The IPCC reports that financial and economic views must also be taken.
As the Paris Convention for a new climate change regime approaches in 2015, the Intergovernmental Panel on Climate Change’s (“IPCC”) release of the final volume of their Fifth Assessment Report on Climate Change on April 15, 2014, is important in shaping the negotiations. The gist of their findings is that climate change must be viewed from financial and economic perspectives, in addition to environmental viewpoints, to effectively mitigate climate change because the problem is of unique global scale. That is, “economic efficiency and equity” must also be accounted for. The authors of the report, Working Group 3, research and suggest climate change mitigation solutions and policies.
With respect to economic perspectives, the parties acknowledged that they need to figure out solutions for poverty eradication and better account for the needs of developing countries. The Climate Technology Centre and Network is one such mechanism as it responds to developing countries’ requests for technology transfer and assistance from developed countries so they can address climate change. This is intended to help developing countries “leapfrog” over using older technologies that emit more greenhouse gases and utilize cleaner, more efficient technologies that developed countries have already created. Significant mitigation action is possible in developing countries where populations are rapidly urbanizing and moving into cities, which implicates a growing need for “governance, technical, financial, and institutional capacities.”
Decisions “to initiate or intensify domestic preparation for their intended national contributions towards that agreement, which will come into force from 2020”
“[C]lose the pre-2020 ambition gap by intensifying technical work”
“[E]stablish an international mechanism to provide most vulnerable populations with better protection against loss and damage caused by extreme weather events and slow onset events such as rising sea levels”
Working Group III’s research findings have been released in the IPCC’s reports on climate change mitigation solutions and policies.
In an era driven by technology, there are an ever-increasing number of corporations choosing to store their information electronically (“ESI”). ESI is anything that can be stored on an electronic medium system, such as: emails, spreadsheets, databases, images, etc. Further, because ESI is voluminous, corporations are storing it in server farms or, to the layperson, “the cloud” as a cost-effective measure. The positive of this approach is that corporations can store virtually unlimited amounts of ESI for a very low cost. The negative is that the ESI might be stored in a “server farm” located in a foreign country. The problem with this is that many countries, primarily in Europe, have laws that prevent exportation of data for foreign litigation proceedings. The legal issue: What happens when corporations involved in U.S. litigation are requested to produce ESI located in a foreign country that has a data blocking statute?
Corporations must be careful when storing data as foreign laws conflict with US discovery obligations. Image Source: The eDiscovery Blog
For one, litigants face consequences whether they comply with the discovery request or not. This is because the U.S. discovery rules are so expansive that they offend foreign justice systems where the court plays an important role in the search for evidence. In opposition to the U.S. discovery rules some nations have enacted blocking statutes that criminalize the exportation of ESI for purposes of foreign litigation. Even the European Union has become involved with by requiring compliance with its Data Protection Directive. Thus, corporations have a catch-22: (1) comply with the blocking statute and face sanctions from U.S. courts or (2) comply with the discovery request and face possible sanctions and/or criminal proceedings in a foreign country.
Another consequence is a delay in the discovery process. This delay adds to the cost of what is already viewed as the most expensive phase in the litigation process. More often than not, the cost of discovery, specifically e-discovery, is a valuable tool for encouraging settlement talks. However, when parties are consistently engaging in pre-trial motion practice over the issue that foreign blocking statutes cause, this “tool” becomes less valuable. Without the requested information, a party may have no idea how strong their legal position is and thus cannot engage in reasonable settlement talks. Thus, the impediments foreign blocking statutes have on litigants is a clearly an issue that corporations must consider.
Fortunately, the Supreme Court, through its pre-ESI decision in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for Southern Dist. of Iowa, has provided some hope for litigants faced with this conflict. 482 U.S. 522, 544 (1987). The Court, despite its holding that parties’ faced with blocking statues are required to produce requested documents, also instructed lower courts to consider the following factors in determining whether documents located in foreign countries are discoverable in the U.S: (1) The importance to the investigation or litigation of the documents or information requested; (2) The degree of specificity of the request; (3) Whether the information originated in the United States; (4) the availability of alternative means of securing the information; (5) and the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located. This decision, coupled with subsequent lower court decisions applying these factors to ESI cases, has placed litigants with discoverable ESI in foreign countries in a better position than was originally thought.
