Tag: hit&run

A Custer County, S.D., woman has sued Sheriff Marty Mechaley, Deputy Matthew Tramp and other members of the sheriff’s office for violating her civil rights through their negligence in protecting her from a known threat. Harry David Evans was sentenced to life in prison earlier this year for kidnapping and raping the woman in 2017. Before that, he’d been arrested for violating a restraining order forbidding him from contacting the woman. On the night of the rape, he sent her threatening messages. She called the sheriff’s office but hung up after being on hold for 10 minutes, according to the lawsuit. She then called the Hermosa town marshal, but a dispatcher told the marshal the sheriff’s office was handling the call and called him off. The woman called the sheriff’s office again but was once more placed and hung up. Finally, Tramp, who was on duty, called the woman. But after she complained that no one was coming to help her, “Tramp simply ran out his shift and returned home,” according to the lawsuit. A couple of hours later, Evans broke into the woman’s home and raped her.

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I first became interested in high-profile federal impeachments in the early 1990s. I had my reasons. They eventually became a central component of my one of my first books on the significance over the course of American history of elected officials shaping the effective constitutional understandings, practices and norms that governed much of American politics. Impeachments were one way that politicians struggled to remake constitutional meaning. Impeachments were tools of constitutional construction.

That seemed like an admittedly arcane thing to study at the time, but soon enough Bill Clinton got himself impeached and suddenly esoteric knowledge seemed relevant—even as the Republican Congress did not seem to be doing a very good job of explaining why an impeachment was either necessary or useful. The question is what lessons we would learn from that experience. But as I noted in Reason at the time,

In the end, Congress seems to have stumbled to the right conclusion, and the American people appear to be making an appropriate assessment of last year’s events.

Maybe we’ll do better this time, but I wouldn’t bet on it. In any case, I’ve been writing a lot about impeachment issues over the past couple of years.  They are collected here. For a deep dive into the impeachment process and the standards for assessing potentially impeachable offenses, I have posted a longer review essay here.

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The Ninth Circuit Court of Appeals has handed down a groundbreaking decision today on the federal computer hacking law,  the Computer Fraud and Abuse Act (CFAA).  In HiQ Labs v. LinkedIn, the court held that scraping a public website is likely not a CFAA violation.

Under the new decision, violating the CFAA requires “circumvent[ing] a computer’s generally applicable rules regarding access permissions, such as username and password requirements,” that thus “demarcate[]” the information “as private using such an authorization system.”  If the data is available to the general public, the court says, it’s not an unauthorized access to view it—even when the computer owner has sent a cease-and-desist letter to the visitor telling them not to visit the website.

This is a major case that will be of interest to a lot of people and a lot of companies.  But it’s also pretty complicated and easy to misunderstand.   This post will go through it carefully, trying to explain what it says and what it doesn’t say.

I.  The Context

To really understand the new decision, I think it helps to start with some context.  The CFAA is a computer trespass statute that prohibits accessing a computer “without authorization.”  It is primarily a criminal statute, but it also has civil remedies that permit private parties to bring CFAA lawsuits for damages or injunctive relief.

Importantly, the meaning of the CFAA is the same in both civil and criminal settings.  This means that whatever courts say about the CFAA when a computer owner sues a user is equally applicable when the federal government arrests and prosecutes the user with substantial jail time in play.

The big question under the CFAA has long been what counts as “authorization.”  Does authorization depend on how the computer architecture is designed, with users authorized to use a computer if it’s available to the public and not authorized if the access is technically blocked?  Or does it depend on what the computer owners says they want, either through terms of use posted on the computer or through letters directed to potential visitors?

Courts have been all over the map, and the Ninth Circuit’s decisions have zigzagged a bit on this.  There are four big Ninth Circuit precedents to consider:

(1) In LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009), the Ninth Circuit held that an employee who gathers information on a company computer for his own purposes does not violate the CFAA merely because that personal use was adverse to the interests of the employer.  The parties agreed that access to the company computer would be unauthorized after the employee left the company.  But when the employee was  working at the company, accessing the company’s files was not made a crime simply because the employee was doing so for a secret purpose to help himself and hurt the company.  (Another circuit had disagreed, but I’ll stick to Ninth Circuit caselaw in this post.)

