Category: reason

The Return to Intermediary Control

I’m continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I’m talking about how “cheap speech” has led to a revival of calls for restrictions imposed by intermediaries. Recall that the article is mostly descriptive, focusing on what’s happening, for better or worse.

[* * *]

Cheap speech, as the Introduction noted, has made it easier for people to spread their own views, good or evil, and their own understandings of the facts, true or false. And the Internet has in many ways made it easier to speak anonymously, and in ways that hide one’s identity. Foreign governments can take advantage of this, too, and so can foreign groups that might be under the influence of a foreign government. That too was much harder under the old media system, for better or for worse.

The spread of such bad ideas and factual falsehoods — or things that people think are bad ideas and factual falsehoods — may be constitutionally protected, but that doesn’t mean the public and Congress have to like it. As a result, there has been pressure to get intermediaries into “voluntarily” doing the policing of supposed “hate speech,” “fake news,” and the like that the First Amendment precludes the government from doing.[1] And even for speech that the government might be able to itself restrict, such as revenge porn, intermediaries have been providing much more prompt takedown procedures than the legal system can practically provide.

Curiously, then, we seem to be reinventing, and many of us seem to be approving of, intermediary control: it’s just that instead of newspaper and broadcaster editors choosing what to block, we’re having that done by Facebook, Twitter, and occasionally other companies.

In a sense, one can imagine four different approaches to control of public speech:

  1. control by being regulated expressly by the government,
  2. control by being too expensive for ordinary people,
  3. control by private intermediaries, and
  4. no real control (at least of people’s viewpoints and broad factual claims, as opposed to, say, of spam).

Modern First Amendment law largely precludes option (1), so as option (2) has retreated in significance, option 3) is being promoted as a substitute by those who find option (4) unacceptable.

On one hand, this form of Internet intermediary power is a less categorical control — if your speech is banned from Facebook, you can still get it out through other platforms (at least for now, while the infrastructure companies, such as hosting companies and search engines, police things only rarely). Such intermediary power also covers fewer subject matters: Facebook excludes a tiny fraction of all content that people try to post, while traditional editors excluded all except that which they chose to fit on their limited pages.

On the other hand, the control is more oligarchical than ever: a huge share of the control is in the hands of the people running three companies (Facebook, Google, and Twitter). In the past, the control was more broadly shared among executives and editors at broadcast networks, local broadcasters, national magazines, and national but mostly local newspapers.

And, unsurprisingly, this sort of oligarchical control is leading to resentment among many users who had gotten used to the early Internet’s more egalitarian model. Why should Mark Zuckerberg get to say what’s on my Facebook page, they might think, rather than my having exclusive control over that?

They might not have thought that back in the pre-Internet era, where of course the local newspaper editor got to say what was in the newspaper, or even on the letters to the editor page. But give people a taste of the power to publish, and some of them won’t be happy to give it up.

Some have remarked on a certain degree of ideological reversal that seems to be happening here. These days, it is (some) conservatives who, perceiving that the platforms are run by liberals, are worried about the platforms’ restricting conservative speech.[2] As a result, some conservatives are calling for extra regulation of privately owned businesses, something that conservatives generally tend to oppose.

Likewise, these days it is generally (some) liberals who enthusiastically support the power of large corporations — indeed, among the largest of corporations — to influence political speech. Ten years ago, many liberals sharply condemned the Supreme Court’s decision in Citizens United v. FEC, which held that corporations and unions have a First Amendment right to speak about political candidates (independently of those candidates’ campaigns). Thus, for instance, from one 2012 article from liberal think tank Demos, titled 10 Ways Citizens United Endangers Democracy: “[C]oncentrated wealth has a distorting effect on democracy, therefore, winners in the economic marketplace should not be allowed to dominate the political marketplace.”

