How Fashion Designers Are Thwarting Facial Recognition Surveillance

Every day, your movement is tracked. Your purchases are logged, your searches saved. And increasingly, your face is scanned.

Facial recognition technology is becoming more widespread daily, and governments are finding new applications in the midst of the coronavirus pandemic. Privacy International reports that 24 countries have already implemented location tracking to help ensure compliance with quarantines.

Were you thinking that face masks might help protect your privacy? China’s facial recognition algorithms have already figured out a way around them. In January, The New York Times reported that a company called Clearview AI has created a database that makes it possible to snap a photo of a stranger and reveal that person’s identity.

The technology was developed using more than three billion images scraped from public social media accounts by Hoan Ton-That, an Australian who HuffPost revealed has collaborated with anti-immigration alt-right operatives. Elements of Clearview AI are in use by more than 600 law enforcement agencies in North America—including the FBI, Department of Homeland Security, and ICE.

So can we resist the surveillance society? Should we?

Kate Rose says yes.

“I think you have a right to consent to how your information is used, especially if it’s meant to be at some point used against you or used extrajudicially,” says Rose, the cybersecurity analyst and fashion designer who founded Adversarial Fashion, a line of surveillance-resistant clothing. Its wares include masks meant to block facial recognition cameras, and shirts patterned with fake license plates meant to feed bad data into automated license plate readers.

Rose’s concern about extrajudicial use of personal data is more plausible than ever in the age of coronavirus lockdowns.

Politico reported in late March that the Department of Justice has asked Congress pass a law allowing indefinite detention without trial of U.S. citizens during national emergencies. (The legislation has yet to advance.) Unauthorized movements picked up by surveillance could theoretically be a pretext for such indefinite detention.

“Privacy rights need to be more enshrined,” says Rose, “in terms of protecting your right to any data collected about you [requiring] a warrant before it is used.”

Rose is one of several designers trying to fight surveillance with fashion.

While her license plate shirts and dresses disseminate bad data, other anti-surveillance designers use fashion as a form of obstruction, such as camouflaging makeup or sunglasses that confuse facial recognition systems.

“I really love how people are exploring the different ways to counter surveillance technology and to empower people to do so,” says Electronic Frontier Foundation (EFF) researcher Dave Maass. “But at the end of the day, people should not have to wear a mask or put on face paint or wear, like, complicated t-shirt patterns in order to protect their privacy. Our government should be protecting our privacy.”

Maass and his EFF colleagues successfully lobbied the California legislature to pass a law that, starting in 2020, puts a three-year moratorium on law enforcement’s use of facial recognition technology, including those departments who were experimenting with Clearview AI. It’ll mean that law enforcement agencies in San Diego county will have to stop using a shared facial identification system available to officers in hand-held tablets.

The San Diego Sheriff’s Department “was one of the first agencies that we identified…using mobile biometric technology…face recognition that they could use from the palms of their hands,” says Maass. The data didn’t stay local. According to Maass, San Diego, a border county, regularly shared access with the federal government, including Border Patrol and ICE.

“And we don’t know how those agencies use that technology. We do know they used it, but we’d have no idea what their purposes were,” says Maass.

San Francisco and Oakland have outright banned the use of facial recognition technology by law enforcement. Some technologists think such bans are overreactions.

“Suspending A.I. [artifical intelligence] facial recognition like San Francisco and Oakland…is idiocy to be honest. And lives will be lost,” says Zoltan Istvan, a tech writer and self-described transhumanist who is currently seeking the Libertarian Party’s vice-presidential nomination. Istvan believes that humans should celebrate and embrace the disruptive capabilities of technology to modify the human body and experience. He even implanted an RFID chip in his hand that allows him to unlock his front door.

Facial recognition technology “is going to be very useful to the human race,” says Istvan, “but we just kinda got to get over it being creepy.” 

Istvan envisions authorities using facial recognition and other artificial intelligence–driven surveillance tools to prevent terrorist attacks by recognizing abnormal behaviors or suspicious individuals in crowds. Or to aid the government in fighting human trafficking.

Governments around the world are deploying other biometric surveillance tools as well, such as gait recognition and scanning for elevated body temperatures to isolate feverish individuals in a pandemic.

“Let us look at what [surveillance] can do for overcoming criminality in our cities. Let us look at what it can do for the overall safety,” says Istvan. 

FaceMe is one example of such a security application. The developers originally marketed the software for virtual makeup demonstrations before it evolved into a product serving a wide range of uses, such as logging into apps, entering a secure facility, and identifying intruders. FaceMe’s general manager Richard Carriere says the software has a precision level of up to 99.58 percent, the only non-Chinese or Russian company with such accurate results.

Although the majority of the company’s clients are in the private sector, they have supplied technology to governments around the world. Carriere agrees with Istvan that facial recognition technology could be a giant boon to public safety while having the benefit of decreasing the likelihood of police interactions turning violent.

“If I’m a citizen and cops come to me, I’d be very happy for them to know who I am even before they come to me,” says Carriere. 

Carriere pledges that the company won’t sell its technology to repressive governments or agencies.

“I’d like to believe that we would only associate ourselves with police forces or law enforcement organizations that are respectful of individual rights,” says Carriere. 

But U.S. law enforcement agencies are already showing a lack of accountability in how they use facial recognition technology. The police department in Chula Vista, California, failed to properly report to a federal oversight committee how it was using a facial recognition program, according to a fired whistleblower.

The Chula Vista Police Department declined our interview request.

Police are very enthusiastic about adopting the technology, but they’re not very enthusiastic about doing the due diligence of recording when this technology has been used, when it has been accessed, auditing the use of the technology, doing all the things that you would need to do to protect people’s data,” says Maass. “They want to collect it all, but they don’t really care about protecting it all.