(2) Three years later, in United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc) (“Nosal I“), the Ninth Circuit held that it doesn’t violate the CFAA to use a website in violation of written restrictions like employment agreements or Terms of Service posted on websites.  The CFAA was designed to “punish hacking — the circumvention of technological access barriers,” the Court noted.  Given that narrow focus, it was wrong to construe the statute to also encompass the very common and innocuous act of  using a website or company computer in a way contrary to terms of use and employment policies.  (There is a circuit split on this issue, too.  But again, I’m focused on the Ninth Circuit here.)

(3) Four years later, in a follow up case, United States v. Nosal, 844 F.3d 1024 (9th Cir. 2016) (“Nosal II”), the Ninth Circuit held that it does violate the CFAA for a former employee to get a current employee’s username and password and to use their account with their permission. That’s different from violating an employment agreement or terms of use, the court held, as the former employee has no right to access the computer under Brekka.  Leaving the company ended the access rights, and a former employee can’t work around that to restore those rights just because a current employee was willing to hand him her username and password.

(4) Shortly after Nosal II, the Ninth Circuit handed down Facebook v. Power Ventures, 844 F.3d 1058 (9th Cir. 2016). Power Ventures was a service that accessed users’ Facebook profiles with the users’ permission and moved the data to a different website run by Power Ventures. Power Ventures held that it’s an unauthorized access to visit a computer after receiving a cease-and-desist letter from the computer owner prohibiting the visit based on it violating terms of service.  That’s like Brekka, the Ninth Circuit reasoned, because the cease-and-desist letter withdraws permission to use the computer.  And it’s not like Nosal I, the court argued, because cease-and-desist letters (unlike posted terms of service) put the visitor on clear notice that the visit to the computer is prohibited by the computer owner.

II.  The Facts and Procedural History of HiQ Labs

That brings us finally to the new case, HiQ Labs v. LinkedIn.  HiQ Labs is a data analytics company.  It scrapes information on LinkedIn profiles that LinkedIn users have set be viewable by the general public without a LinkedIn account.  HiQ Labs combines that information with other information and sells it to companies.

LinkedIn wants to monetize that data itself, so it sent a cease-and-desist letter to HiQ telling it to stop accessing and copying the data publicly posted on LinkedIn. LinkedIn threatened to sue HiQ on various grounds if HiQ refused to stop.  HiQ instead filed suit in federal court seeking an injunction based on state law and a declaratory judgment that its conduct was legal.

The district court granted a preliminary injunction, setting up this appeal.

That brings me to a warning: The new Ninth Circuit decision is a little bit tricky to analyze because of its procedural posture. That’s true for two reasons that are helpful to flag now.

First, at this stage of the case, HiQ is only seeking a preliminary injunction—basically, a ruling from the judge preserving the status quo so LinkedIn can’t stop HiQ  in the initial period when the lawsuit is pending.  The standard for a preliminary injunction considers the merits of the legal claims, but it does not make a definitive ruling about them.  For that reason, the opinion’s conclusions about the CFAA are written tentatively. The court talks about what is “likely” the correct interpretation of the CFAA, what raises “serious questions,” et cetera.

Second, the CFAA issues enter the case somewhat indirectly.  HiQ is seeking a preliminary injunction based on a state law claim, that LinkedIn is tortiously interfering with its business contracts by trying to block it and stop its conduct.  LinkedIn is then raising the CFAA as a defense. You can’t sue us for tortiously interfering with your business contracts, LinkedIn is saying, because the entire HiQ business is illegal under federal law.

All of this means that the CFAA ruling is a bit indirect.  Technically, the issue being decided is whether there’s a serious question that HiQ’s scraping complies with the CFAA, which is needed to say that LinkedIn trying to stop HiQ may be tortious interference with HiQ’s legitimate business, which is needed to know if was an abuse of discretion for the trial court to temporarily stop LinkedIn from trying to interfere with HiQ’s business.

Got it?  I know, I know.  Lawyers always have to make everything so complicated. (Sorry.)

III.  The CFAA Ruling

That brings us to the CFAA ruling.  It’s hugely important.  The Ninth Circuit views the CFAA has a hacking statute (like Nosal I did), and it presumes a right to open access under the CFAA unless there is some technological measure placed on access.  Because HiQ did not circumvent a technological access measure to get to the data publicly posted on LinkedIn’s website, the CFAA was not violated.  (Or rather, “likely” was not violated, see the reason for the tentative language above.)

