves the genetic link of the baby with the couple. The statement is given by the surrogate mother to recognize the spouse as the child’s parents. Much attention is paid to the experience of regulating surrogacy in the United States. The country does not have a single codified law on artificial insemination by surrogacy. Each state decides in what manner, in what order, and under what conditions it is possible to resort to this type of assisted reproductive technology. The conclusions provide suggestions for resolving problems that may arise while using the method of surrogacy. Also the possibility of improving current legislation on the legal regulation of this procedure by borrowing from foreign experience. Keywords: surrogacy, legal regulation, surrogate mother, assisted reproductive technologies, married couple, contract.

In the context of the bicentennial of the Constitution and science's relationship to society, it has been argued that “the advance of science and technology in the West has changed not only the relation of man to nature but of man to man.“ This seemingly immodest statement may soon prove an understatement. In the arena of human reproduction, the marriage of science and technology in medicine may change not only the relationship of man to nature and man to man, but more significantly, the very concept of what it means to be human. This, in turn, will directly affect how we define the “rights” this “new human” may properly claim.This article begins to explore developing reproductive medical technology with a view toward examining the way it might change our concept of humanness, and how this change might be accommodated, encouraged, or truncated by the relationship between the government and its pregnant citizens as defined by the United States Constitution and the “right to privacy.”

Building on the pragmatist philosophical tradition and work done by scholars in the field of feminist technological studies, this paper considers abortion as a case study to examine how science and technology interact with systems of knowledge, truth, and power. Paying special attention to how technological authority and notions of expertise have influenced public policy and legislative agendas, I consider the role of technological artifacts in shaping our realities and our legal frameworks. Through a historical review of changes in abortion policy and in conversation with various social philosophers, I make the argument that scientific information has not objectively informed abortion opinion and policy, but rather always been a tool of power, reflective of and contributing to larger systemic inequalities. Moreover, because the fundamentally nuanced biology of human fetal development directly conflicts with the legal and moral urge to clearly demarcate personhood from non-personhood, I outline why any attempts to define personhood or viability based purely on biological evidence is arbitrary, deceptive, and ultimately inappropriate. For this reason, I conclude by advocating for the use of a more contextual approach to policy making, considering larger sociopolitical dynamics of gendered power and oppression as well as the lived experiences of those impacted directly by the legislation. In the current political moment, technology is playing an increasingly large role in our lives, and access to abortion and reproductive rights are being actively threatened by those in the highest ranks in the US government. This paper attempts to provide a deeper understanding of the philosophical journey our society took to reach this junction and suggest a better path forward, centering the values of democracy, dignity, and justice.

Canada and the United States are each other’s best trading partners. Our supply chains are deeply integrated. Corporate ownership criss-crosses the border many times over. In the context of foreign policy, although we have differed from time to time in the past, we generally target the same list of ‘bad actors’ – Iran, North Korea, Myanmar among them. Indeed, many of our sanctions programmes have been adopted pursuant to the same United Nations Security Council resolutions that are applied in similar fashion by UN member countries. Our controls on the export of goods and transfer of technology arise from our common commitments under the 1996 Wassenaar Arrangement on Export Controls for Conventional Arms, Dual-use Goods, Technology and other international agreements. It should come as no surprise therefore that in this environment many companies impose a single set of rules or principles regarding export controls and doing business with sanctioned countries. Under the assumption that Canadian and US laws are similar and, that any differences arise from more restrictive elements of US policy, a common default approach is for US companies to graft their US-based export control, economic sanctions policies, and procedures on to their Canadian operations; even some Canadian-based companies doing business in the United States will follow this approach. This is problematic for a number of reasons. Contrary to popular belief, Canadian export controls and economic sanctions can be more restrictive than those of the United States – aspects of the control regime for cryptographic goods and technology and the rules governing trade with and investment in Myanmar are two such examples. More importantly, there are instances in which there is direct conflict between Canadian and US law – that is, compliance with the requirements of one nation’s laws results in contravention of the laws of the other. Two examples of such conflict arise with US military controls under the International Traffic in Arms Regulations and Canadian human rights legislation and with Cuban trade and investment. The latter conflict is the focus of this article.

If a virtual-world-game character is cast upon real-world property without the consent of the landowner, inducing or encouraging players to trespass, is the virtual-world creator liable for damages? The United States Supreme Court has recognized that digital technology presents novel issues, the resolution of which must anticipate its further rapid development. It is beyond dispute that protective legislation will be unable to keep up with rapidly evolving technology. The burden of anticipating and addressing issues presented by emerging technologies will ultimately fall upon the businesses responsible for generating them. This duty was most notably adopted by the creators of Pokémon Go in settlement of nuisance and trespass claims brought by a nationwide class seeking injunctive relief from the placement of virtual Pokéstops and Pokémon Gyms (“Gyms”) on real property. This article is the first to address this landmark settlement and proposes that future developers and creators seeking to avoid similar liability exposure implement self-regulatory practices, such as Value Sensitive Design, to create human values-based frameworks within which they can create and advance technologies. The societal need and social impact of such self-regulation is clearly illustrated by emerging litigation seeking to hold virtual-world actors responsible for real-world consequences utilizing common law tort theories. In the absence of legislation, as case law develops, self-regulatory frameworks like Value Sensitive Design are essential to create constructs within which creators can develop technologies that consider human values, address civic concerns, and avoid lawsuits, while still achieving commercial and technological objectives.

The introduction of information technology (IT) in the society and its pervasiveness in every aspect of citizens’ daily life highlight societal stakes related to the goals regarding the uses IT, such as social networks. This paper examines two cases that lack a straightforward link with privacy as addressed and protected by existing law in Europe (EU) and the United-States (USA), but whose characteristics, we believe fall on other privacy function and properties. In Western societies, individuals rely on normative discourses, such as the legal one, in order to ensure protection. Hence, the paper argues that other functions of privacy need either further framing into legislation or they need to constitute in themselves normative commitments of an ethical nature for technology development and use. Some initiatives at the EU level recall such commitments, namely by developing a normative discourse based on ethics and human values. We argue that we need to interrogate society about those normative discourses because the values we once cherished in a non-digital society are seriously being questioned.

With the progress of technology, the updating speed of electronic equipment is faster and faster. The generation rate of e-waste in various countries is also speedy. In addition, a large number of e-waste from developed countries are also exported to some underdeveloped regions, which makes their domestic e-waste output more. Electronic waste contains a variety of toxic additives or harmful substances, most of which will be discharged into the environment and affect human health. This paper is mainly based on the analysis of developing countries, especially China. Firstly, it analyzes the reasons and background of e-waste transfer of enterprises such as HP and Siemens, as well as the more stringent environmental protection treatment strategies in developed countries. Secondly, it compares and analyzes the existing laws and regulations on electronic waste between the developed countries, the United States, the European Union, and China. China should analyze the lack of laws on the cross-border transfer of e-waste, which are not comprehensive and specific enough, and there are still loopholes in the existing legal system. Finally, it analyzes how to solve such problems from the essence, and compares the national environmental protection consciousness of different countries. And the consequence is that the environmental protection consciousness of the developed countries is significantly higher than that of developing countries. Therefore, it is found that developing countries should start with the public consciousness, followed by legislation, and put forward some suggestions to improve the rule of law in China.

Since 2019, over 600 law enforcement agencies across the United States have started using a groundbreaking facial recognition app designed by Clearview AI, a tech start-up which now plans to market its technology also in Europe. While the Clearview app is an expression of the wider phenomenon of the repurposing of privately held data in the law enforcement context, its use in criminal proceedings is likely to encroach on individuals’ rights in unprecedented ways. Indeed, the Clearview app goes far beyond traditional facial recognition tools. If these have been historically limited to matching government-stored images, Clearview now combines its technology with a database of over three billion images published on the Internet. Against this background, this article will review the use of this new investigative tool in light of the European Union (EU) legal framework on privacy and data protection. The proposed assessment will proceed as follows. Firstly, it will briefly assess the lawfulness of Clearview AI’s data scraping practices under the General Data Protection Regulation. Secondly, it will discuss the transfer of scraped data from the company to EU law enforcement agencies under the regime of the Directive 2016/680/EU (the Directive). Finally, it will analyse the compliance of the Clearview app with art 10 of the Police Directive, which lays down the criteria for lawful processing of biometric data. More specifically, this last analysis will focus on the strict necessity test, as defined in the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. Following this assessment, it will be argued that the Clearview app’s use in criminal proceedings is highly problematic in light of the EU legislation on privacy and data protection.

Purpose Cyberspace is a virtual environment where instantaneous communications are initiated and consumed using computer networks without any natural or artificial boundaries. These communications are not only an exchange of information but also a catharsis on the socio-political environment of the real world. This explosion of electronic expression is often detrimental to the traditional secretive maneuvers of nation states and the exercise of its power. Unable to come to terms with the new reality nation states through legislative action or otherwise attempt to assert its sovereignty in the space that has no political and societal boundaries. This may lead to an encroachment on basic human rights that often have constitutional guarantees in the real world but may be violated in the online milieu. This paper aims to investigate this issue in detail and evaluate whether nation states are using cyber-security as a propaganda tool to transgress on electronic expression. Design/methodology/approach The Website of the UN Office of the High Commissioner for Human Rights states “In December 2013, the United Nations General Assembly adopted resolution 68/167, which expresses deep concern at the negative impact that surveillance and interception of communications may have on human rights”. It further says “The General Assembly called on all States to review their procedures, practices and legislation related to communications surveillance, interception and collection of personal data and emphasized the need for States to ensure the full and effective implementation of their obligations under international human rights law”. With this development, this paper seeks to unravel the role of nation states in using cybersecurity as a propaganda tool by raising the specter of threat to national security and economic wellbeing. The paper is based on exploratory research with data compilation from secondary sources. To collect data, various research papers, books and journals have been referenced and data available in public domain has been accumulated. Findings This paper has tried to unravel state action on cyberspace which often runs counter to the concept of civil liberties. It indicates that in terms of both national security and economic impact, cybercrime represent a very nominal threat vector. Also, cybercrime as compared with other forms of crime is again nominal. Finally, cyber laws and policies of different countries need to be more nuanced such as to allow space for civil liberties. Overall, the propaganda surrounding the malaise of cybercrime seems to be more hype than real. We already have examples of countries who have transgressed into electronic expression in cyber space. Therefore, UN has a valid reason to raise a red flag on this unfolding issue. Originality/value This paper was published at 21st Americas Conference of Information Systems held at Puerto Rico, USA, between August 13-15, 2015 (AMCIS, 2015). The authors of this paper seek review by Editors of the Journal for Republication of original work. The authors have taken cognizance of the Originality Guidelines for Emerald published at this URL www.emeraldgrouppublishing.com/authors/writing/originality.htm

Quarter Horses are considered one of the earliest and most enduringly popular breeds of horse that is “native” to the United States. The American Quarter Horse Association formed as a breed registry in 1940, and set clear rules for what horses could be called Quarter Horses in its stud book. In 1940, no reliable methods of human-assisted equine reproduction existed, so the stud book rules governing acceptable horse congress were designed to regulate physical sexual encounters between horses in order to prevent genetic fraud. However, in a more recent age of DNA identification and the proliferation of reproductive technologies, the AQHA studbook’s rules for equine mating have come under pressure. In fact, after several years of legal back-and-forth on whether to allow cloned horses to be eligible for AQHA registration, the AQHA denied that clones could be Quarter Horses, and rewrote its studbook parentage requirements to explicitly state that a registered horse must have two parents — one male, one female. Echoing the rhetoric of contemporary anti-gay marriage legislation such as the 1998 Defense of Marriage Act, the AQHA objected to the inherent queerness of cloning, and retreated to conservative ideas of an offspring’s legitimacy. This essay traces the contentious debate about the place of cloning in a breed-defining studbook -- one that is historically invested in American cultural traditions tied to conservative definitions of family and kin (whether human or animal) that support heteronormative sex. The example of Quarter Horse cloning situates this technology as a key marker of the biological Anthropocene, and illuminates cultural ideas that have shaped what it means to breed and to be a breed. Cloning cracks open the foundations — genetic and cultural — that have supported the ties between “America” and “America’s Horse,” and offers a broader examination of its redemptive potential in light of its challenge to conservative definitions of a life form’s legitimacy based on its parentage.

The subject and the aim of the study. The article analyzes the approach to smart contract technology, which is reflected in the scientific literature and legislation of Russia and foreign countries, formulates the advantages and disadvantages of a smart contract that affect the implementation and protection of certain constitutional rights, including freedom of contract, the right to protect, the right to manage personal data.Methodology. Guided by formal dogmatic and comparative law methods in research, the author formulates approaches to the concept of a smart contract that has been developed in the practice of foreign countries and deduces how each of the approaches affects the implementation of constitutional human rights. The paper notes that the use of a smart contract based on the federal blockchain does not allow the full implementation of such rights as freedom of contract, the right to self-defense, and the right to manage personal data. In addition, the transnational nature of smart contracts usage, their pseudonymity and failure to unified concept of legal regulation create obstacles to the effective implementation of the right to judicial protection.The main results. The practice of legal regulation of smart contracts in foreign countries, aimed at minimizing the negative consequences of the use of technology is considered. Some countries follow to the concept of recognizing a smart contract as a form of contract (Italy, United States, Republic of Belarus) and a way of guaranteeing fulfilment of obligations (China, Italy, Republic of Belarus, Russian Federation). The second concept is considered as being the most restrictive for digital progress from one side but being able to guarantee protection of human rights such as right to judicial protection or freedom of contract. The first concept which shows smart contract being a type of contract carries additional risks associated with conclusion of a treaty - inconsistency of the smart contract with the actual will of the parties. The third concept considered smart contract as a type of contract is accepted in the Republic of Malta. The Republic of Malta regulated procedure of voluntary certification for smart contracts that allow to eliminate such threats as violation of human rights and the use of smart contracts for criminal purposes. The experience of legal regulation of smart contracts in the Republic of Malta is recognized as reasonable and effective, however, it is concluded that certification will achieve its goals only if it will be implemented in the legal system of wide range of the countries.Conclusions. It is concluded that despite the fact that the smart contract technology has high potential for its implementation in various fields of social and economic life, the effective implementation of smart contract technology in various spheres of society requires the formation of general legal principles for their application, the definition of areas in which the use of smart contracts is prohibited, as well as the development of international standards for their safe execution.

Purpose. The aim of the article is to analyze the legal basis for preventing media violence against children. Method. The methodology includes a comprehensive analysis and generalization of existing scientific and theoretical material and the formulation of relevant conclusions. During the research the methods of scientific cognition were used: comparative-legal, logical-semantic, functional, system-structural, logical-normative. Results. The study recognized that it is appropriate to provide in the Law of Ukraine "On Child Protection" a ban on disclosing or publishing in the media confidential information about children in difficult life situations, if the dissemination of such information could harm the child, regardless of parental consent or other legal representatives of the child. Media violence is a form of psychological violence that involves propaganda of violence through the media if it causes emotional insecurity, inability to protect oneself, or mental health damage. The main feature of the modern information society is the recognition of the priority of information as one of the results of human activity. Most of the time behind a computer, modern man can no longer imagine his existence without it, which often leads to the formation of computer addiction. In addition, one of the urgent problems that arose in the era of information technology is the problem of cyberbullying - harassment of the Internet, through messages containing insults, intimidation. Such harassment can be applied to both adults and children. Currently, the phenomenon of cyberbullying is actively manifested in many developed foreign countries, such as the United States, Canada, the European Union and other countries, where public authorities are forced to pay more and more attention to this issue. It is almost impossible to eliminate violence in the media, as they shape their agenda based on the interest of the viewer. And, unfortunately, violence is one that attracts the attention of broad sections of the population. Therefore, educational institutions should help children to form the idea that the agenda, the methods of activity imposed by the media, have value only in the symbolic and not in the practical world. Scientific novelty. In the course of the research it was established that an important measure to prevent and counteract violence in the media may be the introduction of a special course "Violence and Media Space" in the curricula for the specialty 061 "Journalism". Practical significance. The applied value of the study is determined by the fact that the scientific results provide a basis for improving legislation in the field of prevention of media violence against children.

