Sage 50 Construction Accounting 2014 Research Paper

Sage 50 Construction Accounting 2014 - Research Paper Example The software also allows a company to come up with custom reports, draft budgets for various departments and branches, and integrate different organizations for financial reports among other functions (Franks pg95). Sage 2014 software contains various customization tools to enable a construction company smoothly run its activities. Some of the tools used are progress billing, robust job costing and industry specific reports. These tools are designed and premeditated in such a way that intensifies accuracy, save time and assist in understanding business profitability. Other tools and services provided by Sage are pro accounting that provides efficiency to your company, facilitate quick expansion, customize inventory, manage client contracts, trail jobs and facilitate shipping and vendor management. Premium accounting tool enables a constructing company manage its budgets, strategic planning and filter financial records. Last but not least is a quantum accounting tool which manages large amounts of data, and a wide range of customer access requirements. As the business world expands, it is now vital to integrate technology in business by use of electronic commerce packages. Sage 2014 construction accounting software integrates technology in business, by allowing online payment, by use of credit and debit cards. Online payment has opened up global buying and selling of the software thus increasing sales in the construction industry (Morris and Richard pg210). Use of electronic commerce saves on time and costs incurred in preparing documents. This software also enables twenty four seven services to customers and suppliers. The software also facilitates communication between the suppliers, clients and the construction industry. Complaints brought forward are dealt with within a short time. This leads to improved services as