Yet urging Facebook, Twitter, and similar companies to restrict alleged “hate speech” and to police alleged “fake news” involves some of the biggest “winners in the economic marketplace” using their power to affect “the political marketplace.” And while of course that power is limited, since Facebook and Twitter are indeed far from the whole of the Internet, corporate advertising about candidates after Citizens United was also comparatively modest.

According to OpenSecrets.org’s More Money, Less Transparency: A Decade Under Citizens United, corporations contributed about $300 million to outside spending groups in the 2012–18 federal election campaign cycles, and unions contributed about $275 million. The corporate contributions “made up 10 percent of funding to these groups in the 2012 cycle, a high water mark,” falling to 5% in 2018. And “[w]hile corporations and unions gained potential political power as a result of Citizens United, it’s individual donors who are fueling the explosion of money in recent elections.” Even taking into account the fact that the platforms generally don’t overtly endorse one or another political candidate as such, their content policing likely affects politics at least as much as does the corporate political advertising protected by Citizens United.

Now neither some conservatives’ support for restraining private platforms’ policing power, nor some liberals’ support for increasing the political influence of giant corporations, necessarily reflect logical inconsistency. Few conservatives are categorical foes of all regulation of private business. (Indeed, the most libertarian conservatives, who are the most skeptical of regulation, tend to also oppose regulation of platforms.) And few liberals are categorical foes of all corporate influence on the political process.

Most such political principles are, quite sensibly, presumptions rather than categorical rules. The conservatives who back regulation and the liberals who back platform power may simply see those presumptions as being rebutted by sufficiently strong countervailing interests (whether in protecting user speech, or in fighting “hate speech” and “fake news”). But in both cases, it seems that we are seeing a reaction to the advent of cheap speech, and a reaction to that reaction.

Conclusion

I.             Conclusion

Reno v. ACLU; Ashcroft v. ACLU (I); United States v. American Library Association; Ashcroft v. ACLU (II); Packingham v. North Carolina. Perhaps Elonis v. United States (if you focus on the facts of that case rather than the legal issue). Those are the Internet First Amendment cases that the Supreme Court has considered, mostly dealing with shielding children from sexually themed material, but also, in Elonis, online threats.

But this is not where most of the interesting recent Internet free speech developments have arisen. Rather, they have come in surprising places:

  • the survival and perhaps resurgence of criminal libel law;
  • trial courts’ broad acceptance of anti-libel injunctions;
  • trial courts’ willingness to issue remarkably broad bans on public online speech about people, in the name of preventing “harassment” or “stalking”;
  • the criminalization of the disclosure of private facts, whether through outright criminal laws or through injunctions enforced using the threat of contempt;
  • the enactment or broader application of narrower restrictions on specific kinds of false statements and disclosure of private facts, such as impersonation and nonconsensual porn;
  • the growth of calls for greater policing of online speech by the platforms.

For decades, the main lever for dealing with libel and disclosure of private facts has been the threat of civil damages liability. As that lever has become increasingly irrelevant for many speakers, the legal system has had to grasp for other levers, odd as they might have seemed in 1993. Likewise, for decades, the main lever for dealing with extremist speech and with conspiracy theories has been the control exerted by media intermediaries. As that lever has fallen away, people have called for the platforms to step into the gap.

Some of these developments have been promising. Some have been misguided. But they all represent, I think, the legal system’s largely bottom-up struggle with the dark side of cheap speech and of the democratization of mass communications.

[1] I set aside here intermediaries providing extra speech, such as pointing to fact-checks of posts, cf. Dawn Carla Nunziato, Cheap Speech and Counterspeech by the New Intermediaries, 54 UC Davis L. Rev. (manuscript at 22-25) (2021); that does not involve restrictions (private or governmental) on speech, and indeed the government could itself publish such fact-checks (though it likely couldn’t require platforms to publish them).

[2] There’s debate about the degree to which the platforms’ editing does target conservative speech. But it’s of course human nature for people faced with a massive, largely hidden editing process to assume the worst about the process, especially when it is run by those who are largely on the other side of the political aisle.

