Category: reason

Residents of South Africa are scratching their heads about some of the restrictions on commercial activity imposed by the government with the stated goal of reducing the spread of the coronavirus. For instance, stores can sell only closed-toe shoes. They can sell short-sleeved shirts only if they are advertised as to be worn under jackets or jerseys. And T-shirts can be sold only if it is made clear they are to be worn as undergarments.

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The Dow Jones surged 900 points today in response to positive news about a coronavirus candidate vaccine being developed by Moderna Therapeutics. Early this morning, the company reported that eight patients in a phase 1 safety trial of its vaccine generated neutralizing antibodies to the virus comparable to the levels found in people who had recovered from infection. Basically, the vaccine produces an immune response equal to that provoked by natural infection with the virus.

Moderna’s vaccine is based on a synthetic version of the messenger RNA (mRNA) that the coronavirus uses to construct the proteins that enable it to infect human cells. The injected mRNA tricks the body into making some of the viral proteins that then induce the immune system to produce antibodies in response to them. Antibodies bind themselves onto attacking viruses and bacteria, disabling them or marking them for death by other parts of the immune system, like the cell-devouring macrophages.

Moderna is not alone in pursuing an mRNA vaccine against the COVID-19 coronavirus. Its announced success enhances the prospect that other mRNA vaccine manufacturers could also do well. For example, Pfizer has teamed up with with the German company BioNTech to develop four different coronavirus mRNA vaccines. Phase 1 and 2 clinical trials in the U.S. designed to determine the safety, immunogenicity, and optimal dose level of the four vaccine candidates were launched earlier this month. And another German company, CureVac, plans to initiate phase 1 and 2 clinical trials for its mRNA coronavirus vaccine in June.

The promise of mRNA vaccines is that they are faster, cheaper, and safer to produce than are conventional vaccines. Conventional vaccines are finicky to make. Manufacturers have to figure out how to grow viruses in eggs or mammalian cells, purify and weaken them so that they don’t cause infection when injected, and then scale up production to make millions of doses. This can take years to achieve.

In contrast, templates for the production of the synthetic viral mRNA to be used in a vaccine can be quickly developed and scaled up with relative ease. Moderna announced that it has partnered with Switzerland-based pharmaceutical manufacturer Lonza with the goal of producing a billion doses per year of its coronavirus vaccine. Pfizer and BioNTech are also scaling up to produce millions of vaccine doses by October 2020, increasing to hundreds of millions in 2021. And CureVac says that its manufacturing facility can potentially supply several hundred million doses per year.

Despite all the excitement, keep in mind that no mRNA vaccines have ever been deployed. Nevertheless, investors apparently believe (at least for today) that the mRNA technology will work and that vaccines against the coronavirus scourge will be forthcoming sooner rather than later. Let’s hope that this run-up in stock prices turns out to be an example of rational exuberance.

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Our interview guest, Peter Singer, continues to write (with August Cole) what he calls “useful fiction” – thrillers that explore the real-world implications of emerging technologies. His latest is Burn-In: A Novel of the Real Robotic Revolution, to be released May 26, 2020.  The thoroughly researched (and footnoted!) book is a painless way to understand the social and economic changes new AI and robotic technologies will make possible and their impact on actual human beings. The interview ranges widely over these policy implications, plus a few plot spoilers.

In the News Roundup, David Kris covers the latest Congressional FISA Follies, leading me into a rant on the utter irresponsibility of subjecting national security authorities to regular expiration – and equally regular ransom demands from the least responsible elements of Congress. Speaking of FISA, it turns out that the December Pensacola shootings were hatched by al-Qaeda’s Yemen franchise. Why are we only learning this in May? Because the evidence comes from an iPhone whose security Apple refused to find a way around. The FBI’s self-help solution worked in the end, but not until the trail had gone cold.

US-China decoupling is in overdrive this week. Nick Weaver talks about the move by the Trump Administration to achieve semiconductor self-sufficiency – and probably-not-coincidental announcements that TSMC will build a chip factory in Arizona and that the Commerce Department has drafted a new export rule aimed at making it much harder for TSMC to build chips for Huawei. In response, China is preparing a list of unreliable US suppliers of technology. I wonder whether putting companies on that list for diversifying their supply chain out of China will have the long-term effect of making companies more reluctant to open new supply relationships with Chinese companies.

David and I note that recent US accusations of Chinese and Iranian cyber intrusions on COVID-19 research may be more than just the usual imprecations.

And Nick explains why so many US professors are going to jail for undisclosed China ties. The key word is “undisclosed.”