Here’s the key language, with the particularly important language in bold and a few paragraph breaks added by me for web readability:

We . . . look to whether the conduct at issue is analogous to “breaking and entering.” H.R. Rep. No. 98-894, at 20. Significantly, the version of the CFAA initially enacted in 1984 was limited to a narrow range of computers—namely, those containing national security information or financial data and those operated by or on behalf of the government. See Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, Pub. L. No. 98- 473, § 2102, 98 Stat. 2190, 2190–91. None of the computers to which the CFAA initially applied were accessible to the general public; affirmative authorization of some kind was presumptively required.

When section 1030(a)(2)(c) was added in 1996 to extend the prohibition on unauthorized access to any “protected computer,” the Senate Judiciary Committee explained that the amendment was designed to “to increase protection for the privacy and confidentiality of computer information.” S. Rep. No. 104-357, at 7 (emphasis added).

The legislative history of section 1030 thus makes clear that the prohibition on unauthorized access is properly understood to apply only to private information—information delineated as private through use of a permission requirement of some sort. As one prominent commentator has put it, “an authentication requirement, such as a password gate, is needed to create the necessary barrier that divides open spaces from closed spaces on the Web.” Orin S. Kerr, Norms of Computer Trespass, 116 Colum. L. Rev. 1143, 1161 (2016). Moreover, elsewhere in the statute, password fraud is cited as a means by which a computer may be accessed without authorization, see 18 U.S.C. § 1030(a)(6), bolstering the idea that authorization is only required for password-protected sites or sites that otherwise prevent the general public from viewing the information.

We therefore conclude that hiQ has raised a serious question as to whether the reference to access “without authorization” limits the scope of the statutory coverage to computer information for which authorization or access permission, such as password authentication, is generally required.

Put differently, the CFAA contemplates the existence of three kinds of computer information: (1) information for which access is open to the general public and permission is not required, (2) information for which authorization is required and has been given, and (3) information for which authorization is required but has not been given (or, in the case of the prohibition on exceeding authorized access, has not been given for the part of the system accessed).

Public LinkedIn profiles, available to anyone with an Internet connection, fall into the first category. With regard to such information, the “breaking and entering” analogue invoked so frequently during congressional consideration has no application, and the concept of “without authorization” is inapt.

Neither of the cases LinkedIn principally relies upon is to the contrary. LinkedIn first cites Nosal II, 844 F.3d 1024 (9th Cir. 2016). As we have already stated, Nosal II held that a former employee who used current employees’ login credentials to access company computers and collect confidential information had acted “‘without authorization’ in violation of the CFAA.” Nosal II, 844 F.3d at 1038. The computer information the defendant accessed in Nosal II was thus plainly one which no one could access without authorization.

So too with regard to the system at issue in Power Ventures, 844 F.3d 1058 (9th Cir. 2016), the other precedent upon which LinkedIn relies. In that case, Facebook sued Power Ventures, a social networking website that aggregated social networking information from multiple platforms, for accessing Facebook users’ data and using that data to send mass messages as part of a promotional campaign. Id. at 1062–63. After Facebook sent a cease-and-desist letter, Power Ventures continued to circumvent IP barriers and gain access to password-protected Facebook member profiles. Id. at 1063.

We held that after receiving an individualized cease-and-desist letter, Power Ventures had accessed Facebook computers “without authorization” and was therefore liable under the CFAA. Id. at 1067–68. But we specifically recognized that “Facebook has tried to limit and control access to its website” as to the purposes for which Power Ventures sought to use it. Id. at 1063. Indeed, Facebook requires its users to register with a unique username and password, and Power Ventures required that Facebook users provide their Facebook username and password to access their Facebook data on Power Ventures’ platform. Facebook, Inc. v. Power Ventures, Inc., 844 F. Supp. 2d 1025, 1028 (N.D. Cal. 2012). While Power Ventures was gathering user data that was protected by Facebook’s username and password authentication system, the data hiQ was scraping was available to anyone with a web browser.

In sum, Nosal II and Power Ventures control situations in which authorization generally is required and has either never been given or has been revoked. As Power Ventures indicated, the two cases do not control the situation present here, in which information is “presumptively open to all comers.” Power Ventures, 844 F.3d at 1067 n.2.

