Category: reason

This week sees yet another Trump administration initiative to hasten America’s decoupling from China. As with MIRV warheads, the theory seems to be that if you launch enough of them, the next administration can’t shoot them all down.  Brian Egan lays out this week’s initiative, which lifts from obscurity a DoD list of Chinese military companies and excludes the companies from U.S. capital markets. 

Our interview is with Frank Cilluffo and Mark Montgomery. Mark is Senior Fellow at the Foundation for Defense of Democracies and Senior Advisor to the congressionally mandated Cyberspace Solarium Commission. Previously, he served as Policy Director for the Senate Armed Services Committee under Senator John S. McCain—and before that served for 32 years in the U.S. Navy as a nuclear trained surface warfare officer, retiring as a Rear Admiral in 2017. Frank is director of Auburn University’s Director of Auburn University’s McCrary Institute for Cyber and Critical Infrastructure Security. He served on the Cyberspace Solarium Commission and chaired the Homeland Security Advisory Council’s subcommittee on economic security.

We talk about the unexpected rise of the industrial supply chain as a national security issue. Both Frank and Mark were moving forces in two separate reports highlighting the issue, as was I. (See also my op-ed on the same topic.) So, if we seem suspiciously in agreement on supply chain issues, it’s because we are suspiciously in agreement on supply chain issues. Still, as an introduction to one of the surprise hot issues of the year, it’s not to be missed.

After our interview in episode 336 of a Justice Department official on how to read Schrems II narrowly, you knew it was only a matter of time before we heard from Europe. Charles Helleputte reviews the European Data Protection Board’s effort to give more authoritative and less comfortable advice to U.S. companies that want to keep relying on the standard contractual clauses. The Justice Department take on the topic manages to squeak through without a direct hit from the privacy bureaucrats.  Still, the EDPB (and the EDPS even more so) makes clear that anyone following the DOJ’s lead is in for an uphill fight. (For those who want more of Charles’s thinking on the topic, see this short piece.)

Zoom has been allowed to settle an FTC proceeding for deceptive conduct (claiming that its crypto was end to end when it wasn’t, and more). Mark MacCarthy gives us details.  I throw shade on the FTC’s failure to ask any serious national security questions about a company that deserves some. 

Brian brings us up to speed on TikTok.  Only one of the Trump administration penalties remains unenjoined. My $50 bet with Nick Weaver—that CFIUS will overcome the judicial skepticism that IEEPA could not—is hanging by a thread. Casey Stengel makes a brief appearance to explain why TikTok might win. 

Brian also reminds us that export control policymaking is even slower and less functional on the other side of the Atlantic, as Europe tries, mostly ineffectively, to adopt stricter limits on exports of surveillance tech. 

Mark and I admire the new Aussie critical-infrastructure cybersecurity initiative, for its clarity if not for its likely political appeal. 

Charles explains and I decry the enthusiasm of European courts for telling Americans what they can say and read on line, as an Austrian court tells Facebook to take down worldwide the description of an Austrian politician as belonging to a “fascist party.” Apparently, we aren’t allowed to say that political censorship is what members of a fascist party tend to advocate; but don’t worry about our liability; we can’t pronounce the plaintiff’s name.  

So, in retrospect, how did the United States do in policing all the new cyberish threats to the 2020 election? 

• Brian gives the government credit for preventing foreign interference. I question the whole narrative of foreign interference, which didn’t have much effect in 2016 or 2020 (other than the hack and dump operation against the DNC) but did align conveniently with Democratic messaging in both years (Hillary only lost because of the Russians! Ignore Trump’s corruption allegations because they’re just more Russian interference!).
• Mark and I wonder what Silicon Valley thinks it’s accomplishing with its extended bans on political advertising after the election.  After all, it’s almost always election season somewhere (see, e.g., Georgia).
• DHS’s CISA did produce a detailed rumor control site that helped correct misunderstandings—but may have corrected one too many of the President’s tweets.  In consequence, Under Secretary Chris Krebs, familiar to Cyberlaw Podcast listeners, may be on the chopping block. That would be a shame for DHS and CISA; for Chris it’s probably a badge of honor. Frank Cilluffo and Mark Montgomery weigh in with praise for Chris as well.

And more.

Download the 338th Episode (mp3)

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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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11/17/1880: The United States and China sign treaty that protects Chinese laborers residing in the United States. This treaty was implicated in Yick Wo v. Hopkins (1886).

 

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Norway has banned hate speech against “gender, gender identity or expression” and “sexual orientation,” including remarks said in private. The law, approved by the legislature without a vote, calls for up to one year in prison for private remarks and up to three years in prison for public remarks that incite hatred, persecution, or contempt against protected groups or remarks that dehumanize them.