Modern medicine is evolving at a tremendous speed. On a daily basis, we learn about new treatments, drugs, medical devices, and diagnoses. Both established technology companies and start-ups focus on health-related products and services in competition with traditional healthcare businesses. Telemedicine and electronic health records have the potential to improve the effectiveness of treatments significantly. Progress in the medical field depends above all on data, specifically health information. Physicians, researchers, and developers need health information to help patients by improving diagnoses, customizing treatments and finding new cures. Yet law and policymakers are currently more focused on the fact that health information can also be used to harm individuals. Even after the outbreak of the COVID-19 pandemic (which occurred after the manuscript for this article was largely finalized), the California Attorney General Becera made a point of announcing that he will not delay enforcement of the California Consumer Privacy Act (“CCPA”), which his office estimated imposes a $55 billion cost (approximately 1.8% of California Gross State Product) for initial compliance, not including costs of ongoing compliance, responses to data subject requests, and litigation. Risks resulting from health information processing are very real. Contact tracing and quarantines in response to SARS, MERS, and COVID-19 outbreaks curb civil liberties with similar effects to law enforcement investigations, arrests, and imprisonment. Even outside the unusual circumstances of a global pandemic, employers or insurance companies may disfavor individuals with pre-existing health conditions in connections with job offers and promotions as well as coverage and eligibility decisions. Some diseases carry a negative stigma in social circumstances. To reduce the risks of such harms and protect individual dignity, governments around the world regulate the collection, use, and sharing of health information with ever-stricter laws. European countries have generally prohibited the processing of personal data, subject to limited exceptions, for which companies have to identify and then document or apply. The General Data Protection Regulation (“GDPR”) that took effect in 2018 confirms and amplifies a rigid regulatory regime that was first introduced in the German State Hessen in 1970 and demands that organizations minimize the amount of data they collect, use, share, and retain. Healthcare and healthtech organizations have struggled to comply with this regime and have found EU data protection laws fundamentally hostile to data-driven progress in medicine. The United States, on the other hand, has traditionally relied on sector- and harm-specific laws to protect privacy, including data privacy and security rules under the federal Health Insurance Portability and Accountability Act (“HIPAA”) and numerous state laws including the Confidentiality of Medical Information Act (“CMIA”) in California, which specifically address the collection and use of health information. So long as organizations observe the specific restrictions and prohibitions in sector-specific privacy laws, they may collect, use, and share health information. As a default rule in the United States, businesses are generally permitted to process personal information, including health information. Yet, recently, extremely broad and complex privacy laws have been proposed or enacted in some states, including the California Consumer Privacy Act of 2018 (“CCPA”), which have a potential to render compliance with data privacy laws impractical for most businesses, including those in the healthcare and healthtech sectors. Meanwhile, the People’s Republic of China is encouraging and incentivizing data-driven research and development by Chinese companies, including in the healthcare sector. Data-related legislation is focused on cybersecurity and securing access to data for Chinese government agencies and much less on individual privacy interests. In Europe and the United States, the political pendulum has swung too far in the direction of ever more rigid data regulation and privacy laws, at the expense of potential benefits through medical progress. This is literally unhealthy. Governments, businesses, and other organizations need to collect, use and share more personal health information, not less. The potential benefits of health data processing far outweigh privacy risks, which can be better tackled by harm-specific laws. If discrimination by employers and insurance companies is a concern, then lawmakers and law enforcement agencies need to focus on anti-discrimination rules for employers and insurance companies - not prohibit or restrict the processing of personal data, which does not per se harm anyone. The notion of only allowing data processing under specific conditions leads to a significant hindrance of medical progress by slowing down treatments, referrals, research, and development. It also prevents the use of medical data as a tool for averting dangers for the public good. Data “anonymization” and requirements for specific consent based on overly detailed privacy notices do not protect patient privacy effectively and unnecessarily complicate the processing of health data for medical purposes. Property rights to personal data offer no solutions. Even if individuals - not companies creating databases - were granted property rights to their own data originally, this would not ultimately benefit individuals. Given that transfer and exclusion rights are at the core of property regimes, data property rights would threaten information freedom and privacy alike: after an individual sells her data, the buyer and new owner could exercise his data property rights to enjoin her and her friends and family from continued use of her personal data. Physicians, researchers, and developers would not benefit either; they would have to deal with property rights in addition to privacy and medical confidentiality requirements. Instead of overregulating data processing or creating new property rights in data, lawmakers should require and incentivize organizations to earn and maintain the trust of patients and other data subjects and penalize organizations that use data in specifically prohibited ways to harm individuals. Electronic health records, improved notice and consent mechanisms, and clear legal frameworks will promote medical progress, reduce risks of human error, lower costs, and make data processing and sharing more reliable. We need fewer laws like the GDPR or the CCPA that discourage organizations from collecting, using, retaining, and sharing personal information. Physicians, researchers, developers, drug companies, medical device manufacturers and governments urgently need better and increased access to personal health information. The future of medicine offers enormous opportunities. It depends on trust and healthy data protection. Some degree of data regulation is necessary, but the dose makes the poison. Laws that require or intend to promote the minimization of data collection, use, and sharing may end up killing more patients than hospital germs. In this article, I promote a view that is decidedly different from that supported by the vast majority of privacy scholars, politicians, the media, and the broader zeitgeist in Europe and the United States. I am arguing for a healthier balance between data access and data protection needs in the interest of patients’ health and privacy. I strive to identify ways to protect health data privacy without excessively hindering healthcare and medical progress. After an introduction (I), I examine current approaches to data protection regulation, privacy law, and the protection of patient confidentiality (II), risks associated with the processing of health data (III), needs to protect patient confidence (IV), risks for healthcare and medical progress (V), and possible solutions (VI). I conclude with an outlook and call for healthier approaches to data protection (VII).

Despite the significant advantages that access to information and communication technology has made to many of our lives, the related benefits, opportunities and even equalizing effect of this technology are often not accessible or only partially accessible to a growing portion of the global population. Current disability rights laws which are supposed to exist for the protection and well–being of individuals with disabilities are often too close to the heart of the problem, as they can actually promote a separate but unequal online environment. If current U.S. laws were revised to encourage born–accessible technology and there was consistent enforcement of such laws, the online experience of millions of individuals with disabilities could be drastically improved. This article examines the aspects of the current laws that perpetuate a separate but unequal online environment, discussing past and current examples of such inequity. It also contrasts the structure of current U.S. disability rights laws with other civil rights legislation and offers a set of policy recommendations that could have a positive impact on accessibility.

Abstract text Infertility treatment law making in Europe: the clash of knowledge, ethics and business Today, there is no common European set of rules for Assisted Reproduction Technology (ART). ART is now controlled by legislation in almost all European countries, substantial variations exist within the detail of that legislation. Main legal differences between countries relate to: embryo selection, particularly by genetic screening, embryo freezing and embryo transfer, preimplantation genetic diagnosis (PGD), oocyte donation, anonymity of gamete donors, surrogacy, patient eligibility criteria (eg, sexual orientation, age), reimbursement and state funding. The most complete survey ever of the ART legal and funding framework of 43 European countries was published in the ESHRE medical journal Human Reproduction Open: Calhaz-Jorge C, De Geyter C, Kupka MS, et al. Survey on ART and IUI: Legislation, regulation, funding and registries in European countries. Hum Reprod Open 2020; doi:10.1093/hropen/hoz044. Unfortunately, changes of legislation are so dynamic that much of the information in this article is no longer up-to-date. Lawyers observe that one of the most important rule of law “When the Law ceases to reflect the realities of Life, it is the Law that will Change” does not work in ART. In regard to this matter dominant rule is: “The Law will change only when it ceases to reflect the government’s point of view and lobbyists’ needs”. Modern medical knowledge and the society’s needs are often not the main concern during the law making discussion. The speech discusses the issues related to infertility treatment law making in Europe with a focus of the problem that modern medical knowledge in this process is not taken into account at all. The author diagnoses numerous problem related to determining the border between medical knowledge, ethics and business in law making process. The observed problems will be discussed on selected examples (from Poland, Greece and the United Kingdom) during presentation at the ESHRE on-line 37th Annual Meeting.

Abstract Vietnam's Cyber Security Law, which officially came into effect on the first day of 2019, is considered by the Vietnamese authorities to be an important advance of the Vietnamese legal system in catching up with new information technology issues and addressing the challenges of the Revolution 4.0. The legislation, however, did not come without opposition. Specifically, international dissatisfaction with the law was clearly articulated in January 2019 in the Universal Periodic Review—a major human rights protection mechanism under the management of the UN Human Rights Council; and also, in the Human Rights Committee hearing on Vietnam's implementation of the International Covenant on Civil and Political Rights in March of that year. Within its limited resources, this article first tries to identify and evaluate recommendations and comments during the two events in relation to the Cyber Security Law, made by international actors including states, non-governmental organizations, and authoritative United Nations institutions. With the data, the article can then categorize three vital human rights concerns regarding the law, according to international perception. They comprise (1) the legal philosophy of ‘national security’; (2) obligations imposed on internet businesses; and (3) judicial review/remedy. Finally, the research engages in an extensive comparative analysis between these concerns and international practices to reach different conclusions on their compatibility and possible solutions. The authors believe that constructive criticisms from the international community can be carefully garnered in order to contribute to the refinement of Vietnam’s cyber-security laws in the future.