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Support Encryption for Everybody or Place Your Faith in Government Snoops

sipaphotoseleven430711

Encrypted messaging is dangerous because it enables contacts among racists and extremists, argues the Southern Poverty Law Center (SPLC) in a recent feature. The piece, though, fails to demonstrate that hiding data from prying eyes is bad in itself, making its emphasis on encryption odd. It’s a choice that can only feed into escalating campaigns by governments and their security services to mandate access to private communications, potentially compromising the civil rights that the SPLC supposedly champions.

“Far-right extremists and white supremacist terrorists have embraced Telegram as their platform of choice, signaling a shift away from these groups’ traditional methods of organizing and toward a dangerous future defined by leaderless resistance and ‘lone actor’ terrorism,” Hannah Gais and Megan Squire argue in “How an Encrypted Messaging Platform is Changing Extremist Movements,” published by the SPLC on February 16. “In addition to enabling the spread of propaganda, Telegram’s built-in features also facilitate recruitment by making it easy for extremists to set up public or private encrypted discussion groups,” they add.

Despite the headline and brief mentions of Telegram’s encryption features, the bulk of the article examines the app’s utility for mass organizing. The authors also object to Telegram’s allegedly permissive attitude towards extremists and the ease with which such groups dodge restrictions. The article, then, is a complaint about the ease with which evolving technology allows even unsavory people to connect with one another, mixed with a guilt-by-association smear of encryption at a time when it’s under renewed assault by the powers that be.

“On Privacy Day, European end-to-end encrypted services ProtonMail, Threema, Tresorit and Tutanota are calling on EU policy makers to rethink proposals made in December’s Council Resolution on Encryption,” the four companies announced on January 28. “While it’s not explicitly stated in the resolution, it’s widely understood that the proposal seeks to allow law enforcement access to encrypted platforms via backdoors. However, the resolution makes a fundamental misunderstanding: encryption is an absolute, data is either encrypted or it isn’t, users have privacy or they don’t.”

The resolution to which they responded, published in December 2020, called for “security through encryption and security despite encryption” and complained “there are instances where encryption renders access to and analysis of evidence extremely challenging or impossible in practice.” It added that “Competent authorities must be able to access data in a lawful and targeted manner” in a signal that the European Union favors encryption only if it doesn’t inconvenience government snoops.

Earlier, in October, the “Five Eyes” intelligence alliance of Australia, Canada, New Zealand, the United Kingdom, and the United States joined with India and Japan in a similar resolution.

“We, the undersigned, support strong encryption, which plays a crucial role in protecting personal data, privacy, intellectual property, trade secrets and cyber security.  It also serves a vital purpose in repressive states to protect journalists, human rights defenders and other vulnerable people,” the governments acknowledged in a joint statement. “Particular implementations of encryption technology, however, pose significant challenges to public safety, including to highly vulnerable members of our societies like sexually exploited children. We urge industry to address our serious concerns where encryption is applied in a way that wholly precludes any legal access to content,” they added.

But, if governments can penetrate communications privacy to address “challenges to public safety,” there’s nothing to stop them from putting “journalists, human rights defenders and other vulnerable people” in that category. Importantly, Pavel Durov, the man who founded the Telegram app to which the SPLC objects, fled Russia after rejecting government demands that he compromise privacy.

“Two years ago, Pavel Durov refused to grant Russian security services access to users’ encrypted messages on his popular Telegram messaging app, then a favorite of Russian opposition groups,” the Washington Post noted last June. “Using a combination of wily cyber-dodging tactics and the force of Telegram’s growing reach, the 35-year-old Russian-born entrepreneur humiliated and outmaneuvered Russia’s state telecommunications regulator, Roskomnadzor.”

