Category: reason

I consult occasionally for Andreessen Horowitz, and they commissioned me to write this piece for their Future site; I think it turned out nicely, and I thought I’d pass it along. Here’s the introduction:

The Fourth Amendment protects our privacy rights in material that we keep private. The government can’t search our homes or computers, for instance, unless it has a warrant based on specific probable cause to believe that the searches will uncover evidence of crime.

Nor can the government just summon us to court to provide testimony that will yield such evidence of crime: The Fifth Amendment’s privilege against self-incrimination protects against that.

On the other hand, the Fourth Amendment has been read as providing little protection for material that we turn over to third parties — even to one trusted third party, such as a bank. This “third-party doctrine,” which is the key to the government’s power to gather information from financial intermediaries, lets the government easily get transaction information from businesses, without a search warrant or probable cause. (This is supplemented by requirements, which the Court has upheld, that banks keep records of financial transactions.[1])

The third-party doctrine, for better or worse, is well-established. But when technological innovation — such as DeFi (decentralized finance) — cuts out the third party, the government can no longer use the third-party doctrine to monitor such transactions.

The question then becomes: May the government restrict such DeFi tools, and force people to use third-party intermediaries, precisely to take advantage of the extra surveillance power that the third-party doctrine would provide?

And here’s an excerpt from what strikes me as the most theoretical interesting portion:

A right to use rights-protecting technologies?

[A] mandate that coders monitor who is using their code — essentially a prohibition on privacy-protection financial technologies — may well violate the Fourth Amendment….

To begin with, if the government seeks to stop the creation and distribution of intermediary-less DeFi code,[6] the government would be doing so precisely to bring back the third party — not for the sake of financial necessity (the way that a third party had historically been necessary for electronic transactions), but for ease of surveillance.[7] The premise of the third-party doctrine is that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” because he “assume[s] the risk that the [third party] would reveal to police the [information].”[8] If the government takes away the option of a private transaction, and requires that information be turned over to third parties, then the turning over of the information is no longer truly voluntary. Nor are such people assuming the risk of disclosure: the risk is being thrust upon them by government mandate.[9]

Likewise, the third-party doctrine rests on the theory that, by handing over informa­tion to a third party, a person “is deemed to surrender any privacy interest he may have had” in that information.[10] Thus, by banning privacy-protecting technologies, precisely to bring third parties back into the transactions, the government would be requiring people to “surrender” their “privacy interest[s]” that would otherwise be protected by the Fourth Amendment — something the government may not require….

Prohibitions on privacy-protecting tools

To offer an analogy: The Court has held that, when a driver of a car is arrested, (1) the police may search the car’s passenger compartment for weapons that might be within the driver’s reach without needing to show probable cause, but (2) they may not search any separately locked trunk. Imagine that a state required that all cars on the roads lack a separate trunk (i.e., that they be SUVs, hatchbacks, or station wagons), precisely so drivers have fewer Fourth Amendment protections.[11] Perhaps, by following the analogy to the broad reading of HR 3684, imagine that a state required unworkable record-keeping obligations of car manufacturers who make cars with separate trunks: Say that manufacturers were ordered to report the names and addresses of everyone who drives such a trunk-less car, even though the manufacturers lack any business relationship with many drivers (who might buy or borrow a car from a third party).

Imagine that a state required that all cars on the roads lack a separate trunk, precisely so drivers have fewer Fourth Amendment protections.

Though there is no precedent squarely on point, this would likely be unconstitutional, as a circumvention of the normal Fourth Amendment rules. Just as the government can’t, for instance, circumvent the Fifth Amendment’s prohibition on “be[ing] compelled in any criminal case to be a witness against [your]self” by coercing you to testify in a civil case and then using the information in a criminal case,[12] so it shouldn’t be able to circumvent the Fourth Amendment’s protection of privacy by denying you privacy-protecting tools.