Photo by Christian Bowen on Unsplash ABSTRACT Assisted Reproductive Technology can be a beneficial tool for couples unable to reproduce independently; however, it has historically discriminated against the LGBTQ+ community members. Given the evolution and acceptance of LGBTQ rights in recent years, discrimination and barriers to access reproductive technology and health care should be readdressed as they still exist within this community. INTRODUCTION In recent years, the LGBTQ+ community has made great strides toward attaining equal rights. This fight dates back to 1970 when Michael Baker and McConnell applied for a marriage license in Minnesota.[1] After the county courthouse denied the couple's request, they appealed to the Minnesota Supreme Court. Baker and McConnell’s dispute reached the US Supreme Court. Baker v. Nelson[2] was the first time a same-sex couple attempted to pursue marriage through higher courts in the US.[3] Because the couple lost the case, Baker changed his name to a gender-neutral one, and McConnell adopted Baker, allowing Baker and McConnell to have legal protections like the ability to receive certain inheritances. Baker and McConnell received a marriage license from an unsuspecting clerk from Blue Earth County, where they wed on September 3, 1971.[4] BACKGROUND The Supreme Court’s decision left individual state legislatures the option to accommodate same-sex couples’ rights constitutionally. As a result, some states banned same-sex marriage, while others offered alternative options such as domestic partnerships. With many obstacles, such as the Defense of Marriage Act (DOMA) and President Bush’s efforts to limit marriage to heterosexual people, Massachusetts became the first state to legalize gay marriage in 2003.[5] Other states slowly followed. Finally, in 2015 the US Supreme Court made same-sex marriage legal in all 50 states in Obergefell v. Hodges,[6] marking an important milestone for the LGBTQ+ community’s fight toward marriage equality. The Obergefell v. Hodges decision emphasized that members of the homosexual community are “not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions,” thus granting them the right to “equal dignity in the eyes of the law.”[7] This paper argues that in the aftermath of the wide acceptance of LGBTQ rights, discrimination and barriers to access reproductive technology and health care persist nationally. Procreation also faces discrimination. Research supports that children’s overall psychological and physical welfare with same-sex parents does not differ compared to children with heterosexual parents.[8] Some others worry about the children’s developmental health and argue that same-sex male couples’ inability to breastfeed their children may be harmful; however, such parents can obtain breast milk via surrogate donation.[9] Further concerns regarding confusion in gender identity in children raised by same-sex parents are not supported by research in the field indicating that there are “no negative developmental or psychological outcomes for a child, nor does it result in differing gender identity, gender role behavior or sexual partner preference compared to opposite-sex parents.”[10] ANALYSIS l. Desire to Procreate The American perception toward same-sex unions has evolved “from pathology to deviant lifestyle to identity.”[11] In 2001, only 35 percent of Americans favored same‐sex marriage, while 62 percent favored it in 2017.[12] The “Gay marriage generation”[13] has a positive attitude toward same-sex unions, arising from the “interaction among activists, celebrities, political and religious leaders, and ordinary people, who together reconfigured Americans’ social imagination of homosexuality in a way that made gay marriage seem normal, logical, and good.”[14] Same-sex couples’ right to build a biological family and ability to do so using modern reproductive technology is unclear. The data generated by the LGBTQ Family Building Survey revealed “dramatic differences in expectations around family building between LGBTQ millennials (aged 18-35) and older generations of LGBTQ people,”[15] which may be in part attributable to recent federal rulings in favor of same-sex couples. Three important results from this survey are that 63 percent of LGBTQ millennials are considering expanding their families throughout parenthood, 48 percent of LGBTQ millennials are actively planning to grow their families, compared to 55 percent of non-LGBTQ millennials; and 63 percent of those LGBTQ people interested in building a family expect to use assisted reproductive technology (ART), foster care, or adoption to become parents.[16] There are 15.9 million Americans who identify as LGBTQ+ (6.1 million of whom are 18 to 35 years old); thus, an estimated “3.8 million LGBTQ+ millennials are considering expanding their families in the coming years, and 2.9 million are actively planning to do so.”[17] Yet access and affordability to ART, especially in vitro fertilization (IVF) and surrogacy for same-sex couples, has not been consistent at a national level. The two primary problems accessing ART for the LGBTQ community are the lack of federal law and cost. A federal law that guaranteed coverage would address both problems. ll. ART for Same-Sex Couples All same-sex male (SSM) couples and same-sex female (SSF) couples must involve third parties, including surrogates or egg or sperm donors.[18] ART involves the legal status of “up to two women (surrogate and egg donor),” the intended parents, and the child for SSM couples.[19] While sometimes necessary for heterosexual couples using ART, an egg or sperm from someone other than the intended parents or a surrogate will always be necessary for the LGBTQ people seeking ART. ART, in particular IVF, is essential for infertile couples unable to conceive on their own. Unlike other industrialized countries (such as Canada, the United Kingdom, Sweden, Germany, and Australia), the US does not heavily oversee this multibillion-dollar industry.[20] The American Society for Reproductive Medicine does provide lengthy guidelines to fertility clinics and sperm banks; however, state lawmakers have been less active as they seem to avoid the controversy surrounding controversial topics like embryo creation and abortion.[21] As a result, states “do not regulate how many children may be conceived from one donor, what types of medical information or updates must be supplied by donors, what genetic tests may be performed on embryos, how many fertilized eggs may be placed in a woman or how old a donor can be.”[22] lll. A Flawed Definition of Infertility The WHO defines the medical definition of infertility as “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after twelve months or more of regular unprotected sexual intercourse.”[23] This antiquated definition must be updated to include social infertility to integrate same-sex couples’ rights.[24] In the US, single individuals and LGBTQ couples interested in building a family by biological means are considered “socially infertile.”[25] If insurance coverage is allotted only to those with physical infertility, then it is exclusive to the heterosexual community. Although some states, such as New York, discussed below, have directly addressed this inequality by extending the definition of infertility and coverage of infertility treatments to include all residents regardless of sexual orientation, this is not yet the norm everywhere else. The outdated definition of infertility is one of the main issues affecting same-sex couples’ access to ART, as medical insurance companies hold on to the formal definition of infertility to deny coverage. lV. Insurance Coverage for IVF Insurance coverage varies per state and relies on the flawed definition of infertility. As of August 2020, 19 states have passed laws requiring insurance coverage for infertility, 13 of which include IVF coverage, as seen in Figure 1. Also, most states do not offer IVF coverage to low-income people through Medicaid.[26] In states that mandate IVF insurance coverage, the utilization rate was “277% of the rate when there was no coverage,”[27] which supports the likelihood that in other states, the cost is a primary barrier to access. When insurance does not cover ART, ART is reserved for wealthy individuals. One cycle of ART could cost, on average, “between $10,000 and $15,000.”[28] In addition, multiple cycles are often required as one IVF cycle only has “about a 25% to 30%” live birth success rate.[29] Altogether, the total cost of successful childbirth was estimated from $44,000 to $211,940 in 1992.[30] On February 11, 2021, New York Governor Andrew M. Cuomo “directed the Department of Financial Services to ensure that insurers begin covering fertility services immediately for same-sex couples who wish to start a family.”[31] New York had recently passed an IVF insurance law that required “large group insurance policies and contracts that provide medical, major medical, or similar comprehensive-type coverage and are delivered or issued for delivery in New York to cover three cycles of IVF used in the treatment of infertility.”[32] But the law fell short for same-sex couples, which were still required to “pay 6 or 12 months of out-of-pocket expenses for fertility treatments such as testing and therapeutic donor insemination procedures before qualifying for coverage.”[33] Cuomo’s subsequent order made up for gaps in the law, which defined infertility as “the inability to conceive after a certain period of unprotected intercourse or donor insemination.”[34] Cuomo’s order and the law combine to make New York an example other states can follow to broaden access to ART. V. Surrogacy Access to surrogacy also presents its own set of problems, although not exclusive to the LGBTQ community. Among states, there are differences in how and when parental rights are established. States in dark green in Figure 2 allow pre-birth orders, while the states in light green allow post-birth parentage orders. Pre-birth orders “are obtained prior to the child’s birth, and they order that the intended parent(s) will be recognized as the child’s only legal parent(s) and will be placed on the child’s birth certificate,” while post-birth parentage orders have the same intent but are obtained after the child’s birth. [35] For instance, states can require genetic testing post-birth, possibly causing a delay in establishing parentage.[36] Although preventable through the execution of a health care power of attorney, a surrogate mother could be the legal, medical decision-maker for the baby before the intended parents are legally recognized. On February 15, 2021, gestational surrogacy – the most popular type of surrogacy in which the surrogate has no biological link to the baby – was legalized in New York,[37] but it remains illegal in some states such as Nebraska, Louisiana, and Michigan.[38] In addition, the costs of surrogacy are rising, and it can cost $100,000 in the US.[39] Medicaid does not cover surrogacy costs,[40] and some health insurance policies provide supplemental surrogacy insurance with premiums of approximately $10,000 and deductibles starting at $15,000.[41] Thus, “surrogacy is really only available to those gay and lesbian couples who are upper class,”[42] leaving non-affluent couples out of options to start a family through biological means. Vl. A Right to Equality and Procreation Some argue that same-sex couples should have the right to procreate (or reproductive rights). Based on arguments stemming from equal rights and non-discrimination, same-sex couples who need to use ART to procreate should have access to it. The need to merge social infertility into the currently incomplete definition of fertility could help same-sex couples achieve access through insurance coverage. The human right of equality and non-discrimination guarantees “equal and effective protection against discrimination on any ground.”[43] The United Nations later clarified that “sexual orientation is a concept which is undoubtedly covered” [44] by this protection. The right to procreate is not overtly mentioned in the US Constitution; however, the Equal Protection Clause states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States… without due process of law.”[45] In fact, some states have abridged the reproductive privileges of some US citizens by upholding prohibitive and intricate mechanisms that deter same-sex couples from enjoying the privileges other citizens have. The Supreme Court acknowledged procreation as a “fundamental”[46] personal right, in Skinner v. Oklahoma, mandating that the reproductive rights of individuals be upheld as the right to procreate is “one of the basic civil rights of man”[47] because “procreation [is] fundamental to the very existence and survival of the race.”[48] In Eisenstadt v. Baird, the courts also supported that “the decision whether to bear or beget a child” fundamentally affects a person.[49] I argue that this protection extends to same-sex couples seeking to procreate. Finally, Obergefell v. Hodges held that the Due Process and Equal Protection clauses ensure same-sex couples the right to marriage, as marriage “safeguards children and families, draw[ing] meaning from related rights of childrearing, procreation, and education.”[50] By implicit or explicit means, these cases align with the freedom to procreate that should not be unequally applied to different social or economic groups. Yet, the cases do not apply to accessing expensive tools to procreate. As heterosexuals and the LGBTQ community face trouble accessing expensive ART for vastly different reasons, especially IVF and surrogacy, the equal rights or discrimination argument is not as helpful. For now, it is relevant to adoption cases where religious groups can discriminate.[51] The insurance coverage level may be the best approach. While the social norms adapt and become more inclusive, the elimination of the infertility requirement or changing the definition of infertility could work. Several arguments could address the insurance coverage deficit. Under one argument, a biological or physical inability to conceive exists in the homosexual couple trying to achieve a pregnancy. Depending on the wording or a social definition, a caselaw could be developed arguing the medical definition of infertility applies to the LGBTQ community as those trying to procreate are physically unable to conceive as a couple planning to become parents. One counterargument to that approach is that it can be offensive to label people infertile (or disabled) only because of their status as part of a homosexual couple.[52] CONCLUSION In the last 50 years, there has been a notable shift in the social acceptance of homosexuality.[53] Marriage equality has opened the door for further social and legal equality, as evidenced by the increased number of same-sex couples seeking parenthood “via co-parenting, fostering, adoption or surrogacy” – colloquially referred to as the ‘Gayby Boom’.[54] However, some prejudice and disdain toward LGBTQ+ parenting remain. Equitable access to ART for all people may be attainable as new technology drives costs down, legislators face societal pressure to require broader insurance coverage, and social norms become more inclusive. [1] Eckholm, E. (2015, May 17). The same-sex couple who got a marriage license in 1971. Retrieved April 08, 2021, from https://www.nytimes.com/2015/05/17/us/the-same-sex-couple-who-got-a-marriage-license-in-1971.html [2] Eckholm, E. [3] A brief history of civil rights in the United States: A timeline of the legalization of same-sex marriage in the U.S. (2021, January 27). Retrieved April 08, 2021, from https://guides.ll.georgetown.edu/c.php?g=592919&p=4182201 [4] Eckholm, E. [5] A brief history of civil rights in the United States: A timeline of the legalization of same-sex marriage in the U.S. (2021, January 27). Retrieved April 08, 2021, from https://guides.ll.georgetown.edu/c.php?g=592919&p=4182201 [6] A brief history of civil rights in the United States [7] A brief history of civil rights in the United States [8] Lee, J., & Bolzendahl, C. (2019). Acceptance and Rejection: Patterns of opinion on homosexuality in the United States and the world. Sociological Forum, 34(4), 1026-1031. doi:10.1111/socf.12562 [9] Lee, J., et al. [10] Lee, J., et al. [11] Lee, J., et al. [12] Lee, et al. [13] Lee, et al. [14] Lee, et al. [15] LGBTQ family building survey. (2020, July 02). Retrieved April 08, 2021, from https://www.familyequality.org/resources/lgbtq-family-building-survey/ [16] LGBTQ family building survey. (2020, July 02). Retrieved April 08, 2021, from https://www.familyequality.org/resources/lgbtq-family-building-survey/ [17] LGBTQ family building survey. (2020, July 02). Retrieved April 08, 2021, from https://www.familyequality.org/resources/lgbtq-family-building-survey/ [18] Mackenzie, S. C., Wickins-Drazilova, D., & Wickins, J. (2020). The ethics of fertility treatment for same-sex male couples: Considerations for a modern fertility clinic. European Journal of Obstetrics & Gynecology and Reproductive Biology, 244, 71-75. doi:10.1016/j.ejogrb.2019.11.011 [19] Mackenzie, et al. [20] Ollove, M. (2015, March 18). States not eager to regulate fertility industry. Retrieved April 08, 2021, from https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/3/18/states-not-eager-to-regulate-fertility-industry [21] Ollove, M. [22] Ollove, M. [23] World Health Organization. (2020, September 14). Infertility. World Health Organization. https://www.who.int/news-room/fact-sheets/detail/infertility [24] Leondires, M. P. (2020, March 19). Fertility insurance Mandates & same-sex couples. Retrieved April 08, 2021, from https://www.gayparentstobe.com/gay-parenting-blog/fertility-insurance-mandates-same-sex-couples/ [25] Lo, W., & Campo-Engelstein, L. (2018). Expanding the Clinical Definition of Infertility to Include Socially Infertile Individuals and Couples. Reproductive Ethics II, 71–83. https://doi.org/10.1007/978-3-319-89429-4_6 [26] Mohapatra, S. (2015). Assisted Reproduction Inequality and Marriage Equality. Chicago-Kent Law Review, 92(1). Retrieved April 08, 2021, from https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=4146&context=cklawreview [27] Mohapatra, S. [28] Mohapatra, S. [29] Mohapatra, S. [30] Mohapatra, S. [31] Governor Cuomo announces new actions to expand access to FERTILITY coverage for same sex couples as part of 2021 Women's Agenda. (n.d.). [32] Health Insurers FAQs: IVF and Fertility Preservation Law Q&A Guidance. (n.d.). Retrieved April 08, 2021, from https://www.dfs.ny.gov/apps_and_licensing/health_insurers/ivf_fertility_preservation_law_qa_guidance [33] Governor Cuomo announces new actions to expand access to FERTILITY coverage for same sex couples as part of 2021 Women's Agenda. (n.d.). Retrieved April 08, 2021, from https://www.governor.ny.gov/news/governor-cuomo-announces-new-actions-expand-access-fertility-coverage-same-sex-couples-part#:~:text=February%2011%2C%202021-,Governor%20Cuomo%20Announces%20New%20Actions%20to%20Expand%20Access%20to%20Fertility,Part%20of%202021%20Women's%20Agenda&text=Cuomo%20today%20directed%20the%20Department,wish%20to%20start%20a%20family. [34] Leondires, M. P. [35] Assisted reproduction parentage proceedings information: Academy of Adoption and Assistive Reproduction Attorneys (AAAA). (2019, March 14). Retrieved April 08, 2021, from https://adoptionart.org/assisted-reproduction/parentage-proceedings/ [36] Assisted reproduction parentage proceedings information. [37] Governor Cuomo reminds surrogates and parents of their new Insurance rights and protections During Gestational Surrogacy. (n.d.). Retrieved April 08, 2021, from https://www.governor.ny.gov/news/governor-cuomo-reminds-surrogates-and-parents-their-new-insurance-rights-and-protections-during [38] U.S. Surrogacy Map: Surrogacy laws by state. (2020, December 23). Retrieved April 08, 2021, from https://www.creativefamilyconnections.com/us-surrogacy-law-map/ [39] Mohapatra, S. [40] Beitsch, R. (2017, June 29). As surrogacy surges, new parents seek legal protections. Retrieved April 08, 2021, from https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/06/29/as-surrogacy-surges-new-parents-seek-legal-protections#:~:text=Medicaid%20does%20not%20cover%20surrogacy,and%20intended%20parents%20at%20risk. [41] Where to find surrogacy insurance? (2017, November 02). Retrieved April 08, 2021, from https://surrogate.com/intended-parents/surrogacy-laws-and-legal-information/where-can-i-find-surrogacy-insurance/ [42] Mohapatra, S. [43] International covenant on civil and political rights. (n.d.). Retrieved April 08, 2021, from https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx [44] United Nations. (2003). Human rights in the administration of justice: a manual on human rights for judges, prosecutors and lawyers. [45] U.S. Const. amend. XIV, § 1. [46] Skinner v. Oklahoma, Https://caselaw.findlaw.com/us-supreme-court/316/535.html (June 1, 1942). [47] Skinner v. Oklahoma [48] Skinner v. Oklahoma [49] Eisenstadt v. Baird, Https://www.lexisnexis.com/community/casebrief/p/casebrief-eisenstadt-v-baird (March 22, 1972). [50] Obergefell v. Hodges [51] Higgins, T. (2021, June 17). Supreme Court sides with Catholic adoption agency that refuses to work with LGBT couples. CNBC. https://www.cnbc.com/2021/06/17/supreme-court-sides-with-catholic-adoption-agency-that-refuses-to-work-with-lgbt-couples.html. [52] Bowerman, M., May, A., & Rossman, S. (2017, April 24). Should the definition of infertility be more inclusive? USA Today. https://www.usatoday.com/story/news/nation-now/2017/04/22/same-sex-couples-covered-infertility-insurance/100644092/. [53] Mackenzie, et al. [54] Mackenzie, et al.

Rip, mix, share, and sue. Has ‘copy’ become a dirty word? The invitation to artists, activists, consumers and critics to engage in the debate surrounding the creative processes of ‘copy’ has been insightful, if not inciting sampling/reproduction/reflection itself: It clearly questions whether ‘copy’ deserves the negative connotations that it currently summonses. It has confronted the divide between the original and its replica, and questioned notions of authenticity and the essence of identity. It has found that ‘open source’ is an opportunity to capitalise on creativity, and that reuse is resplendently productive. Cultural expression and social exchange are seen to rest upon the acts of copying which are brought to our attention in this edition. As this issue illustrates, the word ‘copy’ has numerous interpretations, applications, and angles, yet an overriding wealth of debate currently outweighs all others; and that surrounds the tumultuous issue of ‘protecting’ copyright in the digital age. Since its conception in the 17th century, copyright law has faced an increasing challenge in achieving its original aims; namely, to strike a balance between creators’ and consumers’ rights in allowing concurrent attribution and access to works. Recent dramatic technological advancements affecting reproduction and distribution of copies, particularly pertaining to the Internet, have fundamentally changed and challenged the content environment. When copyright laws were first conceived, copying and distributing creative works was difficult. Now these activities are virtually free, and practically pervasive; in the digital age, the difficulty lies in their control. Yet because the primarily Western copyright regime relies on providing rights holders with the ability to control their works, copyright industries are working on strategies to garner greater control. Heading this list of strategies are technological content protection mechanisms, consumer education, and lawsuits against individual copyright infringers. Peer-to-peer (P2P) networks are being exploited and sabotaged simultaneously by entities within the Creative Industries, in an attempt to learn from and eliminate the free ‘competition’. Perceiving the mismatch of legal sanction and access to enabling technologies, critics revile the increasing restriction on consumers and creativity. The music industry, in particular, is experimenting with new business models to confine consumers’ rights to enjoy a growing bank of online music. Technical protection mechanisms, within the ambit of Digital Rights Management (DRM), are increasingly applied to enforce these licensing restrictions, providing ‘speed bumps’ for access to content (Digital Connections Council of the Committee for Economic Development 50). Given that these mechanisms can only temporarily allow a limited level of control over access to and usage of content, however, both IP and contract law are essential to the prevention and deterrence of infringement. While production and distribution corporations agitate about online ‘piracy’, an increasing population of consumers are unsympathetic, knowing that very little of the music industry revenue ends up in the pockets of artists, and knowing very little of the complex law surrounding copyright. Over the past few hundred years the content distribution business has become particularly wealthy, and it is primarily this link of the content chain from creator to consumer that is tending towards redundancy in the digital networked world: those who once resided in the middle of the content chain will no longer be required. When individuals and collectives create something they are proud of, they want the world to experience and talk about it, if not ‘rip, mix, mash, and share’ it. The need to create and communicate has always been part of human makeup. Infants learn rapidly during their first few years primarily by observing and emulating the behaviour of adults. But as children progress, and begin creating what they perceive to be their unique contribution, they naturally want to claim and display it as their own; hence the importance of attribution and moral rights to this debate. Clearly, society benefits in many ways from this drive to create, innovate, communicate, learn and share contributions. One need only cite Sir Isaac Newton, who is attributed as having said, ‘If I have seen further, it is by standing on the shoulders of giants.’ Academics and scientists worldwide have long collaborated by sharing and building on one another’s work, a fact acknowledged by the Science Commons initiative (http://www.sciencecommons.org/) to provide open access to academic research and development. Such has been inspired by the vision of Lawrence Lessig, as espoused in The Future of Ideas: The Fate of the Commons in a Connected World. Appropriation of bits and pieces (‘samples’) of another’s work, along with appropriate attribution, has always been acceptable until recently. This legal tension is explored by authors Frederick Wasser, in his article ‘When Did They Copyright the World Without Us Noticing?’, and Francis Raven, in ‘Copyright and Public Goods: An Argument for Thin Copyright Protection’. Wasser explores the recent agitation against the legislated copyright extension in the United States to 95 years from publication (or 120 years from creation, whichever is shorter) from an original 14, accompanied by the changing logic of copyright, which has further upset the balance between protection and fair use, between consumer and creator, and ultimately invests power in the intermediary. Raven argues for ‘thin’ copyright protection, having the intention to protect the incentive for producers to create while also defending the public’s right to a rich intellectual realm in the public domain. Current conflict surrounding music sampling illustrates that our evolution towards a regime of restrictive licensing of digital works, largely driven by copyright owners and content distributors, has made the use of bits and pieces of existing music difficult, if not impossible. In this issue’s feature article ‘Good Copy/Bad Copy’, Steve Collins examines the value of ‘copy’ where musical creativity and copyright law intersect. The recontextualisation and reshaping of music with regard to cover versions and sampling brings into relief the disparity in current legal and licensing provisions. When creativity is stifled by copyright, the original intention of the law is lost. Collins argues that creators are now subject to the control of an oppressive monopoly, which clearly should be addressed if innovative cultural expression is to thrive. The issue’s second article, ‘The Affect of Selection in Digital Sound Art’ by author and sound artist Owen Chapman, aka ‘Opositive’, explores the interplay and influence between the ‘raw and the remixed’, where subjective control over sound production is questioned. Transformation of sound hovers between an organic and intentional process, and creates affective influence: we are ultimately entreated to listen and learn, as sampling selection goes gestalt. Moving from the aural domain to the written, the significance of textual reuse and self-referentiality is introduced by Kirsten Seale in her academic exploration of reuse in the works of Iain Sinclair. Sinclair, in Dining on Stones (or, the Middle Ground), is seen to have subverted the postmodernist obscuration/denial of authorial control through the reintroduction of an assured self-sampling technique. Also in contemplating the written creative process, after significant exposure to the ever-more-evident proclivities of students to cut and paste from Websites, Dr. Gauti Sigthorsson asserts that plagiarism is merely symptomatic of the dominant sampling culture. Rather than looming as a crisis, Sigthorsson sees this increasing appropriation as a ‘teachable moment’, illustrating the delights of the open source process. Issues of identity and authenticity are explored in ‘Digital Doppelgängers’ by Lisa Bode, and ‘Slipping and Sliding: blind optimism, greed and the effect of fakes on our cultural understanding’ by art fraud and forensic expert Robyn Sloggett. In introducing the doppelgänger of Indo-European folklore and literature as the protagonist’s sinister double, Bode goes on to explore the digital manifestation: the image which challenges the integrity of the actor and his/her reflection, where original identity may be beyond the actor’s control. In copy’s final article ‘Slipping and Sliding’ by Sloggett, the determination of artistic authenticity is explored. Identity is seen to be predicated on authenticity: but does this necessarily hold? In reflecting on the notions of ‘copy’ explored in this issue, it is clear that civilisation has progressed by building on past successes and failures. A better, richer future can be possible if we continue to do exactly this. Instead, rights holders are striving to maintain control, using clumsy methods that effectively alter traditional user rights (or perceived rights) and practices. Imagine instead if all creative content were virtually free and easily accessible to all; where it would not longer be an infringement to make and share copies for non-commercial reasons. Is it possible to engineer an alternative incentive (to copyright) for creativity to flourish? This is, after all, the underlying goal behind copyright law. Copyright law provides a creator with a temporary monopoly over the sale and distribution of their work. Infringing copyright law is consequently depriving creators of this mechanism to make money, obtain notoriety and thus their very motivation to create. This goal to provide creative incentive is fundamentally important for society, intellectually and culturally, but alternative means to achieve it are worthy of exploration. A familiar alternative option to help generate creativity is to apply a special tax (levy) on all goods and services that enable viewing, listening, reading, publishing, copying, and downloading of digital content. The revenue pool this generates is then available for distribution amongst content creators, thereby creating a financial incentive. In over 40 countries, primarily European, partial variations of such a levy system are currently used to compensate copyright owners whilst allowing consumers a certain degree of free private copying. Professor William Fisher, Hale and Dorr Professor of Intellectual Property Law at Harvard University, and Director of the Berkman Centre for Internet and Society, proposes as much in his book outlining a government-administered compensation scheme, encompassing free online access to music and movies: Promises to Keep: Technology, Law and the Future of Entertainment. As we are left to contemplate copyrights and ‘copywrongs’ (Vaidhyanathan), we may reflect that the ‘promotion of the progress of science and the useful arts’, as per Harper v. Row (471 U.S.), rests with the (some say draconian) directions determined by legislation. Measures contained in instruments such as the Digital Millennium Copyright Act (DMCA), continue to diminish, if not desecrate, the public domain. Moreover, as the full impact of the Free Trade Agreement (FTA) with the United States looms for the Australian audience, in the adoption of the extension of the copyright term to the criminalisation of IP infringement, we realise that the establishment of economically viable and legal alternatives to the adopted regime is paramount. (Moore) We are also left to lament the recent decision in MGM vs. Grokster, where the US Supreme Court has ruled unanimously against the file-sharing service providers Grokster and Streamcast Networks (developers of Morpheus), serving as an illustration of ongoing uncertainty surrounding P2P networks and technologies, and lack of certainty of any court decisions regarding such matters. In the future, as we log into Longhorn (http://msdn.microsoft.com/longhorn/), we will wonder where our right to enjoy began to disappear. Electronic Frontier Foundation’s (http://www.eff.org/) cry to ‘Defend Freedom in the Digital World’ gains increasing resonance. In presenting ‘copy’ to you, we invite you cut, paste, innovate, create, and be entertained, to share, and share alike, while you still can. References Digital Connections Council of the Committee for Economic Development (CED). Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property, 2004. http://www.ced.org/docs/report/report_dcc.pdf>. Fisher, William. Promises to Keep: Technology, Law, and the Future of Entertainment. Palo Alto CA: Stanford UP, 2004. Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001. Moore, Christopher. “Creative Choices: Changes to Australian Copyright Law and the Future of the Public Domain.” Media International Australia 114 (2005): 71-82. Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Leisten, Susanna, and Rachel Cobcroft. "Copy." M/C Journal 8.3 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0507/01-editorial.php>. APA Style Leisten, S., and R. Cobcroft. (Jul. 2005) "Copy," M/C Journal, 8(3). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0507/01-editorial.php>.