Of course, communications and encryption are neutral technologies. If they protect opposition groups against repressive governments, they also shield racists and extremists from scrutiny. Some people seem to have decided that it’s worth sacrificing journalists and political dissidents in order to target unsavory elements. The SPLC isn’t the first group to raise the issue.

“The rise of Telegram and Signal could inflame the debate over encryption, which helps protect the privacy of people’s digital communications but can stymie the authorities in crime investigations because conversations are hidden,” The New York Times pointed out last month. “Any move to the apps by far-right groups in particular has worried U.S. authorities…”

Those same U.S. authorities, let’s remember, have engaged in extensive domestic surveillance that the FBI itself admits “was later rightfully criticized by Congress and the American people for abridging first amendment rights and for other reasons.” The SPLC, born in the civil rights movement but under fire for a seeming loss of purpose, must still understand how useful encryption would have been to activists like Martin Luther King, Jr. The technology could have spared them much grief from hostile government agents.

“The U.S. Federal Bureau of Investigation (FBI) began monitoring Martin Luther King, Jr., in December 1955, during his involvement with the Montgomery bus boycott, and engaged in covert operations against him throughout the 1960s,” notes The Martin Luther King, Jr. Research and Education Institute at Stanford University. “Under the FBI’s domestic counterintelligence program (COINTELPRO) King was subjected to various kinds of FBI surveillance that produced alleged evidence of extramarital affairs, though no evidence of Communist influence.”

It’s not surprising that security agencies would want enhanced capability for their surveillance programs. It is foolish, though, to think that compromising communications privacy for bad actors won’t have the same impact on everybody else, or that encryption can be reserved as a protection only for people somehow designated as on the side of the angels. As the European encrypted services emphasized in their joint statement, “encryption is an absolute, data is either encrypted or it isn’t, users have privacy or they don’t.” We either allow that everybody is entitled to privacy protections, or we place our trust in government agencies that have repeatedly proven themselves to be abusive.

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The Return to Intermediary Control

I’m continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I’m talking about how “cheap speech” has led to a revival of calls for restrictions imposed by intermediaries. Recall that the article is mostly descriptive, focusing on what’s happening, for better or worse.

[* * *]

Cheap speech, as the Introduction noted, has made it easier for people to spread their own views, good or evil, and their own understandings of the facts, true or false. And the Internet has in many ways made it easier to speak anonymously, and in ways that hide one’s identity. Foreign governments can take advantage of this, too, and so can foreign groups that might be under the influence of a foreign government. That too was much harder under the old media system, for better or for worse.

The spread of such bad ideas and factual falsehoods — or things that people think are bad ideas and factual falsehoods — may be constitutionally protected, but that doesn’t mean the public and Congress have to like it. As a result, there has been pressure to get intermediaries into “voluntarily” doing the policing of supposed “hate speech,” “fake news,” and the like that the First Amendment precludes the government from doing.[1] And even for speech that the government might be able to itself restrict, such as revenge porn, intermediaries have been providing much more prompt takedown procedures than the legal system can practically provide.

Curiously, then, we seem to be reinventing, and many of us seem to be approving of, intermediary control: it’s just that instead of newspaper and broadcaster editors choosing what to block, we’re having that done by Facebook, Twitter, and occasionally other companies.

In a sense, one can imagine four different approaches to control of public speech:

  1. control by being regulated expressly by the government,
  2. control by being too expensive for ordinary people,
  3. control by private intermediaries, and
  4. no real control (at least of people’s viewpoints and broad factual claims, as opposed to, say, of spam).

Modern First Amendment law largely precludes option (1), so as option (2) has retreated in significance, option 3) is being promoted as a substitute by those who find option (4) unacceptable.

On one hand, this form of Internet intermediary power is a less categorical control — if your speech is banned from Facebook, you can still get it out through other platforms (at least for now, while the infrastructure companies, such as hosting companies and search engines, police things only rarely). Such intermediary power also covers fewer subject matters: Facebook excludes a tiny fraction of all content that people try to post, while traditional editors excluded all except that which they chose to fit on their limited pages.