Development of Electronic Data Flows

Development of Electronic Data Flows 1. Introduction The current development on the flow of electronic data, especially those relating to personal data across nations is increasing daily. Most of the flows are related to business activities whereas services are provided to fulfill the needs of people. It also leads to the transformation of commerce, which becomes worldwide and increasingly international. The transfer of huge quantities of data, relating to customers and employees, are required and often occurred among entities that located in different countries. An example would be the system of outsourcing, a practice in which companies and governments hire an external service provider in another country to deliver a program or provide a service, such as managing database of human resources or customers. This can often result in improved efficiencies and levels of services. Further, the advancement of global networks, such as the internet, provides the possibilities to collect, process, and distribute personal data on an unprecedente d scale. However, the trans-border flow of personal data is not only performed by companies or governments but also conducted by individuals in everyday life as well. When the data is used by companies or government, this can represent a high volume of data, such as in the form of the transfer of databases. There will be a quite different volume of data when it is provided by individuals when they disclose their personal data while participating in particular activities, such as browsing the internet or registering on various websites to obtain certain services. Additionally, there is a strong possibility for individuals, who are engaging in data transfer activities to lack of full awareness concerning what could be done to their personal data. In some instances, they do not realize that they have disclosed their personal data and it is subject to transmission and processing within countries not offering the same level of protection as their own country. For example, a student physically located in the Netherlands may complete an online game registration form, containing several spaces soliciting his/her identities, not knowing that the actual service provider is registered in India. Another example, a social worker residing within the United Kingdom might disclose his/her personal data on a web application for an internet banking service provided by a bank based in the United States. From the short description above, the trans-border flow of personal data exists in everyday life on a daily basis and it becomes a vital need of every stakeholder, whether governments or private sectors, including individuals. Nevertheless, while the flow has led to greater efficiencies and economic benefits, on the other hand this kind of flow has also raised concerns that some information could end up in the hands of people for whom it was not intended. Worse even is the situation when no one has realized the flow has taken place, spawning a great opportunity for infringement upon ones privacy rights. Some rules concerning privacy and data protection have been set up at national, regional, and international levels to guarantee privacy as one of the human rights is not harmed by any activity, including data processing as the final purpose of trans-border flow. Consequently, the trans-border flow of personal data has to be conducted in a lawful manner. In this respect, a legal framework on trans-border flow of personal data has been enacted in Europe by the European Commission (EC) under two directives. The first one is Directive 95/46/EC concerning the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data. This Directive has been further equipped by the second directive, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications). In relation to the research objective of this thesis, Directive 95/46/EC is the most relevant and therefore, Directive 2002/58/EC will be referred to when necessary. It should be noted that whenever a term the Directive is being used in this thesis, the term shall refer to Directive 95/46/EC. Under the Directive, a main rule concerning the trans-border flow of personal data has been set up. These include the obligation of data controller to use personal data for specified, explicit, and legitimate purposes, to collect only relevant and necessary data, to guarantee the security of the data against accidental or unauthorized access or manipulation, and in specific cases to notify the competent independent supervisory body before carrying out all or certain types of data processing operations. On the other hand, there is a series of rights for individuals as data subject, such as the right to receive certain information whenever data is collected, to access and correct the data, and to object to certain types of data processing. Nevertheless, all of the practice of these rights and obligations present a significant problem when the trans-border flow of personal data takes place from the European Union/European Economic Area (the EU/EEA) Member States to countries outside the EU/EEA, for the reason that the Directive requires an adequate level of protection in the destination countries. The transfer of personal data to a third country is prohibited when the third country does not have an adequate level of protection to ensure that the processing of personal data will not cause any violation to the rights of data subjects. The binding power of the Directive to the EU/EEA Member States requires each of the Member States to embed the provisions in the Directive into their national legal system. Thus, there is a free zone where trans-border flow of personal data can take place freely among the Member States because they provide the adequate level of protection. Any approval, adequate safeguard, or additional requirement is not necessary to any further extent. As far as public international law is concerned, by applying the extra-territoriality principle, the requirement of the adequacy is automatically fulfilled at the official representatives of the EU/EEA Member States in the third country, such as the Embassy or Consulate General because of the extended jurisdiction of the Member States. However, this principle is not extended to private sectors, since subsidiary offices of multinational companies, still have to abide to the national law in the third country although the base of operations of the company is located in the EU/EEA Member States. In this case, the adequate level of protection is still required even though the transfer is conducted internally among the subsidiaries of the company located in third countries. Currently, the EC has conducted some adequacy findings and has compiled a white list of countries providing an adequate level of protection. This approval means the trans-border flow of personal data can take place as in the free zone between the EU/EEA Member States. However, to date, the white list covers a limited list of countries, seven to be exact. This list might not prove too sufficient from the point of view of multinational companies in accommodating their interest, as it does not include many countries of growing commercial interest. From this point of view, there is a need to harmonize various privacy and data protection regulations in many countries through the establishment of an internationally congruent legal framework for privacy and data protection. Unfortunately, it will take some effort and time for the establishment, while a fast solution is needed. By considering the Directive thus far the strictest legal framework compared with other existing legal framework on privacy and data protection, obviously, there is a need for countries outside the EU/EEA Member States to improve their legal framework to become compliance with adequate level of protection requirement under the Directive. Since Indonesia is neither a Member State of the EU/EEA nor included in the white list of adequacy finding, the requirement of adequate level of protection is applied to Indonesia as a third country. The trans-border flow of personal data only can take place after the data controller is certain that the protection level of personal data in Indonesia is adequate under the Directive. Apparently, Indonesia is needed to criticize, whether or not its legal framework providing an adequate level of protection. Moreover, Indonesia as a Member State of the Asia-Pacific Economic Cooperation (APEC) has received a pressure to provide a sufficient level of protection on trans-border flow of personal data, in relation to the existence of the APEC Privacy Framework. This pressure has become heavier because of Indonesia position as the Association of South East Asian Nations/ASEAN Member States. Therefore, the main objective of this thesis is to examinehow Indonesia can improve its legal framework to comply with the adequate level of protection in view of Directive 95/46/EC. Conducting this examination is important in determining ways Indonesia might be developed into an attractive destination country for international commerce activities. In order to answer the objective of this thesis, three research questions have to be answered: firstly,currently, why Directive 95/46/EC is being acknowledged as the strictest legal instrument concerning privacy and data protection on conducting trans-border flow of personal data compared with other existing legal instruments. Secondly, how the European Commission determines the adequate level of protection in the third country in question under Directive 95/46/EC. Then, thirdly, to what extent legal framework of data protection in Indonesia measures up to the adequate level of protection in Indonesia under Directive 95/46/EC. In line with the effort to answer the first research question, this thesis will try to identify any possibility for improvement towards the current adequacy finding system. Hence, a balance accommodation might be obtained and maintained between the one who requires the adequate level of protection and the one who has to fulfill it. This thesis will be structured as follows. The first chapter is the introduction in which the objective of this thesis is explained. In the second chapter, there will be a brief comparison between the Directive with other legal instruments concerning privacy and data protection. Afterwards, some explanations on the requirement of the adequate level of protection in the light of the Directive will be provided, including the measurement to be used in conducting the adequacy finding and will explore any possible solution if there is no adequate level of protection in the third country in question. Further, this chapter will cover the current problems within the Directive as well as possible suggestions to overcome them. Thus, answering the first and second research question. In the third chapter, relevant issues surrounding Indonesian legal framework will be discussed, including a brief explanation on how Indonesia regulates privacy and data protection as well as a number of the difficulties experienced in doing so. The findings in the second and third chapters shall be employed to carry out the examination in the fourth chapter, which objective is to answer the third research question. The chapter serves to analyze the adequate level of protection of Indonesian legal framework by applying the measurements in the light of the Directive. The analysis will include various potential problems faced by Indonesia on its effort to improve protection of personal data along with several suggestions on how to overcome them. At the final stage, there will be a conclusion, to what extent Indonesia can be deemed as providing an adequate level of protection. As a result, a solution on how Indonesia might improve its legal framework under the Directive to both avoid a lack of protection and offer an adequate level of protection will be achieved. 2. The EU Legal Framework regarding trans-border flow of Personal Data The trans-border flow of personal data is stipulated by regulations concerning data protection. Since the early eighties, several regulations, drawn up by different organizations, have been published in this respect. The first initiative was performed by Organization for Economic Co-operation and Development (OECD) by establishing the Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data (the OECD Guidelines) in 1980. The intention of the Guidelines is to prevent any conflicts between national laws, which can hamper the free flow of personal data between the OECD Member States. This establishment brought an awareness of the importance protection of the trans-border flow of personal data. A similar purpose with the OECD Guidelines has brought the Member States of the Council of Europe (the CoE) to publish a convention on their interest in the following year. They agreed that it is needed to reconcile the fundamental values of the respect for privacy and the free flow of information between them. The agreement is stated in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108), with purpose to take into account the right of privacy and the increasing flow across frontiers of personal data in regards of automatic processing, as a way to extend the safeguards for everyones rights and fundamental freedoms. In 1990, by considering the UN has more Member States compared with the OECD and the CoE, Guidelines concerning Computerized Personal Data Files (the UN Guidelines) was established as a way to bring the principles on privacy and data protection being implemented wider among countries. The UN General Assembly through Resolution No. A/RES/45/95 on 14 December 1990, requests the Governments of every Member States to take into account this Guidelines in their legislation. Further, the governmental, intergovernmental, and non-governmental organizations are also requested to respect the Guidelines in carrying out the activities within their field of competence. Nonetheless, the OECD Guidelines, the CETS No. 108, and the UN Guidelines still have some weaknesses. There are some principles of data protection, which are required to be embedded in national laws of each of the Member States but there is no means for ensuring their effective application. For examples, there are no supervisory authority provision in the CETS No. 108 and a lack of procedural clauses in the OECD Guidelines. In another case, concerning the binding power of the instrument, the OECD Guidelines is voluntarily binding to its Member States as well as the UN Guidelines, even though the UN Guidelines has the supervision and sanction provisions. Therefore, Directive 95/46/EC on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data has been established by the European Union (the EU) to overcome the limited effect of the two Guidelines and the Convention as mentioned above. Good level of compliance, support and help to individual data subject, and appropriate redress to the injured parties are the means used by the Directive for ensuring the effective application of the content of the rules. Apart from the compliance issue, the obligations and rights set down in the Directive are built upon the OECD Guidelines, the CETS No. 108, and the UN Guidelines. These three legal instruments contain similar principles, except for lawfulness, fairness, and non-discrimination principles are from the UN Guidelines; and special categories of data and additional safeguards for the data subject principles are from the ECTS No. 108. While the rest of the adopted principles are collection limitation, data quality, purpose specification, use