On March 14, 2007, the Advocate-General has launched a case study
concerning a public job center in Fredericia, Denmark ("AF
Fredericia.") Our concern is that certain changes made recently at the
job center may:
- Unnecessarily inconvenience users;
- Reduce the job center's usefulness, insofar as some users may stay away;
- Constitute ineffective measures from a public resource and governance perspective;
- Potentially, compromise the privacy and data security of users.
While we are hopeful that the changes will be reversed, or that at
least similar measures will be avoided elsewhere, the primary focus of
this study is not to criticize AF Fredericia. Rather, we see this case
study as a suitable example for illustrating, discussing, and
contributing to the definition of appropriate-versus-inappropriate
measures within the context of the Advocate-General's Basic Principles
for Governance.
Below, you will find the links to the materials which the case study
has produced so far. Additional materials will be posted as they become
available. To subscribe to this case study, please contact: feedback@advocate-general.com.
Disclaimer: This website, our virtual trials and other
proceedings, publications and related services are intended to provide
information for academic and educational purposes only. Our publications and
related services do not constitute legal advice.
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Advocate-General’s Statement of Concerns and Proposed Remedies
Privacy
Privacy has two meanings: (1) Physical privacy defined as the state or
feeling of being undisturbed; (2) Information privacy defined as the
safeguarding of one’s personal information. Both concepts are relevant
in the present context. Information privacy is important insofar as the
database includes personally identifiable information of a highly
sensitive nature. It is alleged that this calls for a relatively high
degree of protection as far as information privacy. Furthermore, the
sensitive nature of the database makes reasonable the assumption that
users may be rather sensitive to their physical privacy, which
therefore ought to be given a high priority as well.
Physical privacy
Physical privacy is important as the job center’s main resource is a
national database, the search and use of which may be time-consuming.
Alas, users that feel secure and comfortable are presumptively likely
to spend more time at the database, which may well deepen the database
searches and increase the likelihood that these will materialize into
the user finding relevant vacancies, submitting feedback, updating
résumés, and filing job applications. Absent such tangible activities,
use of the database becomes shallow and is unlikely to result in
employment.
It has been reported that users frequently preferred the two detached
work stations that have been removed even when work stations were
available at the main computer hub. Whether such users would (a) avoid
using the center, (b) merely use the main hub as a full substitute, or
(c) reduce the time spent at the center cannot readily be established
at present. If all users prefer solution (b), there would be no
discernible adverse effect from the changes as far as efficiency and
effectiveness, albeit users may be irritated or unhappy – ensuring
happiness or contentment is not within the BPG’s definition of legal
relevance. However, if any number of users opt for solution (a) and/or
(c), then this would be detrimental to the center’s overall
effectiveness, if it can be presumed – as I have explained here – that
longer usage will better allow clients to familiarize themselves with
the system, conduct deeper searches, and actively use the database for
promoting themselves. It is our allegation that due to the sensitive
nature of the environment, it is more likely than not that this will be
the outcome, wherefore the measures are counterproductive within the
meaning of BPG.
As the measures are presumptively counterproductive, it must be
examined whether this is justifiable or at least less culpable due to
legitimate concerns. We have not seen any meaningful use of the space
where the dismantled monitors used to be, nor can we think of any other
meaningful reason to dismantle these workstations. Therefore, the Court
ought to rule the measures presumptively in non-compliance, thus
imposing upon Examinee a burden to come forward if it wishes that we
reconsider the issue.
Fundamentally, we are critical of the use of a computer hub as the only
place for conducting this kind of activity. While the hub may be useful
for training purposes, it should not be the only resource available,
i.e. there ought to be alternative workstations whenever possible.
Examinee is clearly capable of providing such alternatives, as was the
case hitherto. Therefore, the Court should order Examinee to reactivate
the workstations. If the Court is unable or unwilling to issue such an
order, then at a minimum it should rule that Examinee remains in
non-compliance with the BPG until the situation has demonstrably been
remedied.
Information privacy
As I have explained, it is inconsistent with the national
administration’s own policy of an open database to require users at the
job center to logon with a password and user name. Furthermore, this
formality is not merely a matter of inconvenience, it compromises user
privacy: If users are allowed to enter the database without logon at
home or elsewhere, they should be allowed to do so anonymously at the
job center as well. Thirdly, the requirement that users must register
or ask staff for assistance will presumably deter some users from even
using the job center, which is counterproductive. These measures breach
the BPG’s rules against inconsistency and ineffectiveness. Whether they
were introduced as a result of a new policy or a more random motive upon
which we dare only speculate makes no difference in this respect.
The Court should order Examinee to (A) keep workstations on so as to
not require a logon, or (B) to see to it that logon information, which
will allow anonymous logon, is displayed visibly at all workstations.
If the Court is unable or unwilling to issue such an order, then at a
minimum it should rule that Examinee remains in non-compliance with the
BPG until the situation has demonstrably been remedied.