AbstractThe rapid development of facial recognition technologies (FRT) has led to complex ethical choices in terms of balancing individual privacy rights versus delivering societal safety. Within this space, increasingly commonplace use of these technologies by law enforcement agencies has presented a particular lens for probing this complex landscape, its application, and the acceptable extent of citizen surveillance. This analysis focuses on the regulatory contexts and recent case law in the United States (USA), United Kingdom (UK), and European Union (EU) in terms of the use and misuse of FRT by law enforcement agencies. In the case of the USA, it is one of the main global regions in which the technology is being rapidly evolved, and yet, it has a patchwork of legislation with less emphasis on data protection and privacy. Within the context of the EU and the UK, there has been a critical focus on the development of accountability requirements particularly when considered in the context of the EU’s General Data Protection Regulation (GDPR) and the legal focus on Privacy by Design (PbD). However, globally, there is no standardised human rights framework and regulatory requirements that can be easily applied to FRT rollout. This article contains a discursive discussion considering the complexity of the ethical and regulatory dimensions at play in these spaces including considering data protection and human rights frameworks. It concludes that data protection impact assessments (DPIA) and human rights impact assessments together with greater transparency, regulation, audit and explanation of FRT use, and application in individual contexts would improve FRT deployments. In addition, it sets out ten critical questions which it suggests need to be answered for the successful development and deployment of FRT and AI more broadly. It is suggested that these should be answered by lawmakers, policy makers, AI developers, and adopters.

On September 1, 2021, the state of Texas passed a new law, Texas SB8 or the Texas Heartbeat Act that effectively allowed a near-total ban on abortion. The law prohibits all abortion after 6 weeks gestation, with no exceptions for rape or incest. Supporters champion the legislation as a landmark in protecting the life of the unborn, without referring the stark repercussions SB8 will have for women, girls, and other persons with a uterus. While the most extensive, the Texas Heartbeat Act marks one numerous bills in states across the U.S. that seek to limit access to sexual and reproductive health services. These bills disproportionately impact those with a uterus from medically underserved populations, including racial and ethnic minorities, LGBTQIA+ persons, rural dwellers, and those experiencing poverty and housing instability. Without legal protections, persons seeking abortions face social stigmatization and violence, medical mistreatment, and possible criminal prosecution. As public health professionals, we must ensure that abortions remain a viable part of reproductive health.

Photo by Cecilie Johnsen on Unsplash INTRODUCTION Across the country, states are enacting legislation that curtails LGBTQ+ rights and liberties.[1] In March 2021, Arkansas enacted Senate Bill 289, titled the Medical Ethics and Diversity Act (the “Act”).[2] The Act permits medical practitioners, healthcare institutions, and insurance companies to refuse to treat, or, in the case of insurance companies, to cover, a non-critically ill person if treating the individual violates their religious or personal beliefs. Though masked as protecting religious liberties, the Act discriminates against LGBTQ+ patients. While the Act purports to protect different types of healthcare workers, I frame my discussion of the Act to discuss the physician’s obligations given the changes to Arkansas law. Even if legally permissible, I believe virtuous physicians do not consider patients’ sexual orientation or gender identity when deciding whether to treat them. I will explain why a virtuous physician would never conscientiously object to treating a patient based on the patient’s sexual orientation or gender identity, even if allowed, like in Arkansas. Conscientious objection based on sexual orientation or gender identity, even if permitted under state law, is always unvirtuous. l. Senate Bill 289 and the LGBTQ+ Patient On March 29, 2021, Governor Hutchinson adopted the Act by signing Senate Bill 289 into Arkansas state law. To protect a “right of conscience” in health care, the Act invokes traditions of the United States and the Hippocratic Oath, stating: [t]he right of conscience was central to the founding of the United States, has been deeply rooted in the history and tradition of the United States for centuries, and has been central to the practice of medicine through the Hippocratic Oath for millennia. As used in the Act, conscience means “religious, moral, or ethical beliefs.” The Act protects medical practitioners, healthcare institutions, or healthcare payors when they act from their conscience and extends this protection to include the following: (1) the right not to participate in a healthcare service that violates his, her, or its conscience; (2) no requirement to participate in a healthcare service that violates his, her, or its conscience; and (3) no civil, criminal, or administrative liability for declining to participate in a healthcare service that violates his, her, or its conscience. The Act limits which services physicians can refuse to perform: it permits conscientious objection only if the patient requires non-emergency care. Under Arkansas state law, an emergency is defined as an “immediate threat to the life or health of a patient.”[3] Before the Act, conscientious objection was limited in medical practice in the United States. The American Medical Association’s (“AMA”) Code of Medical Ethics states physicians can act as moral agents. The AMA’s code supports conscientious objection if it is based on a moral objection to a treatment rather than discrimination against patients.[4] From the Church Amendments to the Affordable Care Act, federal law has protected practitioners’ rights to object to participating in treatments contrary to their religious or moral beliefs, such as abortions, sterilization, euthanasia, or physician-assisted suicide.[5] However, the language of these laws emphasizes treatment-based objection; the laws protect healthcare workers who are unwilling to participate in medical practices based on a moral objection to a treatment. In addition, the laws specifically name procedures like sterilization, euthanasia, or physician-assisted suicide as permissible grounds for objection. The Act extends physicians’ rights to conscientious objection by removing the treatment-specific language. In Arkansas, the broad language of the law could permit conscientious objection based on a patient’s LGBTQ+ identity because it does not limit objections based on type of treatments. The Act broadened conscientious objection in Arkansas to include treatment-based and patient-based objections. ll. Virtue Ethics Virtue ethics is an ethical framework that focuses on the character of the individual performing actions during the individual’s life and career. In Nicomachean Ethics, Aristotle writes that virtue is a state of being, such as a courageous or amiable person, rather than a system for ethical action selection.[6] Society understands these virtues as falling at the mean—or between— a deficiency and an excess. For example, the virtue of courage lies between the deficiency of cowardness and excess of rashness, never in abundance or excess. A virtuous person exemplifies the virtues required of the person’s role and performs the required functions well. Aristotle writes, “[w]e become just by doing just actions, temperate by doing temperate actions, brave by doing brave actions.” In this way, we must live our virtues to become virtuous. A. The Virtuous Physician The virtuous physician exemplifies virtue and practices medicine in congruence with medicine’s ethos. Since an individual can practice and learn virtue, it provides a unique ethical framework to distinguish between the virtuous or “good” physician and the unvirtuous or “bad” physician. Aristotle writes that life’s virtues are courage, temperance, generosity, magnificence, magnanimity, mildness, amiability, truthfulness, wit, and shame.[7] Individuals possessing these traits are virtuous, but virtuous physicians must also demonstrate traits integral to their professional duties. A virtuous physician’s qualities include empathetic listening, emotional sensitivity, and respect for patients. These additional qualities create trust and comfort patients.[8] Also, the virtuous physician exemplifies trustworthiness, integrity, discernment, compassion, patience, and conscientiousness.[9] Others even include theological virtues such as faith, hope, and charity as important characteristics in a physician’s practice.[10] While not an exhaustive list of the values that compose a virtuous physician, these standards are the basic requirements for physician to exemplify virtue and perform the job’s functions well. One may argue that theological virtues like faith, hope, and charity support the conscientious objection because physicians are virtuous when they are faithful, or loyal to their religious beliefs. However, this argument fails to consider the four principles of medical ethics. Using conscientious objection to withhold care from even non-critically ill patients can cause harm that is physical and emotional. A physician cannot act virtuously and simultaneously undermine non-malfeasance and beneficence. The virtuous physician must also practice medicine in congruence with medicine’s ethos, acting for the patient’s benefit and taking a patient-centered approach. The patient’s benefit has multiple elements, such as the medically defined good outcome, the patient’s definition of a good outcome, what is dignifying to the patient, and what is considered universally good.[11] If a physician acts against a patient’s good or the physician does not exemplify virtue in their own life, the physician would be considered unvirtuous. B. Unvirtuous Conscientious Objection Through the Act Conscientious objection is a debated topic. Some argue that physicians’ values should not influence the care they provide.[12] In addition, the legalization of conscientious objection is seen by some to violate medicine’s central ethos of caring for the patient.[13] Others do not view conscientious objection as wholly wrong. Despite the debate over the role of conscientious objection in the physician’s practice, conscientious objection based on a patient’s LGBTQ+ identity under the Act is unvirtuous. The Act extends the understood norm of treatment-based objections to objections based on any component of health care, including a patient’s LGBTQ+ identity. This patient-based objection is discriminatory and unrelated to the patient’s requested medical service which may conflict with the physician’s morals.[14] A virtuous physician would never refuse to treat a patient based on the patient’s race, color, religion, sex, sexual orientation, gender identity, or national origin. Refusing to treat a patient because of the patient’s LGBTQ+ identity is unvirtuous because it defies a physician’s duty, is discriminatory, and displays a lack of respect for patients, amiability, and compassion. Even if permitted under the Act, a virtuous physician must never object to treating a patient based on the patient’s sexual orientation or gender identity. One may argue a physician can be virtuous while conscientiously objecting if the physician clearly communicates all limitations and refers the patient to another medical provider. This is the American College of Obstetricians and Gynecologists’ view.[15] Under this view, physicians maintain respect for themselves as agents but ultimately provide proper care for the patient, even if their hands do not perform the service. However, to be virtuous, this objection must never be discriminatory. Even with prerequisites, objection based on gender identity and sexual orientation is discriminatory and indicates deficiencies in the physician’s virtue. The simple act of objection can cause psychological pain to a patient. LGBTQ+-based discrimination and rejection causes unnecessary physiological harm like anxiety, depression, and suicidal ideations, whereas social acceptance increases feelings of self-esteem.[16] The virtuous physician would never cause pain to the patient, as this violates the principle of non-maleficence. Regardless of actions taken before or after the objection, a physician is unvirtuous when the physician inflicts pain on a patient by conscientiously objecting to treating the patient based on LGBTQ+ status. CONCLUSION To avoid discrimination, a physician must have a valid reason for employing conscientious objection. The Medical Ethics and Diversity Act extends physicians’ rights from treatment-based objection to patient-based objection. Arkansas’s LGBTQ+ community is at risk of suffering from discriminatory healthcare practices. The physician who objects based on LGBTQ+ identity is unvirtuous because the physician’s action causes psychological harm to the patient, displays deficiencies in virtues, and opposes the central ethos of medicine. - [1] For examples of Senators and State Representatives passing laws affecting LGBTQ+ rights to protect religious liberties and fairness, see ACLU. (2021). Legislation Affecting LGBTQ Rights Across the Country 2021. https://www.aclu.org/legislation-affecting-lgbtq-rights-across-country-2021 [2] Medical Ethics and Diversity Act, Ark. Acts 462 §§17-80-501-06 (2021). https://www.arkleg.state.ar.us/Acts/FTPDocument?path=%2FACTS%2F2021R%2FPublic%2F&file=462.pdf&ddBienniumSession=2021%2F2021R [3] Emergency Medical Care Act, Ark. A.C.A. § 20-9-309 [4] AMA. (n.d.) Physician Exercise of Conscience. https://www.ama-assn.org/delivering-care/ethics/physician-exercise-conscience [5] U.S. Department of Health and Human Services (2021). Your Conscience Rights. https://www.hhs.gov/conscience/conscience-protections/index.html [6] Aristotle. (1999). Nicomachean Ethics. (Irwin, 2nd ed.). Hackett Publishing Company, Inc. [7]Aristotle. (1999). Nicomachean Ethics. (Irwin, 2nd ed.). Hackett Publishing Company, Inc. [8] Bain, L. E. (2018). Revisiting the need for virtue in medical practice: a reflection upon the teaching of Edmund Pellegrino. Philosophy, Ethics, and Humanities in Medicine, 13(1), 4. https://doi.org/10.1186/s13010-018-0057-0 [9] Gardiner, P. (2003). A virtue ethics approach to moral dilemmas in medicine. Journal of Medical Ethics, 29(5), 297-302. https://doi.org/10.1136/jme.29.5.297 [10] Toon, P. D. (1999). Towards a philosophy of general practice: a study of the virtuous practitioner. Occasional Paper Royal College of General Practitioners, (78), iii-vii, 1-69. [11] Shelp, E. E. E., & Pellegrino, D. (1985). The Virtuous Physician and the Ethics of Medicine Virtue and medicine explorations in the character of medicine, 17, 237-255. [12] Savulescu, J. (2006). Conscientious objection in medicine. BMJ, 332(7536), 294-297. https://doi.org/10.1136/bmj.332.7536.294 [13] Stahl, R. Y., & Emanuel, E. J. (2017). Physicians, Not Conscripts - Conscientious Objection in Health Care. New England Journal of Medicine, 376(14), 1380-1385. https://doi.org/10.1056/NEJMsb1612472 [14] Reis-Dennis, S., & Brummett, A. L. (2021). Are conscientious objectors morally obligated to refer? Journal of Medical Ethics, medethics-2020-107025. https://doi.org/10.1136/medethics-2020-107025 [15] ACOG. The limits of conscientious refusal in Reproductive Medicine. (n.d.). Retrieved September 12, 2022, from https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2007/11/the-limits-of-conscientious-refusal-in-reproductive-medicine [16] Meanley, S., Flores, D. D., Listerud, L., Chang, C. J., Feinstein, B. A., & Watson, R. J. (2021). The interplay of familial warmth and LGBTQ+ specific family rejection on LGBTQ+ adolescents' self-esteem. Journal of Adolescent Health, 93, 40-52. https://doi.org/10.1016/j.adolescence.2021.10.002 ; Ruben, M. A., Livingston, N. A., Berke, D. S., Matza, A. R., & Shipherd, J. C. (2019). Lesbian, Gay, Bisexual, and Transgender Veterans' Experiences of Discrimination in Health Care and Their Relation to Health Outcomes: A Pilot Study Examining the Moderating Role of Provider Communication. Health Equity, 3(1), 480-488. https://doi.org/10.1089/heq.2019.0069. ; Sutter, M., & Perrin, P. B. (2016). Discrimination, mental health, and suicidal ideation among LGBTQ people of color. Journal of Counseling Psychology, 63(1), 98-105. https://doi.org/10.1037/cou0000126