limitation, security safeguard, openness, individual participation, and accountability. Further, the aims of the Directive can be seen from two perspectives. The first one is the economical perspective, in relation to the establishment and functioning of an internal market, in which to ensure the free movement of goods, persons, services, and capital, including the free movement of personal data. The second is from the fundamental rights perspective, in which to set the rules for high-level data protection to ensure the protection of the fundamental rights of the individuals. The newest legal instrument concerning privacy and data protection is the APEC Privacy Framework 2004 (the Framework), established by Asia-Pacific Economic Cooperation (APEC). The purpose of the Framework is to ensure there are no barriers for information flows among the APEC Member Economies by promoting a consistent approach to data protection. There are nine principles in the Framework that are built based on the OECD Guidelines. In brief, the adopted principles are preventing harm, notice, collection limitation, uses of personal information, choice, integrity of personal information, security safeguard, access and correction, and accountability. However, this Framework has the same weakness as the previous legal instruments on privacy and data protection before the Directive, which is the absent of means for ensuring the effective application of the principles. Additionally, it should be noted that APEC is a forum that established based on a voluntary basis, without any constitut ion or legally binding obligations for the Member Economies. Hence, the Framework is not binding to the Member Economies. From the brief analysis above, currently, the Directive posses the highest level of protection compared with other existing legal instruments on privacy and data protection. In this respect, to achieve the objective of this thesis as stated in the first chapter, the research questions will be answered by focusing on the Directive. Therefore, in the next section, there will be an explanation on the legal bases of trans-border flow of personal data to third countries under the Directive, followed by a rationalization on how the European Commission (EC) determines whether or not an adequate level of protection exists in the third country in question. Subsequently, the means for ensuring the effective application of the content of rules will be elaborated upon a description on a series of possibilities if the third country in question is not deemed to provide an adequate level of protection. Although currently, the Directive provides high-level of protection, some problems and suggestions will be provided, as an effort to address input for improvement. The findings in this chapter will be used to carry out the adequacy finding of Indonesia as a third country (in the fourth chapter) by doing a comparison with the findings on Indonesian legal framework in chapter three. 2. The Legal Bases of Trans-border Flows of Personal Data to Third Countries The trans-border flow of personal data to a third country to be acknowledged as lawful, it has to be conducted in accordance with the national data protection law of the EU/EEA Member States. It is applicable to the data controllers established in the EU, both at the time when data is being collected and processed. In general, the law consists of a combination between the obligations of data controllers and the rights of data subject. Before the establishment of the Directive, these rights and obligations were regulated under some national data protection laws with different level of protection. In the light of the functioning of internal market in the EU/EEA, all these obligations and rights, including certain procedures to be applied in case of trans-border flow of personal data to a third country, are regulated in the Directive. Whereas the Directive is legally binding to the EU/EEA Member States, an adequate level of protection is fulfilled and consequently trans-border flow of personal data is able to take place among them. Further, when the personal data is used for electronic communication purposes, then the rights and obligations as lay down in Directive 2002/58/EC shall take place. There are three possible types of transfer under the Directive. The first and second types are a communication of personal data by a data controller based in the EU/EEA Member States to another data controller or to a processor based in a third country. Another possibility type is a communication of personal data by a data subject based in the EU/EEA Member States to a data controller based in a third country. Nevertheless, it should noted that the Directive does not cover transfers of personal data in the course of judicial and police cooperation activities falling within Titles V and VI of the Treaty on European Union. The main regulation in the Directive concerning trans-border flow of personal data to a third country is Article 25. The first paragraph of the Article sets out the principle that the EU/EEA Member States shall allow the transfer of personal data only if the third country in question ensures an adequate level of protection. From this provision, it is necessary to explain further on the subject of the transfer of personal data and an adequate level of protection. First, what the Directive means by the transfer of personal data. Undoubtedly, it is often associated with the act of sending or transmitting personal data from one country to another, for instance by sending paper or electronic documents containing personal data by post or e-mail. By seeing from a different perspective, the situation where one conducts a certain activity with the purpose to make data available for others, besides the owner of the data (the data subject), and located in another country, is included as a trans-border flow of personal data. However, by making data accessible for everyone who connects to internet by uploading any personal data on internet web pages, even though that person is located in another country, is not included in the meaning of transfer of personal data to another country. The reason for the previous statement is this kind of activity is properly acknowledged as publishing activity, not transferring activity. This exception is stated clearly by the Court of Justice in the Bodil Lindqvist Case as there is no transfer of personal data to a third country where an individual in a Member State loads personal data onto an internet page making those data accessible to anyone who connects to the internet, including people in a third country. Subsequently, since the Directive is binding to 27 EU Member States, including three countries (Norway, Liechtenstein, and Iceland), which are bound by the Directive by virtue of the European Economic Area agreement (EEA), personal data can flow freely among them. In other words, there is a free zone among the EU/EEA member states. Therefore, transfer in the light of the Directive has to be seen as transfer of personal data from EU/EEA member states to other countries outside EU/EEA, which are recognized as third countries, and the adequate level of protection in those third countries has to be assessed. There is a so-called white list of countries, which have been assessed by the EC and affirmed to provide an adequate level of protection according to the Directive. Currently, the list consists of seven countries as follows: Argentina, Canada (limited to private sector data), Switzerland, United States (Safe Harbor and specific type of transfer: Passenger Name Record/PNR), the Bailiwick of Guernsey, the Isle of Man, and the Bailiwick of Jersey. The approval of adequacy shall be analyzed more carefully because once a country is listed in the white list, does not automatically mean that personal data can flow to the country freely. One should pay attention whether the affirmation is given for the entire legal framework or only for certain part of it in a specific field, sector (public or private), or regarding a specific type of transfer. Insofar, even though the result of adequacy finding shows that the data protection level in certain countries is not adequate, the EC will not create a black list for that negative finding because of political consequences. Instead of the black list, the EC tends to enter into negotiation with the certain country in order to find a solution. It can be concluded from the foregoing, that the adequacy finding is temporary and subject to be reviewed. Procedure of the Adequacy Finding In acknowledging the adequacy finding, the EC has to follow certain procedure, which has been determined in Article 25 Paragraph (6) of the Directive and is known as comitology. At first, there will be a proposal from the EC, followed by an opinion from Article 29 Working Party and an opinion from Article 31 Management Committee, which needs to be delivered by a qualified majority of member states. Afterwards, the EC submits the proposed finding to the European Parliament (EP), who will examine whether the EC has used its executing powers correctly and comes up with recommendation if necessary. As a final point, the EC then can formally issue the result of the adequacy finding. In the next section, the measurements used by the EC in conducting the finding will be explained in detail. 3. Assessing the Adequate Level of Protection The Article 29 Working Party has given an obvious statement thatany meaningful analysis of adequate protection must comprise the two basic elements: the content of the rules applicable and the means for ensuring their effective application.According to WP 12 of the European Commission (EC), a set of content principles that should be embodied in the existing regulations are the following: Purpose limitation principle: data should be processed for a specific purpose and subsequently used or further communicated only if it is compatible with the purpose of the transfer. Data quality and proportionality principle: data should be accurate and, where necessary, kept up to date. Transparency principle: individuals should be provided with information as to the purpose of the processing, the identity of the data controller in the third country and other necessary information to ensure fairness. Security principle: technical and organizational measures should be taken by the data controller that are appropriate to the risks presented by the processing. Rights of access, rectification and opposition: the data subject have the right to obtain a copy of all data relating to him/her that are processed, to rectification of those data that are shown to be inaccurate, and be able to object to the processing of the data. Restrictions on onwards transfers to non-parties to the contract: further transfers of the personal data by the recipient of the original data transfer only permitted if the second recipient provides an adequate level of protection. In addition to these content principles, another set of the means for ensuring the effective application of the principles, whether judicial or non-judicial, are required in order to fulfill the following objectives: Good level of compliance with the rules: the level of awareness of controllers and data subjects and the existence of effective and dissuasive sanctions are the measurements to examine the compliance level, including direct verification by authorities, auditors, or independent data protection officials. Support and help to individual data subjects: an individual should be able to enforce his/her rights rapidly and effectively without prohibitive cost. Institutional mechanism is needed to conduct independent investigation of complaints. Appropriate redress to the injured parties: where rules are not complied, redress to the injured party with independent adjudication or arbitration is provided, including compensation and sanction impose. Beyond the content principles, some additional principles are still needed to consider when it comes to certain types of processing. Additional safeguards when sensitive categories of data are involved and a right to opt-out when data are processed for direct marketing purposes should be in place. Another principle is the right for the data subject not to be a subject to an automated individual decision that intended to evaluate certain aspects, which can give any legal effects and have a significant effect to the data subject. These content principles, including additional principles, and the means for ensuring their effectiveness should be viewed as a minimum requirement in assessing the adequate level of protection in all cases. However, according to Article 25 Paragraph 2 of the Directive, in some cases, there will be two possibilities. There is a need to add the list with more requirements or to reduce it. To determine whether some requirements need to be added or reduced, the degree of risk that the transfer poses to the data subject becomes an important factor. The Article 29 Working Party has provided a list of categories of transfer, which poses particular risks to privacy, as mentioned below: Transfers involving certain sensitive categories of data as defined by Article 8 of the Directive Transfers which carry the risk of financial loss (e.g., credit card payments over the internet) Transfers carrying a risk to personal safety Transfers made for the purpose of making a decision which significantly affects the individual (e.g., recruitment or promotion decisions, the granting of credit, etc) Transfers which carry a risk of serious embarrassment or tarnishing of an individuals reputation Transfers which may result in specific actions which constitute a significant intrusion into an individuals private life (e.g., unsolicited telephone calls) Repetitive transfers involving massive volumes of data (e.g., transactional data processed over telecommunications networks, the Internet, etc.) Transfers involving the collection of data in a particularly covert or clandestine manner (e.g., internet cookies) To sum up, the circumstances should be taken into account when assessing adequacy in a specific case, being: the nature of the data the purpose and duration of the proposed processing operations the country of origin and the country of final destination the rules of law, both general and sectoral, in force in the country in question the professional rules and the security measures which are complied with in that country. Self -regulation From the circumstances as referred to Article 25 Paragraph 2 of the Directive, it can be seen that the assessments of the adequate level of protection is conducted according to the rules of law as well as the professional rules and the security measures. In other words, it has to be examined from a self-regulation perspective as well. The Article 29 Working Party presents a broad meaning of self-regulation asany set of data protection rules applying to a plurality of the data controllers from the same profession or industry sector, the content of which has been determined primarily by members of the industry or profession concerned.This wide definition offers the possibility to on the one hand a voluntary data protection code developed by a small industry association with only a few members and on the other hand a set of codes of professional ethics with quasi judicial force for a certain profession, such as doctors or bankers. Still, one should bear in mind, to be considered as an appropriate legal instrument to be analyzed, it has to have binding power to its members and has to provide adequate safeguards if the personal data are transferred again to non-member entities. Ob