Constitutional rights to technologies that protect other constitutional rights

Indeed, courts have long recognized that certain technologies are necessary to protect constitutional rights, and that banning the use of the technologies would therefore violate those rights. For instance, lower courts have held that the First Amendment includes the right to video-record government employees (such as police officers) in public places.[13] The courts began with the premise that the public has a First Amendment right to “access … information about their officials’ public activities.”[14] And they therefore held that the First Amendment must likewise protect the technology necessary to effectively gather that information — technology that lets one “record what there is the right for the eye to see or the ear to hear,” “corroborat[ing] or lay[ing] aside subjective impressions for objective facts.”[15] …

If you’re interested, check out the whole piece.

The post "DeFi Gives Financial Privacy — Will Regulation Take It Away?" appeared first on Reason.com.

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This term, the Court has decided three cases that turn on the major questions doctrine: Alabama Association of Realtors, NFIB v. OSHA, and Biden v. Missouri. Each of these cases turn on whether Congress used sufficient language to delegate a power to executive branch. Admittedly, these three cases lack much guidance for the lower courts.

The trilogy reminds me of the classic fable, Goldilocks and the Three Bears. A little girl tries the porridge of three bears. The first bowl is too hot. The second bowl is too cold. The third bowl is just right.

In NFIB v. OSHA, the Court held that the OSH Act “plainly” does not authorize the mandate. In Alabama, the Court at least entertained the possibility that the delegation was “ambiguous,” but in the absence of a clear statement, the “sheer scope of the CDC’s claimed authority under §361(a) would counsel against the Government’s interpretation.” But in Biden v. Missouri, the Court found that “[t]he rule thus fits neatly within the language of the statute.”

Going forward, how are the lower courts to decide whether a delegation is in the Goldilocks Zone? Too clear, but limited to a particular context? Not clear enough, but reasonable? Or just right?

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When the Supreme Court blocked enforcement of the Biden administration’s vaccine mandate for private employers yesterday, the three dissenters said the majority was recklessly overriding the judgment of experts who know best how to make workplaces safe. But as the majority saw it, the dissenters were ready to let unelected bureaucrats exercise sweeping powers that Congress never gave them.

Underlying that split is the question of whether and when COVID-19 counts as a workplace hazard, justifying regulation by the Occupational Safety and Health Administration (OSHA), as opposed to a general risk that Americans face throughout the day, which goes beyond that agency’s statutory mission. All of the justices agreed that OSHA does not have a general license to protect public health, and all of them agreed that the agency does have the power to address COVID-19 in the workplace. But while the dissenters were willing to let OSHA define that problem in general terms, justifying a broad solution covering 84 million employees, the majority thought the agency was obliged to be more specific and discriminating.

OSHA’s rule, which it published on November 5, demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and submit to weekly virus testing. It presented that edict as an “emergency temporary standard” (ETS), which avoids the usual rule-making process but requires OSHA to show that its regulations are “necessary” to protect employees from a “grave danger” in the workplace. Those criteria are not easy to satisfy, which helps explain why OSHA has rarely used this option.

“Prior to the emergence of COVID–19,” the Supreme Court notes in its decision imposing a stay on the vaccine mandate, OSHA “had used this power just nine times” and “never to issue a rule as broad as this one.” Of those nine emergency standards, “six were challenged in court, and only one of those was upheld in full.” As Justice Neil Gorsuch notes in his concurring opinion, those rules all dealt with “dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals.”

OSHA has previously issued regulations that addressed communicable diseases. In 1990, it issued a nonemergency standard dealing with bloodborne pathogens, and last June it published a COVID-19 ETS for the health care industry. But both of those rules aimed to protect employees who faced special hazards because of the nature of their work (handling blood samples and treating COVID-19 patients, respectively), and neither encouraged nor required employers to make vaccination mandatory. That is something OSHA, which has existed for more than half a century, has never done before—a point that the justices emphasized during oral arguments last week and again in yesterday’s decision.

“OSHA has never before imposed such a mandate,” the Court notes. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here….In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.”

In a joint dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argue that OSHA’s unprecedented rule is justified by the unprecedented threat that COVID-19 poses:

The Standard responds to a workplace health emergency unprecedented in the agency’s history: an infectious disease that has already killed hundreds of thousands and sickened millions; that is most easily transmitted in the shared indoor spaces that are the hallmark of American working life; and that spreads mostly without regard to differences in occupation or industry. Over the past two years, COVID-19 has affected—indeed, transformed—virtually every workforce and workplace in the Nation. Employers and employees alike have recognized and responded to the special risks of transmission in work environments. It is perverse, given these circumstances, to read the Act’s grant of emergency powers in the way the majority does—as constraining OSHA from addressing one of the gravest workplace hazards in the agency’s history.