For the past twenty years, academics and other social commentators have, by and large, shared the view that the phase of modernity through which we are currently passing is defined by two interrelated catalysts of change: the physical movement of people and the virtual movement of information around the globe. As we enter the second decade of the new millennium, it is certainly a timely moment to reflect upon the ways in which the prognoses of the scholars and scientists writing in the late twentieth century have come to pass, especially since—during the time this special issue has been in press—the revolutions that are gathering pace in the Arab world appear to be realising the theoretical prediction that the ever-increasing “flows” of people and information would ultimately bring about the end of the nation-state and herald an era of transnationalism (Appadurai, Urry). For writers like Arjun Appadurai, moreover, the concept of diaspora was key to grasping how this new world order would take shape, and how it would operate: Diasporic public spheres, diverse amongst themselves, are the crucibles of a postnational political order. The engines of their discourse are mass media (both interactive and expressive) and the movement of refugees, activists, students, laborers. It may be that the emergent postnational order proves not to be a system of homogeneous units (as with the current system of nation-states) but a system based on relations between heterogeneous units (some social movements, some interest groups, some professional bodies, some non-governmental organizations, some armed constabularies, some judicial bodies) ... In the short run, as we can see already, it is likely to be a world of increased incivility and violence. In the longer run, free from the constraints of the nation form, we may find that cultural freedom and sustainable justice in the world do not presuppose the uniform and general existence of the nation-state. This unsettling possibility could be the most exciting dividend of living in modernity at large. (23) In this editorial, we would like to return to the “here and now” of the late 1990s in which theorists like Arjun Appaduri, Ulrich Beck, John Urry, Zygmunt Bauman, Robert Robertson and others were “imagining” the consequences of both globalisation and glocalisation for the twenty-first century in order that we may better assess what is, indeed, coming to pass. While most of their prognoses for this “second modernity” have proven remarkably accurate, it is their—self-confessed—inability to forecast either the nature or the extent of the digital revolution that most vividly captures the distance between the mid-1990s and now; and it is precisely the consequences of this extraordinary technological revolution on the twin concepts of “glocality” and “diaspora” that the research featured in this special issue seeks to capture. Glocal Imaginaries Appadurai’s endeavours to show how globalisation was rapidly making itself felt as a “structure of feeling” (Williams in Appadurai 189) as well as a material “fact” was also implicit in our conceptualisation of the conference, “Glocal Imaginaries: Writing/Migration/Place,” which gave rise to this special issue. This conference, which was the culmination of the AHRC-funded project “Moving Manchester: Literature/Migration/Place (2006-10)”, constituted a unique opportunity to gain an international, cross-disciplinary perspective on urgent and topical debates concerning mobility and migration in the early twenty-first century and the strand “Networked Diasporas” was one of the best represented on the program. Attracting papers on broadcast media as well as the new digital technologies, the strand was strikingly international in terms of the speakers’ countries of origin, as is this special issue which brings together research from six European countries, Australia and the Indian subcontinent. The “case-studies” represented in these articles may therefore be seen to constitute something of a “state-of-the-art” snapshot of how Appadurai’s “glocal imaginary” is being lived out across the globe in the early years of the twenty-first century. In this respect, the collection proves that his hunch with regards to the signal importance of the “mass-media” in redefining our spatial and temporal coordinates of being and belonging was correct: The third and final factor to be addressed here is the role of the mass-media, especially in its electronic forms, in creating new sorts of disjuncture between spatial and virtual neighborhoods. This disjuncture has both utopian and dystopian potentials, and there is no easy way to tell how these may play themselves out in the future of the production of locality. (194) The articles collected here certainly do serve as testament to the “bewildering plethora of changes in ... media environments” (195) that Appadurai envisaged, and yet it can clearly also be argued that this agent of glocalisation has not yet brought about the demise of the nation-state in the way (or at the speed) that many commentators predicted. Digital Diasporas in a Transnational World Reviewing the work of the leading social science theorists working in the field during the late 1990s, it quickly becomes evident that: (a) the belief that globalisation presented a threat to the nation-state was widely held; and (b) that the “jury” was undecided as to whether this would prove a good or bad thing in the years to come. While the commentators concerned did their best to complexify both their analysis of the present and their view of the future, it is interesting to observe, in retrospect, how the rhetoric of both utopia and dystopia invaded their discourse in almost equal measure. We have already seen how Appadurai, in his 1996 publication, Modernity at Large, looks beyond the “increased incivility and violence” of the “short term” to a world “free from the constraints of the nation form,” while Roger Bromley, following Agamben and Deleuze as well as Appadurai, typifies a generation of literary and cultural critics who have paid tribute to the way in which the arts (and, in particular, storytelling) have enabled subjects to break free from their national (af)filiations (Pearce, Devolving 17) and discover new “de-territorialised” (Deleuze and Guattari) modes of being and belonging. Alongside this “hope,” however, the forces and agents of globalisation were also regarded with a good deal of suspicion and fear, as is evidenced in Ulrich Beck’s What is Globalization? In his overview of the theorists who were then perceived to be leading the debate, Beck draws distinctions between what was perceived to be the “engine” of globalisation (31), but is clearly most exercised by the manner in which the transformation has taken shape: Without a revolution, without even any change in laws or constitutions, an attack has been launched “in the normal course of business”, as it were, upon the material lifelines of modern national societies. First, the transnational corporations are to export jobs to parts of the world where labour costs and workplace obligations are lowest. Second, the computer-generation of worldwide proximity enables them to break down and disperse goods and services, and produce them through a division of labour in different parts of the world, so that national and corporate labels inevitably become illusory. (3; italics in the original) Beck’s concern is clearly that all these changes have taken place without the nation-states of the world being directly involved in any way: transnational corporations began to take advantage of the new “mobility” available to them without having to secure the agreement of any government (“Companies can produce in one country, pay taxes in another and demand state infrastructural spending in yet another”; 4-5); the export of the labour market through the use of digital communications (stereotypically, call centres in India) was similarly unregulated; and the world economy, as a consequence, was in the process of becoming detached from the processes of either production or consumption (“capitalism without labour”; 5-7). Vis-à-vis the dystopian endgame of this effective “bypassing” of the nation-state, Beck is especially troubled about the fate of the human rights legislation that nation-states around the world have developed, with immense effort and over time (e.g. employment law, trade unions, universal welfare provision) and cites Zygmunt Bauman’s caution that globalisation will, at worst, result in widespread “global wealth” and “local poverty” (31). Further, he ends his book with a fully apocalyptic vision, “the Brazilianization of Europe” (161-3), which unapologetically calls upon the conventions of science fiction to imagine a worst-case scenario for a Europe without nations. While fourteen or fifteen years is evidently not enough time to put Beck’s prognosis to the test, most readers would probably agree that we are still some way away from such a Europe. Although the material wealth and presence of the transnational corporations strikes a chord, especially if we include the world banks and finance organisations in their number, the financial crisis that has rocked the world for the past three years, along with the wars in Iraq and Afghanistan, and the ascendancy of Al-Qaida (all things yet to happen when Beck was writing in 1997), has arguably resulted in the nations of Europe reinforcing their (respective and collective) legal, fiscal, and political might through rigorous new policing of their physical borders and regulation of their citizens through “austerity measures” of an order not seen since World War Two. In other words, while the processes of globalisation have clearly been instrumental in creating the financial crisis that Europe is presently grappling with and does, indeed, expose the extent to which the world economy now operates outside the control of the nation-state, the nation-state still exists very palpably for all its citizens (whether permanent or migrant) as an agent of control, welfare, and social justice. This may, indeed, cause us to conclude that Bauman’s vision of a world in which globalisation would make itself felt very differently for some groups than others came closest to what is taking shape: true, the transnationals have seized significant political and economic power from the nation-state, but this has not meant the end of the nation-state; rather, the change is being experienced as a re-trenching of whatever power the nation-state still has (and this, of course, is considerable) over its citizens in their “local”, everyday lives (Bauman 55). If we now turn to the portrait of Europe painted by the articles that constitute this special issue, we see further evidence of transglobal processes and practices operating in a realm oblivious to local (including national) concerns. While our authors are generally more concerned with the flows of information and “identity” than business or finance (Appaduri’s “ethnoscapes,” “technoscapes,” and “ideoscapes”: 33-7), there is the same impression that this “circulation” (Latour) is effectively bypassing the state at one level (the virtual), whilst remaining very materially bound by it at another. In other words, and following Bauman, we would suggest that it is quite possible for contemporary subjects to be both the agents and subjects of globalisation: a paradox that, as we shall go on to demonstrate, is given particularly vivid expression in the case of diasporic and/or migrant peoples who may be able to bypass the state in the manufacture of their “virtual” identities/communities) but who (Cohen) remain very much its subjects (or, indeed, “non-subjects”) when attempting movement in the material realm. Two of the articles in the collection (Leurs & Ponzanesi and Marcheva) deal directly with the exponential growth of “digital diasporas” (sometimes referred to as “e-diasporas”) since the inception of Facebook in 2004, and both provide specific illustrations of the way in which the nation-state both has, and has not, been transcended. First, it quickly becomes clear that for the (largely) “youthful” (Leurs & Ponzanesi) participants of nationally inscribed networking sites (e.g. “discovernikkei” (Japan), “Hyves” (Netherlands), “Bulgarians in the UK” (Bulgaria)), shared national identity is a means and not an end. In other words, although the participants of these sites might share in and actively produce a fond and nostalgic image of their “homeland” (Marcheva), they are rarely concerned with it as a material or political entity and an expression of their national identities is rapidly supplemented by the sharing of other (global) identity markers. Leurs & Ponzanesi invoke Deleuze and Guattari’s concept of the “rhizome” to describe the way in which social networkers “weave” a “rhizomatic path” to identity, gradually accumulating a hybrid set of affiliations. Indeed, the extent to which the “nation” disappears on such sites can be remarkable as was also observed in our investigation of the digital storytelling site, “Capture Wales” (BBC) (Pearce, "Writing"). Although this BBC site was set up to capture the voices of the Welsh nation in the early twenty-first century through a collection of (largely) autobiographical stories, very few of the participants mention either Wales or their “Welshness” in the stories that they tell. Further, where the “home” nation is (re)imagined, it is generally in an idealised, or highly personalised, form (e.g. stories about one’s own family) or through a sharing of (perceived and actual) cultural idiosyncrasies (Marcheva on “You know you’re a Bulgarian when …”) rather than an engagement with the nation-state per se. As Leurs & Ponzanesi observe: “We can see how the importance of the nation-state gets obscured as diasporic youth, through cultural hybridisation of youth culture and ethnic ties initiate subcultures and offer resistance to mainstream cultural forms.” Both the articles just discussed also note the shading of the “national” into the “transnational” on the social networking sites they discuss, and “transnationalism”—in the sense of many different nations and their diasporas being united through a common interest or cause—is also a focus of Pikner’s article on “collective actions” in Europe (notably, “EuroMayDay” and “My Estonia”) and Harb’s highly topical account of the role of both broadcast media (principally, Al-Jazeera) and social media in the revolutions and uprisings currently sweeping through the Arab world (spring 2011). On this point, it should be noted that Harb identifies this as the moment when Facebook’s erstwhile predominantly social function was displaced by a manifestly political one. From this we must conclude that both transnationalism and social media sites can be put to very different ends: while young people in relatively privileged democratic countries might embrace transnationalism as an expression of their desire to “rise above” national politics, the youth of the Arab world have engaged it as a means of generating solidarity for nationalist insurgency and liberation. Another instance of “g/local” digital solidarity exceeding national borders is to be found in Johanna Sumiala’s article on the circulatory power of the Internet in the Kauhajoki school shooting which took place Finland in 2008. As well as using the Internet to “stage manage” his rampage, the Kauhajoki shooter (whose name the author chose to withhold for ethical reasons) was subsequently found to have been a member of numerous Web-based “hate groups”, many of them originating in the United States and, as a consequence, may be understood to have committed his crime on behalf of a transnational community: what Sumiala has defined as a “networked community of destruction.” It must also be noted, however, that the school shootings were experienced as a very local tragedy in Finland itself and, although the shooter may have been psychically located in a transnational hyper-reality when he undertook the killings, it is his nation-state that has had to deal with the trauma and shame in the long term. Woodward and Brown & Rutherford, meanwhile, show that it remains the tendency of public broadcast media to uphold the raison d’être of the nation-state at the same time as embracing change. Woodward’s feature article (which reports on the AHRC-sponsored “Tuning In” project which has researched the BBC World Service) shows how the representation of national and diasporic “voices” from around the world, either in opposition to or in dialogue with the BBC’s own reporting, is key to the way in which the Commission has changed and modernised in recent times; however, she is also clear that many of the objectives that defined the service in its early days—such as its commitment to a distinctly “English” brand of education—still remain. Similarly, Brown & Rutherford’s article on the innovative Australian ABC children’s television series, My Place (which has combined traditional broadcasting with online, interactive websites) may be seen to be positively promoting the Australian nation by making visible its commitment to multiculturalism. Both articles nevertheless reveal the extent to which these public service broadcasters have recognised the need to respond to their nations’ changing demographics and, in particular, the fact that “diaspora” is a concept that refers not only to their English and Australian audiences abroad but also to their now manifestly multicultural audiences at home. When it comes to commercial satellite television, however, the relationship between broadcasting and national and global politics is rather harder to pin down. Subramanian exposes a complex interplay of national and global interests through her analysis of the Malayalee “reality television” series, Idea Star Singer. Exported globally to the Indian diaspora, the show is shamelessly exploitative in the way in which it combines residual and emergent ideologies (i.e. nostalgia for a traditional Keralayan way of life vs aspirational “western lifestyles”) in pursuit of its (massive) audience ratings. Further, while the ISS series is ostensibly a g/local phenomenon (the export of Kerala to the rest of the world rather than “India” per se), Subramanian passionately laments all the progressive national initiatives (most notably, the campaign for “women’s rights”) that the show is happy to ignore: an illustration of one of the negative consequences of globalisation predicted by Beck (31) noted at the start of this editorial. Harb, meanwhile, reflects upon a rather different set of political concerns with regards to commercial satellite broadcasting in her account of the role of Al-Jazeera and Al Arabiya in the recent (2011) Arab revolutions. Despite Al-Jazeera’s reputation for “two-sided” news coverage, recent events have exposed its complicity with the Qatari government; further, the uprisings have revealed the speed with which social media—in particular Facebook and Twitter—are replacing broadcast media. It is now possible for “the people” to bypass both governments and news corporations (public and private) in relaying the news. Taken together, then, what our articles would seem to indicate is that, while the power of the nation-state has notionally been transcended via a range of new networking practices, this has yet to undermine its material power in any guaranteed way (witness recent counter-insurgencies in Libya, Bahrain, and Syria).True, the Internet may be used to facilitate transnational “actions” against the nation-state (individual or collective) through a variety of non-violent or violent actions, but nation-states around the world, and especially in Western Europe, are currently wielding immense power over their subjects through aggressive “austerity measures” which have the capacity to severely compromise the freedom and agency of the citizens concerned through widespread unemployment and cuts in social welfare provision. This said, several of our articles provide evidence that Appadurai’s more utopian prognoses are also taking shape. Alongside the troubling possibility that globalisation, and the technologies that support it, is effectively eroding “difference” (be this national or individual), there are the ever-increasing (and widely reported) instances of how digital technology is actively supporting local communities and actions around the world in ways that bypass the state. These range from the relatively modest collective action, “My Estonia”, featured in Pikner’s article, to the ways in which the Libyan diaspora in Manchester have made use of social media to publicise and support public protests in Tripoli (Harb). In other words, there is compelling material evidence that the heterogeneity that Appadurai predicted and hoped for has come to pass through the people’s active participation in (and partial ownership of) media practices. Citizens are now able to “interfere” in the representation of their lives as never before and, through the digital revolution, communicate with one another in ways that circumvent state-controlled broadcasting. We are therefore pleased to present the articles that follow as a lively, interdisciplinary and international “state-of-the-art” commentary on how the ongoing revolution in media and communication is responding to, and bringing into being, the processes and practices of globalisation predicted by Appadurai, Beck, Bauman, and others in the 1990s. The articles also speak to the changing nature of the world’s “diasporas” during this fifteen year time frame (1996-2011) and, we trust, will activate further debate (following Cohen) on the conceptual tensions that now manifestly exist between “virtual” and “material” diasporas and also between the “transnational” diasporas whose objective is to transcend the nation-state altogether and those that deploy social media for specifically local or national/ist ends. Acknowledgements With thanks to the Arts and Humanities Research Council (UK) for their generous funding of the “Moving Manchester” project (2006-10). Special thanks to Dr Kate Horsley (Lancaster University) for her invaluable assistance as ‘Web Editor’ in the production of this special issue (we could not have managed without you!) and also to Gail Ferguson (our copy-editor) for her expertise in the preparation of the final typescript. References Appadurai, Arjun. Modernity at Large: Cultural Dimensions of Globalisation. Minneapolis: U of Minnesota P, 1996. Bauman, Zygmunt. Globalization. Cambridge: Polity, 1998. Beck, Ulrich. What is Globalization? Trans. Patrick Camiller. Cambridge: Polity, 2000 (1997). Bromley, Roger. Narratives for a New Belonging: Diasporic Cultural Fictions. Edinburgh: Edinburgh UP, 2000. Cohen, Robin. Global Diasporas. 2nd ed. London and New York: Routledge, 2008. Deleuze, Gilles, and Felix Guattari. A Thousand Plateaus: Capitalism and Schizophrenia. Trans. Brian Massumi. Minneapolis: U of Minnesota P, 1987. Latour, Bruno. Reassembling the Social: An Introduction to Actor-Network Theory. Oxford: Oxford UP, 1995. Pearce, Lynne, ed. Devolving Identities: Feminist Readings in Home and Belonging. London: Ashgate, 2000. Pearce, Lynne. “‘Writing’ and ‘Region’ in the Twenty-First Century: Epistemological Reflections on Regionally Located Art and Literature in the Wake of the Digital Revolution.” European Journal of Cultural Studies 13.1 (2010): 27-41. Robertson, Robert. Globalization: Social Theory and Global Culture. London: Sage, 1992. Urry, John. Sociology beyond Societies. London: Routledge, 1999. Williams, Raymond. Dream Worlds: Mass Consumption in Late Nineteenth-Century France. Berkeley: U of California P, 1982.