Development of Electronic Data Flows Development of Electronic Data Flows 1. Introduction The current development on the flow of electronic data, especially those relating to personal data across nations is increasing daily. Most of the flows are related to business activities whereas services are provided to fulfill the needs of people. It also leads to the transformation of commerce, which becomes worldwide and increasingly international. The transfer of huge quantities of data, relating to customers and employees, are required and often occurred among entities that located in different countries. An example would be the system of outsourcing, a practice in which companies and governments hire an external service provider in another country to deliver a program or provide a service, such as managing database of human resources or customers. This can often result in improved efficiencies and levels of services. Further, the advancement of global networks, such as the internet, provides the possibilities to collect, process, and distribute personal data on an unprecedente d scale. However, the trans-border flow of personal data is not only performed by companies or governments but also conducted by individuals in everyday life as well. When the data is used by companies or government, this can represent a high volume of data, such as in the form of the transfer of databases. There will be a quite different volume of data when it is provided by individuals when they disclose their personal data while participating in particular activities, such as browsing the internet or registering on various websites to obtain certain services. Additionally, there is a strong possibility for individuals, who are engaging in data transfer activities to lack of full awareness concerning what could be done to their personal data. In some instances, they do not realize that they have disclosed their personal data and it is subject to transmission and processing within countries not offering the same level of protection as their own country. For example, a student physically located in the Netherlands may complete an online game registration form, containing several spaces soliciting his/her identities, not knowing that the actual service provider is registered in India. Another example, a social worker residing within the United Kingdom might disclose his/her personal data on a web application for an internet banking service provided by a bank based in the United States. From the short description above, the trans-border flow of personal data exists in everyday life on a daily basis and it becomes a vital need of every stakeholder, whether governments or private sectors, including individuals. Nevertheless, while the flow has led to greater efficiencies and economic benefits, on the other hand this kind of flow has also raised concerns that some information could end up in the hands of people for whom it was not intended. Worse even is the situation when no one has realized the flow has taken place, spawning a great opportunity for infringement upon ones privacy rights. Some rules concerning privacy and data protection have been set up at national, regional, and international levels to guarantee privacy as one of the human rights is not harmed by any activity, including data processing as the final purpose of trans-border flow. Consequently, the trans-border flow of personal data has to be conducted in a lawful manner. In this respect, a legal framework on trans-border flow of personal data has been enacted in Europe by the European Commission (EC) under two directives. The first one is Directive 95/46/EC concerning the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data. This Directive has been further equipped by the second directive, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications). In relation to the research objective of this thesis, Directive 95/46/EC is the most relevant and therefore, Directive 2002/58/EC will be referred to when necessary. It should be noted that whenever a term the Directive is being used in this thesis, the term shall refer to Directive 95/46/EC. Under the Directive, a main rule concerning the trans-border flow of personal data has been set up. These include the obligation of data controller to use personal data for specified, explicit, and legitimate purposes, to collect only relevant and necessary data, to guarantee the security of the data against accidental or unauthorized access or manipulation, and in specific cases to notify the competent independent supervisory body before carrying out all or certain types of data processing operations. On the other hand, there is a series of rights for individuals as data subject, such as the right to receive certain information whenever data is collected, to access and correct the data, and to object to certain types of data processing. Nevertheless, all of the practice of these rights and obligations present a significant problem when the trans-border flow of personal data takes place from the European Union/European Economic Area (the EU/EEA) Member States to countries outside the EU/EEA, for the reason that the Directive requires an adequate level of protection in the destination countries. The transfer of personal data to a third country is prohibited when the third country does not have an adequate level of protection to ensure that the processing of personal data will not cause any violation to the rights of data subjects. The binding power of the Directive to the EU/EEA Member States requires each of the Member States to embed the provisions in the Directive into their national legal system. Thus, there is a free zone where trans-border flow of personal data can take place freely among the Member States because they provide the adequate level of protection. Any approval, adequate safeguard, or additional requirement is not necessary to any further extent. As far as public international law is concerned, by applying the extra-territoriality principle, the requirement of the adequacy is automatically fulfilled at the official representatives of the EU/EEA Member States in the third country, such as the Embassy or Consulate General because of the extended jurisdiction of the Member States. However, this principle is not extended to private sectors, since subsidiary offices of multinational companies, still have to abide to the national law in the third country although the base of operations of the company is located in the EU/EEA Member States. In this case, the adequate level of protection is still required even though the transfer is conducted internally among the subsidiaries of the company located in third countries. Currently, the EC has conducted some adequacy findings and has compiled a white list of countries providing an adequate level of protection. This approval means the trans-border flow of personal data can take place as in the free zone between the EU/EEA Member States. However, to date, the white list covers a limited list of countries, seven to be exact. This list might not prove too sufficient from the point of view of multinational companies in accommodating their interest, as it does not include many countries of growing commercial interest. From this point of view, there is a need to harmonize various privacy and data protection regulations in many countries through the establishment of an internationally congruent legal framework for privacy and data protection. Unfortunately, it will take some effort and time for the establishment, while a fast solution is needed. By considering the Directive thus far the strictest legal framework compared with other existing legal framework on privacy and data protection, obviously, there is a need for countries outside the EU/EEA Member States to improve their legal framework to become compliance with adequate level of protection requirement under the Directive. Since Indonesia is neither a Member State of the EU/EEA nor included in the white list of adequacy finding, the requirement of adequate level of protection is applied to Indonesia as a third country. The trans-border flow of personal data only can take place after the data controller is certain that the protection level of personal data in Indonesia is adequate under the Directive. Apparently, Indonesia is needed to criticize, whether or not its legal framework providing an adequate level of protection. Moreover, Indonesia as a Member State of the Asia-Pacific Economic Cooperation (APEC) has received a pressure to provide a sufficient level of protection on trans-border flow of personal data, in relation to the existence of the APEC Privacy Framework. This pressure has become heavier because of Indonesia position as the Association of South East Asian Nations/ASEAN Member States. Therefore, the main objective of this thesis is to examinehow Indonesia can improve its legal framework to comply with the adequate level of protection in view of Directive 95/46/EC. Conducting this examination is important in determining ways Indonesia might be developed into an attractive destination country for international commerce activities. In order to answer the objective of this thesis, three research questions have to be answered: firstly,currently, why Directive 95/46/EC is being acknowledged as the strictest legal instrument concerning privacy and data protection on conducting trans-border flow of personal data compared with other existing legal instruments. Secondly, how the European Commission determines the adequate level of protection in the third country in question under Directive 95/46/EC. Then, thirdly, to what extent legal framework of data protection in Indonesia measures up to the adequate level of protection in Indonesia under Directive 95/46/EC. In line with the effort to answer the first research question, this thesis will try to identify any possibility for improvement towards the current adequacy finding system. Hence, a balance accommodation might be obtained and maintained between the one who requires the adequate level of protection and the one who has to fulfill it. This thesis will be structured as follows. The first chapter is the introduction in which the objective of this thesis is explained. In the second chapter, there will be a brief comparison between the Directive with other legal instruments concerning privacy and data protection. Afterwards, some explanations on the requirement of the adequate level of protection in the light of the Directive will be provided, including the measurement to be used in conducting the adequacy finding and will explore any possible solution if there is no adequate level of protection in the third country in question. Further, this chapter will cover the current problems within the Directive as well as possible suggestions to overcome them. Thus, answering the first and second research question. In the third chapter, relevant issues surrounding Indonesian legal framework will be discussed, including a brief explanation on how Indonesia regulates privacy and data protection as well as a number of the difficulties experienced in doing so. The findings in the second and third chapters shall be employed to carry out the examination in the fourth chapter, which objective is to answer the third research question. The chapter serves to analyze the adequate level of protection of Indonesian legal framework by applying the measurements in the light of the Directive. The analysis will include various potential problems faced by Indonesia on its effort to improve protection of personal data along with several suggestions on how to overcome them. At the final stage, there will be a conclusion, to what extent Indonesia can be deemed as providing an adequate level of protection. As a result, a solution on how Indonesia might improve its legal framework under the Directive to both avoid a lack of protection and offer an adequate level of protection will be achieved. 2. The EU Legal Framework regarding trans-border flow of Personal Data The trans-border flow of personal data is stipulated by regulations concerning data protection. Since the early eighties, several regulations, drawn up by different organizations, have been published in this respect. The first initiative was performed by Organization for Economic Co-operation and Development (OECD) by establishing the Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data (the OECD Guidelines) in 1980. The intention of the Guidelines is to prevent any conflicts between national laws, which can hamper the free flow of personal data between the OECD Member States. This establishment brought an awareness of the importance protection of the trans-border flow of personal data. A similar purpose with the OECD Guidelines has brought the Member States of the Council of Europe (the CoE) to publish a convention on their interest in the following year. They agreed that it is needed to reconcile the fundamental values of the respect for privacy and the free flow of information between them. The agreement is stated in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108), with purpose to take into account the right of privacy and the increasing flow across frontiers of personal data in regards of automatic processing, as a way to extend the safeguards for everyones rights and fundamental freedoms. In 1990, by considering the UN has more Member States compared with the OECD and the CoE, Guidelines concerning Computerized Personal Data Files (the UN Guidelines) was established as a way to bring the principles on privacy and data protection being implemented wider among countries. The UN General Assembly through Resolution No. A/RES/45/95 on 14 December 1990, requests the Governments of every Member States to take into account this Guidelines in their legislation. Further, the governmental, intergovernmental, and non-governmental organizations are also requested to respect the Guidelines in carrying out the activities within their field of competence. Nonetheless, the OECD Guidelines, the CETS No. 108, and the UN Guidelines still have some weaknesses. There are some principles of data protection, which are required to be embedded in national laws of each of the Member States but there is no means for ensuring their effective application. For examples, there are no supervisory authority provision in the CETS No. 108 and a lack of procedural clauses in the OECD Guidelines. In another case, concerning the binding power of the instrument, the OECD Guidelines is voluntarily binding to its Member States as well as the UN Guidelines, even though the UN Guidelines has the supervision and sanction provisions. Therefore, Directive 95/46/EC on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data has been established by the European Union (the EU) to overcome the limited effect of the two Guidelines and the Convention as mentioned above. Good level of compliance, support and help to individual data subject, and appropriate redress to the injured parties are the means used by the Directive for ensuring the effective application of the content of the rules. Apart from the compliance issue, the obligations and rights set down in the Directive are built upon the OECD Guidelines, the CETS No. 108, and the UN Guidelines. These three legal instruments contain similar principles, except for lawfulness, fairness, and non-discrimination principles are from the UN Guidelines; and special categories of data and additional safeguards for the data subject principles are from the ECTS No. 108. While the rest of the adopted principles are collection limitation, data quality, purpose specification, use