Kids Climate Plaintiffs to Seek Rehearing En Banc

Last week, a divided panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the plaintiffs in Juliana v. United States, the so-called “Kids Climate” case, lacked standing. Almost immediately, counsel announced that the plaintiffs would seek en banc review of the decision.

In an addendum to my prior post on this case, I argued that seeking en banc review is a tactical mistake. As I explained, should the plaintiffs prevail in front of an en banc court, this would likely send the case to the Supreme Court and a broader loss for the plaintiffs—a loss that could have significant repercussions for other climate change lawsuits in the courts.

Upon reflection, I may have been too critical of the plaintiffs’ tactical decision. Under the Ninth Circuit’s rules, en banc will only be granted if a majority of those judges in active service vote for such review. Given the current composition of the Ninth Circuit, obtaining a majority in support of en banc reconsideration would seem to be quite a heavy lift.

As of the time of this writing, there are 29 judges in active service on the Ninth Circuit. If one were to assume that the court would split along ideological lines on an en banc petition, the plaintiffs’ odds would seem pretty good, as 16 of the 29 judges were nominated by Democratic Presidents. Yet we should not expect such a split in this case for two reasons.

First, and most importantly, the plaintiffs’ arguments are sufficiently aggressive and outlandish that they may not even command majority support among Democratic nominees, let alone the whole court. Indeed, both judges in the panel majority were Obama nominees, and they both voted against the plaintiffs. Second, en banc review is generally disfavored. Most judges require something more than “the panel got it wrong” to justify en banc rehearing, and few are likely to vote in favor of a petition that asks the court to stretch the bounds of existing precedent. En banc rehearings are generally reserved for instances in which there’s a need to reconsider or clairfy prior circuit precedent, not pick a fight with prior Supreme Court decisions.

All this means that the plaintiffs are not risking too much by seeking en banc review. The petition is very unlikely to be granted, but there is an opportunity that the petition will provoke additional opinions endorsing the need for action on climate change, which may help the plaintiffs build additional support for their cause.

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“Fraudulent Lawsuits and Illegal Hacks to Silence Online Consumer Complaints”

Some of it may be familiar to our readers (see here for my brief on the “fraudulent lawsuits” side of the analysis), but there’s a new item, too:

[Aaron] Minc advertises himself as an internet defamation attorney, capable of “removing damaging content from the internet.”

He can be seen in an advertisement with a man named Pierre Zarokian, who runs a reputation management company called Submit Express. “We’ve helped many companies get rid of Ripoff Report, and we’ve been successful in doing this,” Zarokian says in an online video. In 2018, the FBI arrested Zarokian and charged him with felony conspiracy after he was caught paying an international hacker in [Cyprus] to remove Ripoff Report complaints for his clients.

A FBI search warrant obtained by FOX 11 reveals chat logs between Zarokian and the hacker, in which Zarokian provides Ripoff Report links for the hacker to remove.Federal documents reveal that hacker used brute force methods to get into Ripoff Report’s system and remove over 100 complaints in total…..

Zarokian [has] pleaded guilty to his felony charges. In a sworn statement he signed with the feds, Zarokian admitted to paying the hacker $1,000 per complaint removal, then charging his client a removal fee of between $1,000 and $5,000.

Check out the whole story, either in text or on video (at link). Here’s an excerpt from the Zarokian plea agreement:

I, Pierre Zarokian, worked with Joshua Polloso Epifaniou during October 2016 through May 2017 to obtain unauthorized access to Ripoff Report (ROR)’s database and delete information. ROR is a company based in Phoenix, Arizona, that hosts a website where customers can post anonymous complaints about people and businesses. I operated a search engine marketing company in California that offered “reputation management services/ including the removal of negative customer complaints from ROR. In Octooer 2016 Epifaniou—a computer hacker living in Cyprus—gained unauthorized access to ROR computer servers in Phoemx, Anzona, and then contacted me. In furtherance of the conspiracy, and to achieve the object of the conspiracy, Epifaniou and I committed an overt act—namely that I paid him $1000 per complaint removal and then charged my clients a fee for removal between $1000 to $5000. I knew that Epifaniou was deleting the records through unauthorized access to the ROR computer servers, and I acknowledge that the ROR computer servers were used in and affected interstate commerce.

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Virginia Gov. Northam Smears Gun Control Opponents to Frighten His Base

Virginia Gov. Ralph Northam is misusing a regularly scheduled political rally to frighten his base and gin up support for his troubled administration. Flinging scare-mongering language, the Democratic governor has portrayed a grassroots lobbying effort against gun restrictions as a potential source of “violent extremism” and declared a state of emergency.

It’s a cheap attempt to build support by delegitimizing opposition to his policies. On the way to declaring a state of emergency, Northam breathlessly warned:

Credible intelligence gathered by Virginia’s law enforcement agencies indicates that tens of thousands of advocates plan to converge on Capitol Square for events culminating on January 20, 2020. Available information suggests that a substantial number of these demonstrators are expected to come from outside the Commonwealth, may be armed, and have as their purpose not peaceful assembly but violence, rioting, and insurrection.