Introduction How do we measure intimacy? What are its impacts on our social, political and personal lives? Can we claim a politics to our intimate lives that escapes the normative confines of archaic institutions, while making social justice claims for relationship recognition? Negotiating some of these disparate questions requires us to think more broadly in contemporary public debates on equality and relationship recognition. Specifically, by outlining the impacts of the popular "gay marriage" debate, this paper examines the impacts of queer theory in association with public policy and community lobbying for relationship equality. Much of the debate remains polarised: eliminating discrimination is counterposed to religious or reproductive narratives that suggest such recognition undermines the value of the "natural" heterosexual family. Introducing queer theory into advocacy that oscillates between rights and reproduction problematises indexing intimacy against normative ideas of monogamy and family. While the arguments circulated by academics, lawyers, politicians and activists have disparate political and ethical impacts, when taken together, they continue to define marriage as a public regulation of intimacy and citizenship. Citizenship, measured in democratic participation and choice, however, can only be realised through reflexive politics that value difference. Encouraging critical dialogue across disparate areas of the marriage equality debate will have a significant impact on how we make ethical claims for recognising intimacy. (Re)defining Marriage In legislative terms, marriage remains the most fundamental means through which the relationship between citizenship and intimacy is crystallised in Australia. For example, in 2004 the Federal Liberal Government in Australia passed a legislative amendment to the Marriage Act 1961 and expressly defined marriage as a union between a man and a woman. By issuing a public legislative amendment, the Government intended to privilege monogamous (in this case understood as heterosexual) intimacy by precluding same-sex or polygamous marriage. Such an exercise had rhetorical rather than legal significance, as common law principles had previously defined the scope of marriage in gender specific terms for decades (Graycar and Millbank 41). Marriage as an institution, however, is not a universal or a-historical discourse limited to legal or political constructs. Socialist feminist critiques of marriage in the 1950s conceptualised the legal and gender specific constructs in marriage as a patriarchal contract designed to regulate female bodies (Hannam 146). However, Angela McRobbie notes that within a post-feminist context, these historical realities of gendered subjugation, reproduction or domesticity have been "disarticulated" (26). Marriage has become a more democratic and self-reflexive expression of intimacy for women. David Shumway elaborates this idea and argues that this shift has emerged in a context of "social solidarity" within a consumer environment of social fragmentation (23). What this implies is that marriage now evokes a range of cultural choices, consumer practices and affective trends that are incommensurable to a singular legal or historical term of reference. Debating the Politics of Intimacy and Citizenship In order to reflect on this shifting relationship between choice, citizenship and marriage as a concept, it is necessary to highlight that marriage extends beyond private articulations of love. It is a ritualised performance of heterosexual individual (or coupled) citizenship as it entrenches economic and civil rights and responsibilities. The private becomes public. Current neo-liberal approaches to same-sex marriage focus on these symbolic and economic questions of how recognising intimacy is tied to equality. In a legal and political context, marriage is defined in s5 Marriage Act as "the union between a man and a woman to the exclusion of all others, voluntarily entered into for life." While the Act does not imbue marriage with religious or procreative significance, such a gender dichotomous definition prevents same-sex and gender diverse partners from entering into marriage. For Morris Kaplan, this is a problem because "full equality for lesbian and gay citizens requires access to the legal and social recognition of our intimate associations" (201). Advocates and activists define the quest for equal citizenship by engaging with current religious dogma that situates marriage within a field of reproduction, whereby same-sex marriage is seen to rupture the traditional rubric of monogamous kinship and the biological processes of "gender complementarity" (Australian Christian Lobby 1). Liberal equality arguments reject such conservative assertions on the basis that desire, sexuality and intimacy are innate features of human existence and hence always already implicated in public spheres (Kaplan 202). Thus, legal visibility or state recognition becomes crucial to sustaining practices of intimacy. Problematising the broader social impact of a civil rights approach through the perspective of queer theory, the private/public distinctions that delineate citizenship and intimacy become more difficult to negotiate. Equality and queer theory arguments on same-sex marriage are difficult to reconcile, primarily because they signify the different psychic and cultural investments in the monogamous couple. Butler asserts that idealisations of the couple in legal discourse relates to norms surrounding community, family and nationhood (Undoing 116). This structured circulation of sexual norms reifies the hetero-normative forms of relationships that ought to be recognised (and are desired) by the state. Butler also interrogates this logic of marriage, as a heterosexual norm, and suggests it has the capacity to confine rather than liberate subjects (Undoing 118-20). The author's argument relies upon Michel Foucault's notion of power and subjection, where the subject is not an autonomous individual (as conceived in neo liberal discourses) but a site of disciplined discursive production (Trouble 63). Butler positions the heterosexuality of marriage as a "cultural and symbolic foundation" that renders forms of kinship, monogamy, parenting and community intelligible (Undoing 118). In this sense, marriage can be a problematic articulation of state interests, particularly in terms of perpetuating domesticity, economic mobility and the heterosexual family. As former Australian Prime Minister John Howard opines: Marriage is … one of the bedrock institutions of our society … marriage, as we understand it in our society, is about children … providing for the survival of the species. (qtd. in Wade) Howard's politicisation of marriage suggests that it remains crucial to the preservation of the nuclear family. In doing so, the statement also exemplifies homophobic anxieties towards non-normative kinship relations "outside the family". The Prime Ministers' words characterise marriage as a framework which privileges hegemonic ideas of monogamy, biological reproduction and gender dichotomy. Butler responds to these homophobic terms by alluding to the discursive function of a "heterosexual matrix" which codes and produces dichotomous sexes, genders and (hetero)sexual desires (Trouble 36). By refusing to accept the binary neo-liberal discourse in which one is either for or against gay marriage, Butler asserts that by prioritising marriage, the individual accepts the discursive terms of recognition and legitimacy in subjectifying what counts as love (Undoing 115). What this author's argument implies is that by recuperating marital norms, the individual is not liberated, but rather participates in the discursive "trap" and succumbs to the terms of a heterosexual matrix (Trouble 56). In contradistinction to Howard's political rhetoric, engaging with Foucault's broader theoretical work on sexuality and friendship can influence how we frame the possibilities of intimacy beyond parochial narratives of conjugal relationships. Foucault emphasises that countercultural intimacies rely on desires that are relegated to the margins of mainstream (hetero)sexual culture. For example, the transformational aesthetics in practices such as sadomasochism or queer polyamorous relationships exist due to certain prohibitions in respect to sex (Foucault, History (1) 38, and "Sex" 169). Foucault notes how forms of resistance that transgress mainstream norms produce new experiences of pleasure. Being "queer" (though Foucault does not use this word) becomes identified with new modes of living, rather than a static identity (Essential 138). Extending Foucault, Butler argues that positioning queer intimacies within a field of state recognition risks normalising relationships in terms of heterosexual norms whilst foreclosing the possibilities of new modes of affection. Jasbir Puar argues that queer subjects continue to feature on the peripheries of moral and legal citizenship when their practices of intimacy fail to conform to the socio-political dyadic ideal of matrimony, fidelity and reproduction (22-28). Puar and Butler's reluctance to embrace marriage becomes clearer through an examination of the obiter dicta in the recent American jurisprudence where the proscription on same-sex marriage was overturned in California: To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage. (Perry vs Schwarzenegger 128) By connecting the discourse of matrimony and sex with citizenship, the court reifies the value of marriage as an institution of the family, which should be extended to same-sex couples. Therefore, by locating the family in reproductive heterosexual terms, the court forecloses other modes of recognition or rights for those who are in non-monogamous relationships or choose not to reproduce. The legal reasoning in the case evinces the ways in which intimate citizenship or legitimate kinship is understood in highly parochial terms. As Kane Race elaborates, the suturing of domesticity and nationhood, with the rhetoric that "reproduction occur within stable households", frames heterosexual nuclear bonds as the means to legitimate sexual relations (98). By privileging a familial kinship aesthetic to marriage, the state implicitly disregards recognising the value of intimacy in non-nuclear communities or families (Race 100). Australia, however, unlike most foreign nations, has a dual model of relationship recognition. De facto relationships are virtually indistinguishable from marriage in terms of the rights and entitlements couples are able to access. Very recently, the amendments made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Reform) Act 2008 (Cth) has ensured same-sex couples have been included under Federal definitions of de facto relationships, thereby granting same-sex couples the same material rights and entitlements as heterosexual married couples. While comprehensive de facto recognition operates uniquely in Australia, it is still necessary to question the impact of jurisprudence that considers only marriage provides the legitimate structure for raising children. As Laurent Berlant suggests, those who seek alternative "love plots" are denied the legal and cultural spaces to realise them ("Love" 479). Berlant's critique emphasises how current "progressive" legal approaches to same-sex relationships rely on a monogamous (heterosexual) trajectory of the "love plot" which marginalises those who are in divorced, single, polyamorous or multi-parent situations. For example, in the National Year of Action, a series of marriage equality rallies held across Australia over 2010, non-conjugal forms of intimacy were inadvertently sidelined in order to make a claim for relationship recognition. In a letter to the Sydney Star Observer, a reader laments: As a gay man, I cannot understand why gay people would want to engage in a heterosexual ritual called marriage … Why do gay couples want to buy into this ridiculous notion is beyond belief. The laws need to be changed so that gays are treated equal under the law, but this is not to be confused with marriage as these are two separate issues... (Michael 2) Marriage marks a privileged position of citizenship and consumption, to which all other gay and lesbian rights claims are tangential. Moreover, as this letter to the Sydney Star Observer implies, by claiming sexual citizenship through the rubric of marriage, discussions about other campaigns for legislative equality are effectively foreclosed. Melissa Gregg expands on such a problematic, noting that the legal responses to equality reiterate a normative relationship between sexuality and power, where only couples that subscribe to dyadic, marriage-like relationships are offered entitlements by the state (4). Correspondingly, much of the public activism around marriage equality in Australia seeks to achieve its impact for equality (reforming the Marriage Act) by positioning intimacy in terms of state legitimacy. Butler and Warner argue that when speaking of legitimacy a relation to what is legitimate is implied. Lisa Bower corroborates this, asserting "legal discourse creates norms which universalise particular modes of living…while suppressing other practices and identities" (267). What Butler's and Bower's arguments reveal is that legitimacy is obtained through the extension of marriage to homosexual couples. For example, Andrew Barr, the current Labor Party Education Minister in the Australian Capital Territory (ACT), noted that "saying no to civil unions is to say that some relationships are more legitimate than others" (quoted in "Legal Ceremonies"). Ironically, such a statement privileges civil unions by rendering them as the normative basis on which to grant legal recognition. Elizabeth Povinelli argues the performance of dyadic intimacy becomes the means to assert legal and social sovereignty (112). Therefore, as Jenni Millbank warns, marriage, or even distinctive forms of civil unions, if taken alone, can entrench inequalities for those who choose not to participate in these forms of recognition (8). Grassroots mobilisation and political lobbying strategies around marriage equality activism can have the unintentional impact, however, of obscuring peripheral forms of intimacy and subsequently repudiating those who contest the movement towards marriage. Warner argues that those who choose to marry derive pride from their monogamous commitment and "family" oriented practice, a privilege afforded through marital citizenship (82). Conversely, individuals and couples who deviate from the "normal" (read: socially palatable) intimate citizen, such as promiscuous or polyamorous subjects, are rendered shameful or pitiful. This political discourse illustrates that there is a strong impetus in the marriage equality movement to legitimate "homosexual love" because it mimics the norms of monogamy, stability, continuity and family by only seeking to substitute the sex of the "other" partner. Thus, civil rights discourse maintains the privileged political economy of marriage as it involves reproduction (even if it is not biological), mainstream social roles and monogamous sex. By defining social membership and future life in terms of a heterosexual life-narrative, same-sex couples become wedded to the idea of matrimony as the basis for sustainable intimacy and citizenship (Berlant and Warner 557). Warner is critical of recuperating discourses that privilege marriage as the ideal form of intimacy. This is particularly concerning when diverse erotic and intimate communities, which are irreducible to normative forms of citizenship, are subject to erasure. Que(e)rying the Future of Ethics and Politics By connecting liberal equality arguments with Butler and Warner's work on queer ethics, there is hesitation towards privileging marriage as the ultimate form of intimacy. Moreover, Butler stresses the importance of a transformative practice of queer intimacy: It is crucial…that we maintain a critical and transformative relation to the norms that govern what will not count as intelligible and recognisable alliance and kinship. (Undoing 117) Here the author attempts to negotiate the complex terrain of queer citizenship and ethics. On one hand, it is necessary to be made visible in order to engage in political activism and be afforded rights within a state discourse. Simultaneously, on the other hand, there is a need to transform the prevailing hetero-normative rhetoric of romantic love in order to prevent pathologising bodies or rendering certain forms of intimacy as aberrant or deviant because, as Warner notes, they do not conform to our perception of what we understand to be normal or morally desirable. Foucault's work on the aesthetics of the self offers a possible transformational practice which avoids the risks Warner and Butler mention because it eludes the "normative determinations" of moralities and publics, whilst engaging in an "ethical stylization" (qtd. in Race 144). Whilst Foucault's work does not explicitly address the question of marriage, his work on friendship gestures to the significance of affective bonds. Queer kinship has the potential to produce new ethics, where bodies do not become subjects of desires, but rather act as agents of pleasure. Negotiating the intersection between active citizenship and transformative intimacy requires rethinking the politics of recognition and normalisation. Warner is quite ambivalent as to the potential of appropriating marriage for gays and lesbians, despite the historical dynamism of marriage. Rather than acting as a progressive mechanism for rights, it is an institution that operates by refusing to recognise other relations (Warner 129). However, as Alexander Duttmann notes, recognition is more complex and a paradoxical means of relation and identification. It involves a process in which the majority neutralises the difference of the (minority) Other in order to assimilate it (27). However, in the process of recognition, the Other which is validated, then transforms the position of the majority, by altering the terms by which recognition is granted. Marriage no longer simply confers recognition for heterosexual couples to engage in reproduction (Secomb 133). While some queer couples may subscribe to a monogamous relationship structure, these relationships necessarily trouble conservative politics. The lamentations of the Australian Christian Lobby regarding the "fundamental (anatomical) gender complementarity" of same-sex marriage reflect this by recognising the broader social transformation that will occur (and already does with many heterosexual marriages) by displacing the association between marriage, procreation and parenting (5). Correspondingly, Foucault's work assists in broadening the debate on relationship recognition by transforming our understanding of choice and ethics in terms of "queer friendship." He describes it as a practice that resists the normative public distinction between romantic and platonic affection and produces new aesthetics for sexual and non-sexual intimacy (Foucault, Essential 170). Linnell Secomb argues that this "double potential" alluded to in Foucault and Duttman's work, has the capacity to neutralise difference as Warner fears (133). However, it can also transform dominant narratives of sexual citizenship, as enabling marriage equality will impact on how we imagine traditional heterosexual or patriarchal "plots" to intimacy (Berlant, "Intimacy" 286). Conclusion Making an informed impact into public debates on marriage equality requires charting the locus of sexuality, intimacy and citizenship. Negotiating academic discourses, social and community activism, with broader institutions and norms presents political and social challenges when thinking about the sorts of intimacy that should be recognised by the state. The civil right to marriage, irrespective of the sex or gender of one's partner, reflects a crucial shift towards important democratic participation of non-heterosexual citizens. However, it is important to note that the value of such intimacy cannot be indexed against a single measure of legal reform. While Butler and Warner present considered indictments on the normalisation of queer intimacy through marriage, such arguments do not account for the impacts of que(e)rying cultural norms and practices through social and political change. Marriage is not a singular or a-historical construction reducible to state recognition. Moreover, in a secular democracy, marriage should be one of many forms of diverse relationship recognition open to same-sex and gender diverse couples. In order to expand the impact of social and legal claims for recognition, it is productive to rethink the complex nature of recognition, ritual and aesthetics within marriage. In doing so, we can begin to transform the possibilities for articulating intimate citizenship in plural democracies. References Australian Christian Lobby. "Submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Marriage Equality Amendment Bill 2009." Deakin: ACL, 2009. Australian Government. "Sec. 5." Marriage Act of 1961 (Cth). 1961. ———. Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Reform) Act 2008 (Cth). 2008. Bell, David, and John Binnie. The Sexual Citizen: Queer Politics and Beyond. Oxford: Polity P, 2000. Berlant, Lauren. "Intimacy: A Special Issue." Critical Inquiry 24 (1998): 281-88. ———. "Love, a Queer Feeling." Homosexuality and Psychoanalysis. Eds. Tim Dean and Christopher Lane. Chicago: U of Chicago P, 2001:432-52. Berlant, Lauren, and Michael Warner. "Sex in Public." Ed. Lauren Berlant. Intimacy. Chicago and London: U of Chicago P, 2000: 311-30. Bower, Lisa. "Queer Problems/Straight Solutions: The Limits of a Politics of 'Official Recognition'" Playing with Fire: Queer Politics, Queer Theories. Ed. Shane Phelan. London and New York: Routledge, 1997: 267-91. Butler, Judith. Gender Trouble: Feminism and the Subversion of Identity. New York and London: Routledge, 1990. ———. Undoing Gender. New York: Routledge, 2004. Duttmann, Alexander. Between Cultures: Tensions in the Struggle for Recognition. London: Verso, 2000. Foucault, Michel. The History of Sexuality (1): The Will to Knowledge. London: Penguin Books, 1977. ———. "Sex, Power and the Politics of Identity." Ethics: Subjectivity and Truth. Ed. Paul Rabinow. London: Allen Lange/Penguin, 1984. 163-74. ———. Essential Works of Foucault: 1954-1984: Ethics, Vol. 1. London: Penguin, 2000. Graycar, Reg, and Jenni Millbank. "From Functional Families to Spinster Sisters: Australia's Distinctive Path to Relationship Recognition." Journal of Law and Policy 24. 2007: 1-44. Gregg, Melissa. "Normal Homes." M/C Journal 10.4 (2007). 27 Aug. 2007 ‹http://journal.media-culture.org.au/0708/02-gregg.php›. Hannam, Jane. Feminism. London and New York: Pearson Education, 2007. Kaplan, Morris. "Intimacy and Equality: The Question of Lesbian and Gay Marriage." Playing with Fire: Queer Politics, Queer Theories. Ed. Shane Phelan. London and New York: Routledge, 1997: 201-30. "Legal Ceremonies for Same-Sex Couples." ABC Online 11 Nov. 2009. 13 Dec. 2011 ‹http://www.abc.net.au/news/stories/2009/11/11/2739661.htm›. McRobbie, Angela. The Aftermath of Feminism: Gender, Culture and Social Change. London and New York: Sage, 2008. Michael. "Why Marriage?" Letter to the Editor. Sydney Star Observer 1031 (20 July 2010): 2. Millbank, Jenni. "Recognition of Lesbian and Gay Families in Australian Law - Part One: Couples." Federal Law Review 34 (2008): 1-44. Perry v. Schwarzenegger. 3: 09 CV 02292. United States District Court for the Northern District of California. 2010. Povinelli, Elizabeth. Empire of Love: Toward a Theory of Intimacy, Genealogy and Carnality. Durham: Duke UP, 2006. Puar, Jasbir. Terrorist Assemblages: Homonationalism in Queer Times. Durham: Duke UP, 2007. Race, Kane. Pleasure Consuming Medicine: The Queer Politics of Drugs. Durham and London: Duke UP, 2009. Secomb, Linnell. Philosophy and Love. Edinburgh: Edinburgh UP, 2007. Shumway, David. Modern Love: Romance, Intimacy and the Marriage Crisis. New York: New York UP, 2003. Wade, Matt. "PM Joins Opposition against Gay Marriage as Cleric's Election Stalls." The Sydney Morning Herald 6 Aug. 2003. Warner, Michael. The Trouble with Normal: Sex, Politics and the Ethics of Queer Life. Cambridge: Harvard UP, 1999.