limitation, security safeguard, openness, individual participation, and accountability. Further, the aims of the Directive can be seen from two perspectives. The first one is the economical perspective, in relation to the establishment and functioning of an internal market, in which to ensure the free movement of goods, persons, services, and capital, including the free movement of personal data. The second is from the fundamental rights perspective, in which to set the rules for high-level data protection to ensure the protection of the fundamental rights of the individuals. The newest legal instrument concerning privacy and data protection is the APEC Privacy Framework 2004 (the Framework), established by Asia-Pacific Economic Cooperation (APEC). The purpose of the Framework is to ensure there are no barriers for information flows among the APEC Member Economies by promoting a consistent approach to data protection. There are nine principles in the Framework that are built based on the OECD Guidelines. In brief, the adopted principles are preventing harm, notice, collection limitation, uses of personal information, choice, integrity of personal information, security safeguard, access and correction, and accountability. However, this Framework has the same weakness as the previous legal instruments on privacy and data protection before the Directive, which is the absent of means for ensuring the effective application of the principles. Additionally, it should be noted that APEC is a forum that established based on a voluntary basis, without any constitut ion or legally binding obligations for the Member Economies. Hence, the Framework is not binding to the Member Economies. From the brief analysis above, currently, the Directive posses the highest level of protection compared with other existing legal instruments on privacy and data protection. In this respect, to achieve the objective of this thesis as stated in the first chapter, the research questions will be answered by focusing on the Directive. Therefore, in the next section, there will be an explanation on the legal bases of trans-border flow of personal data to third countries under the Directive, followed by a rationalization on how the European Commission (EC) determines whether or not an adequate level of protection exists in the third country in question. Subsequently, the means for ensuring the effective application of the content of rules will be elaborated upon a description on a series of possibilities if the third country in question is not deemed to provide an adequate level of protection. Although currently, the Directive provides high-level of protection, some problems and suggestions will be provided, as an effort to address input for improvement. The findings in this chapter will be used to carry out the adequacy finding of Indonesia as a third country (in the fourth chapter) by doing a comparison with the findings on Indonesian legal framework in chapter three. 2. The Legal Bases of Trans-border Flows of Personal Data to Third Countries The trans-border flow of personal data to a third country to be acknowledged as lawful, it has to be conducted in accordance with the national data protection law of the EU/EEA Member States. It is applicable to the data controllers established in the EU, both at the time when data is being collected and processed. In general, the law consists of a combination between the obligations of data controllers and the rights of data subject. Before the establishment of the Directive, these rights and obligations were regulated under some national data protection laws with different level of protection. In the light of the functioning of internal market in the EU/EEA, all these obligations and rights, including certain procedures to be applied in case of trans-border flow of personal data to a third country, are regulated in the Directive. Whereas the Directive is legally binding to the EU/EEA Member States, an adequate level of protection is fulfilled and consequently trans-border flow of personal data is able to take place among them. Further, when the personal data is used for electronic communication purposes, then the rights and obligations as lay down in Directive 2002/58/EC shall take place. There are three possible types of transfer under the Directive. The first and second types are a communication of personal data by a data controller based in the EU/EEA Member States to another data controller or to a processor based in a third country. Another possibility type is a communication of personal data by a data subject based in the EU/EEA Member States to a data controller based in a third country. Nevertheless, it should noted that the Directive does not cover transfers of personal data in the course of judicial and police cooperation activities falling within Titles V and VI of the Treaty on European Union. The main regulation in the Directive concerning trans-border flow of personal data to a third country is Article 25. The first paragraph of the Article sets out the principle that the EU/EEA Member States shall allow the transfer of personal data only if the third country in question ensures an adequate level of protection. From this provision, it is necessary to explain further on the subject of the transfer of personal data and an adequate level of protection. First, what the Directive means by the transfer of personal data. Undoubtedly, it is often associated with the act of sending or transmitting personal data from one country to another, for instance by sending paper or electronic documents containing personal data by post or e-mail. By seeing from a different perspective, the situation where one conducts a certain activity with the purpose to make data available for others, besides the owner of the data (the data subject), and located in another country, is included as a trans-border flow of personal data. However, by making data accessible for everyone who connects to internet by uploading any personal data on internet web pages, even though that person is located in another country, is not included in the meaning of transfer of personal data to another country. The reason for the previous statement is this kind of activity is properly acknowledged as publishing activity, not transferring activity. This exception is stated clearly by the Court of Justice in the Bodil Lindqvist Case as there is no transfer of personal data to a third country where an individual in a Member State loads personal data onto an internet page making those data accessible to anyone who connects to the internet, including people in a third country. Subsequently, since the Directive is binding to 27 EU Member States, including three countries (Norway, Liechtenstein, and Iceland), which are bound by the Directive by virtue of the European Economic Area agreement (EEA), personal data can flow freely among them. In other words, there is a free zone among the EU/EEA member states. Therefore, transfer in the light of the Directive has to be seen as transfer of personal data from EU/EEA member states to other countries outside EU/EEA, which are recognized as third countries, and the adequate level of protection in those third countries has to be assessed. There is a so-called white list of countries, which have been assessed by the EC and affirmed to provide an adequate level of protection according to the Directive. Currently, the list consists of seven countries as follows: Argentina, Canada (limited to private sector data), Switzerland, United States (Safe Harbor and specific type of transfer: Passenger Name Record/PNR), the Bailiwick of Guernsey, the Isle of Man, and the Bailiwick of Jersey. The approval of adequacy shall be analyzed more carefully because once a country is listed in the white list, does not automatically mean that personal data can flow to the country freely. One should pay attention whether the affirmation is given for the entire legal framework or only for certain part of it in a specific field, sector (public or private), or regarding a specific type of transfer. Insofar, even though the result of adequacy finding shows that the data protection level in certain countries is not adequate, the EC will not create a black list for that negative finding because of political consequences. Instead of the black list, the EC tends to enter into negotiation with the certain country in order to find a solution. It can be concluded from the foregoing, that the adequacy finding is temporary and subject to be reviewed. Procedure of the Adequacy Finding In acknowledging the adequacy finding, the EC has to follow certain procedure, which has been determined in Article 25 Paragraph (6) of the Directive and is known as comitology. At first, there will be a proposal from the EC, followed by an opinion from Article 29 Working Party and an opinion from Article 31 Management Committee, which needs to be delivered by a qualified majority of member states. Afterwards, the EC submits the proposed finding to the European Parliament (EP), who will examine whether the EC has used its executing powers correctly and comes up with recommendation if necessary. As a final point, the EC then can formally issue the result of the adequacy finding. In the next section, the measurements used by the EC in conducting the finding will be explained in detail. 3. Assessing the Adequate Level of Protection The Article 29 Working Party has given an obvious statement thatany meaningful analysis of adequate protection must comprise the two basic elements: the content of the rules applicable and the means for ensuring their effective application.According to WP 12 of the European Commission (EC), a set of content principles that should be embodied in the existing regulations are the following: Purpose limitation principle: data should be processed for a specific purpose and subsequently used or further communicated only if it is compatible with the purpose of the transfer. Data quality and proportionality principle: data should be accurate and, where necessary, kept up to date. Transparency principle: individuals should be provided with information as to the purpose of the processing, the identity of the data controller in the third country and other necessary information to ensure fairness. Security principle: technical and organizational measures should be taken by the data controller that are appropriate to the risks presented by the processing. Rights of access, rectification and opposition: the data subject have the right to obtain a copy of all data relating to him/her that are processed, to rectification of those data that are shown to be inaccurate, and be able to object to the processing of the data. Restrictions on onwards transfers to non-parties to the contract: further transfers of the personal data by the recipient of the original data transfer only permitted if the second recipient provides an adequate level of protection. In addition to these content principles, another set of the means for ensuring the effective application of the principles, whether judicial or non-judicial, are required in order to fulfill the following objectives: Good level of compliance with the rules: the level of awareness of controllers and data subjects and the existence of effective and dissuasive sanctions are the measurements to examine the compliance level, including direct verification by authorities, auditors, or independent data protection officials. Support and help to individual data subjects: an individual should be able to enforce his/her rights rapidly and effectively without prohibitive cost. Institutional mechanism is needed to conduct independent investigation of complaints. Appropriate redress to the injured parties: where rules are not complied, redress to the injured party with independent adjudication or arbitration is provided, including compensation and sanction impose. Beyond the content principles, some additional principles are still needed to consider when it comes to certain types of processing. Additional safeguards when sensitive categories of data are involved and a right to opt-out when data are processed for direct marketing purposes should be in place. Another principle is the right for the data subject not to be a subject to an automated individual decision that intended to evaluate certain aspects, which can give any legal effects and have a significant effect to the data subject. These content principles, including additional principles, and the means for ensuring their effectiveness should be viewed as a minimum requirement in assessing the adequate level of protection in all cases. However, according to Article 25 Paragraph 2 of the Directive, in some cases, there will be two possibilities. There is a need to add the list with more requirements or to reduce it. To determine whether some requirements need to be added or reduced, the degree of risk that the transfer poses to the data subject becomes an important factor. The Article 29 Working Party has provided a list of categories of transfer, which poses particular risks to privacy, as mentioned below: Transfers involving certain sensitive categories of data as defined by Article 8 of the Directive Transfers which carry the risk of financial loss (e.g., credit card payments over the internet) Transfers carrying a risk to personal safety Transfers made for the purpose of making a decision which significantly affects the individual (e.g., recruitment or promotion decisions, the granting of credit, etc) Transfers which carry a risk of serious embarrassment or tarnishing of an individuals reputation Transfers which may result in specific actions which constitute a significant intrusion into an individuals private life (e.g., unsolicited telephone calls) Repetitive transfers involving massive volumes of data (e.g., transactional data processed over telecommunications networks, the Internet, etc.) Transfers involving the collection of data in a particularly covert or clandestine manner (e.g., internet cookies) To sum up, the circumstances should be taken into account when assessing adequacy in a specific case, being: the nature of the data the purpose and duration of the proposed processing operations the country of origin and the country of final destination the rules of law, both general and sectoral, in force in the country in question the professional rules and the security measures which are complied with in that country. Self -regulation From the circumstances as referred to Article 25 Paragraph 2 of the Directive, it can be seen that the assessments of the adequate level of protection is conducted according to the rules of law as well as the professional rules and the security measures. In other words, it has to be examined from a self-regulation perspective as well. The Article 29 Working Party presents a broad meaning of self-regulation asany set of data protection rules applying to a plurality of the data controllers from the same profession or industry sector, the content of which has been determined primarily by members of the industry or profession concerned.This wide definition offers the possibility to on the one hand a voluntary data protection code developed by a small industry association with only a few members and on the other hand a set of codes of professional ethics with quasi judicial force for a certain profession, such as doctors or bankers. Still, one should bear in mind, to be considered as an appropriate legal instrument to be analyzed, it has to have binding power to its members and has to provide adequate safeguards if the personal data are transferred again to non-member entities. Ob