Maass worries about China’s use of facial recognition surveillance in conjunction with a state-run social credit system, which assigns citizens a numerical score based on their behavior. China has also rolled out increased pandemic-related surveillance that monitors for fevers and flags individuals not wearing protective face masks during an outbreak.

The thing that we can learn from China is that this surveillance, as it continues to grow, is going to be less and less about public safety and more and more about controlling people,” says Maass. 

But Istvan believes that it’s possible to deploy facial recognition surveillance without emulating China.

“I think the social credit system that China is using is absolutely awful,” says Istvan. “They’re setting such a bad example for the rest of the world that everyone’s turning their back against A.I. facial recognition. There is a good way to use it.”

Istvan believes that, ultimately, our entire conception of privacy will need to be revised.

“I believe in a society that’s totally transparent, a society where sort of everybody can see what everybody is doing,” says Istvan, who advocates a law requiring body cams that constantly record police officers while on duty and surveillance of all political figures when they are acting in an official capacity. “Privacy, I believe, really does steal our liberty away. It’s transparency that’s going to give us all the freedoms we want.”

Maass disagrees.

“I do think conceptions of privacy are changing, but I think they’re strengthening,” says Maass. “Post–Clearview AI…people are concerned and outraged…and people will probably make different decisions on how they control their data online as a result of it.”  

Rose thinks that as the technology becomes more powerful and present, Americans will need to take a page from the protesters in Hong Kong, who have used face masks, encrypted communication, and, most importantly, mass disobedience to resist authoritarian control.

“The…anti-surveillance actions that don’t matter by yourself, when you hit a critical mass of people, matter a lot,” she says, pointing to the ability of Hong Kong protesters to sustain their protest through mass participation and decentralized coordination. “I think that kind of belief in your power, even if you think it might not work 100 percent of the time…you together have this tremendous power.”

Rose’s aim isn’t just to design clothing that thwart today’s systems but to cultivate a community that continually develops new methods to confound the surveillance state as its tools continue evolving.

“It’s a really important opportunity for us to try and get as far ahead as we can before we begin playing catch up again,” says Rose. 

Produced by Zach Weissmueller and Justin Monticello. Opening graphics by Lex Villena. Camera by James Lee Marsh, John Osterhoudt, Weissmueller, and Monticello. Hong Kong camerawork by Edwin Lee.   

Music credits: Songs from the album Paradigm Lost by Kai Engel licensed under a Creative Commons Attribution Non-Commercial Share-Alike 2.0 license. 

Photo credits: “Thermal surveillance,” by Dario Sabljak/agefotostock/Newscom; “Surveillance camera,” Caro/Sorge/Newscom; “Chula Vista facial recognition tablet,” Howard Lipin/TNS/Newscom

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Flashback: Obama Ordered Comey To Conceal FBI Activities Right Before Trump Took Office

Flashback: Obama Ordered Comey To Conceal FBI Activities Right Before Trump Took Office

With weeks to go before Donald Trump’s inauguration, former President Obama and VP Joe Biden were briefed by Deputy Attorney General Sally Yates, FBI Director James Comey, CIA Director John Brennan, and Director of National Intelligence James Clapper on matters related to the Russia investigation.

The January 5, 2017 meeting – also attended by former National Security Adviser Susan Rice, has taken on a new significance in light of revelations of blatant misconduct by the FBI – and the fact that the agency decided not to brief then-candidate Trump that a “friendly foreign government” (Australia) advised them that Russia had offered a member of his campaign ‘dirt’ on Hillary Clinton.

The rumored ‘dirt’ was in fact told to Trump campaign aide George Papadopoulos by Joseph Mifsud – a shadowy Maltese professor and self-described member of the Clinton Foundation. Papadopoulos then told Australian diplomat Alexander Downer, who told Aussie intelligence, which tipped off the FBI, which then launched Operation Crossfire Hurricane. Papadopoulos was then surveiled by FBI spy Stefan Halper and his honeypot ‘assistant’ who went by the name “Azra Turk” – while in 2017, Papadopoulos claims a spy handed him $10,000 in what he says goes “all the way back to the DOJ, under the previous FBI under Comey, and even the Mueller team.”

Meanwhile, the Trump DOJ decided last week to drop the case against former Director of National Security, Mike Flynn, after it was revealed that the FBI was trying to ensnare him in a ‘perjury trap,’ and that Flynn was coerced into pleading guilty to lying about his very legal communications with the Russian Ambassador.

And let’s not forget that the FBI used the discredited Steele Dossier to spy on Trump campaign associate Carter Page – and all of his contacts. Not only did the agency lie to the FISA court to obtain the warrant, the DOJ knew the outlandish claims of Trump-Russia ties in the Steele Dossier – funded by the Clinton Campaign – had no basis in reality.

And so, it’s worth going back in time and reviewing that January 5, 2017 meeting which was oddly documented by Susan Rice in an email to herself on January 20, 2017 – inauguration day, which purports to summarize that meeting.

Rice later wrote an email to herself on January 20, 2017—Trump’s inauguration day and her last day in the White House—purporting to summarize that meeting. “On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election,” Rice wrote, “President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.”

According to Rice, “President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities ‘by the book.’” But then she added a significant caveat to that “commitment”: “From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

The next portion of the email is classified, but Rice then noted that “the President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.”

At the time Obama suggested to Yates and Comey—who were to keep their posts under the Trump administration—that the hold-overs consider withholding information from the incoming administration, Obama knew that President Trump had named Flynn to serve as national security advisor. Obama also knew there was an ongoing FBI investigation into Flynn premised on Flynn being a Russian agent. –The Federalist

And so, instead of briefing Trump on the Flynn investigation, Comey “privately briefed Trump on the most salacious and absurd ‘pee tape’ allegation in the Christopher Steele dossier.”