The “events culminating on January 20, 2020” consist of the Virginia Civil Defense League’s (VCDL) annual lobby day, in which it gathers at Capitol Square, like many other organizations (the Virginia Nurses Association has four lobby days planned for the end of January and beginning of February) do. In the case, the organization is advocating for self-defense rights and against restrictions on the same.

Images of the VCDL’s peaceful 2017 rally are on display at the organization’s website. This is a normal, regularly scheduled gathering intended to influence public policy.

But the governor warns that this year’s event features “white nationalist rhetoric and plans by out-of-state militia groups to attend.” He links the gathering to “events that occurred in Charlottesville,” as if a gathering by opponents of his policies must inevitably descend into violence launched by fringe-dwellers.

Will fringe racists and right-wing radicals attend today’s rally? Almost certainly. Back when anti-war protests were a thing (remember them?) an even more predictable feature than Susan Sarandon on the stage were clusters of far-left types wandering through the crowd trying to convince attendees that a desire for peace implies a workers’ revolution and liquidating the bourgeoisie. Radicals frequently court recruits by piggybacking their causes on mainstream ones. In and of itself, that doesn’t reflect on the mainstream cause.

In fact, one of the groups joining the rally is Antifascists of the Seven Hills, an anti-capitalist group which opposes gun restrictions because “gun control serves to weaken our defense positions.” They don’t want to leave any racist presence at the rally unopposed by other pro-gun voices.

“In considering how to deter their recruitment and nullify their ability to harm folks lobbying or otherwise going about their business, we recognized that the VCDL was drawing lines in the sand on optics, and trying to distance themselves from other issues and symbols like the Confederate battle flag,” the group notes on its Facebook page.

Whatever your opinion of antifa (I’ve been a critic), it’s clear that this isn’t the unalloyed white nationalist gathering that Northam describes.

No, whether you agree or disagree with it, the rally’s message is certainly mainstream. Even as VCDL warns that “proposed bills will turn many semi-automatic firearm owners into felons,” 86 of Virginia’s 95 counties had passed measures declaring themselves sanctuaries for self-defense rights, as of the end of December.

“They suggest that the counties might not enforce new state laws limiting gun rights,” the Wall Street Journal reports of the sanctuary jurisdictions.

To a large extent, that’s a reflection of the state’s version of the national urban-rural divide, which has too many politicians favoring one side while vilifying and punishing the other. In Virginia, support for Northam and the Democratic legislative majority is concentrated in the state’s urban crescent, while the sanctuary counties are in rural and exurban areas that even a Democratic county chairman accused his party of treating with “malevolent neglect.”

With an immediate post-election victory push for gun restrictions, state Democrats play to the prejudices of their urban-to-suburban base with legislation that sticks it to the rural areas where such laws are largely unpopular.

Playing the same game a year after news reports that, years ago, he dressed in blackface, Northam seeks revived credibility among urban, progressive voters by pushing his party’s gun control proposals. And then he doubles down by smearing his opponents as bent on “violence, rioting, and insurrection.”

But what about that “credible intelligence” Northam claims was gathered by law enforcement agencies? Maybe it exists, but governments have a long history of feeding the public’s fears to delegitimize opponents and justify extraordinary actions.

“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary,” H. L. Mencken mused decades ago.

“It had become clear, to me at least, that the repeated evocations of terror by the political class were not a response to any specific threat or concern but a cynical attempt to turn terror into a permanent danger that required permanent vigilance enforced by unquestionable authority,” Edward Snowden wrote in 2019’s Permanent Record of his growing awareness of what lay behind the surveillance state.

Northam’s alleged “credible intelligence” that this year’s iteration of an annual political gathering is poised to erupt in an orgy of racism and violence gives him fodder for proclaiming a state of emergency over a normal expression of political dissent. In doing so, Northam makes it clear that he represents only his supporters, that he considers opponents’ political views beyond the pale, and that he’s prepared to use extraordinary means in order to get his way.

Northam isn’t the only offender in this regard. Treating opponents as abnormal, subject to special sanction, and even as enemies of the people is an increasingly popular tactic for America’s political class. It’s also incredibly dangerous for the health of the political system.

People who are treated by government officials as enemies to be crushed would be foolish to submit to the authority of those officials. To do so is to bare their throats to a predator. If politicians are going to smear their opponents as illegitimate, they should be prepared to receive the same treatment in return.

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Google v. Oracle

The briefs have started to come in [see here], and the Supreme Court will soon hear oral argument (date TBD), in the Google v. Oracle** case.

**Connoisseurs of case captions will appreciate the nice “two-heavyweights-going-mano a mano,” “Ali v. Frazier” quality of this one; no et als, no d/b/as, no on behalf ofs … just the two titans facing off. It has some of the flavor of my favorite captions of all, cases (one or two of which the Court usually hears every year) involving competing State boundary claims or water rights or some-such, whose captions always sound like college football or basketball games: Nebraska v. Oklahoma, Michigan v. Wisconsin, etc.