Habermas’ Between Facts and Norms: Legitimizing Power? Essay -- Philso

Habermas’ Between Facts and Norms: Legitimizing Power? ABSTRACT: To overcome the gap between norms and facts, Habermas appeals to the medium of law which gives legitimacy to the political order and provides it with its binding force. Legitimate law-making itself is generated through a procedure of public opinion and will-formation that produces communicative power. Communicative power, in turn, influences the process of social institutionalization. I will argue that the revised notion of power as a positive influence that is produced in communicative space runs contrary to Habermas’ original concept of power in his theory of communicative action where power is understood as a coercive force that has to be avoided in order for the discursive situation to prevail. As such, I believe that the introduction of communicative power and its close tie to ‘legitimate law’ and political system greatly reduces our critical ability with respect to political systems as exercised in liberal-democratic states. In addition, I will arg ue that his revision alludes to a redrawing of the boundaries between the life-world and the system in favor of the latter, and consequently indicates a shift to the right in Habermas’ latest work. To overcome the gap between norms and facts, Habermas appeals to the medium of law, which gives legitimacy to the political order and provides the system with its binding force. Legitimate law-making itself is generated through a procedure of public opinion and will-formation that produces communicative power. In its turn, communicative power influences the process of social institutionalization. I will argue that the revised notion of power as a positive influence that is produced in communicative space, runs c... ...’ new elaboration on the deliberative model of its substantive force; once again confronting it with the Hegelian charge of emptiness and ineffectiveness. (6) Habermas’ claim that Kant subordinates law to morality—because the legitimacy of law is derived from the categorical imperative—can be contested. If one sees that for Kant the categorical imperative underlies both law and morality, one can object to the use of the term "subordinate" by Habermas as an inaccurate description of the relation between law and morality. (7) J.Habermas, "Three Normative Models of Democracy", in Constellation, Vol. I, No:1, 1994, p. 8 (8) J.Habermas, "The Entwinement of Myth and Enlightenment: Rereading Dialectic of Enlightenment", in New German Critique, No:26, 1982, p. 27 (9) Habermas dedicates chapter six of BFN to elaborate on the role of constitutional adjudication.

Being A Teenager Essay

Is hard, harder than some can imagine, harder than some can even remember. It’s those years you’ll never forget, though sometimes you wish you could wipe away. They seem to last forever, but when you look back, they went by so fast. Being a teenager is falling in love too fast, and too hard, talking for hours on the phone to your best friends, being talked about and talking about others. It’s being guilty when you’re innocent, it’s standing out and fitting in, it’s when you have a million questions that will N-E-V-E-R be answered. Being a teenager isn’t something you can really describe, unless you’re living it at the same time. It’s dealing with life when it crashes down on you, and trying your hardest to live through it. Everyone has their tough times, everyone goes through something, but being a teenager, that’s when you feel everything at once. When you’re in love you’re R-E-A-L-L-Y in love, when you hate someone you â€Å"despise† them, when you’re lonely, you’re miserable. Being a teenager is something you always have to go through, and it the best and worst years of your life. Being a teenager isn’t anything- it’s everything. It isn’t a big deal- it’s a HUGE deal. And while you’re being a teenager, you ought to live it up, because this is the one chance, the one time, you’ll fall in love for real, you’ll be really and truly happy. You’ll be young, and free, and careless, as teenagers usually are†¦When we honestly ask ourselves which person in our lives mean the most to us, we often find that it is those who, instead of giving advice, solutions, or cures, have chosen rather to share our pain and touch our wounds with a warm and tender hand. The friend who can be silent with us n a moment of despair or confusion, who can stay with us in an hour of grief , who can tolerate not knowing, not curing, not healing and face us with reality of powerlessness, that is a friend who cares.

Irac Case Brief State V. Mcneely

State v. McNeely 358 S. W. 3d 65 MO. (2012) Facts: The defendant was stopped by a Missouri state highway patrolman for speeding and during this stop the trooper noticed that the defendant was displaying all the tell-tale signs of being intoxicated; blood shot eyes, slurred speech, and the smell of alcohol on his breath. This stop then changed from being a speeding stop to a DWI investigation. The trooper had the defendant get out of his truck and perform standard field sobriety tests.The defendant did poorly on the test so the trooper arrested him for driving while intoxicated then, he asked him to take a breathalyzer which the defendant refused. The trooper then drove the defendant to the hospital to obtain a blood test to verify its alcohol content level. Once at the hospital the defendant refused the blood test but the trooper demanded it be done anyway, without securing a warrant, based on what he believed was a recent change in the law since time is critical to blood-alcohol con tent levels.The blood sample was analyzed and the defendant’s blood alcohol content was well over the legal limit. The trooper believed at the time that officers no longer needed to obtain warrants for nonconsensual blood test, due to a change in Missouri’s implied consent laws FN2. This belief was based on an article written by a traffic safety resource prosecutor. The defendant moved to suppress the results of the blood alcohol test as evidence, citing that the blood draw was a violation of his Fourth Amendment rights against unreasonable searches and seizures.The trial court sustained the motion. The Circuit Court, Cape Girardeau County and state appealed. Issues Did the State Trooper violate the defendants Fourth Amendment right against unreasonable search and seizures with the warrantless blood draw? Is the natural dissipation of blood-alcohol evidence alone a sufficient necessity to dispense with the warrant requirement under the fourth amendment? Rule The Fourth amendment to the United States Constitution ensures the right of people to be secure in their person†¦against unreasonable searches and eizures. This includes not only a person’s dwelling but also includes the intrusion of a person’s body when no emergency exists. The United States Supreme Court has continually stated that† any searches conducted outside the judicial process, without prior approval by a magistrate are per se unreasonable under the fourth amendment subject only to a few specifically established and well delineated exceptions. The limited exceptions to drawing a person’s blood without consent would rest on special facts where the officer reasonably believed there was probable cause that incriminating evidence would be found and that if the time needed to obtain a warrant would endanger life, allow a suspect to escape, or they were faced with an emergency situation where delaying to get a warrant would lead to destruction of evidence. A nalysisThe testimony of the Trooper is that the defendant was under arrest for DWI after showing obvious signs of being intoxicated and then failing the field sobriety test when he refused the breathalyzer and blood test. The trooper, who has had over 17 years of experience in obtaining warrants for blood draws, believes that taking the defendant to the hospital for a blood test against his will, without a warrant, is justified because of an article recently published stating that the law had been changed.The article was written by a traffic safety resource prosecutor and was published in â€Å"Traffic Safety News† referred to a Supreme Court case where a limited exception to the warrant requirement for taking nonconsensual blood samples in alcohol related arrests was allowed for special facts, that an officer would be faced with an emergency situation where delaying to obtain a warrant would threaten destruction of the evidence.The trooper in this case was not faced with spe cial facts because there was no accident to investigate and there was no medical attention needed to anyone so there was no delay that would threaten the destruction of the evidence. There is also no evidence that the trooper would not have been able to obtain a warrant if he had attempted to do so.No case in Missouri supports a per se rule that the natural dissipation of blood-alcohol is alone sufficient to constitute exigent circumstance that would permit officers in every DWI case to take blood from a suspect without consent or a search warrant. Conclusion The defendant’s Fourth amendment right to be free from unreasonable searches of his person was violated. The trial courts judgment to suppress is affirmed. The case is remanded.

Was Hitlers Body Ever Identified essays

Was Hitlers Body Ever Identified essays Was Hitlers body ever identified? Everyone gets a good kick out of magazines like the National Enquirer and Globe because everything written in them is a lie. One commonly written headline in those magazines is Elvis has been spotted, or Elvis lives, he never really was dead!! These are the things written about today. However, about fifty years ago there was something similar going on, although it wasnt about Elvis, it was about sightings of Adolph Hitler. The goal of this aspect of the Mysteries of History project was to prove weather or not Adolph Hitlers body was identified. In most of the books about Hitler that were looked into, the stories concerning the death, suicide and what happened afterwards were almost identical. However, before the death and end of his life is discussed, the reader should know what Hitler was all about. Adolph Hitler was born on April 20th, 1889. He was born in Austria, right near the German border. According to Hitler, that date began Mein Kampf (My struggle), Hitlers political autobiography and blueprint for a new Germany. Hitlers life began as him being a sensitive, artistic boy. By the age of eleven, he was a committed nationalist who had learned to understand the meaning of history. When Hitler was thirteen years old, his life took a dramatic turn. On January 3, 1903, Adolphs father, Alois Hitler passed away from a massive pleural hemorrhage. He toppled over at the table and was dead before the doctor arrived. Hitler was very much interested in the arts and dropped out of high school at the age of sixteen so he could sketch and day dream all day. At the age of twenty-two, Hitler felt that he was alone and adrift. He needed an enemy to blame for all his problems. One day he was walking down the street and encountered a man. The first thought that went through his ...