The fact that Comey did so leaked to the press, which used the briefing itself as justification to report on, and publish the dossier.

What Comey didn’t brief Trump on was the FBI’s bullshit case against Michael Flynn – accusing the incoming national security adviser of being a potential Russian agent. And according to The Federalist, “Even after Obama had left office and Comey had a new commander-in-chief to report to, Comey continued to follow Obama’s prompt by withholding intel from Trump.

The Federalist also raises questions about former DNI James Clapper – specifically, whether Clapper lied to Congress in July of 2017 when he said he never briefed Obama on the substance of phone calls between Flynn and the Russian Ambassador Sergei Kislyak.

According to the report, accounts from Comey and McCabe directly contradict Clapper’s claim.

Did you ever brief President Obama on the phone call, the Flynn-Kislyak phone calls?” asked Rep. Francis Rooney (R0FL) during Congressional testimony, to which Clapper replied: “No.

Except, Comey told Congress that Clapper directly briefed Obama ahead of the January 5 meeting.

“[A]ll the Intelligence Community was trying to figure out, so what is going on here?” Comey testified. “And so we were all tasked to find out, do you have anything [redacted] that might reflect on this. That turned up these calls [between Flynn and Kislyak] at the end of December, beginning of January,” Comey testified. “And then I briefed it to the Director of National Intelligence, and Director Clapper asked me for copies [redacted], which I shared with him … In the first week of January, he briefed the President and the Vice President and then President Obama’s senior team about what we found and what we had seen to help them understand why the Russians were reacting the way they did.

And now to see if anything comes of the ongoing Durham investigation, or if Attorney General Bill Barr will simply tie a bow on the matter and call it a day.


Tyler Durden

Mon, 05/11/2020 – 14:05

via ZeroHedge News https://ift.tt/2SXcOcN Tyler Durden

HR 6666: Illinois Democrat Introduces $100 Billion Contact Tracing Bill

HR 6666: Illinois Democrat Introduces $100 Billion Contact Tracing Bill

Illinois Democratic Rep. Bobby Rush has introduced the H.R. 6666 TRACE Act, which includes a $100 billion grant program which would authorize the Secretary of Health and Human Services to create an army of contact tracers operating through healthcare, schools and nonprofit entities, who would perform COVID-19 diagnostic testing “through mobile health units and, as necessary, at individuals’ residences, and for other purposes.”

Until we have a vaccine to defeat this dreaded disease, contact tracing in order to understand the full breadth and depth of the spread of this virus is the only way we will be able to get out from under this,” Rush says on his website.

And when will that be?

According to Heavy, Rush’s words echo those of Johns Hopkins Senior Scholar Dr. Crystal Watson, lead author of a recent report which concludes that contact tracing is vital to reopening the country.

“In order to save lives, reduce COVID-19’s burden on our healthcare system, ease strict social distancing measures, and confidently make progress toward returning to work and school, the United States must implement a robust and comprehensive system to identify all COVID-19 cases and trace all close contacts of each identified case.”

The bill’s co-signers include Reps. Rashida Tlaib (D-MI), Gwen Moore (D-WI), Debbie Wasserman Schultz (D-FL), Steve Cohen (D-TN) and Republican Jefferson Van Drew of New Jersey.

In addition to the petition, Rush has received a fair amount of social media backlash, mainly out of concern for privacy.

Reactions on Twitter have ranged from Third Reich and Hitler comparisons, to people suggesting that Rush wants to hire spies, make lepers of those who are identified as sick and waste money.

Senate Republicans have been working on their own bill focused on contract tracing privacy to “provide all Americans with more transparency, choice, and control over the collection and use of their personal health, geolocation, and proximity data (and) hold businesses accountable to consumers if they use personal data to fight the COVID-19 pandemic.” –Heavy

Last week, former President Clinton, NY Governor Cuomo, Chelsea Clinton and CA Governor Newsom called for an ‘army of contact tracers’ to monitor citizens who have tested positive for COVID-19 and their contacts – shortly after which the Washington DC Department of Health posted job listings for investigators with “Trace Force.”

Those who sign on will interview those who have tested positive for the virus – collecting “demographic, clinical, social and historical data,” while “conducting an assessment to determine whether safe isolation can be achieved at home.” The program is a 13-month appointment.

Those who have been in contact with a positive case will be contacted to assess whether they have symptoms and require quarantine, and will ‘appropriate escalate’ cases when needed. Investigators will also use ‘data management systems’ to log interactions.

Meanwhile, many believe it’s too late for contact tracing to work – and it’s simply going to allow government to intrude further into the lives of Americans.

Trouble is, a mountain of scientific evidence indicates contact tracing won’t work against the coronavirus. And given the virus’ nature, deploying it earlier probably wouldn’t have stopped the spread.

The coronavirus is fast-moving and transmitted in multiple ways, such as touching contaminated surfaces like subway poles and door knobs. It can become aerosolized when someone sneezes two aisles over in the supermarket or coughs in an elevator. The virus is found in feces and may even spread when a toilet is flushed and viral particles become airborne.

The “disease detectives” will have to ask: “Who was that at the supermarket or in the public restroom?” In many cases, they won’t have an answer.