On the other hand, the control is more oligarchical than ever: a huge share of the control is in the hands of the people running three companies (Facebook, Google, and Twitter). In the past, the control was more broadly shared among executives and editors at broadcast networks, local broadcasters, national magazines, and national but mostly local newspapers.

And, unsurprisingly, this sort of oligarchical control is leading to resentment among many users who had gotten used to the early Internet’s more egalitarian model. Why should Mark Zuckerberg get to say what’s on my Facebook page, they might think, rather than my having exclusive control over that?

They might not have thought that back in the pre-Internet era, where of course the local newspaper editor got to say what was in the newspaper, or even on the letters to the editor page. But give people a taste of the power to publish, and some of them won’t be happy to give it up.

Some have remarked on a certain degree of ideological reversal that seems to be happening here. These days, it is (some) conservatives who, perceiving that the platforms are run by liberals, are worried about the platforms’ restricting conservative speech.[2] As a result, some conservatives are calling for extra regulation of privately owned businesses, something that conservatives generally tend to oppose.

Likewise, these days it is generally (some) liberals who enthusiastically support the power of large corporations — indeed, among the largest of corporations — to influence political speech. Ten years ago, many liberals sharply condemned the Supreme Court’s decision in Citizens United v. FEC, which held that corporations and unions have a First Amendment right to speak about political candidates (independently of those candidates’ campaigns). Thus, for instance, from one 2012 article from liberal think tank Demos, titled 10 Ways Citizens United Endangers Democracy: “[C]oncentrated wealth has a distorting effect on democracy, therefore, winners in the economic marketplace should not be allowed to dominate the political marketplace.”

Yet urging Facebook, Twitter, and similar companies to restrict alleged “hate speech” and to police alleged “fake news” involves some of the biggest “winners in the economic marketplace” using their power to affect “the political marketplace.” And while of course that power is limited, since Facebook and Twitter are indeed far from the whole of the Internet, corporate advertising about candidates after Citizens United was also comparatively modest.

According to OpenSecrets.org’s More Money, Less Transparency: A Decade Under Citizens United, corporations contributed about $300 million to outside spending groups in the 2012–18 federal election campaign cycles, and unions contributed about $275 million. The corporate contributions “made up 10 percent of funding to these groups in the 2012 cycle, a high water mark,” falling to 5% in 2018. And “[w]hile corporations and unions gained potential political power as a result of Citizens United, it’s individual donors who are fueling the explosion of money in recent elections.” Even taking into account the fact that the platforms generally don’t overtly endorse one or another political candidate as such, their content policing likely affects politics at least as much as does the corporate political advertising protected by Citizens United.

Now neither some conservatives’ support for restraining private platforms’ policing power, nor some liberals’ support for increasing the political influence of giant corporations, necessarily reflect logical inconsistency. Few conservatives are categorical foes of all regulation of private business. (Indeed, the most libertarian conservatives, who are the most skeptical of regulation, tend to also oppose regulation of platforms.) And few liberals are categorical foes of all corporate influence on the political process.

Most such political principles are, quite sensibly, presumptions rather than categorical rules. The conservatives who back regulation and the liberals who back platform power may simply see those presumptions as being rebutted by sufficiently strong countervailing interests (whether in protecting user speech, or in fighting “hate speech” and “fake news”). But in both cases, it seems that we are seeing a reaction to the advent of cheap speech, and a reaction to that reaction.

Conclusion

I.             Conclusion

Reno v. ACLU; Ashcroft v. ACLU (I); United States v. American Library Association; Ashcroft v. ACLU (II); Packingham v. North Carolina. Perhaps Elonis v. United States (if you focus on the facts of that case rather than the legal issue). Those are the Internet First Amendment cases that the Supreme Court has considered, mostly dealing with shielding children from sexually themed material, but also, in Elonis, online threats.