It is, perhaps, the most important copyright case the Court has heard in over a decade, and interest in the case runs high, to put it mildly. Twenty-six amicus briefs supporting Google’s position, submitted by an exceptionally broad range of individuals, commercial entities, and non-profits—from Microsoft and IBM to Mozilla and Reddit and the Internet Society to the National Association for the Blind and the American Antitrust Association to a raft of law professors and computer scientists—were filed last week (plus two in support of neither party).*** That already puts the case at the high end of the distribution of the number of amicus briefs submitted per case (the average, in the Supreme Court, is around 10 or 11; see here), and we still have yet to hear from amici on Oracle’s side, who have until Feb. 19th to file their own briefs.

***Jonathan Band has provided a helpful summary of these briefs here.  [Disclosure: Band represents one of the amici (the Computer and Communications Industry Association), and I have signed on to one of the law professors’ briefs supporting Google’s position in the case.]

The case involves a claim by Oracle that Google, in developing its Android operating system, infringed Oracle’s copyright in the Java programming platform. A little technical background is indispensable for understanding Oracle’s claim and why it is so important.

A program written in the Java language contains two different kinds of code: “declaring code” and “implementing code.” Declaring code (sometimes called a Java “declaration”) invokes (or “calls”) other programs from within a pre-existing library of Java programs, in order to accomplish some basic task—finding the larger of two integers, say, or summing a string of figures. The pre-written programs that are “called” from the library constitute the “implementation code.”

Oracle gives this example in one of its briefs:

The URLConnection program, for example, has the following declaring code:

public URLConnection openConnection()

    throws java.io.IOException

An app programmer who wanted to connect her application to BankofAmerica.com without writing her own code can call on Oracle’s pre-written code by typing:

new URL(‘https://ift.tt/2NFx0gE Connection()

Then, when the program runs, the Java platform recognizes the declaring code and invokes the corresponding “implementing code” to connect to www.BankofAmerica.com.

The availability of a library of pre-written implementation code for thousands of tasks—pre-written and pre-tested subroutines, in effect—is one of the things that has made Java such a popular language in which to code applications, enabling Java programmers to accomplish a wide variety of tasks without having to re-invent the wheel and devise their own implementing code for these basic functions from scratch.

Oracle’s library of implementation code programs (sometimes also denoted as “methods”) contains over 30,000 such programs, containing many millions of lines of code, and is one of its most valuable IP assets. Oracle owns the copyright in these programs—nobody disputes that—and it actively issues licenses for their use. Anyone may obtain a royalty-free “open source” license to this entire collection of Java subroutines. Because open source licenses require users to make any alterations they make to the pre-existing code available to the public, many commercial entites are unwilling to enter into them, and Oracle accommodates them by also issuing commercial royalty-bearing licenses, at a negotiated price.

When Google began work on the Android operating system in the mid-2000s, it entered into negotiations with Oracle to obtain a commercial license for this implementing code—Oracle’s entire “Java Platform”—but those negotiations broke down. Instead of abandoning its decision to use the Java language for the Android operating system, Google chose to have its own engineers re-write those implementing programs (or, in some cases, to acquire code from third-party sources). [This new, non-Oracle implementing code, incidentally, makes up around 97% of the code for the Android operating system.]

So that’s the first important thing to understand about this case: Oracle has no copyright claim—and it has asserted no copyright claim—based on its immense and valuable collection of implementation programs, because Google did not end up copying any of that code.

What, then, is Oracle’s claim based upon?  Google did indeed copy something: it copied Oracle’s hierarchical system for organizing these 30,000+ implementation programs. A little more technical background: Oracle organizes its collection of implementation programs/methods into a hierarchy consisting of about 3,000 “classes” of code performing different but related functions, which are then grouped together into around 150 different “packages” (aka “Application Program Interfaces,” or “APIs”) of related higher-level functions. It is, as Google describes it in its opening brief [here], the equivalent of an ordinary filing system: each package is a file cabinet, each class is a drawer within one of the cabinets, and each individual program containing a “method” is a folder within the drawer within the cabinet.

Google copied this hierarchical system for organizing Java methods because the corresponding declarations/calls must replicate this hierarchical system precisely if the calls are to operate correctly and find the proper “method” to run. For instance, “max” is a method/implementation program that finds the larger of two integers; a Java program seeking to invoke and run the “max” program would have a declaration that looks like this:  java.lang.Math.max(5, 10). This indicates that the code for “max” is to be found within the Math “class” within the java.lang “package.”

The structure and text of the declarations, in other words, are tightly constrained by the hierarchical structure of the methods, classes, and packages; indeed, they are entirely determined by that hierarchy. As the district court put it, “the rules of Java dictate the precise form of certain necessary lines of code called declarations, whose precise and necessary form explains why Android and Java must be identical when it comes to those particular lines of [declaring] code.”