Even as Breyer et al. emphasize the societywide threat posed by COVID-19, they suggest the risk is especially acute in the workplace, where employees typically gather inside for eight hours a day. That basic fact, the dissenters argue, justifies OSHA’s broad approach, because the coronavirus “spreads mostly without regard to differences in occupation or industry.”

The majority, by contrast, thinks such differences are legally crucial. So does OSHA, to some extent. In a nod toward the tailoring required by the statutory criteria for an ETS, the agency exempted employees who work exclusively outdoors, exclusively at home, or exclusively alone. But as the Court notes, “those exemptions are largely illusory.” OSHA estimates, for example, that “only nine percent of landscapers and groundskeepers qualify as working exclusively outside.” If they briefly enter an indoor space at the beginning of the workday, that is enough to trigger OSHA’s vaccine-or-mask-and-test requirement. Likewise for a consultant who works remotely most of the time but visits the office occasionally.

More generally, the majority says, OSHA has failed to draw appropriate distinctions between different work situations that pose widely varying risks of virus transmission. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the Court says. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The majority thinks “it is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.” Breyer et al. note that OSHA historically has addressed hazards, such as fire, noise, and contaminated drinking water, that are not unique to the workplace. “But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed,” the majority responds. “A vaccination, after all, ‘cannot be undone at the end of the workday.’…Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.'”

The majority nevertheless concedes that OSHA has the authority to address COVID-19 in certain contexts:

Where the virus poses a special danger because of the particular features of
an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

In his concurring opinion, which was joined by Justices Clarence Thomas and Samuel Alito, Gorsuch highlights the deeper issue raised by this argument about the ambit of OSHA’s statutory authority. The “major questions” doctrine says Congress must “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.'” The nondelegation doctrine requires that Congress provide an “intelligible principle” to guide administrative agencies when they write regulations. Both of those doctrines, Gorsuch notes, aim to preserve the separation of powers by preventing the executive branch from exercising legislative powers that properly belong to Congress.

In this case, the dissenters see unelected judges improperly second-guessing the expert judgment of an executive agency that Congress has charged with protecting the nation’s workers. Gorsuch, by contrast, sees bureaucrats making decisions that should be made by the people’s elected representatives.

“This Court is not a public health authority,” Gorsuch writes. “But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us…The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.”

The post In the Case That Blocked OSHA's Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard appeared first on Reason.com.

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The Washington Post and The New York Times want you to know, for some reason, that a man who recently received a pig heart in a pioneering transplant is no angel.

David Bennett, 57, has terminal heart disease and last week received a genetically modified pig heart in a transplant. It was an innovative first-of-its-kind surgery that has the potential to save many lives down the line. Bennett was ineligible for a human heart transplant due to issues of heart failure and an irregular heartbeat, doctors said. Arguably, this type of surgery was his only option.

In 1988, Bennett was convicted of stabbing a man seven times, leaving him paralyzed. The victim, Edward Shumaker, spent the next two decades in a wheelchair, had a stroke in 2005, and died two years later just before he turned 41.

None of this has anything to do with Bennett’s treatment. And yet two of the most prominent newspapers in the United States have decided to report on a crime Bennett committed when he was 22 years old. The Post reported it first, based apparently on members of Shumaker’s family reaching out and complaining about the transplant. Shumaker’s sister, Leslie Shumaker Downey, is not happy that Bennett received this lifesaving treatment.

“[Bennett] went on and lived a good life,” she told the Post. “Now he gets a second chance with a new heart—but I wish, in my opinion, it had gone to a deserving recipient.”

It is absolutely normal for Downey to feel as though this is completely unfair, given her deeply personal connection to Bennett’s crime. We shouldn’t be judging Downey here. But how she feels should not have any sway over Bennett’s medical treatment, and it’s irresponsible for these major media outlets to suggest that there’s some sort of controversy.