But this is not where most of the interesting recent Internet free speech developments have arisen. Rather, they have come in surprising places:

  • the survival and perhaps resurgence of criminal libel law;
  • trial courts’ broad acceptance of anti-libel injunctions;
  • trial courts’ willingness to issue remarkably broad bans on public online speech about people, in the name of preventing “harassment” or “stalking”;
  • the criminalization of the disclosure of private facts, whether through outright criminal laws or through injunctions enforced using the threat of contempt;
  • the enactment or broader application of narrower restrictions on specific kinds of false statements and disclosure of private facts, such as impersonation and nonconsensual porn;
  • the growth of calls for greater policing of online speech by the platforms.

For decades, the main lever for dealing with libel and disclosure of private facts has been the threat of civil damages liability. As that lever has become increasingly irrelevant for many speakers, the legal system has had to grasp for other levers, odd as they might have seemed in 1993. Likewise, for decades, the main lever for dealing with extremist speech and with conspiracy theories has been the control exerted by media intermediaries. As that lever has fallen away, people have called for the platforms to step into the gap.

Some of these developments have been promising. Some have been misguided. But they all represent, I think, the legal system’s largely bottom-up struggle with the dark side of cheap speech and of the democratization of mass communications.

[1] I set aside here intermediaries providing extra speech, such as pointing to fact-checks of posts, cf. Dawn Carla Nunziato, Cheap Speech and Counterspeech by the New Intermediaries, 54 UC Davis L. Rev. (manuscript at 22-25) (2021); that does not involve restrictions (private or governmental) on speech, and indeed the government could itself publish such fact-checks (though it likely couldn’t require platforms to publish them).

[2] There’s debate about the degree to which the platforms’ editing does target conservative speech. But it’s of course human nature for people faced with a massive, largely hidden editing process to assume the worst about the process, especially when it is run by those who are largely on the other side of the political aisle.

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No Facial Recognition Tech for Cops

topicscivilliberties-march-2021

The Los Angeles Police Department (LAPD) banned the use of commercial facial recognition apps in November after BuzzFeed News reported that more than 25 LAPD employees had performed nearly 475 searches using controversial technology developed by the company Clearview AI. That’s one of several recent developments related to growing public concern about police surveillance using facial recognition.

Clearview AI’s app relies on billions of photos scraped from Facebook and other social media platforms. The app, like other facial recognition technologies, pairs that database with machine learning software to teach an algorithm how to match a face to the photos the company has collected.

Clearview is just one player in an expanding market. The Minneapolis Star Tribune reported in December that the Hennepin County Sheriff’s Office had coordinated 1,000 searches through its Cognitec facial recognition software since 2018.

Concerns about such technologies have led several legislative bodies to delay, restrict, or halt their use by law enforcement agencies. In December, the Massachusetts legislature approved the first state ban on police use of facial recognition tech. During nationwide protests over police abuse last summer, the New York City Council passed the Public Oversight of Surveillance Technology Act, which requires the New York Police Department to disclose all of the surveillance technology it uses on the public.

This technology is often deployed without public knowledge or debate, sometimes before the kinks have been worked out. An independent audit found that London’s A.I. technology for scanning surveillance footage labeled suspects accurately only 19 percent of the time.

Studies by researchers at the Massachusetts Institute of Technology and the National Institute of Standards and Technology have found that many of these algorithms have especially high error rates when trying to match nonwhite faces. A December 2019 study of 189 software algorithms by the latter group found that they falsely identified African-American and Asian faces 10–100 times more often than white faces.

Michigan resident Robert Julian-Borchak Williams, who is black, is the first American known to have been wrongly arrested and charged with a crime because of a faulty face match. In January, Williams spent 30 hours in police custody and had to pay a $1,000 bond after an algorithm incorrectly matched him to a shoplifting suspect.