Disadvantages Of The Hospitality Industry Tourism Essay Example

Disadvantages Of The Hospitality Industry Tourism Essay Example Disadvantages Of The Hospitality Industry Tourism Essay Disadvantages Of The Hospitality Industry Tourism Essay The cordial reception industry has invariably changed from clip to clip and has faced many ups and down on the route into doing it into one of the most successful industry in the universe. The cordial reception industry is an industry which is divided into many sectors such as housing, nutrient and drinks. The cordial reception industry is chiefly focused into giving clients the best satisfaction that their money can pay for. Everything done is valued and clients expect nil better than best. It s our responsibility as a hotelkeeper and person related in the industry to do certain every penny a client wage is enjoyed and good paid for. Cordial reception begins with having invitees in a generous and affable mode. It is besides approximately making a pleasant or prolonging environment and fulfilling a invitee s demands. It is besides when you can expect the invitee s desires by bring forthing a friendly and safe ambiance. Where else, the Hospitality Industry provides you consisting concerns that serves invitee who are off from place. It can besides be defined by its range, vision and provides. The cordial reception industry is a absorbing, merriment and exciting one in which to bask a calling, plus you get compensated rather good and have first-class promotion chances. Hospitality industry is unfastened 365 yearss a twelvemonth and 24 hours a twenty-four hours. When we say cordial reception industry, many refer it to restaurant and hotels but this term really has a broader significance harmonizing to the Oxford English Dictionary. In other footings, cordial reception industry is really the response and amusement of i nvitee, visitants or aliens with liberalness and good will. Hotels are a budget oriented and good maintained adjustment. This topographic point provides invitee with the pick of leasing a bed, most normally a bunk bed inside a residence hall and all invitee have to portion the same bathroom, sofa and sometimes a kitchen. Dormitories and room do nt normally mix gender but at times can be assorted besides. Hostels are of course a cheaper pick for residents and besides the proprietor as the care cost would nt be so high. This is most normally a pick for long term abode whom at times gets employed to work at the inn itself on regular footing and they are provided free adjustment. Hotels Hotels in an constitution offer guests a paid housing on either short term or long term footing. During its first few old ages of constitution, the suites merely consists a bed, little closet, survey tabular array and a washbowl which has been replaced into modern sleeping rooms with better installations which includes a bathroom, air status units or temperature commanding units. Other installations that are provided are a telecasting, safe box, mini saloon with bites and drinks. For luxury hotels, some suites are provided with their private Jacuzzi, Spa and bathing tubs. Hotels besides provide swimming pools, gyms, and other types of concern centres. A motel is really a hotel created and designed for automobilist who are going and on the spell. Motels grew into popularity in the twelvemonth 1960 which at that was a twelvemonth of lifting auto travels. In the twelvemonth 2000, the American hotel and motel associations removed the term of motel from its name after a deep selling research and changed their name into the American hotels and lodging associations. A travel agent is a concern that provides traveling merchandises and services to people on behalf of many other constitutions such as air hose units, auto lease companies, hotels, train services, Tourss and holiday packagers. A travel agent combines all this service and provides a invitee with all taken attention of vacation trip. Some travel agents are merely involved with acquiring concern trips for clients and are extremely dedicated in guaranting maximal satisfaction for all paying clients. A cafe has different intending around the universe, for illustration in the United States, it means a insouciant eating house which servers a scope of hot repasts and sell made to be ordered sandwiches. In most of the other states, it is known as a eating house that is specialized in functioning java and tea. In the Gallic linguistic communication, the word cafe is known as java. A cafe is non a world-wide merchandise and could be found anyplace in the universe. It is known to be a haunt topographic point for people of assorted group ages and so on. Cabarets are going a universe phenomenon. A cabaret is an amusement topographic point which provides loud music, alcoholic drinks and sometimes bites. This topographic point is normally operated until late hours provided there are still clients in it. A dance floor and a DJ is a must in a cabaret as this is the magnet that attracts people into it. A broad scope of music choice would be available but at times it s depending on the DJ itself. Some cabarets besides provide life sets public presentation which at times can turn out utile in pulling a big sum of people at one time. Public Houses Public Houses or Pubs as it was known as antecedently was started in British. There is really difference between a saloon and a saloon or any other constitution that serves alcoholic drinks. There are besides some saloons that provide lodging and they are known as Inns. This is still a really popular civilization in Brittan and still bring forthing a really large income. Restaurant A eating house is an constitution that provides and serves nutrient and drinks in assorted classs to their clients. Customers normally eat their repasts in the premises and take off and bringing services are besides provided. Restaurant normally has its ain subjects and ornament manners. It helps to give an feeling of what the eating house is about and all. The eating house proprietor is known as a restauranter and the cooks in the eating house are normally called chefs. Advantages and Disadvantages of the Hospitality Industry Independent Ownership Advantages Mugwump proprietors have complete control over every facet of their concern from choosing the trade name of towels invitees use to make up ones minding how to conform to authorities ordinances. Often independent hotelkeepers can hold an unusual bond with their communities. As communities members, independent hotel proprietors and employees make usage of their first manus cognition of the community to pull invitees, obtain investors, granary community support for new ventures and negotiate price reductions from providers. Such relationships maintain independent hotelkeepers in touch with their communities, enabling them to feel new tendencies and follow appropriate policies. Disadvantages Despite holding its ain operating freedom and a by and large smaller graduated table, mugwumps confront the most hard fiscal challenges. They faced the highest failure rate in the recession of the early 1990s. In order to acquire off land, they normally must raise big sums of capital and demo a really early net income despite limited advertisement and gross revenues budget. Chain Ownership Advantages One of the most of import advantages of concatenation ownership is strong national trade name individuality shared by their hotels ; it s maintained through advertisement runs. Most hotels are connected to the concatenation s centralized reserve system. This allows guest to name one figure to reserve a room at any other trade names locations. Because of its big size, it may hold greater entree to capital. Disadvantages The biggest disadvantages are the demands to set up trade name trueness among possible invitee and to diversify belongings offerings. Trying to be all things to all types of invitee has put ironss at distinguishable disadvantages. Many are scrambling to vie non merely with other hotels but within other sections of their ain concatenation. Cleavage Advantages A clearer apprehension of invitee demands. Cleavage besides allows companies to put more than one trade name on a individual reserve system. They are able to make this by foregrounding the differences between each of their trade names service offerings and installations. Disadvantages Industries expert do non all agree on the advantages of spliting the market so narrowly in portion because many travellers may non desire, necessitate or be able to separate between lodging constructs. Job Opportunities Advantages Bing one of the fastest turning industries in the universe, the cordial reception line provides many people with a broad scope of occupation chances of picks of occupation at assorted sections. This occupation is a really entertaining occupation as you ll be able to run into new people every twenty-four hours and derive a batch of experience from this line. Disadvantages The disadvantages of working in this industry have ever been about the uneven occupation timing and displacement plants. Many staff besides encounters assorted sorts of eldritch experience. Workers have ever found it hard to acquire off yearss on public vacations and other of import day of the months in the calendar. Question 2 Find out the factors that impacting travel and touristry. Explain in item. ANSWER 2 There have ever been a batch of factors of what s impacting touristry around the universe. The touristry sector obtained the fast development in effect of it possesses that the high qualities in resources of trip every bit good as the cultural and natural authorities support smartly. But under this first-class position, we should hold in its topographic point a more temperate comprehension to the exposure of the touristry and the affairs in the industry sector to go on developing it more successfully. Most of the states worldwide have highly hapless quality advertisement which can impact their touristry sector. Ad is the most basic manner to pull people into your state as by publicizing one can cognize much about another state and its attractive forces. Promotions and mark boards besides should be improved. For illustration, a batch of state has the mark board written in their national linguistic communication, it s no injury but you ca nt anticipate another individual to cognize your linguistic communication. This would turn out slippery for many tourer and they could easy acquire lost. The use of the planetary linguistic communication English should be improved besides amongst local governments and people. Removing the negative image of your state is a must to pull tourer. Many tourers hesitate to see assorted states because of the negative images the state carry with them. Assorted grounds such as the cab service in peculiar, as there are immense figure cab drivers neglecting to utilize the metre and therefore soak their riders. This happens particularly to foreign tourer as they are non familiar with the roads in the state. Rude governments and functionaries, soiled public lavatories which are really severely taken attention of and which are prone to many harmful diseases and uncomfortableness. Stinking drains and hapless drainage system which can do inundations and annoy people with the odor. Undependable public conveyance system with hapless drivers and bad timing which can do accidents, hold and losingss to tourist. High offense rate of violent offenses conduct such as bit stealers, colzas, robbery and assault. Many tourers have been robbed, cheated and besides raped. The after ev ent of the September 11th terrorist onslaught has left a black grade in the travel and touristry sector everlastingly. Shocking images of aeroplanes winging in Manhattan s skyline, terrorizing narratives of airdrome governments and much other ground has greatly upset the going community. Despite holding increased their securities measures travellers still remains disquieted and therefore impacting about 30 % lessening in demand of travel and touristry companies following the hideous September 11th terrorist onslaught. Economic jobs are besides a major factor why touristry has affected so severely. The chief benefit of touristry is economical net income it can bring forth for the local community. The fiscal received from touristry can assist the local physique, preserve and keep the tourer attractive force they have. But recent recessions and a planetary fiscal crisis has affected the touristry sector greatly. People intend more to remain at place so travel outdoors and pass small lucks. This event can do major amendss to many tourer attractive force sites therefore losing that site everlastingly. If people keep losing their occupation so there would be really less financess for them to go. Environmental effects besides play a portion in impacting touristry even though touristry itself can impact and make harm to the environment. Global heating has caused a major job in certain parts in the universe and has affected touristry greatly. Colder states like Iceland and the South Poles has become lesser colder and therefore attracted lesser tourer. South East Asia states have besides suffered monolithic losingss in the touristry sector because of the drastic conditions alteration. States like Thailand, Malaysia, Singapore, and many more has faced problems because of the changeless heat temperature lifting. Natural catastrophes besides play a major portion in impacting touristry. Most tourers are worried of going to natural catastrophe hit states such as America, Japan, Indonesia and many more. Changeless alteration in political steps and changeless general and minor elections has besides played a portion in impacting touristry. States which are holding elections are by and large non a pick of touristry topographic point. Tourist would nt desire to be a portion of the elections runs and besides non to set their lives in danger because of the candidacy and so on. Variation of leisure clip is besides a really of import portion in impacting touristry. Most mean retired adult male gets about 93 hours of leisure clip in a hebdomad while adult females merely have 74 hours because of the nature of jobs adult females have to make which includes family responsibilities, taking attention of the kids and many more. Self employed people and people who run concerns normally get lesser leisure clip because of the activities that need to be done during their concern yearss. They normally are really rarely free and even when they are they choose to rest at place alternatively of traveling out on a vacation or so. This is besides a factor why touristry can be affected in a long period of clip. Racial and cultural believes has besides by and large affected the touristry sector. Most states with rigorous racial and cultural believes are prone into losing tourer because of their tight Torahs and believes. Some tourer does nt acquire the benefits of basking their holidaies with many limitation in the activities they do such as imbibing intoxicant, sunbathing, swimming with Bikini s and many more. This may annoy some tourer and therefore one time and for all halting them from coming to that state once more. Tourist and people on holiday should be allowed to bask every bit much as possible because it s by them that the travel and touristry sector able to bring forth a high fiscal income. Human errors and sloppiness besides has contributed in impacting the travel and touristry sector. Mistakes such as wild fires and oil spills have affected the sector. For illustration, the BP oil spill which occurred in the twelvemonth 2010 has affected the touristry non merely in one state but besides states around the affected country. It was the worst oil spill in history and it has affected countries such as Florida, Panama Beach, and besides countries around the Gulf of Mexico. Large sums of pitch balls was spotted on the sand and most parts of the beaches was closed for leisure and swimming to the populace. Business related to tourism such as circuit operators, hotels, eating houses, resorts and so on suffered major losingss where some even shut down their concern due to a really high sum of lost. Another illustration, where in the 2009 Wildfire in California has caused harm about 100 million US dollar. The wildfire caused harm to the nearby abode, expresswaies, assorted tourer attractive forces like the province national park and modesty woods. GENERAL CONCLUSION As an hotelkeeper and a individual who s in the cordial reception industry, it s our responsibility to do certain that the client has maximum satisfaction because through our clients is where our wages are paid from. A client expects us to supply him with services beyond his outlook and even if that service is unavailable, similar services could be much appreciated. Every clip a client asks something, they expect us to reply to everything they ask ; replies such as I do nt cognize or I m non certain are much hated and sometimes annoy our invitee. The travel and touristry sector has faced many ups and downs and tonss of grounds why the industry has easy been diminishing. There are assorted ways and stairss that can be taken to better the sector such as foremost, more advertisement and selling planning. Second, taking the negative images of the state to guarantee tourer that it s the safest topographic point to see. The ministry of touristry can besides run runs on the importance of touristry to the state as it s a really high lending factor in the state economical sector. Certain regulations and believes in the state should besides be loosen up to supply the invitee with the autonomy to bask his or her visit to the state. After all it s non just to inquire a invitee to follow so much regulations when their disbursement so much to see our state. Events such as wildfires, oil spills, and many other adult male made calamities should be prevented to continue the state s tourer attractive forces and ecosystem. Every tourer expects a safe, enjoyable, merriment, entertaining, loosen uping and most of all a worthwhile trip when they are on holiday, and as a individual who is in the industry it is our responsibility to do certain we provide them with it. I would wish to thank Miss Chew for steering me during my class of completing this assignment.