Despite the aforementioned decisions, corporations must be conscientious about where they store their ESI. Possibly because this legal issue is relatively recent, courts remain hesitant to not compel discovery of ESI where foreign blocking statutes conflict with discovery obligations. Until this conflict becomes resolute, it would be wise for corporations (and all potential litigants with ESI, for that matter) to ensure their ESI is kept in countries without blocking statutes. By doing this, litigants avoid the catch-22 foreign blocking statutes present in U.S. court proceedings. After all, ESI is the future, if not the present, of the discovery process.
Casey Smartt is a 2L and a Staff Editor on the Denver Journal of International Law and Policy
This is the final blog of a series of three blog posts addressing technological solutions to combat human trafficking. This post analyzes the efforts private partnerships to encourage the application of technology to create anti-trafficking solutions. The first blog in this series discussed the scope of human trafficking worldwide, and domestic and international instruments designed to address it. The second blog in this series discussed the importance of the increased use of technology in the fight against human trafficking, and provided an overview of the scope of current research on technology.
“[W]e must take action, on the basis of solid information. Having dissected the human trafficking drama by the type of exploitation, the age and gender of the victims, the profiles of perpetrators, and the source/transit/destination of human cargos, we will soon be able to describe the problem, its time trends and space patterns. The goal is to facilitate implementation of the [U.N. Trafficking] Protocol’s ‘3 Ps’: prevention of the crime, prosecution of the traffickers, and protection of the victims. Everyone has a role to play.” – UNODC Executive Director Antonio Maria Costa[i]
Part III: Emerging Partnerships
The first blog in this series discussed the scope of the human trafficking epidemic worldwide—an estimated 27 million men, women, and children are victims of trafficking at any given time.[ii] While international and domestic laws prohibit all forms of enslavement, meaningful efforts to truly eradicate the plague of human trafficking are stymied by a critical problem: a lack of meaningful data on the size, scope, and nature of trafficking. As the second blog revealed, a variety of groups are beginning to compile research and consider the issue of how to incorporate technology into
human trafficking solutions.
A columbian sex worker. Sexual exploitation accounts for roughly 80 percent of human trafficking. (UNICEF)
Recently, technology companies have been stepping in to fill this void, providing both material and intellectual support for the cause. The United States government has taken notice, and is praising the involvement of private enterprise in the fight against human trafficking.
The U.S. State Department’s 2013 Trafficking in Persons Report includes a brief section discussing the important strides being made to connect anti-human trafficking initiatives with technology.[iii] After discussing innovations in prevention, protection, and prosecution already taking place through the use of mobile devices and computers, the report lists several examples of “technology giants” that have joined the fight against human trafficking. Two of these giants—Google and Palantir Technologies—are working to provide the anti-trafficking movement exactly what it needs most—comprehensive data.
The Polaris Project, named for the North Star “Polaris” that guided slaves to freedom before the United States abolished slavery, is a leading anti-slavery organization based in Washington, D.C. It focuses on advocating for stronger federal and state anti-trafficking laws, operating the National Human Trafficking Resource Center hotline, conducting trainings, and providing vital services to victims of trafficking. The Polaris Project strives to “create long-term solutions that move our society closer to a world without slavery.”
Liberty Asia is a relatively new non-governmental organization formed in 2011 to unite the hundreds of groups working independently on the issue of human trafficking in Asia. Liberty Asia aims to unite these groups by making online resources available to enable information sharing and coordination. Its mission includes: “coordinat[ing] activities, particularly across-borders; shar[ing] information, expertise, evidence, case studies and operations; provid[ing] a regional contact point for those threatened and victimised; creat[ing] and shar[ing] education programmes and awareness campaigns to broaden knowledge of slavery in Asia; and creat[ing] a powerful network across Asia to introduce and collaborate on strategies and future actions.”