And Java programmers have already learned thousands upon thousands of declarations that are based on the Oracle organizing scheme. That is, in fact, a major component of what a Java programmer learns in order to become a Java programmer. Google’s use of Oracle’s hierarchical system for organizing the library of methods meant that Android programmers would be able to use the declarations with which they were already intimately familiar, without requiring those programmers to learn thousands of new declarations/calls to perform common tasks.

Thus, within the Android operating system, the declaration described above—java.lang.Math.max(5, 10)—does what it always does in a Java program: it finds the larger of two integers by running an implementation program (called “max”) that is located in the class Math in the java.lang package.

As Google puts it in its opening brief:

Google understood that developers would want to use their existing Java language skills to create Android applications, including their knowledge of familiar declarations and shorthand commands to trigger common operations. For those commands to work on the Android platform, Google had to replicate the syntax and structure of the Java API declarations exactly; any change to those declarations would have prevented developers from reusing the same commands, thereby forcing them to learn new commands for each routine task. Google accordingly used the same declarations for certain methods in 37 Java API libraries that were determined by Google to be “key to mobile devices.” For every one of those methods, however, Google wrote its own implementing code, tailoring the code to accommodate the unique challenges of the smartphone environment.

That’s the heart of this dispute: whether copying the hierarchical structure of the library of implementation programs—not the implementation code in those programs, but the system by which those programs are organized—and the declarations that reflect that hierarchical structure (e.g., java.lang.Math.max(5, 10)) infringe Oracle’s copyright in that structure and those declarations.

Google argues that it does not. I agree, and so did the district court, which held, correctly, that the structure of the libraries, and the corresponding text of the declarations which reflect that structure, are not protected by copyright at all. Without diving too deep into the copyright weeds, the short version of the court’s reasoning is simple and straightforward. The Copyright Act, a hopeless muddle about many things, is transparently clear on point: copyright protection is not available for systems or processes or organizing methods or the like. Section 102(b) says this explicitly, and reads in full:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (emphasis added)

This is one of the truly fundamental principles underlying our entire intellectual property regime: No matter how original or creative your system may be, or how much time and effort you put into developing it—and Oracle spends a great deal of time in its pleadings showing how original and creative and useful and valuable its hierarchical organizing system for Java methods is, and how much time and effort it expended on its development—copyright law does not allow you to prevent others from reproducing and using that system.  

Incidentally, a posting [here]at the Federalist Society by David Hogberg gets this case horribly wrong. The inadvertent tip-off is right there in the headline:

“Here’s How The Supreme Court Can Stop Google From Stealing People’s Ideas.”

The Supreme Court can do no such thing, because copyright law does not prohibit “stealing” ideas; copying someone else’s idea isn’t “stealing” at all, because ideas can never receive copyright protection, no matter how brilliant or original it may be.

This vital principle establishes, among other important things, the line separating the world of copyright from the world of patent. You can get IP protection for a “system” or a “process” or a “method of operation,” but only by obtaining a patent on it, which will require you to meet very different, and far more stringent, requirements to obtain protection than does copyright, and which will last for a far, far shorter period of time.

Copyright aficionados will recognize this principle as having been derived from the seminal Baker v. Selden (101 US 99, 1879) case, a delicious case of 19th century commercial intrigue. Selden had come up with a new and innovative method of double-entry bookkeeping—one that, I’m told by those who understand bookkeeping better than I do, has been incorporated into much standard bookkeeping practice. He published a book describing the system, along with several blank data-entry forms that were to be used when implementing his new system. Baker, a stationery publisher, published books containing blank bookkeeping forms, and he included Selden’s forms; Selden sued, asserting that Baker had infringed his copyright in the book.

The Court held for Baker. It started with a “proposition so evident that it requires hardly any argument to support it”: that Selden, though he possessed a valid copyright in his book, obtained no exclusive rights therefrom in the bookkeeping system itself. Exclusive rights of that kind, the Court declared, “are the province of letters-patent, not of copyright,” and any such claim “must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained.” Because Selden’s system had not been patented, it was “open and free to the use of the public.”

And because using the system required using the special forms that Selden had devised—the Court called the forms “necessary incidents” to the use of the system itself—the forms were, like the system itself, “open and free to the use of the public.” To hold otherwise—to give Selden a copyright monopoly over the forms—would effectively give him a monopoly over the use of the system. Patent-like protection, in other words, without having to satisfy the requirements of the Patent Act.

In short, Oracle’s system for organizing its library of Java “methods” has no copyright protection whatsoever, and Google was allowed—at least as far as copyright law is concerned—to copy it. Only a patent would serve to protect it from replication—and Oracle, like Mr. Selden, didn’t get a patent. As the district court put it:

That a system or method of operation has thousands of commands arranged in a creative taxonomy does not change its character as a method of operation. Yes, it is creative. Yes, it is original. But it is nevertheless a command structure, a system or method of operation — a long hierarchy of over six thousand commands to carry out pre-assigned functions. For that reason, it cannot receive copyright protection — patent protection perhaps — but not copyright protection.