Lancet Global Health scientists conclude that contact tracing will work when “less than 1 percent of transmission occurred before the onset of symptoms.” That’s the opposite of the coronavirus: Victims are most contagious before or just as their symptoms begin, research indicates. By the time they are diagnosed and asked for contacts, those contacts are already infecting others. Oxford University scientists also caution that the coronavirus spreads by too many mechanisms “to be contained by manual contact tracing.” –NY Post

Read the bill below:


Tyler Durden

Mon, 05/11/2020 – 13:35

via ZeroHedge News https://ift.tt/3fIC6Fw Tyler Durden

Another COVID Unthinkable: Americans Being Turned Away Trying To Buy Life Insurance

Another COVID Unthinkable: Americans Being Turned Away Trying To Buy Life Insurance

In yet another unprecedented COVID historic first, insurance companies are actually turning away Americans who want to purchase a life insurance policy.

Who would have ever thought insurers would turn you away flat out? But the unthinkable is happening, details The Wall Street Journal:

The driving force behind the action: a collapse in interest rates tied to the spread of the new coronavirus and an expectation from insurers that rates won’t rebound significantly anytime soon.

Life insurers earn much of their profit by investing customers’ premiums in bonds until claims come due. In simplest terms, when they price policies, they make assumptions about how much interest income they will earn investing these premiums years into the future. The less they earn, the more they may need to collect in premium or fees to turn a profit.

“Denied coverage!”… via AAA Daily

The report includes stories of Americans being advised to act fast ahead of looming premium hikes.

“In 33 years, I have never seen more changes come more quickly to the life-insurance products we sell,” head of the Akron, Ohio-based ValMark Financial Group said. “It is unprecedented how fast and widespread — it is across lots of carriers.”

Another was quoted as saying: “It is difficult for consumers to have a lot of empathy for the life-insurance companies, but I can imagine they’re really getting squeezed by low rates.”

Via WSJ/A.M. Best:

WSJ summarizes:

Typically, life insurers hold about 70% of their general investment account in long-term bonds. In general, the yields on these holdings, many of them corporate securities, follow the 10-year U.S. Treasury. Its annual yield has been mostly declining since the 1980s, when it peaked at nearly 16%.

The yield dove after the 2008-09 financial crisis and was as low as 1.366% in 2016 before rebounding to about 3% in 2018. In March, it plummeted again as coronavirus sparked a rush to safer assets and investors feared interest-rate cuts from the Federal Reserve.

The yield on Friday: 0.679%.

Corporate-bond yields have held up better than the 10-year of late, but the overall trend has been tough on life insurers. Life insurers’ net portfolio yield averaged 4.4% last year, down from 9.9% in the mid-1980s, according to ratings firm A.M. Best Co.

In some cases insurers are reacting directly to the trend of coronavirus’ more devastating impact on the elderly

Penn Mutual Life Insurance Co., among others, has temporarily halted life-insurance sales to people 70 and older and who are in poor health. Insurance-industry executives say that analysis shows older people with underlying medical problems are dying at much higher rates from Covid-19 than younger people.

In a memo to brokers, Penn Mutual said it expects “to revisit these and other changes as we gain better insight into the impact of the Covid-19 pandemic.”

But in other cases even the type of 30-year “term-life” policies most often popular with young families are being temporarily suspended.

Image via Getty/Fortune

More specifically, Prudential halted sales of 30-year “term-life” policies, while Penn Mutual has ceased selling policies to people over 70 and in poor health. 

And further, Nationwide Mutual and AIG  have capped the size of guaranteed universal-life policies. No doubt this list is set to grow amid the extended COVID-19 crisis uncertainty.

* * *

The below clip illustrates the typical relationship in more ‘normal’ times between potential customers and insurance salesman, but apparently no longer while weathering the corona-storm:


Tyler Durden

Mon, 05/11/2020 – 13:20

via ZeroHedge News https://ift.tt/2SUMAHX Tyler Durden

Supersized 3Y Auction Prices At Lowest Yield On Record

Supersized 3Y Auction Prices At Lowest Yield On Record

In the first of the week’s refunding auctions, which as we discussed last week were not only supersized to pay for the government’s helicopter money, but also now include a 20Y auction on May 20 – the first such tenor since the 1980s – moments ago the Treasury sold a supersized 3Y auction – coming at a record high amount of $42Bn vs $40Bn last month…

… and a record low yield of 0.230%, which also stopped through the 0.231% When Issued, the first non-tailing 3Y auction of 2020.

The bid to cover jumped from 2.27 in April to 2.54, the highest since February and well above the 2.440 recent average,

The internals were quite solid as well, with Indirects taking down 54.4%, while Directs jumped from 4.1% to 13.1%, the highest since February, and leaving 32.6% to Dealers, the lowest since December.

Why the stellar demand? Because all the buyers know they just need to hold on the paper for a few days before they can flip it back to the Fed for some risk-free profits.

So a solid start to yet another upsized Treasury issuance slate – because those trillions in stimulus checks won’t pay for themselves – although the real question is how will the 20Y auction price when it is offered next week to the public.


Tyler Durden

Mon, 05/11/2020 – 13:16

via ZeroHedge News https://ift.tt/3dBmC40 Tyler Durden

Can Courts Distinguish Anti-BDS Laws from Public Accomodations Laws for First Amendment Purposes?

As regular VC readers are aware, there is ongoing litigation in the federal courts regarding whether laws requiring government contractors to sign a form stating that their business does not boycott Israel and people and businesses who do business with Israel violate the contractors’ right to freedom of speech. The basic position of those who think such laws pass constitutional muster is that boycotts are an economic act, and thus are not covered by the First Amendment to begin with. The other side claims that boycotting is a form of freedom of expression, and thus the laws infringe on First Amendment rights. Full disclosure: I believe the former argument is clearly correct under current First Amendment doctrine, and joined an amicus brief in a recent Fifth Circuit case, Amawi saying so.