Introduction This article explores the changing relational quality of “the shadow of hierarchy”, in the context of the merging of platforms with infrastructure as the source of the shadow of hierarchy. In governance and regulatory studies, the shadow of hierarchy (or variations thereof), describes the space of influence that hierarchal organisations and infrastructures have (Héritier and Lehmkuhl; Lance et al.). A shift in who/what casts the shadow of hierarchy will necessarily result in changes to the attendant relational values, logics, and (techno)socialities that constitute the shadow, and a new arrangement of shadow that presents new challenges and opportunities. This article reflects on relevant literature to consider two different ways the shadow of hierarchy has qualitatively changed as platforms, rather than infrastructures, come to cast the shadow of hierarchy – an increase in scalability; and new socio-technical arrangements of (non)participation – and the opportunities and challenges therein. The article concludes that more concerted efforts are needed to design the shadow, given a seemingly directionless desire to enact data-driven solutions. The Shadow of Hierarchy, Infrastructures, and Platforms The shadow of hierarchy refers to how institutional, infrastructural, and organisational hierarchies create a relational zone of influence over a particular space. This commonly refers to executive decisions and legislation created by nation states, which are cast over private and non-governmental actors (Héritier and Lehmkuhl, 2). Lance et al. (252–53) argue that the shadow of hierarchy is a productive and desirable thing. Exploring the shadow of hierarchy in the context of how geospatial data agencies govern their data, Lance et al. find that the shadow of hierarchy enables the networked governance approaches that agencies adopt. This is because operating in the shadow of institutions provides authority, confers bureaucratic legitimacy and top-down power, and offers financial support. The darkness of the shadow is thus less a moral or ethicopolitical statement (such as that suggested by Fisher and Bolter, who use the idea of darkness to unpack the morality of tourism involving death and human suffering), and instead a relationality; an expression of differing values, logics, and (techno)socialities internal and external to those infrastructures and institutions that cast it (Gehl and McKelvey). The shadow of hierarchy might therefore be thought of as a field of relational influences and power that a social body casts over society, by virtue of a privileged position vis-a-vis society. It modulates society’s “light”; the resources (Bourdieu) and power relationships (Foucault) that run through social life, as parsed through a certain institutional and infrastructural worldview (the thing that blocks the light to create the shadow). In this way the shadow of hierarchy is not a field of absolute blackness that obscures, but instead a gradient of light and dark that creates certain effects. The shadow of hierarchy is now, however, also being cast by decentralised, privately held, and non-hierarchal platforms that are replacing or merging with public infrastructure, creating new social effects. Platforms are digital, socio-technical systems that create relationships between different entities. They are most commonly built around a relatively fixed core function (such as a social media service like Facebook), that then interacts with a peripheral set of complementors (advertising companies and app developers in the case of social media; Baldwin and Woodard), to create new relationships, forms of value, and other interactions (van Dijck, The Culture of Connectivity). In creating these relationships, platforms become inherently political (Gillespie), shaping relationships and content on the platform (Suzor) and in embodied life (Ajunwa; Eubanks). While platforms are often associated with optional consumer platforms (such as streaming services like Spotify), they have increasingly come to occupy the place of public infrastructure, and act as a powerful enabler to different socio-technical, economic, and political relationships (van Dijck, Governing Digital Societies). For instance, Plantin et al. argue that platforms have merged with infrastructures, and that once publicly held and funded institutions and essential services now share many characteristics with for-profit, privately held platforms. For example, Australia has had a long history of outsourcing employment services (Webster and Harding), and nearly privatised its entire visa processing data infrastructure (Jenkins). Platforms therefore have a greater role in casting the shadow of hierarchy than before. In doing so, they cast a shadow that is qualitatively different, modulated through a different set of relational values and (techno)socialities. Scalability A key difference and selling point of platforms is their scalability; since they can rapidly and easily up- and down-scale their functionalities in a way that traditional infrastructure cannot (Plantin et al.). The ability to respond “on-demand” to infrastructural requirements has made platforms the go-to service delivery option in the neo-liberalised public infrastructure environment (van Dijck, Governing Digital Societies). For instance, services providers like Amazon Web Services or Microsoft Azure provide on demand computing capacity for many nations’ most valuable services, including their intelligence and security capabilities (Amoore, Cloud Ethics; Konkel). The value of such platforms to government lies in the reduced cost and risk that comes with using rented capabilities, and the enhanced flexibility to increase or decrease their usage as required, without any of the economic sunk costs attached to owning the infrastructure. Scalability is, however, not just about on-demand technical capability, but about how platforms can change the scale of socio-technical relationships and services that are mediated through the platform. This changes the relational quality of the shadow of hierarchy, as activities and services occurring within the shadow are now connected into a larger and rapidly modulating scale. Scalability allows the shadow of hierarchy to extend from those in proximity to institutions to the broader population in general. For example, individual citizens can more easily “reach up” into governmental services and agencies as a part of completing their everyday business through platform such as MyGov in Australia (Services Australia). Using a smartphone application, citizens are afforded a more personalised and adaptive experience of the welfare state, as engaging with welfare services is no-longer tied to specific “brick-and-mortar” locations, but constantly available through a smartphone app and web portal. Multiple government services including healthcare and taxation are also connected to this platform, allowing users to reach across multiple government service domains to complete their personal business, seeking information and services that would have once required separate communications with different branches of government. The individual’s capacities to engage with the state have therefore upscaled with this change in the shadow, retaining a productivity and capacity enhancing quality that is reminiscent of older infrastructures and institutions, as the individual and their lived context is brought closer to the institutions themselves. Scale, however, comes with complications. The fundamental driver for scalability and its adaptive qualities is datafication. This means individuals and organisations are inflecting their operational and relational logics with the logic of datafication: a need to capture all data, at all times (van Dijck, Datafication; Fourcade and Healy). Platforms, especially privately held platforms, benefit significantly from this, as they rely on data to drive and refine their algorithmic tools, and ultimately create actionable intelligence that benefits their operations. Thus, scalability allows platforms to better “reach down” into individual lives and different social domains to fuel their operations. For example, as public transport services become increasingly datafied into mobility-as-a-service (MAAS) systems, ride sharing and on-demand transportation platforms like Uber and Lyft become incorporated into the public transport ecosystem (Lyons et al.). These platforms capture geospatial, behavioural, and reputational data from users and drivers during their interactions with the platform (Rosenblat and Stark; Attoh et al.). This generates additional value, and profits, for the platform itself with limited value returned to the user or the broader public it supports, outside of the transport service. It also places the platform in a position to gain wider access to the population and their data, by virtue of operating as a part of a public service. In this way the shadow of hierarchy may exacerbate inequity. The (dis)benefits of the shadow of hierarchy become unevenly spread amongst actors within its field, a function of an increased scalability that connects individuals into much broader assemblages of datafication. For Eubank, this can entrench existing economic and social inequalities by forcing those in need to engage with digitally mediated welfare systems that rely on distant and opaque computational judgements. Local services are subject to increased digital surveillance, a removal of agency from frontline advocates, and algorithmic judgement at scale. More fortunate citizens are also still at risk, with Nardi and Ekbia arguing that many digitally scaled relationships are examples of “heteromation”, whereby platforms convince actors in the platform to labour for free, such as through providing ratings which establish a platform’s reputational economy. Such labour fuels the operation of the platform through exploiting users, who become both a product/resource (as a source of data for third party advertisers) and a performer of unrewarded digital labour, such as through providing user reviews that help guide a platform’s algorithm(s). Both these examples represent a particularly disconcerting outcome for the shadow of hierarchy, which has its roots in public sector institutions who operate for a common good through shared and publicly held infrastructure. In shifting towards platforms, especially privately held platforms, value is transmitted to private corporations and not the public or the commons, as was the case with traditional infrastructure. The public also comes to own the risks attached to platforms if they become tied to public services, placing a further burden on the public if the platform fails, while reaping none of the profit and value generated through datafication. This is a poor bargain at best. (Non)Participation Scalability forms the basis for a further predicament: a changing socio-technical dynamic of (non)participation between individuals and services. According to Star (118), infrastructures are defined through their relationships to a given context. These relationships, which often exist as boundary objects between different communities, are “loosely structured in common use, and become tightly bound in particular locations” (Star, 118). While platforms are certainly boundary objects and relationally defined, the affordances of cloud computing have enabled a decoupling from physical location, and the operation of platforms across time and space through distributed digital nodes (smartphones, computers, and other localised hardware) and powerful algorithms that sort and process requests for service. This does not mean location is not important for the cloud (see Amoore, Cloud Geographies), but platforms are less likely to have a physically co-located presence in the same way traditional infrastructures had. Without the same institutional and infrastructural footprint, the modality for participating in and with the shadow of hierarchy that platforms cast becomes qualitatively different and predicated on digital intermediaries. Replacing a physical and human footprint with algorithmically supported and decentralised computing power allows scalability and some efficiency improvements, but it also removes taken-for-granted touchpoints for contestation and recourse. For example, ride-sharing platform Uber operates globally, and has expressed interest in operating in complement to (and perhaps in competition with) public transport services in some cities (Hall et al.; Conger). Given that Uber would come to operate as a part of the shadow of hierarchy that transport authorities cast over said cities, it would not be unreasonable to expect Uber to be subject to comparable advocacy, adjudication, transparency, and complaint-handling requirements. Unfortunately, it is unclear if this would be the case, with examples suggesting that Uber would use the scalability of its platform to avoid these mechanisms. This is revealed by ongoing legal action launched by concerned Uber drivers in the United Kingdom, who have sought access to the profiling data that Uber uses to manage and monitor its drivers (Sawers). The challenge has relied on transnational law (the European Union’s General Data Protection Regulation), with UK-based drivers lodging claims in Amsterdam to initiate the challenge. Such costly and complex actions are beyond the means of many, but demonstrate how reasonable participation in socio-technical and governance relationships (like contestations) might become limited, depending on how the shadow of hierarchy changes with the incorporation of platforms. Even if legal challenges for transparency are successful, they may not produce meaningful change. For instance, O’Neil links algorithmic bias to mathematical shortcomings in the variables used to measure the world; in the creation of irritational feedback loops based on incorrect data; and in the use of unsound data analysis techniques. These three factors contribute to inequitable digital metrics like predictive policing algorithms that disproportionately target racial minorities. Large amounts of selective data on minorities create myopic algorithms that direct police to target minorities, creating more selective data that reinforces the spurious model. These biases, however, are persistently inaccessible, and even when visible are often unintelligible to experts (Ananny and Crawford). The visibility of the technical “installed base” that support institutions and public services is therefore not a panacea, especially when the installed base (un)intentionally obfuscates participation in meaningful engagement like complaints handling. A negative outcome is, however, also not an inevitable thing. It is entirely possible to design platforms to allow individual users to scale up and have opportunities for enhanced participation. For instance, eGovernance and mobile governance literature have explored how citizens engage with state services at scale (Thomas and Streib; Foth et al.), and the open government movement has demonstrated the effectiveness of open data in understanding government operations (Barns; Janssen et al.), although these both have their challenges (Chadwick; Dawes). It is not a fantasy to imagine alternative configurations of the shadow of hierarchy that allow more participatory relationships. Open data could facilitate the governance of platforms at scale (Box et al.), where users are enfranchised into a platform by some form of membership right and given access to financial and governance records, in the same way that corporate shareholders are enfranchised, facilitated by the same app that provides a service. This could also be extended to decision making through voting and polling functions. Such a governance form would require radically different legal, business, and institutional structures to create and enforce this arrangement. Delacoix and Lawrence, for instance, suggest that data trusts, where a trustee is assigned legal and fiduciary responsibility to achieve maximum benefit for a specific group’s data, can be used to negotiate legal and governance relationships that meaningfully benefit the users of the trust. Trustees can be instructed to only share data to services whose algorithms are regularly audited for bias and provide datasets that are accurate representations of their users, for instance, avoiding erroneous proxies that disrupt algorithmic models. While these developments are in their infancy, it is not unreasonable to reflect on such endeavours now, as the technologies to achieve these are already in use. Conclusions There is a persistent myth that data will yield better, faster, more complete results in whatever field it is applied (Lee and Cook; Fourcade and Healy; Mayer-Schönberger and Cukier; Kitchin). This myth has led to data-driven assemblages, including artificial intelligence, platforms, surveillance, and other data-technologies, being deployed throughout social life. The public sector is no exception to this, but the deployment of any technological solution within the traditional institutions of the shadow of hierarchy is fraught with challenges, and often results in failure or unintended consequences (Henman). The complexity of these systems combined with time, budgetary, and political pressures can create a contested environment. It is this environment that moulds societies' light and resources to cast the shadow of hierarchy. Relationality within a shadow of hierarchy that reflects the complicated and competing interests of platforms is likely to present a range of unintended social consequences that are inherently emergent because they are entering into a complex system – society – that is extremely hard to model. The relational qualities of the shadow of hierarchy are therefore now more multidimensional and emergent, and experiences relating to socio-technical features like scale, and as a follow-on (non)participation, are evidence of this. Yet by being emergent, they are also directionless, a product of complex systems rather than designed and strategic intent. This is not an inherently bad thing, but given the potential for data-system and platforms to have negative or unintended consequences, it is worth considering whether remaining directionless is the best outcome. There are many examples of data-driven systems in healthcare (Obermeyer et al.), welfare (Eubanks; Henman and Marston), and economics (MacKenzie), having unintended and negative social consequences. Appropriately guiding the design and deployment of theses system also represents a growing body of knowledge and practical endeavour (Jirotka et al.; Stilgoe et al.). Armed with the knowledge of these social implications, constructing an appropriate social architecture (Box and Lemon; Box et al.) around the platforms and data systems that form the shadow of hierarchy should be encouraged. This social architecture should account for the affordances and emergent potentials of a complex social, institutional, economic, political, and technical environment, and should assist in guiding the shadow of hierarchy away from egregious challenges and towards meaningful opportunities. To be directionless is an opportunity to take a new direction. The intersection of platforms with public institutions and infrastructures has moulded society’s light into an evolving and emergent shadow of hierarchy over many domains. With the scale of the shadow changing, and shaping participation, who benefits and who loses out in the shadow of hierarchy is also changing. Equipped with insights into this change, we should not hesitate to shape this change, creating or preserving relationalities that offer the best outcomes. Defining, understanding, and practically implementing what the “best” outcome(s) are would be a valuable next step in this endeavour, and should prompt considerable discussion. 