Category: reason

I enjoyed it very much, and hope you do, too! Here’s a rough summary:

As private entities, social media platforms are not bound by the First Amendment, and are free to permit—or block—content and users as they see fit; and 47 U.S.C. § 230 preempts any state statutes that would impose greater limits on such companies. That, at least, is the traditional view.

But some state legislatures are considering statutes that would ban viewpoint-based blocking by platforms; and some scholars are arguing that those laws might prevail, notwithstanding § 230. What are these theories? And what are their strengths and weaknesses?

I should note that my views on the subject are far from settled; I was trying to outline arguments that I think need to be considered, though I’m not certain what policy, ultimately, makes the most sense here.

Thanks to UCLA law student Leeza Arbatman for moderating, and to my colleague John Villasenor for organizing.

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Despite using facial recognition technology on millions of air travelers last year, U.S. Customs and Border Protection (CBP) caught not a single identity imposter at American airports. Since 2018, airport CBP officers have only “intercepted seven impostors,” according to a new report from the agency. That’s something to keep in mind as the feds continue to build out biometric databases and officials champion their use as a vital national security step.

In that same CBP report, the agency reveals that it scanned the faces of some 23 million travelers in and out of the U.S. via airplanes, boats, and foot travel in fiscal year 2020 (that’s October 2019 through September 2020). But “the system caught no imposters traveling through airports last year and fewer than 100 new pedestrian imposters,” notes Dave Gershgorn at OneZero.

That’s 100 people out of nearly 8 million pedestrian facial scans run last year, the report notes. (Or, put another way, 0.001 percent of the pedestrian scans identified imposters.) Since 2018, 295 foot travelers with fake documents were found.

The report provides a frightening glimpse of where this all going: a world where traditional travel and identity documents are replaced entirely with biometric data scans.

At airports, CBP has “expanded the use of Simplified Arrival, a process that…verifies a traveler’s identity biometrically and retrieves traveler records from CBP systems using the traveler’s face,” says the report. “Simplified Arrival is the first step in re-envisioning how travelers arrive in the United States.” (Emphasis added.)

CBP used the “Simplified Arrival” program at 18 airports last year and “operated biometric exit technical solutions” at 20 more airports.

Additionally, border patrol agents have been piloting an expanded biometric surveillance program in conjunction with the Transportation Security Administration (TSA). “The pilot will assist in developing future plans for the use of biometric facial comparison technology at TSA checkpoints,” the new CBP report says.

And CBP is working to bring facial recognition technology to bear on more U.S. roadways and cruise ships, too:

CBP is piloting biometric capabilities at the land border in both the pedestrian and vehicle environments and in partnership with the cruise line industry in the sea environment. During FY2020, nearly 8 million pedestrian travelers were processed at seven ports of entry. Similarly, in the sea environment, nearly 1 million travelers were processed at seven seaports. In 2020, seven major cruise lines were engaged with CBP to develop facial biometric processing for closed-loop cruises.

OneZero provides a little more background:

The rollout of facial recognition at U.S. borders has its roots in a 1996 congressional mandate that the attorney general develop a system to track the entry and exit of foreign citizens to the U.S. In 2001, the PATRIOT Act expanded this entry/exit system, adding a requirement that this tracking be done by biometrics, meaning through fingerprint, iris, or facial recognition. The CBP subsequently took over these efforts and, in 2013, put a plan in motion to use facial recognition.

CBP started releasing data on its facial recognition rollout in 2019. It revealed that in 2018, 8.3 million people were scanned at borders. However, the program’s implementation has been met with skepticism from the Government Accountability Office (GAO). In late 2020, the oversight organization lambasted CBP over lackluster accuracy audits, poor signage notifying the public the technology is being used, and little information offered to the public on how its systems worked.

QUICK HITS

• Leaving aside former President Donald Trump’s role in rallying the Capitol rioters, “his reaction to it was enough to justify impeachment,” writes Reason‘s Jacob Sullum.

• Republican senators who are supposed to impartially vote on Trump’s impeachment are also helping develop his defense strategy. From The Hill:

Sens. Ted Cruz (Texas), Mike Lee (R-Utah) and Lindsey Graham (R-S.C.) were spotted entering the meeting, which took place in a room near the Senate chamber that Trump’s team is using as a workspace.

Cruz told reporters after the meeting that they were talking strategy for the defense’s opening arguments on Friday.

“We were discussing their legal strategy and sharing our thoughts,” Cruz said.

• Veronique de Rugy on what’s wrong with Sen. Mitt Romney’s (R–Utah) child care plans.

• Google said it will leave Australia if a new proposal where it must pay to link to news articles becomes law. Google competitor Microsoft says it wants us to enact the same disastrous plan here.

• The Biden administration is backing off plans to ban TikTok and WeChat.

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Several leading property casebooks include Gruen v. Gruen, a New York Court of Appeals decision from 1986. In this case, Victor Gruen owned a valuable Gustav Klimt painting, “Schloss Kammer am Attersee II.” Victor conveyed an interest in the painting to his son, though Victor would keep the painting during his life. After Victor’s death, his wife, Kemija Gruen, refused to give the painting to her stepson, Michael. Kemija argued that the conveyance was invalid testamentary gift. Michael, who was an attorney, litigated the case pro se, and he prevailed. The New York Court of Appeals held that the father’s conveyance was a valid inter vivos gift of a future interest in the painting.