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Robby Soave (Reason) reports:

One school district in Washington state has evidently decided that Asians no longer qualify as persons of color.

In their latest equity report, administrators at North Thurston Public Schools—which oversees some 16,000 students—lumped Asians in with whites and measured their academic achievements against “students of color,” a category that includes “Black, Latinx, Native American, Pacific Islander, and Multi-Racial Students” who have experienced “persistent opportunity gaps.”

What the equity report really highlights is the absurdities that result from overreliance on semi-arbitrary race-based categories….

This reminds me of an L.A. Times op-ed I wrote back in 1998, but which I thought still merited passing along, since the underlying phenomenon continues to happen:

Asians are now white.

Don’t believe me? A recent MSNBC news headline announced a “Plunge in Minority University Enrollment” at the University of California, with UC Berkeley reporting that “minority admissions had declined 61 percent.” Actually, the total percentage of racial minority students at Berkeley, Asians included, fell from 57% to 49%. If you exclude the burgeoning group of people who decline to state their race, the minority percentage fell only three percentage points, from 61% to 58%.

The drop was exclusively among blacks, Hispanics, and American Indians. Asians, who make up less than 10% of the California population, apparently aren’t a “minority.”

Or listen to former California Chief Justice Rose Bird. Last year, she wrote a commentary saying that, without race preferences, the UC system would be “nothing more than a group of elitist, `lily white´ institutions.” A coorganizer of Jesse Jackson’s recent march in favor of race preferences called UC Berkeley’s law school, whose entering class last year was 20% minority, including 14% Asian, “lily-white.” Asians aren’t just white: They are lily-white.

I first noticed this effect 10 years ago, at a party where a friend of mine commented that the guests were all white. I responded by mentioning about a dozen Asians; oh, she said, that’s right, but you know what I mean. At a recent UCLA conference I attended, two speakers complained that everyone on the panel was white, without even realizing that one of the speakers was ethnically Chinese, and another was an Asian Indian with skin darker than that of many American blacks.

To some extent, this sort of mistake is funny and even a bit heartwarming. The racial divisions between white and Asian, once so stark and to many almost unbridgeable, are quickly fading away. Marriages between Asians and whites are increasingly common; while anti-Asian bigotry exists, it is (at least among whites) much rarer than it was only one or two generations ago. As with the experience of the American Irish, Italians, Jews, and many other groups, the Asian experience shows that racial divisions and hostilities can subside over time.

But there’s a sinister aspect to this as well. To begin with, calling Asians “non-minorities” or even “white” is an error, and is a denial of their heritage. Asians have succeeded even though they are a racial minority—this fact deserves to be acknowledged. It redounds to the credit of the many Asians who worked terribly hard against often overwhelming odds. And it’s evidence of the essential fairness of the American capitalist system, which has rewarded this hard work even though many people, including many government officials, tried to penalize it.

Calling Asians white also creates new lines, possibly very dangerous ones. “White” has stopped meaning Caucasian, imprecise as this term has always been, and has started to mean “those racial groups that have made it.” “Minority” has started to mean “those racial groups that have not yet made it.” (A recent San Francisco Chronicle story even excludes non-Mexican-American Latinos from the “minority” category.) This new division is as likely as the old to create nasty, corrosive, sometimes fatal battles over which racial groups get the spoils. So long as we think in terms of “white” and “minority,” we risk disaster, no matter which races are put in which box.

And, finally, calling Asians white is often a tool for misleading the public. Falsely calling a school “lily-white” gets a strong reaction from readers. Accurately saying “There are relatively few blacks and Hispanics at the school, but there are many Asians, perhaps more than there are whites” leads to a much more complex (as well as more well-informed) response. Falsely talking about plummeting “minority” admissions makes more political hay than accurately describing decreases among some racial groups and increases among others.

Ultimately, the only way to solve any of our problems, including our racial ones, is to tell the truth. We should celebrate the fact that Asians have succeeded. We should do things to make sure that all people, regardless of their race, have a chance to succeed. But in our fight for this success, we should be scrupulously honest about what’s really going on.

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In my very biased opinion, our federal bench and bar in Houston and Galveston is one of the most talented in the nation. Exhibit A. Judge Jennifer Walker Elrod (5th Circuit) and Judge Charles Eskridge (S.D.TX) bring down the house in a rendition of “You’ll be back” from Hamilton. Watch till the end for some very special ensemble appearances from other members of our judiciary.

With their permission, I am happy to post the video of “We’ll be back.”

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