While the potential benefits of reliable facial recognition technology shouldn’t be dismissed out of hand, a sloppy panopticon is almost as dangerous as an effective one. Privacy and accuracy concerns demand intense scrutiny from the public and transparency from the government regarding how this emerging technology is used.

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No Facial Recognition Tech for Cops

topicscivilliberties-march-2021

The Los Angeles Police Department (LAPD) banned the use of commercial facial recognition apps in November after BuzzFeed News reported that more than 25 LAPD employees had performed nearly 475 searches using controversial technology developed by the company Clearview AI. That’s one of several recent developments related to growing public concern about police surveillance using facial recognition.

Clearview AI’s app relies on billions of photos scraped from Facebook and other social media platforms. The app, like other facial recognition technologies, pairs that database with machine learning software to teach an algorithm how to match a face to the photos the company has collected.

Clearview is just one player in an expanding market. The Minneapolis Star Tribune reported in December that the Hennepin County Sheriff’s Office had coordinated 1,000 searches through its Cognitec facial recognition software since 2018.

Concerns about such technologies have led several legislative bodies to delay, restrict, or halt their use by law enforcement agencies. In December, the Massachusetts legislature approved the first state ban on police use of facial recognition tech. During nationwide protests over police abuse last summer, the New York City Council passed the Public Oversight of Surveillance Technology Act, which requires the New York Police Department to disclose all of the surveillance technology it uses on the public.

This technology is often deployed without public knowledge or debate, sometimes before the kinks have been worked out. An independent audit found that London’s A.I. technology for scanning surveillance footage labeled suspects accurately only 19 percent of the time.

Studies by researchers at the Massachusetts Institute of Technology and the National Institute of Standards and Technology have found that many of these algorithms have especially high error rates when trying to match nonwhite faces. A December 2019 study of 189 software algorithms by the latter group found that they falsely identified African-American and Asian faces 10–100 times more often than white faces.

Michigan resident Robert Julian-Borchak Williams, who is black, is the first American known to have been wrongly arrested and charged with a crime because of a faulty face match. In January, Williams spent 30 hours in police custody and had to pay a $1,000 bond after an algorithm incorrectly matched him to a shoplifting suspect.

While the potential benefits of reliable facial recognition technology shouldn’t be dismissed out of hand, a sloppy panopticon is almost as dangerous as an effective one. Privacy and accuracy concerns demand intense scrutiny from the public and transparency from the government regarding how this emerging technology is used.

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Brickbat: What Was He Doing Standing in His Own Yard?

chalkoutline_1161x653

Idaho Falls, Idaho, Police Chief Bryce Johnson says a man shot and killed by officers was not the suspect they had been looking for. Officers had been looking for a man wanted for felony battery on an officer. The suspect fled on foot after a traffic stop. Officers tracked the suspect to a nearby residential neighborhood and began to search it. Johnson said they saw an armed man who matched the suspect’s description in the backyard of one of the homes. He says officers ordered him to drop his weapon and shot him. They later found the suspect hiding in a nearby shed. Johnson said the man who was shot was not a suspect in any crime but was in fact a homeowner that police had spoken to earlier.

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Brickbat: What Was He Doing Standing in His Own Yard?

chalkoutline_1161x653

Idaho Falls, Idaho, Police Chief Bryce Johnson says a man shot and killed by officers was not the suspect they had been looking for. Officers had been looking for a man wanted for felony battery on an officer. The suspect fled on foot after a traffic stop. Officers tracked the suspect to a nearby residential neighborhood and began to search it. Johnson said they saw an armed man who matched the suspect’s description in the backyard of one of the homes. He says officers ordered him to drop his weapon and shot him. They later found the suspect hiding in a nearby shed. Johnson said the man who was shot was not a suspect in any crime but was in fact a homeowner that police had spoken to earlier.