And thus, Michael Gruen secured his place in the property law canon. But he did much, much more.

Gruen helped to draft the landmark preservation laws that the Supreme Court were upheld in Penn Central Transportation Co. v. New York City (1978). And he argued before the Supreme Court on behalf of the petitioner in Loretto v. Teleprompter Manhattan CATV Corporation, opposite Erwin Griswold.

One person was at the center of three prominent property cases. And his side won all three cases!

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As often happens, recent events (such as the Donald McNeil apology) have reminded me of lines from Leonard Cohen, here from A Singer Must Die (1974):

And I thank you, I thank you for doing your duty
You keepers of truth, you guardians of beauty
Your vision is right, my vision is wrong
I’m sorry for smudging the air with my song ….

I am so afraid that I listen to you
Your sun glassed protectors they do that to you
It’s their ways to detain, their ways to disgrace
Their knee in your balls and their fist in your face
Yes and long live the state by whoever it’s made
Sir, I didn’t see nothing, I was just getting home late

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Judas and the Black Messiah comes at you like a shotgun blast full in the face. In his first major feature, director Shaka King supercharges the story of murdered ’60s Black Panther leader Fred Hampton (Daniel Kaluuya in an electrifying performance) and his betrayer, turncoat Panther Bill O’Neal (LaKeith Stanfield, likewise superb). The movie deftly illuminates a central ideological issue of the period—nonviolent community uplift versus extremely violent Maoist revolution—but it also delivers explosive action scenes when the Panthers fight back against their lawless FBI antagonists, and a brilliant avant-funky score (by Mark Isham and Craig Harris) that’s expertly ornamented with vintage contributions from Gil Scott-Heron, Eddie Gale, and Rahsaan Roland Kirk, among many others.

The story begins in Chicago, in 1967. Smalltime criminal O’Neal has been popped by the Feds for car theft and for waving around an FBI badge that wasn’t his to wave. “A badge is scarier than a gun,” he explains to his interrogator, a bureau agent named Roy Mitchell (Jesse Plemons, wonderfully ambiguous). Mitchell tells O’Neal he can either do prison time for his felony transgression…or he can go home right now if he agrees to become an FBI informer. O’Neal, a man whose ideals are entirely negotiable, takes the bait immediately.

Before long, O’Neal has insinuated his way into the Illinois chapter of the Black Panther Party, where he becomes the chapter security chief and the bodyguard of its leader, Fred Hampton. Director King lets Hampton—a onetime pre-law student who’s moved on from an earlier political home in the NAACP—press his revolutionary case from beyond the grave, holding on closeups of a fiery Kaluuya as he rouses crowds with his effortless charisma. “War is politics with bloodshed,” he tells people. “Politics is war without bloodshed.” Naturally, in the spirit of the times, he also name-checks Mao Zedong from time to time— “Political power flows out of the barrel of a gun,” all that stuff. But the Hampton we see here is most committed to providing healthcare for the poor and free breakfasts for hundreds of hungry kids every day. He’s also getting his harder edges sanded down by a sweet-but-tough Panther newbie named Deborah Johnson (an irresistible performance by Dominique Fishback, of The Deuce).

The FBI has a different view of Fred Hampton—to them he’s a dangerous radical, much like the feminists, hippies, and plain old Communists of whom they also disapprove. Empowered by a secret, illegal dispensation called COINTELPRO, the bureau has partnered with police organizations to harass and destabilize bad-mannered political groups around the country. These troublemakers can always be jailed, of course, but as we hear FBI chief J. Edgar Hoover (Martin Sheen) say at one point, “Prison is a temporary solution.”

Meanwhile, Agent Mitchell is telling Bill O’Neal that the Panthers and the Ku Klux Klan are basically the same—and pressuring him to provide a blueprint of Black Panther headquarters. This he does, and the building soon goes up in flames after a furious assault by the FBI and Chicago police.

Stanfield has a tricky challenge here. O’Neal is a sympathetic character (to an extent) simply because this particular actor is playing him. But he is also detestably treacherous; and while we may occasionally detect faint glimmers of conscience or regret moving across his face, they never translate into redemption—betrayal is the sewer through which he will always swim. (The real O’Neal died in 1990.) So when Agent Mitchell orders him to draw another blueprint—this one for Fred Hampton’s home—O’Neal clearly realizes he’s about to cross a final moral frontier. Somewhere in the dark basement of his soul, he may feel guilty about this—but he does it anyway, and as the movie nears its end, director King brings all of his artistic power to bear on recreating a state-executed slaughter that’s still horrific.

Heavily flawed first-generation Panthers like Huey Newton and Eldridge Cleaver used to get all the ink, but Hampton may be more worthy of reinspection. He was 21 years old when he was shot dead in his Chicago bedroom in 1969; now, 50 years later, this movie brings him back. “You can murder a revolutionary,” he once said, “but you can’t murder a revolution.” He’s still right about that.

(Judas and the Black Messiah is airing now on HBO Max.)                

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