Putting precedent aside, the biggest practical problem facing those challenging anti-BDS legislation is that boycotts are form of “refusal to deal.” The line between “refusal to deal” and “discrimination” is very difficult to discern. For example, let’s say Joe runs a restaurant. He refuses service to mixed-race couples, in violation of Texas’s antidiscrimination law. Joe defends himself in court by saying, “I am acting within my First Amendment rights by boycotting, i.e., refusing to do business with, mixed-race couples.” On the surface, Joe has an even stronger First Amendment case than those challenging the BDS laws, because he is not doing business with the government, so the government would seem to have less of an interest in how he runs his business.

In the Fifth Circuit Amawi case, a group of law professors signed an amicus brief on behalf of the Knight Center, which I thought was the most persuasive brief on the plaintiff’s side. This brief took a slightly different tack than usual on the free speech issue. Like other opponents of anti-BDS laws, the authors contend that boycotts are inherently expressive and subject to First Amendment protections. The brief, however, added that Texas anti-BDS law was facially unconstitutional because, even though it applied to contractors who boycotted Israel for any reason, its motivation was to targets boycotters motivated by anti-Israel ideology. The law therefore constitutes illicit viewpoint-based discrimination.

By contrast, the motivation for public accommodations law is to increase access to public accommodations for disfavored minority groups and individuals, regardless of the underlying motivation for the exclusion. Put another way, the underlying motivation is the idea that “public accommodations” should be open to the entire public. Even if one grants that part of the underlying motivation for anti-BDS laws is the notion that they are implicitly antisemitic and have a disparate impact on Jewish Americans (who are more likely to have business and other ties to Israel), such laws are still primarily motivated by hostility to the boycotters’ cause and are therefore viewpoint discrimination in a way public accommodations laws, which after all have roots in ancient English law requiring inns and taverns to be open to all, do not.

I don’t buy that reasoning, as I do think that in the modern U.S., a major underlying rationale for public accommodations laws is indeed the hostility to the ideology of those who might exclude, such as the baker who doesn’t want to bake cakes for same-sex weddings.

But let’s assume a judge was persuaded, making anti-BDS laws facially unconstitutional, but public accommodations laws facially okay. What happens when business owner subjected to public accommodations laws make as-applied First Amendment arguments in their defense? Imagine a private school announcing it is boycotting black students who want to integrate the school because they are pro-integration, and defending themselves against an antidiscrimination lawsuit on the grounds that the local public accommodations law is unconstitutional as applied to the school, because it’s engaging in a politically motivated boycott. Given that the Knight brief asserts that boycotts are constitutionally protected activity, why would the public accommodations law not be unconstitutional as applied?

I asked one of the professors who signed the Knight Brief privately why he thinks that the arguments of the brief wouldn’t ultimately be used to successfully support such as-applied challenges. He provided a one-word response, “O’Brien.” United States v. O’Brien (1968) holds that when the government is prosecuting symbolic speech, or combined speech/action, the underlying law must (a) further an important or substantial government interest (b) that is content-neutral; and (c) prohibit no more speech than is essential to further that interest.

The biggest problem with that argument is that the Supreme Court has declined two major opportunities to apply O’Brien to First Amendment challenges to public accommodations law, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston and Boy Scouts of America v. Dale. In each case, the Court was urged to apply the O’Brien test, and, in each case, not a single Justice applied O’Brien.

My conclusion, therefore, is any future free speech challenges to public accommodations law will not involve O’Brien, but will instead stricter traditional First Amendment standards, requiring the government to show a compelling interest and that its law is narrowly-tailored. If challengers to anti-BDS laws persuade courts that refusals to deal/boycotts are protected speech, then public accommodations and other civil rights laws will be vulnerable. Perhaps longstanding laws prohibiting discrimination based on race and sex would survive the compelling interest test. But Hurley and Dale suggest that broader, more controversial state laws will not necessarily survive judicial scrutiny. My guess is that appellate courts, being aware of this dynamic, are unlikely to open the Pandora’s box of ruling that refusing to engage in economic relations is “speech” for First Amendment purposes.

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Can Court Distinguish Anti-BDS Laws from Public Accomodations Laws for First Amendment Purposes?

As regular VC readers are aware, there is ongoing litigation in the federal courts regarding whether laws requiring government contractors to sign a form stating that their business does not boycott Israel and people and businesses who do business with Israel violate the contractors’ right to freedom of speech. The basic position of those who think such laws pass constitutional muster is that boycotts are an economic act, and thus are not covered by the First Amendment to begin with. The other side claims that boycotting is a form of freedom of expression, and thus the laws infringe on First Amendment rights. Full disclosure: I believe the former argument is clearly correct under current First Amendment doctrine, and joined an amicus brief in a recent Fifth Circuit case, Amawi saying so.

Putting precedent aside, the biggest practical problem facing those challenging anti-BDS legislation is that boycotts are form of “refusal to deal.” The line between “refusal to deal” and “discrimination” is very difficult to discern. For example, let’s say Joe runs a restaurant. He refuses service to mixed-race couples, in violation of Texas’s antidiscrimination law. Joe defends himself in court by saying, “I am acting within my First Amendment rights by boycotting, i.e., refusing to do business with, mixed-race couples.” On the surface, Joe has an even stronger First Amendment case than those challenging the BDS laws, because he is not doing business with the government, so the government would seem to have less of an interest in how he runs his business.

In the Fifth Circuit Amawi case, a group of law professors signed an amicus brief on behalf of the Knight Center, which I thought was the most persuasive brief on the plaintiff’s side. This brief took a slightly different tack than usual on the free speech issue. Like other opponents of anti-BDS laws, the authors contend that boycotts are inherently expressive and subject to First Amendment protections. The brief, however, added that Texas anti-BDS law was facially unconstitutional because, even though it applied to contractors who boycotted Israel for any reason, its motivation was to targets boycotters motivated by anti-Israel ideology. The law therefore constitutes illicit viewpoint-based discrimination.