The Post, invoking Downey’s feelings as a news hook, makes an utterly bizarre (and, frankly, journalistically fraught) pivot in the story to explain that more than 100,000 Americans are awaiting organ transplants and that 17 people die every day waiting. The Post adds, “In the face of such a shortage, it can seem unconscionable to some families that those convicted of violent crimes would be given a lifesaving procedure so many desperately need.”

But Bennett wasn’t on that waiting list in the first place because he was not eligible. He did not take a human heart away from a more “deserving” person, whatever that might mean morally or ethically. He received a pig heart in a pioneering and dangerous surgery that could have killed him—and to be clear, might still. Nobody on that waiting list is being deprived of anything due to Bennett’s surgery. (The New York Times notes this important fact five paragraphs from the bottom of its story.)

The Post pivots again (as does the Times) to doctors and bioethicists who all say, in pretty much one voice, what should not be controversial: We do not portion out medical treatment on the basis of the moral standing of the recipient.

“The key principle in medicine is to treat anyone who is sick, regardless of who they are,” Arthur Caplan, a bioethics professor at New York University, tells the Post. “We are not in the business of sorting sinners from saints. Crime is a legal matter.”

Bafflingly, the Post pivots yet again to point out that local hospitals have discretion to decide who to add to waiting lists on the basis of things like a history of substance abuse and whether a prisoner is at risk of getting an infection following the surgery. But these are entirely medical decisions and have nothing to do with a moral judgment as to whether the patient “deserves” treatment. The Post seems to be suggesting that because hospitals have some leeway, there’s some sort of possibility that they could or should be categorizing patients based on moral worth.

The Post even went so far as to ask the University of Maryland Medical Center if it knew about Bennett’s criminal background. Officials refused to answer.

Could you imagine what might happen if criminal background checks were required for major surgeries? Consider the potential consequences if prioritization for major surgeries was based on compliance with the law rather than purely medical factors.

Strangely, neither The Washington Post nor The New York Times even discusses the potential ethical ramifications of that, though the Times allows a medical ethics research scholar to vaguely ask, “Where would you draw the line if you picked and chose?”

Bennett’s surgery did not come at the expense of anybody else being deprived of a lifesaving treatment. If he survives, the procedure could potentially help all those people stuck on the transplant waiting list and sometimes dying because they can’t find a human heart. This pioneering surgery may lead to other lives being saved because Bennett was willing to risk death.

It’s good that the University of Maryland Medical Center didn’t care about Bennett’s criminal background when it carried out this potentially game-changing surgery. It was the right ethical choice. If only The Washington Post and The New York Times had taken the time to think more about the ethics of what they were doing.

The post Everyone Deserves To Benefit from Medical Innovation. Yes, Even People Who Did Bad Things. appeared first on Reason.com.

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Oklahoma SB 1142, introduced by state senator Rob Standridge begins (numbering added):

[A.] No public school district, public charter school, or public school library shall maintain in its inventory or promote

[1] books that make as their primary subject the study of sex, sexual preferences, sexual activity, sexual perversion, sex-based classifications, sexual identity, or gender identity or

[2] books that are of a sexual nature that a reasonable parent or legal guardian would want to know of or approve of prior to their child being exposed to it.

Now there is likely no First Amendment problem with a public school district removing books that it sees as unsuitable for children, whether “because it contains offensive language or because it is psychologically or intellectually inappropriate for the age group.” In Board of Ed. v. Pico, the Court split 4-4 on whether a public school may remove library books based on the books’ viewpoint. (Justice White, who cast the deciding vote, expressly declined to reach that question.) But it seems pretty likely that removing at least some books from school libraries that are seen as too sexual would be constitutional, whether or not you think it’s a good idea. (I leave that sort of policy question to our readers to decide on their own, though I’m inclined to be skeptical about such categorical exclusions, especially as to books that really do involve “the study of” important features of human life, and ones that are surely of significance to many adolescents, especially given that millions of Americans’ first sexual experiences occur during their high school years.)