What do these three non-governmental organizations have in common, besides their aim of abolition? Each organization independently operates its own human trafficking hotline, receiving hundreds of calls from victims and from individuals who want to report suspected trafficking. Connecting these helplines is one of the first steps toward identifying illicit patterns and providing victims with more effective support worldwide. Through this Google-funded initiative, the organizations will begin to compile and analyze data from each of their call centers, no longer taking in information in isolation. It is the first step in tracking global trafficking trends.
Notably, the video describes how, as more and more data are collected and shared, researchers will be able to locate “hot spots,” or risk areas, and track patterns of trafficking. Armed with this information, anti-trafficking advocates can begin to construct comprehensive global solutions that are responsive to the realities of trafficking, rather than mere guesswork.
As the second blog in this series noted, there is currently a lack of clarity surrounding what the characteristics of a useful international instrument to combat technology-facilitated trafficking should look like, and a debate regarding whether the current Protocol, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, provides adequate legal scaffolding to encompass the burgeoning use of technology to facilitate trafficking. The data that will become available as a result of the collaboration between Polaris Project, Liberty Asia, and La Strada International will shed more light on where and how technology is used to facilitate trafficking. At that point, both international and domestic lawmakers will be better equipped to assess the current laws and propose changes if they are necessary.
Using this expertise, Palantir partnered with Polaris to provide an analytical platform, engineering, training, and support resources to Polaris’ National Human Trafficking Resource Center. Palantir’s platform and assistance are enabling the study and application of the data derived from calls to the hotline.
Members of the Polaris Project visit DC (Polaris Project)
As mentioned above, the United States government encourages the development of such partnerships to make use of the tools private companies already have at their disposal. Not only is this phenomenon filling a void in a problem too large and nebulous for the criminal justice system to tackle alone, but it also attacks the problem from an angle that is inherently not available to government entities because of their intimidating status as law enforcement.
Bradley Myles, executive director of the Polaris Project, highlights the unique ability of private groups such as nonprofits and businesses to serve as a resource for trafficking victims. “We’re not the government and we’re not law enforcement, so people generally give us very direct information about what they’re experiencing,” Mr. Myles said in this interview with the Huffington Post. In the interview, he also mentions the need for these private groups to serve as a “fulcrum,” connecting law enforcement with perpetrators while at the same time connecting victims with the resources they need to recover.
Currently, the legal community is equipped with what appears to be a relatively robust set of international and domestic laws tailored to criminalizing human trafficking. The anti-trafficking movement’s present focus on incorporating business and technology into evidence-based solutions has the potential to provide the long-missing piece to the human trafficking puzzle—not necessarily more laws, but better information leading to increased enforcement of the existing laws. As more complete information is compiled and analyzed with the help of technology and innovation, more lives can be saved from the suffering of human trafficking.
Whitney Denning is a 3L and a staff editor for the Denver Journal of International Law & Policy.
[i] Antonio Maria Costa, Exec. Dir. United Nations Office on Drugs and Crime, Human Trafficking: A Crime that Shames Us All (Feb. 13, 2008), available at http://www.unodc.org/unodc/en/about-unodc/speeches/2008-02-13.html (emphasis omitted).
[ii] U.S. Dep’t of State, Trafficking in Persons Report 7 (2013).
This is the second blog of a series of three blog posts addressing technological solutions to combat human trafficking. This post discusses the importance of the increased use of technology in the fight against human trafficking and provides an overview of the scope of current research on technology and trafficking. The first blog in this series discussed the scope of human trafficking worldwide, and domestic international instruments designed to address it. The final blog in this series will analyze the efforts private partnerships to apply technology to create anti-trafficking solutions.