Mr. Turner’s Statements of Formal and Material Objections
My formal objections to these proceedings are that Examinee has not
been duly notified of these proceedings and that Examinee certainly has
not given consent to be bound by the findings of this Court.
My material objections to these proceedings may be summarized as follows:
The Advocate-General – on his own or assisted by Quality-of-Regulation
Institute – is the highest authority within Virtual Law Center to
ascertain issues concerning the BPG.
Although mock trials, including virtual trials, are permissible in situations involving actual persons, the
Court does not have the authority to rule upon issues of compliance or
non-compliance with the BPG, which is a virtual instrument
without real legal significance. The court will only have the authority to
rule on matters concerning actual law, whether domestic or
international; in this event it could even intervene regardless of
whether or not the BPG are involved. If authorized to act, the Court
could of course take the concerns regarding BPG into consideration as
one among multiple sources of inspiration and guidelines for
interpretation. In the current matter, however, the AG has failed to
demonstrate that there is a real conflict of law.
The AG has presented no proof that requiring logon compromised the
so-called “information privacy” of users. Furthermore, the main focus
of the AG is upon so-called “physical privacy,” but no demonstrable
legal interests are at play in the concrete circumstances. Although
physical privacy could be of legal relevance in some circumstances –
e.g. in case of imprisonment, detention, or other deprivation of
personal liberty – this does not apply here. Put differently, the BPG –
which is essentially a policy instrument or informal codex – sets the
bar for what constitutes permissible conduct higher than does the law.
Therefore, the court cannot and should not rule on the objections
raised by the AG, which are entirely BPG-related.
Findings of the Court
JUDGE ANDREWS: We would allow for the possibility that the BPG could serve as the
fundament for a mock trial where the parties have agreed to this, but
this is by no means the case in the present situation. Failing any
demonstration of measures being unlawful, we could not see any merit to
proceed.
JUDGE MAC CARTHY: Let us take the controversial measures one by one.
The table by the entrance is clearly without legal significance, and
neither the Advocate-General or the Quality-of-Regulation Institute has
seen fit to pursue this.
The missing monitors may be inconvenient to some users, of which a
portion may avoid using the job center or spend less time searching the
database. While this is a pity, and while it may well be
counterproductive to the overall mission of the center and the
nationwide system which it is a part of, there is no demonstrable issue
of unlawfulness here – neither the Advocate-General nor
Quality-of-Regulation Institute has alleged the contrary.
The logon requirement does not seem to represent any real legal issue
either. While it is true that some functions on the database can be
accessed by anyone without a logon being required, there is more at
play here than mere logon onto a database: The computer workstations
are physical property owned by Examinee, who may well have a legitimate
legal interest in ensuring that only those so entitled use the
equipment – which, of course, would prevent no one from accessing the
database from home, at an Internet café, or from some other public
facility such as a library. While the logon requirement may seem
distracting and undesirable from a user perspective, it would seem that
the interests of the Examinee should prevail in this matter; an aspect
which perhaps should motivate the Advocate-General to ask
Quality-of-Regulation Institute to reconsider its rating.
JUDGE STEWARD: As the Advocate-General has not identified
potentially unlawful activity on the part of Examinee, and absent the
Examinee’s consent to be bound by the BPG in these virtual proceedings,
we lack the authority to rule on the validity of the AG’s concerns at
the present time. The time is May 11, 2007 (11:15AM), and this case is DISMISSED.
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Court Records
The following records are on file as of May 04, 2007:
1. Advocate-General's Legal Opinion, 2nd Edition, in
which the AG has revisited the issue of whether the changes described
constitute measures of legal relevance within the context of
the Advocate-General's Basic Principles for Governance;
2. Advocate-General's Quality-of-Regulation Notice, in which the AG
has authorized the Quality-of-Regulation Institute to conduct
immediately an evaluation of the measures identified by the AG as being of legal relevance;
3. Quality-of-Regulation Institute's findings, including (i) a Full Report: (ii) an Executive Summary; (iii) a Rating table;
4. Advocate-General's Statement of Concerns and Proposed Remedies (with appendices and an Executive Summary);
5. Statement of Formal Objections, in which Mr. Turner,
Esq., has asked the Court to dismiss the case due to insufficient
evidence as far as the measures identified by the AG as being of legal relevance;
6. Statement of Material Objections, in which Mr. Turner,
Esq., has responded to the various concerns raised by the AG and
Quality-of-Regulation Institute;
7. Preliminary Findings of the Court, addressing: (a) the procedural
objections raised by Mr. Turner, Esq., (b) our comments upon
the issues of a factual, policy, and legal nature which this case
represents; (c) our directions to the parties on how to proceed.
All Court Records, including the above documents, will be published
when this virtual trial is concluded. Meanwhile, please direct any
inquiries to feedback@advocate-general.com.