By contrast, the motivation for public accommodations law is to increase access to public accommodations for disfavored minority groups and individuals, regardless of the underlying motivation for the exclusion. Put another way, the underlying motivation is the idea that “public accommodations” should be open to the entire public. Even if one grants that part of the underlying motivation for anti-BDS laws is the notion that they are implicitly antisemitic and have a disparate impact on Jewish Americans (who are more likely to have business and other ties to Israel), such laws are still primarily motivated by hostility to the boycotters’ cause and are therefore viewpoint discrimination in a way public accommodations laws, which after all have roots in ancient English law requiring inns and taverns to be open to all, do not.

I don’t buy that reasoning, as I do think that in the modern U.S., a major underlying rationale for public accommodations laws is indeed the hostility to the ideology of those who might exclude, such as the baker who doesn’t want to bake cakes for same-sex weddings.

But let’s assume a judge was persuaded, making anti-BDS laws facially unconstitutional, but public accommodations laws facially okay. What happens when business owner subjected to public accommodations laws make as-applied First Amendment arguments in their defense? Imagine a private school announcing it is boycotting black students who want to integrate the school because they are pro-integration, and defending themselves against an antidiscrimination lawsuit on the grounds that the local public accommodations law is unconstitutional as applied to the school, because it’s engaging in a politically motivated boycott. Given that the Knight brief asserts that boycotts are constitutionally protected activity, why would the public accommodations law not be unconstitutional as applied?

I asked one of the professors who signed the Knight Brief privately why he thinks that the arguments of the brief wouldn’t ultimately be used to successfully support such as-applied challenges. He provided a one-word response, “O’Brien.” United States v. O’Brien (1968) holds that when the government is prosecuting symbolic speech, or combined speech/action, the underlying law must (a) further an important or substantial government interest (b) that is content-neutral; and (c) prohibit no more speech than is essential to further that interest.

The biggest problem with that argument is that the Supreme Court has declined two major opportunities to apply O’Brien to First Amendment challenges to public accommodations law, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston and Boy Scouts of America v. Dale. In each case, the Court was urged to apply the O’Brien test, and, in each case, not a single Justice applied O’Brien.

My conclusion, therefore, is any future free speech challenges to public accommodations law will not involve O’Brien, but will instead stricter traditional First Amendment standards, requiring the government to show a compelling interest and that its law is narrowly-tailored. If challengers to anti-BDS laws persuade courts that refusals to deal/boycotts are protected speech, then public accommodations and other civil rights laws will be vulnerable. Perhaps longstanding laws prohibiting discrimination based on race and sex would survive the compelling interest test. But Hurley and Dale suggest that broader, more controversial state laws will not necessarily survive judicial scrutiny. My guess is that appellate courts, being aware of this dynamic, are unlikely to open the Pandora’s box of ruling that refusing to engage in economic relations is “speech” for First Amendment purposes.

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“A Tsunami Of Anger”: Chinese Officials Call For Renegotiation Of “Phase One” Trade Deal

“A Tsunami Of Anger”: Chinese Officials Call For Renegotiation Of “Phase One” Trade Deal

Amid the ongoing diplomatic spat between Washington DC and Beijing, which now also includes the deployment of B-1B bombers and warships in the South China Sea, late on Monday (local time) China’s Global Times reported, citing sources close to the Chinese government, that some “hawkish” officials in China are calling for a renegotiation the the “phase one” trade deal with Washington as well as a “tit-for-tat approach on spiraling trade issues after US’ malicious attacks on China ignited a tsunami of anger among Chinese trade insiders.”

The calls to renegotiate the current version of the deal – which has yet to be actively implemented – emerge amid  dissatisfaction because “China has made compromise for the deal to press ahead.”

While in the past, these same trade negotiators “believed that it would be worthwhile to make certain compromise to reach a partial truce in the 22-month trade war and ease escalating tensions”, given what the Global Times called “President Donald Trump’s hyping an anti-China conspiracy that aims to cover up his mishandling of the COVID-19 pandemic”, advisors close to the trade talks have suggested Chinese officials rekindling the possibility of invalidating the trade pact and negotiating a new one to tilt the scales more to the Chinese side, sources close the matter told the Global Times.

A former Chinese trade official told the Global Times on condition of anonymity on Monday that China could complete such procedures based on force majeure provisions in the pact.

“It’s in fact in China’s interests to terminate the current phase one deal. It is beneficial to us. The US now cannot afford to restart the trade war with China if everything goes back to the starting point,” another trade advisor to the Chinese government told the Global Times, pointing to the staggering US economy and the coming of the US presidential election this year.

“After signing the phase one deal, the US intensifies crackdown in other areas such as technology, politics and the military against China. So if we don’t retreat on trade issues, the US could be trapped,” the former official noted.

Some could disagree, and counter that Trump can certainly restart the trade war especially since it suits his pre-election agenda – after all, now that the fate of the market is entirely in the hands of the Fed which has gone full MMT, Trump is no longer afraid by the market’s response to a renewed trade war. In fact, with over 60% of the US population seeking to distance US from China, it would appear that Trump’s best bet to winning independent votes is precisely to keep hammering China.

Confirming this, Trump said on Friday that he was “very torn” about whether to end the China-US phase one deal, Fox News reported, with some observers interpreting his words as equating to a threat from the US to re-launch a trade war against China.

Then again, over the weekend, the SCMP reported that US source familiar with recent discussions stated US officials acknowledged China was largely delivering its pledges on structural issues such as opening market access and improving IP protection but they have yet to agree in some details including IP action plan and easing equity caps for foreign investors. Furthermore, the source stated fallout from the virus meant agreement on purchasing US goods has become much more important and that many believe China needs to increase pace on purchases.