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I was born illegitimate. Born on an existential precipice. My unwed mother was 36 years old when she relinquished me. I was the fourth baby she was required to give away. After I emerged blood stained and blue tinged – abject, liminal – not only did the nurses refuse me my mother’s touch, I also lost the sound of her voice. Her smell. Her heart beat. Her taste. Her gaze. The silence was multi-sensory. When they told her I was dead, I also lost, within her memory and imagination, my life. I was adopted soon after but not told for over four decades. It was too shameful for even me to know. Imprinted at birth with a psychological ‘death’, I fell, as a Late Discovery Adoptee (LDA), into a socio-cultural and psychological abyss, frozen at birth at the bottom of a parturitive void from where, invisible within family, society, and self I was unable to form an undamaged sense of being.Throughout the 20th century (and for centuries before) this kind of ‘social abortion’ was the dominant script. An adoptee was regarded as a bastard, born of sin, the mother blamed, the father exonerated, and silence demanded (Lynch 28-74). My adoptive mother also sinned. She was infertile. But, in taking me on, she assumed the role of a womb worthy woman, good wife, and, in her case, reluctant mother (she secretly didn’t want children and was privately overwhelmed by the task). In this way, my mother, my adoptive mother, and myself are all the daughters of bereavement, all of us sacrificed on the altar of prejudice and fear that infertility, sex outside of marriage, and illegitimacy were unspeakable crimes for which a price must be paid and against which redemptive protection must be arranged. If, as Thomas Keneally (5) writes, “original sin is the mother fluid of history” then perhaps all three of us all lie in its abject waters. Grotevant, Dunbar, Kohler and Lash Esau (379) point out that adoption was used to ‘shield’ children from their illegitimacy, women from their ‘sexual indiscretions’, and adoptive parents from their infertility in the belief that “severing ties with birth family members would promote attachment between adopted children and parents”. For the adoptee in the closed record system, the socio/political/economic vortex that orchestrated their illegitimacy is born out of a deeply, self incriminating primal fear that reaches right back into the recesses of survival – the act of procreation is infested with easily transgressed life and death taboos within the ‘troop’ that require silence and the burial of many bodies (see Amanda Gardiner’s “Sex, Death and Desperation: Infanticide, Neonaticide, and Concealment of Birth in Colonial Western Australia” for a palpable, moving, and comprehensive exposition on the links between 'illegitimacy', the unmarried mother and child murder). As Nancy Verrier (24) states in Coming Home to Self, “what has to be understood is that separation trauma is an insidious experience, because, as a society, we fail to see this experience as a trauma”. Indeed, relinquishment/adoption for the baby and subsequent adult can be acutely and chronically painful. While I was never told the truth of my origins, of course, my body knew. It had been there. Sentient, aware, sane, sensually, organically articulate, it messaged me (and anyone who may have been interested) over the decades via the language of trauma, its lexicon and grammar cellular, hormonal, muscular (Howard & Crandall, 1-17; Pert, 72), the truth of my birth, of who I was an “unthought known” (Bollas 4). I have lived out my secret fatality in a miasmic nebula of what I know now to be the sequelae of adoption psychopathology: nausea, physical and psychological pain, agoraphobia, panic attacks, shame, internalised anger, depression, self-harm, genetic bewilderment, and generalised anxiety (Brodzinsky 25-47; Brodzinsky, Smith, & Brodzinsky 74; Kenny, Higgins, Soloff, & Sweid xiv; Levy-Shiff 97-98; Lifton 210-212; Verrier The Primal Wound 42-44; Wierzbicki 447-451) – including an all pervading sense of unreality experienced as dissociation (the experience of depersonalisation – where the self feels unreal – and derealisation – where the world feels unreal), disembodiment, and existential elision – all characteristics of Post Traumatic Stress Disorder (PTSD). In these ways, my body intervened, acted out, groaned in answer to the social overlay, and from beyond “the dermal veil” tried to procure access, as Vicky Kirby (77) writes, to “the body’s opaque ocean depths” through its illnesses, its eloquent, and incessantly aching and silent verbosities deepened and made impossibly fraught because I was not told. The aim of this paper is to discuss one aspect of how my body tried to channel the trauma of my secret fatality and liminality: my pre-disclosure art work (the cellular memory of my trauma also expressed itself, pre-disclosure, through my writings – poetry, journal entries – and also through post-coital glossolalia, all discussed at length in my Honours research “Womb Tongues” and my Doctoral Dissertation “The Womb Artist – A Novel: Translating Pre-verbal Late Discovery Adoption Trauma into Narrative”). From the age of thirty onwards I spent twelve years in therapy where the cause of my childhood and adult psychopathology remained a mystery. During this time, my embodied grief and memories found their way into my art work, a series of 5’ x 3’ acrylic paintings, some of which I offer now for discussion (figures 1-4). These paintings map and express what my body knew but could not verbalise (without language to express my grief, my body found other ways to vent). They are symptom and sign of my pre-verbal adoption trauma, evidence that my body ‘knew’ and laboured ceaselessly and silently to find creative ways to express the incarcerated trauma. Post disclosure, I have used my paintings as artefacts to inform, underpin, and nourish the writing of a collection of poetry “Womb Tongues” and a literary novel/memoir “The Womb Artist” (TWA) in an ongoing autoethnographical, performative, and critical inquiry. My practice-led research as a now conscious and creative witness, fashions the recontextualisation of my ‘self’ into my ‘self’ and society, this time with cognisant and reparative knowledge and facilitates the translation of my body’s psychopathology and memory (explicit and implicit) into a healing testimony that explores the traumatised body as text and politicizes the issues surrounding LDAs (Riley 205). If I use these paintings as a memoirist, I use them second hand, after the fact, after they have served their initial purpose, as the tangible art works of a baby buried beneath a culture’s prejudice, shame, and judgement and the personal cries from the illegitimate body/self. I use them now to explore and explain my subclinical and subterranean life as a LDA.My pre-disclosure paintings (Figures 1-4) – filled with vaginal, fetal, uterine, and umbilical references – provide some kind of ‘evidence’ that my body knew what had happened to me as if, with the tenacity of a poltergeist, my ‘spectral self’ found ways to communicate. Not simply clues, but the body’s translation of the intra-psychic landscape, a pictorial and artistic séance into the world, as if my amygdala – as quasar and signal, homing device and history lesson (a measure, container, and memoir) – knew how to paint a snap shot or an x-ray of the psyche, of my cellular marrow memories (a term formulated from fellow LDA Sandy McCutcheon’s (76) memoir, The Magician’s Son when he says, “What I really wanted was the history of my marrow”). If, as Salveet Talwar suggests, “trauma is processed from the body up”, then for the LDA pre-discovery, non-verbal somatic signage is one’s ‘mother tongue’(25). Talwar writes, “non-verbal expressive therapies such as art, dance, music, poetry and drama all activate the sub-cortical regions of the brain and access pre-verbal memories” (26). In these paintings, eerily divinatory and pointed traumatic, memories are made visible and access, as Gussie Klorer (213) explains in regard to brain function and art therapy, the limbic (emotional) system and the prefrontal cortex in sensorimotor integration. In this way, as Marie Angel and Anna Gibbs (168) suggest, “the visual image may serve as a kind of transitional mode in thought”. Ruth Skilbeck in her paper First Things: Reflections on Single-lens Reflex Digital Photography with a Wide-angled Lens, also discusses (with reference to her photographic record and artistic expression of her mother’s death) what she calls the “dark matter” – what has been overlooked, “left out”, and/or is inexplicable (55) – and the idea of art work as the “transitional object” as “a means that some artists use, conceptually and yet also viscerally, in response to the extreme ‘separation anxiety’ of losing a loved one, to the void of the Unknown” (57). In my case, non-disclosure prevented my literacy and the evolution of the image into language, prevented me from fully understanding the coded messages left for me in my art work. However, each of my paintings is now, with the benefit of full disclosure, a powerful, penetrating, and comprehensible intra and extra sensory cry from the body in kinaesthetic translation (Lusebrink, 125; Klorer, 217). In Figure 1, ‘Embrace’, the reference to the umbilical is palpable, described in my novel “The Womb Artist” (184) this way; “two ropes tightly entwine as one, like a dark and dirty umbilical cord snaking its way across a nether world of smudged umbers”. There is an ‘abject’ void surrounding it. The cord sapped of its colour, its blood, nutrients – the baby starved of oxygen, breath; the LDA starved of words and conscious understanding. It has two parts entwined that may be seen in many ways (without wanting to reduce these to static binaries): mother/baby; conscious/unconscious; first person/third person; child/adult; semiotic/symbolic – numerous dualities could be spun from this embrace – but in terms of my novel and of the adoptive experience, it reeks of need, life and death, a text choking on the poetic while at the same time nourished by it; a text made ‘available’ to the reader while at the same narrowing, limiting, and obscuring the indefinable nature of pre-verbal trauma. Figure 1. Embrace. 1993. Acrylic on canvas.The painting ‘Womb Tongues’ (Figure 2) is perhaps the last (and, obviously, lasting) memory of the infinite inchoate universe within the womb, the umbilical this time wrapped around in a phallic/clitorial embrace as the baby-self emerges into the constrictions of a Foucauldian world, where the adoptive script smothers the ‘body’ encased beneath the ‘coils’ of Judeo-Christian prejudice and centuries old taboo. In this way, the reassigned adoptee is an acute example of power (authority) controlling and defining the self and what knowledge of the self may be allowed. The baby in this painting is now a suffocated clitoris, a bound subject, a phallic representation, a gagged ‘tongue’ in the shape of the personally absent (but socially imposing) omni-present and punitive patriarchy. Figure 2. Womb Tongues. 1997. Acrylic on canvas.‘Germination’ (Figure 3) depicts an umbilical again, but this time as emerging from a seething underworld and is present in TWA (174) this way, “a colony of night crawlers that writhe and slither on the canvas, moving as one, dozens of them as thin as a finger, as long as a dream”. The rhizomic nature of this painting (and Figure 4), becomes a heaving horde of psychosomatic and psychopathological influences and experiences, a multitude of closely packed, intense, and dendridic compulsions and symptoms, a mass of interconnected (and by nature of the silence and lie) subterranean knowledges that force the germination of a ‘ghost baby/child/adult’ indicated by the pale and ashen seedling that emerges above ground. The umbilical is ghosted, pale and devoid of life. It is in the air now, reaching up, as if in germination to a psychological photosynthesis. There is the knot and swarm within the unconscious; something has, in true alien fashion, been incubated and is now emerging. In some ways, these paintings are hardly cryptic.Figure 3. Germination.1993. Acrylic on canvas.In Figure 4 ‘The Birthing Tree’, the overt symbolism reaches ‘clairvoyant status’. This could be read as the family ‘tree’ with its four faces screaming out of the ‘branches’. Do these represent the four babies relinquished by our mother (the larger of these ‘beings’ as myself, giving birth to the illegitimate, silenced, and abject self)? Are we all depicted in anguish and as wraithlike, grotesquely simplified into pure affect? This illegitimate self is painted as gestating a ‘blue’ baby, near full-term in a meld of tree and ‘self’, a blue umbilical cord, again, devoid of blood, ghosted, lifeless and yet still living, once again suffocated by the representation of the umbilical in the ‘bowels’ of the self, the abject part of the body, where refuse is stored and eliminated: The duodenum of the damned. The Devil may be seen as Christopher Bollas’s “shadow of the object”, or the Jungian archetypal shadow, not simply a Judeo-Christian fear-based spectre and curmudgeon, but a site of unprocessed and, therefore, feared psychological material, material that must be brought to consciousness and integrated. Perhaps the Devil also is the antithesis to ‘God’ as mother. The hell of ‘not mother’, no mother, not the right mother, the reluctant adoptive mother – the Devil as icon for the rich underbelly of the psyche and apophatic to the adopted/artificial/socially scripted self.Figure 4. The Birthing Tree. 1995. Acrylic on canvas.These paintings ache with the trauma of my relinquishment and LDA experience. They ache with my body’s truth, where the cellular and psychological, flesh and blood and feeling, leak from my wounds in unspeakable confluence (the two genital lips as the site of relinquishment, my speaking lips that have been sealed through non-disclosure and shame, the psychological trauma as Verrier’s ‘primal wound’) just as I leaked from my mother (and society) at birth, as blood and muck, and ooze and pus and death (Grosz 195) only to be quickly and silently mopped up and cleansed through adoption and life-long secrecy. Where I, as translator, fluent in both silence and signs, disclose the baby’s trauma, asking for legitimacy. My experience as a LDA sets up an interesting experiment, one that allows an examination of the pre-verbal/pre-disclosure body as a fleshed and breathing Rosetta Stone, as an interface between the language of the body and of the verbalised, painted, and written text. As a constructed body, written upon and invented legally, socially, and psychologically, I am, in Hélène Cixous’s (“To Live the Orange” 83) words, “un-forgetting”, “un-silencing” and “unearthing” my ‘self’ – I am re-writing, re-inventing and, under public scrutiny, legitimising my ‘self’. I am a site of inquiry, discovery, extrapolation, and becoming (Metta 492; Poulus 475) and, as Grosz (vii) suggests, a body with “all the explanatory power” of the mind. I am, as I embroider myself and my LDA experience into literary and critical texts, authoring myself into existence, referencing with particular relevance Peter Carnochan’s (361) suggestion that “analysis...acts as midwife to the birth of being”. I am, as I swim forever amorphous, invisible, and unspoken in my mother’s womb, fashioning a shore, landscaping my mind against the constant wet, my chronic liminality (Rambo 629) providing social landfall for other LDAs and silenced minorities. As Catherine Lynch (3) writes regarding LDAs, “Through the creation of text and theory I can formulate an intimate space for a family of adoptive subjects I might never know via our participation in a new discourse in Australian academia.” I participate through my creative, self-reflexive, process fuelled (Durey 22), practice-led enquiry. I use the intimacy (and also universality and multiplicity) and illegitimacy of my body as an alterative text, as a site of academic and creative augmentation in the understanding of LDA issues. The relinquished and silenced baby and LDA adult needs a voice, a ‘body’, and a ‘tender’ place in the consciousness of society, as Helen Riley (“Confronting the Conspiracy of Silence” 11) suggests, “voice, validation, and vindication”. Judith Herman (3) argues that, “Survivors challenge us to reconnect fragments, to reconstruct history, to make meaning of their present symptoms in the light of past events”. I seek to use the example of my experience – as Judith Durey (31) suggests, in “support of evocative, creative modes of representation as valid forms of research in their own right” – to unfurl the whole, to give impetus and precedence for other researchers into adoption and advocate for future babies who may be bought, sold, arranged, and/or created by various means. The recent controversy over Gammy, the baby boy born with Down Syndrome in Thailand, highlights the urgent and moral need for legislation with regard to surrogacy (see Kajsa Ekis Ekman’s Being and Being Bought: Prostitution, Surrogacy and the Split Self for a comprehensive examination of surrogacy issues). Indeed, Catherine Lynch in her paper Doubting Adoption Legislation links the experiences of LDAs and the children of born of surrogacy, most effectively arguing that, “if the fate that closed record adoptees suffered was a misplaced solution to the question of what to do with children already conceived how can you justify the deliberate conception of a child with the intention even before its creation of cruelly removing that child from their mother?” (6). Cixous (xxii) confesses, “All I want is to illustrate, depict fragments, events of human life and death...each unique and yet at the same time exchangeable. Not the law, the exception”. I, too, am a fragment, an illustration (a painting), and, as every individual always is – paradoxically – a communal and, therefore, deeply recognisable and generally applicable minority and exception. In my illegitimacy, I am some kind of evidence. Evidence of cellular memory. Evidence of embodiment. Evidence that silenced illegitimacies will manifest in symptom and non-verbal narratives, that they will ooze out and await translation, verification, and witness. This paper is offered with reverence and with feminist intention, as a revenant mouthpiece for other LDAs, babies born of surrogacy, and donor assisted offspring (and, indeed, any) who are marginalised, silenced, and obscured. It is also intended to promote discussion in the psychological and psychoanalytic fields and, as Helen Riley (202-207) advocates regarding late discovery offspring, more research within the social sciences and the bio-medical field that may encourage legislators to better understand what the ‘best interests of the child’ are in terms of late discovery of origins and the complexity of adoption/conception practices available today. As I write now (and always) the umbilical from my paintings curve and writhe across my soul, twist and morph into the swollen and throbbing organ of tongues, my throat aching to utter, my hands ready to craft latent affect into language in translation of, and in obedience to, my body’s knowledges. It is the art of mute witness that reverses genesis, that keeps the umbilical fat and supple and full of blood, and allows my conscious conception and creation. 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