[A great deal of ] code had been written in Java before Android arrived. These programs necessarily used the java.package.Class.method() command format. These programs called on all or some of the specific 37 packages at issue and necessarily used the command structure of names at issue. Such code was owned by the developers themselves, not by Oracle. In order for at least some of this code to run on Android, Google was required to provide the same java.package.Class.method() command system using the same names with the same “taxonomy” and with the same functional specifications. Google replicated what was necessary to achieve a degree of interoperability—but no more, taking care, as said before, to provide its own implementations…. Google was and remains free to group its methods in the same way as in Java, that is, to organize its Android methods under the same class and package scheme as in Java.

“Necessary to achieve a degree of interoperability.” That language helps explain why the case is so important, and why interest in it is so high. If Oracle prevails here, the ability of software developers to design interoperable programs—programs which borrow enough of the command structure and organization of other, pre-existing programs—will be deeply compromised, and that could well have rather profound and unfortunate consequences throughout the technology industries.

The Federal Circuit, in reversing the district court and holding that Oracle did possess an enforceable copyright in its system for organizing the Java methods library, has perpetrated a deep and substantial misunderstanding of U.S. copyright law.*** One hopes that the Supreme Court will take this opportunity to correct that unfortunate state of affairs and put copyright law back on course.

***That the case ended up going from the Northern District of California to the Federal Circuit—the appellate court primarily responsible for hearing patent appeals—rather than the Ninth Circuit was due to the fact that Oracle had originally asserted a patent claim in addition to its copyright claim. The patent claim, however, was subsequently dismissed, though not before it had given the Federal Circuit jurisdiction over the appeal. The judges on the Federal Circuit have little experience with the Copyright Act, and it showed.

In fact, the Federal Circuit reversed two separate decisions in Google’s favor in this case. On the first appeal, it reversed the district court by holding that Oracle’s organization of its Java libraries was a copyrightable work of authorship, and remanded the case back to the district court for trial. The district court then held a full jury trial on the question of whether Google had infringed that copyright; the jury found no infringement because Google’s use of the hierarchical structure constituted a “fair use.” Once again, on appeal, the Federal Circuit reversed. That decision, too, for reasons I won’t go into here [see here and here if you’re interested], has little to recommend it.

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Should Banks Be in the Gun Control Business?

A new federal gun control bill calls for banks and credit card companies to provide transaction data to the feds on some firearms purchases.

The Gun Violence Prevention Through Financial Intelligence Act, introduced by Rep. Jennifer Wexton (D–Va.), would require the Financial Crimes Enforcement Network (FinCEN) to “request information from financial institutions for the purpose of developing an advisory about the identification and reporting of suspicious activity.” The bill’s aim is to identify a consistent purchasing pattern among people who buy firearms and firearm accessories in order to conduct “lone wolf acts of terror.”

“Banks, credit card companies, and retailers have unique insight into the behavior and purchasing patterns that can help identify and prevent mass shootings,” Wexton explained in a statement. “The red flags are there—someone just needs to be paying attention.”

The New York Times reports that Wexton’s bill was inspired in part by a 2018 investigation by Times columnist Andrew Ross Sorkin. Sorkin reported that in at least eight of the 13 mass shootings that had killed 10 or more people since the Virginia Tech massacre in 2007, the perpetrators used credit cards to finance their killing sprees. James Holmes, who killed 12 people at a movie theater in Aurora, Colorado, in 2012, used a credit card to purchase more than $11,000 worth of guns, grenades, and other military gear. Omar Mateen, the 2016 Pulse nightclub shooter in Orlando, Florida, ran up $26,532 in charges across six credit card accounts in the 12 days leading up to his attack.

Visa spokesperson Amanda Pires rightly told The New York Times last year that expecting “payment networks to arbitrate what legal goods can be purchased sets a dangerous precedent.”

Past attempts by the government to identify “red flags” for illegal activity by analyzing transaction data have resulted in banks casting “as wide a net as possible.” In their efforts to identify human traffickers, for instance, financial institutions have flagged such innocuous behaviors as running up large grocery bills and renting DVDs in bulk.

Almost half of gun owners report possessing at least four guns, and as with many other hobbies, it’s easy to spend a great deal of money on gun-related products. There is no easy way to determine whether someone is spending a lot on guns because they like guns or because they plan to commit an act of terror. It’s not hard to imagine law-abiding gun owners coming under suspicion should Wexton’s bill become law.

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Today in Supreme Court History: January 20, 1953

1/20/1953: President Eisenhower is the first President to take the inaugural oath on January 20, following the ratification of the 20th Amendment. He would make five appointments to the Supreme Court: Chief Justice Earl Warren, and Justices John Marshall Harlan I, William J. Brennan, Charles Evans Whittaker, and Potter Stewart.