“Our understanding of technology’s role in human trafficking, while improving, is still in its infancy. Technology, while clearly facilitating trafficking, also can be used as an effective tool to combat it. Evidence-based research that examines the two sides of this issue is imperative for leveraging technology and policy approaches to benefit the vulnerable populations being exploited through trafficking.” – Mark Latonero, The Rise of Mobile and the Diffusion of Technology-Facilitated Trafficking[i]
Part II: Technology’s Conflicting Roles in Human Trafficking
Human trafficking has increased in intensity in the past few decades, likely facilitated by globalization and the availability of modern communication techniques. Just as modern technology enabled legal businesses to span oceans and cross borders, it also assisted criminal endeavors such as trafficking in persons. In a speech at the 2008 Vienna Forum to Fight Human Trafficking, United Nations Office on Drugs and Crime (UNODC) Executive Director Antonio Maria Costasaid:
Executive Director Antonio Cost at the Vienna Forum to Fight Human Trafficking (antoniomariacosta.com)
In the past quarter century, the opening up of world markets has facilitated the movement of people, goods, capital and services–commerce has benefited, and so has illicit activity, including the trade of human beings. The ease of travel, the speed of the internet, and global competition have rendered the exploitation of humans by humans easier, broader and more efficient.[ii]
Mr. Costa references “the speed of the internet,” which global citizens appreciate and utilize on a daily basis to connect in seconds with like-minded people, regardless of geographic location. His statement is a reminder that this instant connectivity has bred exploitation and abuse even as it has produced camaraderie and business success.
Speedy and discrete, the worldwide web has played perhaps the most significant role in hiding exploitation from the average person, while simultaneously making it ubiquitous everywhere. This is precisely why activists are beginning to focus on understanding the power the internet and other evolving technologies have to eradicate the very problems they have allowed to prosper.
As the role of technology in facilitating human trafficking continues to expand, anti-trafficking advocates across all sectors—government, nonprofits, private enterprise—are attempting to keep up with traffickers by learning how to analyze data and track electronic activity in a way that makes it easier to locate and punish traffickers, and to rescue their victims. The first step toward finding a comprehensive solution to human trafficking, as Mr. Costa stated, is figuring out a way to quantify the problem at hand with statistical data:
In order to fight this monster [of human trafficking], we must know more about it. Lack of information, statistical and otherwise, have left us looking at footprints of a creature whose shape, size and ferocity we can only guess. It lurks in the shadows. The profiles of its cronies and their networks are sketchy. Its victims are too afraid to run away and speak up, their number unknown.[iii]
Mr. Costa’s pleas from 2008 have not gone unheeded, but neither have leaps and bounds been made in this area. A July 2013 report from the Congressional Research Service reiterates the necessity for data on the global scope and severity of human trafficking in order to begin forming effective solutions. According to the report, the State Department’s Trafficking in Persons Report is “among the most cost-intensive in terms of personnel resources both at U.S. diplomatic posts abroad and at headquarters in Washington, DC.”[iv] A single embassy reported that approximately 200 hours of work were required to resolve questions and differences in information for a TIP Report.[v]
Increasing the utilization of technology, especially data mining services, may eventually be able to alleviate the cost-intensive nature of data collection by making the necessary information easier to spot. Meaningful data, the report states, are essential both to measuring and reporting the scope of the problem in reports such as the TIP Report, and for assessing how anti-trafficking aid programs have improved the situation.[vi]
A group of academics has been called upon to lead the way in understanding and utilizing technology to develop trafficking solutions. Researchers at the University of Southern California’s (USC) Annenberg’s Center on Communication Leadership & Policy have completed some of the most comprehensive, relevant reporting on the intersection of technology and human trafficking. This video provides an overview of their project’s inception and some of the most relevant findings to date:
The USC Center compiled a report in November 2012, discussing how human traffickers are “taking advantage of technology to reach larger audiences and to do illicit business more quickly and efficiently across greater distances.”[vii] Asserting that technology must respond to this phenomenon by becoming a “central tool within a comprehensive strategy”[viii] against trafficking, the report mentions the following research efforts already underway:[ix]