Of course you might now be asking, though, just how one would decide such things. Librarians must of course make subjective decisions about this and other matters, if only when they are deciding which books to buy in the first place. But if it’s the law that librarians may not buy, and indeed presumably must remove, certain books, then there would have to be a legal standard—and “of a sexual nature that a reasonable parent … would want to know of or approve of prior to their child being exposed to it” is just not a legally well-defined standard.

Rest easy! No librarian or judge or jury would have to apply such a standard, because of the following two paragraphs:

[B.] [1.] The parent or legal guardian of a student who believes a public school district, public charter school, or public school library is maintaining book(s) in violation of subsection A of this section may submit a written request to the school district superintendent or charter school administrator to remove the book(s) from the public school district, public charter school, or public school library.

[2.] The book(s) requested for removal shall be removed from the public school district, public charter school, or public school library within thirty (30) days of receiving the request.

That’s right: According to the plain text of the bill, the school official “shall” “remove[]” any book that a parent “believes” is “of a sexual nature that a reasonable parent … would want to know of or approve of prior to their child being exposed to it.” So long as a parent writes the superintendent that he or she believes that, say, Romeo & Juliet (teenage sex) or Othello (“beast with two backs”) or the Bible (Sodomy etc.) or whatever else fits within subsection A, the school must remove it. (By the way, I not only think there’s no Establishment Clause problems with school libraries stocking the Bible, but I think they definitely should, or at least should have before the Bible and so many other books became so easily available and searchable online.)

And, if the school official doesn’t accede to the request, the parent can sue the school (that’s in subsection C)—for a statutory minimum of $10,000/day that the book is not removed. Plus it gets better:

[B.] [3.] A public school district or public charter school employee tasked with removing a book from a public school district, public charter school, or public school library who does not do so within thirty (30) days of receiving a request shall be dismissed or not reemployed, subject to the provisions of the Teacher Due Process Act of 1990, and the employee shall be prohibited from being employed by a public school district or public charter school for a period of two (2) years. The book shall be removed from the public school district, public charter school, or public school library by a school administrator.

Yes, that’s right, it’s firing and a two-year public school employment blacklist for you, if you don’t promptly accede to the parent’s “belie[f],” conveyed in a “written request,” that a book is not suitable for the school library.

Thanks to The U.S. Free Speech Union for the pointer.

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In September, the Supreme Court granted certiorari in Ramirez v. Collier, and set a super-expedited briefing schedule. At the time, I wrote “the Justices moved a capital case from the shadow docket to the rocket docket.” I think I was the first person to use the phrase “rocket docket” in the context. Over the past four months, the term has caught on, as the Justices have chosen to accelerate several cases rather than decide them summarily. In addition to Ramirez, the Court placed the S.B. 8 cases on the rocket docket. And the COVID mandate cases were given similar treatment. Here, the Justices have demonstrated that they can resolve high-profile cases in a very short-time frame. In my view, this experiment has been something of a success.

Now, how did we get here? I think the Court launched the rocket docket in response to the incessant public criticisms over the shadow docket. Indeed, Justice Kagan objected to the shadow docket in her Whole Woman’s Health I dissent. And, Justice Breyer used the phrase in an interview.

In Whole Woman’s Health II and NFIB, the conservative Justices followed a regular process to rule against a progressive policy. These were full rulings on the merits. And even more importantly, the Court set important precedents that would extend far beyond these case.

Are critics of the shadow docket satisfied now? All things considered, what would the Biden administration really have preferred? A one paragraph shadow docket entry staying the OSHA mandate? Or a 9-page opinion that adopts a rigorous reading of the major questions doctrine, and constrains all facets of federal power? All things considered, what would the abortion providers really have preferred? A one paragraph shadow docket order that denied a stay? Or a lengthy opinion endorsing the reasoning of S.B. 8, which allows other states to carbon-copy the approach?

In many ways, losing fast on the shadow docket is more advantageous than losing slow on the rocket docket. One of the strongest arguments in favor of the shadow docket is that the Court can avoid setting important precedents in a hurried fashion. An unexplained summary order would only govern one case. But once a case is briefed, and argued, the opinion must set a new precedent.

I think after this term, criticism of the shadow docket will fade.

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