Meanwhile, Gao Lingyun, an expert at the Chinese Academy of Social Sciences who advises the government on trade issues, told the Global Times on Monday that China has “well documented” Washington’s usual threats after previous rounds of confrontation. That means if the trade war restarts, “China knows how to respond, and it is able to retaliate quickly and inflict serious harm on the US economy,” Gao said.

Still, as the Global Times concludes, analysts noted that terminating the phase one trade deal would be China’s “last option” and one that China would only resort to under extremely hostile conditions.


Tyler Durden

Mon, 05/11/2020 – 13:05

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As U.S. Slides Into Depression, Consumers Have Never Been More Bullish On Stocks

As U.S. Slides Into Depression, Consumers Have Never Been More Bullish On Stocks

Not even in Khruschev’s wildest dreams did central planners ever conceive of anything so absolutely batshit insane as what is taking place in the centrally-planned US economy and “markets” right now.

With the US economy sliding into a depression with the BLS reporting – when one reads between the lines as Standard Chartered did over the weekend – that there were 42 million unemployed workers in April, pushing the unemployment rate to an unheard of 25.5%, far above the reported 14.7% (forget any hope for a V-shaped recovery as millions of those recently laid off will never get back to full-time work )…

… it is not a surprise that according to the latest New York Fed survey of consumer expectations, virtually every metric having to do with one’s financial well being – income, wealth, debt sustainability and earnings expectations – is cratering with expected earnings, income, and spending growth each hit survey lows which is what one would expect in a depression.

For example the expected probability of losing one’s job jumped to an all-time high of 20.9% from 18.5% in April; the probability of missing a minimum debt payment over the next three months surged to 16.2% – a 7 year high – from 15.1%, while expected earnings growth tumbled to the lowest on record at 1.87%, down from 2.05% in April .

Adding to the apocalyptic picture, median one-year ahead expected changes in home prices dropped to 0% for first time in survey history – as the average US consumer no longer expects their primary asset to increase in value – with 44.2% of respondents expecting home prices to decline over the coming year.

Finally, confirming that an inflation wave is coming, over the next year consumers expect gasoline prices to rise 4.9%; food prices to rise 5.43%; medical costs to rise 9.25%; the price of a college education to rise 4.64%; rent prices to rise 4.57%; needless to say all of these are far, far higher than the Fed’s “target” inflation rate of 2%.

But while the above data may not have been surprising, what was shocking is what the central bank reported was the average consumer expectation for stock prices in the future: according to the NY Fed, the mean probability that US stock prices will be higher one year from now surged to 51.8% up from 47.7%, above 50% for the first time ever and the highest print on record.

That this happens right after we posted that “Stocks Go Up As Everything Is Going Down In Flames“, is just perfectly appropriate: Because with his job gone, his $400 dollars of emergency savings just spent on a roll of toilet paper, his bank preparing to foreclose on his home, all while a deadly virus lurks in dark corners, all Joe Sixpack can think of is how to get his “money on the sidelines” into the stock market as it is about to soar to all time highs.

And so, thanks to the Fed’s now grotesque interventions in all capital markets, including the purchase of over $2.6 trillion in securities in the past two weeks, the stock market is now perceived by conventional wisdom as a depression hedge – a countercyclical indicator which surges the worse the economy gets, and since the economy is sliding into a depression it is only “logical” – we use the term loosely – that expectations of higher stock prices have never been higher.

That of course is the absurdist interpretation of the above “data’. There was, naturally, a serious way of looking at this delightfully ridiculous data and lacking a sense of humor, David Rosenberg applied just that, tweeting last month when this series again hit an all time high that “I was so close to turning more bullish (less bearish?) until I see this metric was released by the New York Fed on consumer expectations.  Since when do bear markets end on record optimism?”

Well, David, you should have turned bullish because since April 6 – when you tweeted this and when consumer expectations for higher stock prices hit a record high for the first time  stocks are up 18%!

Of course, since everything is now batshit insane thanks to the Fed, this was precisely what we warned would happen one month ago, to wit:

Oh David, “since when” do you still think that anything you observe in this economy or market, both stuffed to the gills with trillions and trillions in freshly printed fiatscoes, matters or makes sense. And to answer your question: bear markets end when the Fed says so, and proceeds to do to stocks what it did to IG bonds – and start buying directly.

Continuing our address to the bearish bond strategist, we also said “David, you may want to reasses your nothing can beat deflation thesis. Albert Edwards already has, and has said farewell to his “great ice age” thesis that defined his work for the past 30 years.” Also read Paul Tudor Jones’ latest letter which laid it out best: “We are witnessing the Great Monetary Inflation (GMI)—an unprecedented expansion of every form of money unlike anything the developed world has ever seen.”

We ended our rhetorical address to Rosenberg by asking “how long it will take you to realize that we now live in a time of helicopter money and that markets – by any definition  – no longer exist, and what comes next it a tsunami of debt and money much of which will finally make its way, kicking and screaming into the broader economy.”

Ironically, what this career economist and widely-respected bond strategist still can’t grasp is by now all too clear to every Joe Sixpack on mainstreet, namely that the only thing that matters is this:


Tyler Durden

Mon, 05/11/2020 – 12:50

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Working From Home May Be a Permanent Feature of the Post-Pandemic World

Amidst the changes left in the wake of the COVID-19 pandemic, a welcome one might be the likely and long-overdue normalization of telework. We—or at least those of us who are largely desk-bound—were supposed to be able to roll down the hallway from our bedrooms to our jobs years ago. But employers have largely remained resistant to allowing employees to work off-site.