President Dwight D. Eisenhower made five appointments to the Supreme Court

 

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Senators Propose Limits on Police Use of Facial Recognition 

A bipartisan pair of lawmakers wants to limit the use of facial recognition technology by federal law enforcement. In November, Sens. Mike Lee (R–Utah) and Chris Coons (D–Del.) introduced the Facial Recognition Technology Warrant Act. The bill would require federal officials to seek a warrant in order to use facial recognition technology to track a specific person’s public movements for more than 72 hours.

The legislation does not prohibit the use of facial recognition technology to identify people. Indeed, it allows authorities to use facial recognition to identify people without a warrant so long as “no subsequent attempt is made to track that individual’s movement in real-time or through the use of historical records after the individual has been identified.” In other words, the bill requires law enforcement to obtain a warrant only for long-term surveillance of a specific person.

Fred Humphries, corporate vice president of U.S. government affairs at Microsoft (which makes and sells facial recognition software), joined Coons and Lee in a joint statement in which the three claim that the bill strikes the right balance: “American citizens deserve protection from facial recognition abuse. This bill accomplishes that by requiring federal law enforcement agencies to obtain a warrant before conducting ongoing surveillance of a target.”

Americans for Prosperity (AFP) also supports the legislation, which it sees as more balanced than a full ban on government use of facial recognition tools. “We’re standing behind this bill,” AFP senior policy analyst Billy Easley said in a statement, “because we believe in the appropriate application of facial recognition technology and ensuring it is used for good rather than the mistreatment of Americans.”

Other privacy activists are less impressed. “It has gaping loopholes that authorize the use of facial recognition for all kinds of abusive purposes without proper judicial oversight,” Evan Greer, deputy director of the digital rights group Fight for the Future, told CNET. “It’s good to see that Congress wants to address this issue, but this bill falls utterly short.” The Lee-Coons bill doesn’t prohibit the feds from accessing or using the hundreds of millions of pictures they’ve already collected from drivers licenses and passports, for instance. In fact, it specifically approves the use of such photos.

While Congress is only just now moving to regulate facial recognition, states and cities have been grappling with the technology for at least the last year. In September, the American Civil Liberties Union helped spur a vote on legislation in California by running the official portraits of state legislators through Amazon’s Rekognition program, which also contained 25,000 mugshots. As Wired reported, the program erroneously identified 25 lawmakers as arrestees.

The California Senate ended up passing a three-year moratorium on police use of facial recognition technology. Last May, San Francisco’s Board of Supervisors went even further by voting to prohibit all city agencies from using any facial recognition technology.

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Brickbat: Punched Out

Former Prince George’s County, Maryland, police officer Stephen Downey was sentenced to six months in jail after being convicted of assault and misconduct in office. Downey was called to a drug store, where he found a homeless man sleeping in a shipping container in the store’s parking lot. He handcuffed the man and placed him in a patrol car and fastened the man’s seat belt. Downey then punched the man in the face several times. Downey said he believed the man was going to headbutt him.

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Tyler Cowen on “State Capacity Libertarianism” II: Is it the Right Path for Libertarians to Follow?

In my last post on economist Tyler Cowen’s case for “state capacity libertarianism” (SCL), I took issue with Tyler’s claim that SCL is the wave of the future among “smart” libertarians. In this one, I focus on the more important issue of whether SCL is actually a good idea. Regardless of whether SCL is popular among libertarians now, should they adopt it? Here’s why my answer is a qualified “no.”

Before going into greater detail, it’s worth asking exactly what Tyler means by “state capacity.” He does not provide a very clear definition. But it seems to me that his SCL theory differs from more conventional libertarianism in so far as it focuses on increasing and improving the capabilities of government, including in at least some substantial areas that most other libertarians would argue should simply be left to the private sector. To the extent that SCL simply means improving government’s ability to perform those functions that even traditional libertarians (with the notable exception of anarchists) believe government should carry out, there is little difference between Tyler’s theory and other types of libertarianism.

Unfortunately, Tyler fails to specify how we measure the type of “capacity” he considers important, and also how we draw the line between issues where the right approach is improving state capacity and those where we should still aim to keep the state out (which might actually require reducing capacity, or at least keeping it more limited).

This lack of clarity is part of a more general problem with state capacity theory that goes well beyond Tyler’s piece. As critics like Bryan Caplan and Vincent Geloso and Alex Salter, point out, state capacity theorists have not done a good job of differentiating cases where state capacity is the cause of good outcomes from those where it is a result of them (e.g.—a state in a wealthier society has more capacity than on ine a poor society, even if the state did little to create that wealth). In addition, greater capacity means an increased ability to do evil as well as good, which is a highly relevant consideration when we are talking about institutions that can regulate, imprison, and kill people.

Until state capacity theorists do a better job of sorting out these baseline issues, we should be wary of making state capacity a central element of libertarianism—or, indeed, any other liberal political theory. These problems may not be insuperable. But they do require  better answers than state capacity advocates have given us so far.