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Antisemitism Continues its March Toward Acceptability on the American Far Left

Cornel West, a celebrity African-American academic, asked Harvard, where he had once been tenured before decamping to Princeton, to offer him a tenured position. Harvard declined, and instead offered the 67-year-old West a ten-year contract.

This may be an example of (rational but illegal) age discrimination, as Harvard may not want to tenure someone whose most productive years may be behind him. It may be a product of West having left Harvard last time under less-than-pleasant circumstances following a dispute with then-President Lawrence Summers. And it may be the result of the fact that West hasn’t published academic scholarship in years, so tenuring him would make a sham of the process and lead to litigation when Harvard denies other people tenure for not meeting appropriate standards for scholarship. (It’s one thing to keep a celebrity academic who no longer publishes academic scholarship in their field like Alan Dershowitz or Noam Chomsky on payroll; it’s quite another to tenure them from the outside.)

What it does not seem to have anything to do with is Israelis, Palestinians, Jews, or any combination thereof.

Nevertheless, West tweeted, “Is Harvard a place for a free Black man like myself whose Christian faith & witness put equal value on Palestinian & Jewish babies- like all babies- & reject all occupations as immoral? After being tenured at Yale, Harvard, Princeton & Union Theological Seminary, the recent Harvard denial of a tenure process strikes me as a political decision I reject. Nothing stands in the way of my profound love for & solidarity with oppressed peoples wherever they are!!”

I don’t see how to read this other than as a claim that a Zionist faction controlling Harvard is denying him tenure because as a Christian he supports Palestinian rights and opposes Israel’s “occupation.” And I don’t see how that can be read as suggesting something other than Jews controlling Harvard are preventing his tenure–it’s not like there is a big evangelical Christian pro-Israel faction in the Harvard administration, and it hardly seems incidental that Harvard’s president, Lawrence Bacow, is Jewish–and because he’s a good Christian, no less. The victim of perfidious Jews.

Meanwhile, Saturday Night Live’s weekend update anchor announced that Israel has vaccinated half of its population, “and I’m going to guess it’s the Jewish half.” This joke badly misfired. It may be an allusion, as one friend suggested, to people who are half-Jewish by descent joking about their “Jewish half.” More likely, it’s an oblique reference to the controversy over Israel vaccinating its own (Arab and Jewish) population, but not Arab residents of the West Bank and Gaza who are not Israeli citizens and who have their own Palestinian health authorities who are in charge of their medical care.

Beyond being ambiguous and not funny, though, the joke is problematic because to the average listener, it might suggest a classic antisemitic trope, that Jews “take care of their own” and don’t care about the welfare of others. This goes back until at least the Black Plague, when Christians blamed Jews, who were for unknown reasons less susceptible to plague, for purportedly poisoning the Christians’ wells.

Well, jokes are occasionally insensitive or prejudiced or misfire or get misinterpreted, so no biggie. But in response to the SNL joke, one Tweeter wrote, “Saturday Night Live just took a dig at Israeli apartheid.”

Jamil Dakwar, who runs the ACLU’s “humans rights program,” responded, “Watch how Israel’s apologists will now accuse SNL of anti-Semitism.” I retorted, “Since the ‘joke’ is actually false, and Israel is in fact vaccinating the entire Israeli population, Arab and Jew alike, shouldn’t the head of a ‘human rights program’ be on the ‘I’m against antisemitic insinuations” side of this debate?'”

So we have Cornel West engaging in classic Jew-baiting, promoting his side of a contractual dispute by suggesting a Jewish plot against him, disguised as moral righteousness about Israel. And we have an ACLU “human rights” poobah dismissing, in advance, quite reasonable concerns about the antisemitic implications of a joke, because apparently he believes only “Israel apologists” oppose blood libels. (And please note that this is not your grandpa’s liberal/civil libertarian ACLU, the organization has taken a hard turn to the far left.) I can see where this is going, and it’s nowhere good.

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