Now—with remote work a necessity for millions of people—the barriers may finally fall. That should expand options for jobseekers to take work without regard for where employers are based, and to settle where they feel comfortable and are free to live as they please.

It’s strange how few of us worked remotely full-time before the pandemic, despite the transformation of communications, music, retail, and finance that we enjoy courtesy of the digital revolution. Only 3.6 percent of Americans worked at-home half-time or more as of 2018, Global Workplace Analytics estimates, based on American Community Survey data. At the same time, 43 percent of employees worked remotely “with some frequency,” indicating untapped opportunities.

Despite the potential, telework has remained a special privilege for many employers, to be doled out only to workers who can sell their bosses on it, or else have the clout to make it happen.

“The ability to work at home appears to be systematically related to authority and status in the workplace. Managerial and professional workers are more likely than others to have the type of tasks and autonomous control of their work schedule necessary to perform work at home,” noted a 2012 article in the U.S. Bureau of Labor Statistics’ Monthly Labor Review.

When it comes to lower-level employees, “executives saw the benefits of using flexible work to their advantage as a negotiating tool for recruitment, promotion, retention and motivation, but they often worried about the costs of training and potential culture change,” Mohja Rhoads and Fynnwin Prager of California State University reported earlier this year after surveying Los Angeles-area workers.

The Monthly Labor Review article cautioned that “the ability of employees to work at home may actually allow employers to raise expectations for work availability during evenings and weekends and foster longer workdays and workweeks.” True—but I ran into problems separating work and home in a traditional office where the top boss had the unfortunate habit of calling employees in the evenings to discuss his brainstorms.

Importantly, many people have spent the last couple of months honing the ability to draw lines between work and the rest of their lives. Social distancing and lockdown orders meant many jobs had to be done from home, or not at all.

“In February, before the economic impact of the coronavirus outbreak truly took hold, 40% of American workers, or 63 million, were employed in occupations that potentially could be performed remotely,” Pew Research finds. Since then, “90% of the decrease in employment—or 2.6 million of the total loss of 2.9 million between February and March—arose from positions that could not be teleworked.”

As lockdown orders expire and the pandemic fades, some jobs will move back to the office. But continuing social distancing expectations will hamper a complete return to normality for many workplaces. Just as important, practical experience with telework will have eroded much of the resistance to implementing it on a regular basis.

“The pandemic is forcing these investments in industries where telework is possible, with more people learning how to use remote technology. As a result, we may see a more permanent shift toward telecommuting,” write Katherine Guyot and Isabel V. Sawhill of The Brookings Institution.

“Our best estimate is that 25-30% of the workforce will be working-from-home multiple days a week by the end of 2021,” predicts Kate Lister, President of Global Workplace Analytics.

That has interesting implications for where people will base themselves in the future. If you can start a business where you want to be while employing people living where they feel comfortable, people no longer have to physically chase jobs and talent and location becomes a matter of preference.

Even before the pandemic, major cities were losing a bit of their draw. The cultural mix and opportunity that had made them attractive places for many people was losing out to expense and incompetent, intrusive government.

“Chicago has been losing people for years now, but Los Angeles and New York City have also found themselves on the decline,” Scott Shackford wrote last year for Reason. “Each of these cities is facing some severe problems in the way they’re managed, their uncertain financial situations, and a general disregard for the welfare and liberty of the citizens who live there.”

One pandemic later, after a lesson in the opportunities for viral transmission provided by high population density and the unpleasantness of urban life in a lockdown situation, cities may be losing even more of their gloss.

“Cooped up and concerned about the post-Covid future, renters and owners are making moves to leave the city, not for short-term stays in weekend houses, as was common when the pandemic first arrived, but more permanently in the suburbs,” reports The New York Times.

The places that will draw workers and businesses will be those that attract them with desirable lifestyle, affordability, and a legal climate that doesn’t treat flexibility as an enemy. That’s bad news for California, where the law commonly called A.B. 5 attempts to force workers into employer/employee relationships while discouraging freelancing.

“The law was hurting workers and businesses before the outbreak of COVID-19, but now its negative impacts are being amplified by the pandemic,” warns Vittorio Nastasi of the Reason Foundation, which publishes this website. “It is limiting job opportunities for workers who have been laid off as a result of the pandemic and government-mandated stay-at-home orders.”

If greater flexibility is a feature of post-pandemic work, inflexible jurisdictions will have a hard time competing.

That’s not to say that a telework-friendly future comes without its problems. In an already divided country, it may lead to more friction.

Debates over stay-at-home orders frequently degenerate into tussles between those relatively unaffected by pandemic-related lockdowns because they can work at home, and those for whom continued employment and the viability of their businesses require their physical presence. That split will linger if telework becomes a better-accepted option but remains possible for less than half the population.

On a similar note, in recent decades, Americans have had “unprecedented choice about where and how they wanted to live” and have moved accordingly, noted Bill Bishop in his 2008 book, The Big Sort.  As it turns out, our preferred lifestyle correlates closely with our politics; “liberals would rather live in cities, while conservatives prefer rural areas and small towns,” as Pew Research puts it. That’s meant people concentrating themselves in like-minded communities, reinforcing each other’s beliefs, and having less personal contact with those who disagree.

An enhanced ability to live where we want, rather than where our employer is based, may lead to more sorting along political lines and less room for agreement. That’s not a big problem if decisions are left to individuals and communities, but it’s a recipe for growing conflict if we continue to concentrate power upwards.

Overall, however, the pandemic will offset a little of the damage done by the virus itself, and by bumbled human responses to the health threat it poses, if it leaves in its wake a more flexible business culture. That will mean more freedom for many of us to work how we wish, and to live in places that make us happy and treat us well.

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