While Tyler does not give us a general definition of SCL, he does present a number of specific propositions he associates with it. Some are criticisms of conventional libertarianism, while others present more of an affirmative agenda. Here, I consider several that seem distinctive to SCL. Thus, I pass over some that are likely to be endorsed by libertarians of any stripe (e.g.—”Markets and capitalism are very powerful, give them their due”).

[I]t doesn’t seem that old-style libertarianism can solve or even very well address a number of major problems, most significantly climate change.

I don’t claim libertarianism can solve all the world’s ills, or even come close to doing so. But, looking at some of the greatest evils and injustices out there, I see many that libertarianism is very well-equipped to handle. Consider such issues as immigration restrictions that inflict massive injustices on both immigrants and natives (and make the whole world far poorer than it could be), zoning rules that bar millions of Americans from housing and job opportunities, looming fiscal crises that afflict many Western democracies (including the US), the War on Drugs that blights the lives of many thousands every year,  a government too large and complicated for effective democratic accountability, and the undermining of the rule of law by the expansion of criminal law and regulation to the point where almost everyone can be charged with something.

In each of these areas, there are enormous gains to be had simply by having government engage in less of the activity that is causing the problem to begin with. Moreover, none requires the achievement of any kind of libertarian Utopia. Incremental reforms in a more libertarian direction can still achieve a lot. Even if we can’t get to open borders, we can radically transform the lives of hundreds of thousands of people for the better simply by increasing the amount of legal immigration into the US by, say, 10%. Even if we cannot abolish the entire War on Drugs, we can greatly reduce the amount of suffering it causes through legalizing just some of those drugs that are currently banned. Even if we cannot follow the example of Houston and have no zoning at all, we can liberalize zoning at the margin and thereby provide new housing and job opportunities for many thousands of people. And so on.

And none of these incremental reforms require much, if any, state capacity that doesn’t already exist. A government that can zone, restrict immigration, and wage a War on Drugs at current levels, is fully capable of doing, say, 10 or 20 percent less of each of these things. Admittedly, there are some situations where a kind of state capacity can be useful in mitigating transition problems through “keyhole solutions.” But these, too, rarely require capabilities Western democracies currently lack.

Tyler is right to highlight climate change as a problem for libertarians, one that too many of us have preferred to deny or ignore. However, libertarian environmental law experts, such as the VC’s own Jonathan Adler, have in fact developed solid proposals to address the issue, such as a revenue neutral carbon tax, prizes for relevant technological innovations, and expanding the use of nuclear power. These ideas are not fool-proof, but they have fewer risks than the command-and-control approach favored by many more conventional environmentalists, which threaten to massively expand government control over the economy and create grave risks for freedom and prosperity. I don’t know if libertarian approaches to climate change can “fix” the problem at an acceptable cost. But the same is even more true of the solutions offered by adherents of other ideologies. For example, it isn’t clear that anyone has proposed an effective way to incentivize large developing nations like China and India to greatly reduce their projected carbon emissions. The issue indeed a difficult challenge for libertarians—but also for everyone else.

There is also the word “classical liberal,” but what is “classical” supposed to mean that is not question-begging? The classical liberalism of its time focused on 19th century problems — appropriate for the 19th century of course — but from WWII onwards it has been a very different ballgame.

I don’t especially like the term “classical liberal” and it may indeed be question-begging. But Tyler is wrong to think that 19th century liberalism was only “appropriate for the 19th century.” To the contrary, there is much that modern libertarians can learn from our forbears. Among other things, nineteenth-century liberals fought against protectionism, ethnic nationalism, slavery and other forms of forced labor, and government intervention that rewards favored interest groups and suppresses competition. All of these remain among our most serious challenges today. that includes even forced labor, which is still widely practiced by authoritarian regimes, and which some even in the US seek to revive through mandatory “national service.” The French government recently imposed mandatory national service on all citizens when they turn 16.

Nineteenth century liberals also created successful mass movements in opposition to slavery and protectionism. It seems to me that modern libertarians (who have been far less effective in reaching the general public) could learn a great deal from these movements and apply some of the lessons to the present day (I give one example here).

Earlier in history, a strong state was necessary to back the formation of capitalism and also to protect individual rights (do read Koyama and Johnson on state capacity).  Strong states remain necessary to maintain and extend capitalism and markets….

A strong state is distinct from a very large or tyrannical state. A good strong state should see the maintenance and extension of capitalism as one of its primary duties, in many cases its #1 duty….

Rapid increases in state capacity can be very dangerous (earlier Japan, Germany), but high levels of state capacity are not inherently tyrannical.

Much here depends on exactly what is meant by a “strong state.” If it means a state effective within some range of functions, then few libertarians (anarchists, again,excepted) would deny its value. If it means a generally “strong” state with the ability to control most aspects of society, that’s a very different proposition. Moreover, most of these points are subject to the problems with the concept of “state capacity” already discussed above, particularly the point that state capacity is often the result of positive social developments rather than their cause. I  would add that even if “[a] good strong state” should see “the maintenance and extension of capitalism as one of its primary duties,” it doesn’t follow that it actually will. To the contrary, the more power the state has, the greater the temptation for politicians to misuse it, especially in a context where they are appealing to poorly informed voters. Moreover, the more areas a strong state can control, the harder it is for voters to keep track of all of its activities and monitor and punish potential abuses of power.