Fears and anxieties emerge out of concern that things will get worse as a result of technology. Yet, new opportunities also present themselves. Before we wholeheartedly dismiss—or embrace—technology, it’s important to understand how the challenges and opportunities are entangled.[xiii]
Researchers at the University of New Hampshire’s Crimes Against Children Research Center have mined data to find victim information such as age ranges, gender disparities, treatment by police, and independent or group structures. They have also used data to identify perpetrator characteristics for different groups, and the effects of reporting suspected human trafficking, among other issues.[xiv]
Finally, the report discusses a 2010 article by Erin I. Kunze, who conducted an assessment of laws, international agreements, and other policies relating to Internet-facilitated sex trafficking. Kunze suggests that international laws are not sufficiently keeping pace with advancing technology. The article argues that, “[I]t is vital that the international community adopt both domestic legislation and international treaty provisions to target sexual predators and human traffickers who use technology and the Internet to enslave minors and adults alike.”[xv]
Kunze’s article highlights a debate within the international legal community over whether the language of current instruments sufficiently encompasses and criminalizes the technological facilitation of trafficking. For example, while the members of the Council of Europe argue that the term “recruitment” as it is used to define trafficking in the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons (“2000 Protocol”) is sufficiently broad enough to include recruitment via online technology, Kunze retorts that even a broad interpretation of the word does not go far enough to cover specific acts of exploitation occurring online.[xvi]
UN carries out a special operation targeting human trafficking in Indonesia (UN Photo)
At this stage, Kunze’s pronouncements appear premature. As the United Nations suggested in a 2005 statement, attempts to create and refine technology-specific laws will remain premature as long as governments have not perfected their ability to enforce laws already in existence. This is especially true given the fact that, as the first blog in this series noted, international instruments criminalizing trafficking have existed since at least 1926. That first convention, the Convention to Suppress the Slave Trade and Slavery, prohibits all acts of slavery and every act of trade or transport of people, seemingly encompassing the acts that take place in virtual spaces today. The 1979 Convention on the Elimination of all Forms of Discrimination Against Women likewise encompasses all forms of traffic in women. Finally, the 2000 Protocol uses words of direction including “prevent,” “combat,” “protect,” “assist,” and “promote cooperation,” all of which can be done in virtual spaces as well as physical ones.
Slavery does not persist because of a dearth of legal instruments with the capacity to combat it – it persists because it is difficult to track and understand. The international community should refrain from drafting premature legal instruments until it has gained a more thorough, comprehensive understanding of how human traffickers operate. Technology-specific language at the international level may eventually prove necessary to adequately address the increased use of the internet in perpetrating trafficking. However, it is more likely that as more information becomes available through the increased use of data mining and analysis, the existing language will prove adequate.
Arguably, this debate will not be resolved conclusively until more signatories to the Protocol actually begin to carry out its mandate by locating and prosecuting more cases of human trafficking within their borders. To do this, advocates must focus on compiling enough information on the problem to take decisive action against perpetrators. Only when trafficking cases reach the courtroom will we be able to test the functionality of the 2000 Protocol, and the domestic legal instruments based on the 2000 Protocol, as they are written.
Existing instruments may be sufficient to encompass violations that take place across digital spaces. What advocates lack is sufficient information to make this possible. As the third blog in this series discusses, several private partnerships are conspiring to change that.
Whitney Denning is a 3L and a staff editor for the Denver Journal of International Law & Policy.
[i] Mark Latonero et al., The Rise of Mobile and the Diffusion of Technology-Facilitated Trafficking 8 (2012), available at https://technologyandtrafficking.usc.edu/files/2011/08/HumanTrafficking2012.pdf.
[ii] Antonio Maria Costa, Exec. Dir. United Nations Office on Drugs and Crime, Human Trafficking: A Crime that Shames Us All (Feb. 13, 2008), available at http://www.unodc.org/unodc/en/about-unodc/speeches/2008-02-13.html.