Tommy Douglas, the Canadian Father of Medicare

Tommy Douglas, the Canadian 'Father of Medicare' A small man with a huge personality, Tommy Douglas was gregarious, witty, feisty and kind. The leader of the first socialist government in North America, Douglas brought massive change to the province of Saskatchewan and led the way for many social reforms in the rest of Canada. Douglas is considered the Canadian father of Medicare. In 1947 Douglas introduced universal hospitalization in Saskatchewan and in 1959 announced a Medicare plan for Saskatchewan. Heres more about Douglas career as a Canadian politician. Premier of Saskatchewan 1944 to 1961 Leader of the Federal New Democratic Party 1961 to 1971 Career Highlights of Tommy Douglas Douglas introduced universal hospitalization in Saskatchewan in 1949 and a Medicare plan for Saskatchewan in 1959. While the premiere of Saskatchewan, Douglas and his government created many state-owned enterprises, called Crown Corporations, including the establishment of provincial air and bus lines, SaskPower and SaskTel. He and the Saskatchewan CCF oversaw industrial development that reduced the provinces dependence on agriculture, and they also introduced the first public automobile insurance in Canada. Birth Douglas was born Oct. 20, 1904, in Falkirk, Scotland. The family emigrated to Winnipeg, Manitoba in 1910. They returned to Glasgow during World War I but came back to settle in Winnipeg in 1919. Death Douglas died of cancer Feb. 24, 1986, in Ottawa, Ontario. Education Douglas earned his bachelors degree in 1930 from Brandon College in Manitoba. He then earned his masters degree in sociology in 1933 from McMaster University in Ontario. Professional Background Douglas began his career as Baptist minister. He moved to Weyburn, Saskatchewan after ordination in 1930. During the Great Depression, he joined the Co-Operative Commonwealth Federation (CCF), and in 1935, he was elected to the House of Commons. Political Affiliation He was a member of the CCF from 1935 to 1961. He became the leader of Saskatchewan CCF in 1942. The CCF was dissolved in 1961 and was succeeded by the New Democratic Party (NDP). Douglas was a member of the NDP from 1961 to 1979. Political Career of Tommy Douglas Douglas first moved into active politics with the Independent Labour Party and became President of the Weyburn Independent Labour Party in 1932. He ran for the first time in the 1934 Saskatchewan general election as a Farmer-Labour candidate but was defeated. Douglas was first elected to the House of Commons when he ran in the riding of Weyburn for the CCF in the federal general election of 1935. While he was a federal member of parliament, Douglas was elected president of the Saskatchewan provincial CCF in 1940 and then elected leader of the provincial CCF in 1942. Douglas resigned his federal seat to run in the Saskatchewan general election of 1944. He led the Saskatchewan CCF to a massive victory, winning 47 of 53 seats. It was the first democratic socialist government elected in North America. Douglas was sworn in as Premier of Saskatchewan in 1944. He held the office for 17 years, during which he pioneered major social and economic reforms. In 1961, Douglas resigned as Premier of Saskatchewan to lead the federal New Democratic Party, formed as an alliance between the CCF and the Canadian Labour Congress. Douglas was defeated in the federal election of 1962 when he ran in the riding of Regina City mainly because of a backlash towards the Saskatchewan governments introduction of Medicare. Later in 1962, Tommy Douglas won a seat in the British Columbia riding of Burnaby-Coquitlam in a by-election. Defeated in 1968, Douglas won the riding of Nanaimo-Cowichan-The Islands in 1969 and held it until his retirement. In 1970, he took a stand against the adoption of the War Measures Act during the October Crisis. It seriously affected his popularity. Douglas stepped down as leader of the New Democratic Party in 1971. He was followed by David Lewis as NDP leader. Douglas took on the role of NDP energy critic until he retired from politics in 1979.

Essay #3 advertisement Example | Topics and Well Written Essays - 500 words

#3 advertisement - Essay Example This paper argues, however, that these attempts are more focused on capturing a broader audience, without truly advocating racial diversity in the modeling industry and society, in general. Advertising on magazines reflect ethnic ambiguity to send the message that companies embrace racial diversity, although their choices of models and manicured pictures reveal the fallacy of promoting racial diversity. Magazine advertisements increasingly employ ethnically ambiguous models to send the message that companies promote racial diversity, which is critical to their bottom-line. In Pimps Up, Hos Down: Hip Hops Hold on Young Black Women, Sharpley-Whiting discusses the rise of ethnically ambiguous models in print and TV ads. Fashion magazine editors, for instance, believe that â€Å"race mixing† is the new model standard (Sharpley-Whiting 30). In the journal article â€Å"Consumer Magazine Advertisement Portrayal of Models by Race in the US: An Assessment,† Peterson examines models from different races in consumer magazines. She discovers that for these advertisements, minority models are projected positively and in increasing numbers. Hopper, in Understanding Cultural Globalization, explores globalization and its effect on cultural hybridization (146). For him, many companies find it beneficial to use models that have â€Å"cross-over appeals,† so that a larger market can be attracted to its products (Hopper 146). Numerous advertisement images are more directed toward broad audiences, because if narrowly-defined audiences were more targeted, models would be more representative of their ethnic/racial groups. Either way, the company’s agenda is economic in nature. These advertising measures are mere tactics, however, that expose their unease in featuring darkly-colored models. Osei-Kofi, in the article â€Å"Multiracialization, Mixing, and Media Pedagogy,† asserts that that racial ambiguity serves commercial purposes more