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CLERK: In the matter of the Advocate-General v. AF Fredericia, this court is now in session.
JUDGE MAC CARTHY: And now, Mr. Turner, do you represent the examinee? Are you an attorney for the examinee?
MR. TURNER, ESQ..: Not in so many words. Technically, I have been
appointed by Virtual Law Center to represent the examinee's hypothetical interests and viewpoints in these
proceedings.
ADVOCATE-GENERAL: Which, as I have stated in my
referral notice and subsequent statements, is necessitated by examinee
being non-responsive to our complaint.
JUDGE MAC CARTHY: I take this to mean that Mr. Turner has no formal
authority to represent the examinee. Has anybody else been appointed
by Examinee?
ADVOCATE-GENERAL: No, your honor.
JUDGE MAC CARTHY: Then, has Examinee been duly notified of these proceedings?
ADVOCATE-GENERAL: Your honor, Examinee has been notified via
electronic mail, which points to our website, which in turn clearly
stipulated these proceedings in case Examinee would not comply with my
advisory. We also attempted to send notice about the advisory to
Examinee via electronic mail, but delivery failed, however the message
apparently was delivered to the national authority.
JUDGE MAC CARTHY: All right, Mr. Turner is hereby duly appointed to
represent the examinee's hypothetical interests and viewpoints in these
proceedings. So this shall be a virtual trial, that
is, a mock trial conducted via electronic means of communication. The
parties should submit any writing via secure electronic mail. The
parties may also submit their oral presentations via digital audio if
they so wish, in which event authentic transcripts must be provided.
MR. TURNER, ESQ..: As for the timetable, will this be a simulcast? That
is, a proceedings where both parties submit their materials
simultaneously.
JUDGE ANDREWS: No, there will be a time delay of 48 hours between each
posting, allowing for an adversarial process. So the advocate-general
will commence by his first writ, which will be posted, then you will
have 48 hours in which to respond, then this court will respond within
48 hours about what we think about what we have received thus far and
whether additional materials are needed. Based upon our experience, the
entire virtual trial should probably take no more than 30 days. The
case may be reopened after a given period to allow for public comment.
ADVOCATE-GENERAL: For the record, I need to consider whether to
authorize a quality-of-regulation evaluation to be conducted by Quality-of-Regulation Institute.
If, as I have anticipated, such an evaluation is made, then it would be
most helpful to do so prior to commencement of further proceedings.
JUDGE STEWARD: All right, then you may take 96 hours to file your first
posting. The time is April 19, 2007 (11:35AM), and this court is now
adjourned.
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Advocate-General's Advisory
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| Advisory (PDF, redacted) |
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| Formal Notice
This Advisory has been offered to AF Fredericia on March 20, 2007. If, within 30 days, the
administrator fully implements the above recommendations, the case may
be closed. Otherwise, a formal Quality-of-Regulation Evaluation and a
Virtual Trial will be conducted without further delay.
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Advocate-General's Opinion
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The Advocate-General has issued a legal opinion, which contains:
- A description of the institutional framework of which AF
Fredericia is a part, including: services for companies, services for
prospective employees, the design and function of job centers, and the
physical frame;
- changes to the physical frame at AF Fredericia;
- the relevance of these changes vis-á-vis the Advocate-General's Basic Principles for Governance (BPG).
The opinion is currently available in English and Danish. A link to the Danish version has been provided below.
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Advocate-General's Referral
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In continuation of the Advocate-General's AF Fredericia Legal Opinion
and supported by the factual information gathered thus far, the AG
voices concerns and criticism of the changes that have occurred at the
job center. The AG refers the case to a Virtual Trial (i.e. a mock
trial conducted via electronic means of communication).
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The Advocate-General describes the recent changes at AF Fredericia.
Exhibit 1 is an audio presentation. Exhibit 1A contains the same audio
segment accompanied by slides; it is for illustrative purposes only and
does not purport to be 100% accurate.
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Two charts in Adobe PDF format. Exhibit 2A shows the job center's
design prior to 2007. Exhibit 2B shows the job center's design since
January 2007. These charts are for illustrative purposes only and
do not purport to be 100% accurate.
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Case Materials
As of June 1, 2007, the case study has produced the following materials:
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Advocate-General's AF Fredericia Opinion (PDF)
- Advocate-General's AF Fredericia Responsum (PDF)
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Advocate-General's Referral (MP3) - Download
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Exhibit 1: What has changed (MP3) - Download
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Exhibit 1A: What has changed (WMV) - Download
- Exhibit 2A: AF Fredericia Prior to 2007 Chart (PDF)
- Exhibit 2B: AF Fredericia Since 2007 Chart (PDF)
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Advocate-General's Advisory (PDF)
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Preliminary Proceedings (PDF, HTML)
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Court Records (PDF, HTML)
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Final Proceedings (PDF, HTML)
- Legal Examiner June 2007 issue (PDF)
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