Mark MacCarthy previews France’s (and Germany’s and the EU’s and the UK’s) increasingly tough sanctions for US social media firms that fail to remove “hate speech” and other bad content within 24 hours (or sometimes one hour). More and more, it seems, Section 230 immunity is just a local US ordinance.

Mark and Nick review the latest trial balloon from Europe’s technocrats: How about a Chinese firewall for Europe, ask apparently respectable policy thinkers working for the European Parliament.

David and Nick find themselves agreeing with the latest release from DHS’s CISA pouring cold water on online voting.

In quick hits, David notes the Trump administration’s now routine extension of the “telecom national security” Executive Order, Nick brings us This Week in NSO Bashing, I touch on a ransomware and doxing threat that has tripped up a celebrity law firm, and Nick and I muse on why cell phone contact tracing seems about to jump the shark.

We close with a surprising catfishing story that leads us into a discussion of the relative hotness of recent NSA directors and whether it’s true that being dual-hatted makes you irresistible to women.

 

 

Download the 316th Episode (mp3).

 

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

 

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

 

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At the beginning of the term, the Supreme Court heard oral argument in a trio of cases considering whether Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or transgender status. We are still waiting for the opinions in these cases.

Much commentary on these cases noted that the interpretive method generally favored by the court’s conservatives (textualism) would seem to produce a “liberal” outcome (such discrimination is prohibited by Title VII), whereas consideration of purpose, legislative intent and legislative history would produce the more “conservative” outcome (such discrimination is not prohibited).

The textualist argument was made well by Professor Pamela Karlan at oral argument:

When a employer fires a male employee for dating men but does not fire female
employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how
men should behave; namely, that men should be attracted only to women and not to men.

Consideration of Congressional purpose and intent, however, shows that sex discrimination and sexual orientation discrimination were understood as different things. Moreover, some would argue it is implausible that Congress sought to prohibit sexual orientation discrimination at a time when homosexual activity was illegal in much of the United States and was a basis for expulsion from the military.

Contrary to the conventional way these cases are often presented, James Phillips, a fellow at the Stanford Constitutional Law Center, argues that there is textual evidence supporting the employers’ position that the prohibition of “discrimination . . . because of such individual’s sex” does not cover sexual orientation discrimination. Here is the abstract of his short essay:

This short essay focuses on a linguistic (and therefore textualist) principle overlooked in the trio of Title VII cases currently before the U.S. Supreme Court: compositionality. By taking that principle seriously–a principle the Supreme Court has recognized in some form for a century–the essay uncovers corpus linguistic and dictionary evidence contemporaneous to the enactment of Title VII that sheds light on the relevant statutory language. That light provides an answer to the interpretive question the Court is facing.

Title VII makes it unlawful “to discriminate against any individual . . . because of such individual’s . . . sex.” Many observers seem to drop the word “against” and focus just on “discriminate.” Or if they do take “against” into account, they nonetheless fail to read the whole operative statutory phrase—including “discriminate,” “against,” and the relevant trait (in this case, sex)—as an indivisible whole. The argument for the plaintiffs, in particular, would require us to give “discriminate” and “against” the meaning each of them would have if it existed apart from the rest of the phrase. This “dissection” approach is most obvious in the most precise and careful formulations of the plaintiffs’ central textualist argument, as this Essay will show.

But that approach, as I will also show, violates the linguistic principle of compositionality. So it produces a demonstrably inferior reading of the text on purely linguistic grounds, prior to any appeal to subjective intent, purpose, policy concerns, or other modes of legal argument.

That is because, as it turns out, the phrase “discriminate against . . . because of [some trait]” was a linguistic unit (a composite) by the time of Title VII’s enactment, which makes the principle of compositionality relevant. And read as a composite, the phrase had more semantic content than one could glean from separately analyzing and then amalgamating its three parts (“discriminate,” “against,” and “sex”). While a “dissection” reading might suggest that Title VII covers any adverse treatment that even adverts to sex, as plaintiffs suppose, a linguistically superior reading (taking compositionality into account) proves that the operative text refers only to adverse treatment that rests on prejudice or bias—i.e., unfair beliefs or attitudes directed at some or all men in particular, or at some or all women in particular (whether the beliefs be outright falsehoods or just unduly rough or weak generalizations; and whether the attitudes be indifference, discounting of interests, distaste, or outright antipathy). And this defeats the plaintiffs’ textualist argument. Whatever the legal merits of their case overall, their textualist case fails because it violates a basic linguistic principle as applied to linguistic data from the era. But as it happens, the prejudice-based conception of discrimination that is required by the text properly read, also fits well with all the Court’s precedents on sex discrimination.