Many of the failures of today’s America are failures of excess regulation, but many others are failures of state capacity. Our governments cannot address climate change, much improve K-12 education, fix traffic congestion, or improve the quality of their discretionary spending….. I favor much more immigration, nonetheless I think our government needs clear standards for who cannot get in, who will be forced to leave, and a workable court system to back all that up and today we do not have that either….

Those problems require state capacity — albeit to boost markets — in a way that classical libertarianism is poorly suited to deal with. Furthermore, libertarianism is parasitic upon State Capacity Libertarianism to some degree. For instance, even if you favor education privatization, in the shorter run we still need to make the current system much better. That would even make privatization easier, if that is your goal.

Most of this strikes me as wrong. The problems with education, traffic congestion, and discretionary spending are not a lack of “capacity” but a combination of inherent flaws of government and poor incentives. If the libertarian diagnosis of the problems with public education is correct, the way to improvement is not trying to “make the current system much better,” but increasing competition and choice through privatization. Indeed, the failures of the status quo are one of the main driving forces behind the school choice movement. If we really could make the system much better without privatization and choice, there would be far less reason to do the latter.

Similarly, the best way to make the immigration system much better is to simply reduce restrictions and let more people in. Even if “standards” are no clearer than they are now, and even if the quality of immigration courts doesn’t improve, that would still give large numbers of people (both immigrants and natives) greater freedom and opportunity than they have now. Moreover, making legal immigration easier is actually the simplest way to alleviate pressure on courts and other state institutions at the border. Privatization is also a good strategy for alleviating traffic congestion through peak toll pricing, since the main obstacle to this simple reform is public ignorance.

There is a kernel of truth to Tyler’s claim that “libertarianism is parasitic upon State Capacity Libertarianism to some degree.”

If government is completely incapable of doing anything right, then it cannot fulfill even the basic functions that most libertarians want it to do. But, at this point in history, it doesn’t seem like the US and other Western democracies lack the capacity to do such things as provide a modicum of security and public goods. Rather, the problem is that our governments are engaging in way too many other functions, many of which are both harmful in themselves and divert resources away from the things that government should do. For example, the War on Drugs and immigration enforcement massively divert law enforcement personnel away from combating violent and property crime.

I don’t deny that there are cases where harmful government policies can be made less so without libertarian reforms (even if abolition or reduction of government intervention in these fields would be better still). But I’m not convinced that focusing on such reforms is a productive activity for libertarians. There is no shortage of non-libertarian policy experts working on incremental improvements to state institutions. The comparative advantage of libertarians (at least in most cases) is identifying ways to make improvements by reducing government intervention. Where the best available solution lies elsewhere, we can usually rely on non-libertarians to find it on their own.

Things might be different in a world where libertarians are much more numerous and influential than we are today. In that world, it would make sense for a substantial proportion of libertarian resources to be devoted to finding improvements in policy that do not involve shrinking government power.  Indeed, in that world, a much higher percentage of government activities would be ones that can be justified even on libertarian grounds, so it would be harder to find improvements by cutting back the role of the state. But we are very far from that point today.

State Capacity Libertarianism is not non-interventionist in foreign policy, as it believes in strong alliances with other relatively free nations, when feasible. That said, the usual libertarian “problems of intervention because government makes a lot of mistakes” bar still should be applied to specific military actions. But the alliances can be hugely beneficial, as illustrated by much of 20th century foreign policy and today much of Asia — which still relies on Pax Americana.

I actually agree with most of what Tyler says in this passage. For reasons I spelled out here, I am not as dovish as most other libertarians are. And we do need strong alliances with other relatively liberal nations to counter the dangerous illiberal forces in the world.

That said, the US and other  liberal democracies would have more resources available for these purposes if they weren’t doing so many other things. If, as Tyler puts it, conventional libertarianism is parasitic on “state capacity,” then state capacity to do good is also parasitic on libertarianism, in the sense that it needs tight limits on government power to prevent the state from wasting public resources on wasteful and harmful projects. Tyler’s strictures about the need for a relatively high bar for military intervention is also well-taken.

In sum, I remain largely unpersuaded by Tyler’s normative case for SCL. But I do want to commend him for for kicking off a valuable discussion, which has already attracted multiple thoughtful responses to his original post (I linked to several here). Very few blog posts stimulate high-quality public discussion as as much as Tyler did with this one. While he may not have persuaded me of the merits of “state capacity,” he has effectively  demonstrated the blogosphere’s capacity to produce valuable discourse, even in an era when blogs sometimes seem obsolete, due to the rise of crude and superficial social media.

UPDATE: As before, I am happy to commit to posting any response Tyler cares to make to either this post or my previous one on this subject.

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