To establish the above points about the text, this Essay appeals only to (1) dictionaries from the time of Title VII’s enactment, and (2) systematic data on linguistic usage from the same period (which this Essay draws from the Corpus of Historical American English, containing 24 million words’ worth of naturally occurring text that provides a balanced snapshot of American English usage).

Ryan Nees, a rising 3L at Stanford Law School, takes issue with Phillips account, and has authored an extensive post on the blog of the American Constitution Society. Here is a taste, summarizing the response:

Phillips’s intriguing argument is worth carefully considering, and is an instructive application of the larger project urging judges to make greater use of corpus linguistics to derive contemporaneous meaning. He argues, in summary, that the petitioners’ textualist reading depends upon “separately analyzing and then amalgamating . . . three parts” – namely, the words “discriminate,” “against,” and “sex.” Analyzed in that way, the LGBTQ petitioners may have a point, and  Justice Gorsuch seemed to acknowledge as much at oral argument. The better approach, Phillips says, would be to assess the distinct meaning of the phrase “discriminate against,” which has its own highly specific connotation entailing prejudice as a motivation, especially when the phrase is paired with a suspect class.

Corpus linguistics could be a useful resource to identify idiomatic meaning of this sort. But the surprising consequence is that, the more idiomatic the meaning uncovered, the more purposivist the reasoning starts to appear. And for reasons I explain, Phillips’s analysis is unpersuasive on its own terms, relying on a limited linguistic corpus while overlooking any possible legalistic meaning that prevailed at the time. It seeks to create a new term of art even as textualists have traditionally disfavored doing so. As the corpus-linguistic method rises in popularity as a tool of statutory interpretation, the Title VII case study demonstrates its risks.

Phillips, for his part, has posted a reply on the Originalism Blog.

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Last night on 60 Minutes, Federal Reserve Chair Jerome Powell was asked whether it’s fair to characterize the central bank’s coronavirus responses as having “simply flooded the system with money.” Powell replied: “Yes. We did. That’s another way to think about it. We did.”

Then the money printer really did go brrr:

Pelley: Where does it come from? Do you just print it?

Powell: We print it digitally. So as a central bank, we have the ability to create money digitally. And we do that by buying Treasury Bills or bonds for other government guaranteed securities. And that actually increases the money supply. We also print actual currency and we distribute that through the Federal Reserve banks.

Pelley: In terms of size, Mr. Chairman, how does what the Fed is doing right now compare to the unprecedented action it took in 2008?

Powell: So the things we’re doing now are substantially larger. The asset purchases that we’re doing are a multiple of the programs that were done during the last crisis.

Are we all Modern Monetary Theorists now? So ponder Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and Matt Welch on today’s Reason Roundtable podcast. The gang also discusses Democratic coronavirus proposals, what the Libertarian Party presidential race looks like now that Rep. Justin Amash (L–Mich.) has dropped out, and whether you should quaff a CBD drink called “Sweet Reason.”

Audio production by Ian Keyser and Regan Taylor.

‘Nadie Es Illegal’ by Ashley Shadow.

Relevant links from the show:

“America’s Long-Term Debt Crisis Is Now a Short-Term Problem,”  by Peter Suderman

“Plans for Extended Unemployment Benefits, Wage Subsidies Risk Creating a Zombie Economy,” by Christian Britschgi

“Pelosi’s $3 Trillion Coronavirus Relief Bill Includes $175 Billion in Homeowner, Renter Assistance, and Blanket Ban on Evictions,” by Christian Britschgi

“The Next Coronavirus Stimulus Bill Is Here. It’s a $3 Trillion Spending Plan That Bails Out States and the Post Office,” by Eric Boehm

“Modern Monetary Theory Is Supply Side Economics—but for the Left,” by Peter Suderman

“Whatever Happened to Inflation?” by Brian Doherty, Peter Schiff, David Henderson, Scott Sumner, and Roberty Murphy

“Turning Japanese,” by Anthony Randazzo, Michael Flynn, and Adam Summers

“Justin Amash Drops Out of Presidential Race,” by Matt Welch

“Watch Libertarian Party Presidential Candidates Justin Amash, Jacob Hornberger, Jim Gray, Jo Jorgenson, and Adam Kokesh Debate Tonight at 8 p.m. ET,” by Matt Welch

“Vermin Supreme Says This Time, He’s Serious,” by Matt Welch

“Libertarian Party To Choose Its Presidential Ticket in Virtual Vote Over Memorial Day Weekend,” by Brian Doherty

“Candidates Vie to Represent the Libertarian Wing of the Libertarian Party,” by Matt Welch

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