. . . Both the legislative history of section 1030 of the CFAA and the legislative history of section 2701 of the SCA, with its similar “without authorization” provision, then, support the district court’s distinction between “private” computer networks and websites, protected by a password authentication system and “not visible to the public,” and websites that are accessible to the general public.

Finally, the rule of lenity favors our narrow interpretation of the “without authorization” provision in the CFAA. The statutory prohibition on unauthorized access applies both to civil actions and to criminal prosecutions— indeed, “§ 1030 is primarily a criminal statute.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1134 (9th Cir. 2009). “Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.” Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). As we explained in Nosal I, we therefore favor a narrow interpretation of the CFAA’s “without authorization” provision so as not to turn a criminal hacking statute into a “sweeping Internet-policing mandate.” Nosal I, 676 F.3d at 858; see also id. at 863.

For all these reasons, it appears that the CFAA’s prohibition on accessing a computer “without authorization” is violated when a person circumvents a computer’s generally applicable rules regarding access permissions, such as username and password requirements, to gain access to a computer. It is likely that when a computer network generally permits public access to its data, a user’s accessing that publicly available data will not constitute access without authorization under the CFAA. The data hiQ seeks to access is not owned by LinkedIn and has not been demarcated by LinkedIn as private using such an authorization system. HiQ has therefore raised serious questions about whether LinkedIn may invoke the CFAA to preempt hiQ’s possibly meritorious tortious interference claim.

The court goes on to note that website owners have other legal options and causes of action outside the CFAA.  First, the court suggests that website scraping might violate the common law tort of trespass to chattels, “at least when it causes demonstrable harm.”  Second, depending on the case, there may also be civil causes of action for “copyright infringement, misappropriation, unjust enrichment, conversion, breach of contract, or breach of privacy.”  But not the combined civil/criminal provisions of the CFAA.

IV.  A Few Reactions

What do I make of the new decision?

On the substance of the reasoning, I’m delighted.  Of course, that’s easy for me to say.  Given my prior writing on this topic, including writing that the court very graciously cited, the decision seems quite brilliant to me.

More seriously, this is a really important decision that embraces the open presumption of the Internet far more clearly and directly than prior cases.  The Ninth Circuit’s approach to the CFAA has zigzagged a bit over time.  Some cases have embraced a more open Internet, and others have been quick to say that computer owners can close it easily.  This is a big step in the direction of openness.

I also think this decision renders Power Ventures an outlier.  I may be biased, as I thought Power Ventures was wrong.  As regular readers may remember, I represented Power Ventures on the petition for rehearing to try to get the panel decision overturned.  But Power Ventures seemed to give cease-and-desist letters magical powers given their clarity and notice.  It was possible to read Power Ventures broadly as saying that as long as the computer owner sends the cease-and-desist letter, the computer owner’s written directive controls the CFAA question—the recipient is sent into Brekka-land where their access rights were withdrawn.

HiQ Labs now places a critical limit on Power Ventures. Under HiQ Labs, the cease-and-desist letter only controls access rights to non-public data.  That seems to reduce Power Ventures to a limited application of Nosal II.  Under both Nosal II and Power Ventures-as-construed-in-HiQ, once a computer owner tells you to go away, you can’t then rely on a current legitimate user’s permission to let you back in.

Putting the cases together, the Ninth Circuit law right now seems to go like this.  You can scrape a public website, and you can violate terms of service, without violating the CFAA.  However, you can only access non-public areas of a computer if you haven’t had your access rights canceled before, either through a cease-and-desist letter or through the relationship ending that had granted you access rights.

It’s worth stressing that all of this is only the law in the Ninth Circuit.  There are clear circuit splits on how the CFAA has been interpreted that only the U.S. Supreme Court can resolve.  I suspect some of that resolution will happen pretty soon.  When it happens, the Supreme Court’s guidance will of course mean much more than the view of one court of appeals.  But the Ninth Circuit has handed down significantly more CFAA caselaw than any other circuit court.  In the interim, before the Supreme Court takes a look at these issues, HiQ Labs is a really big deal.

One last point: There’s more in the new decision on issues beyond the CFAA that is worth checking out.  The whole opinion is worth a read.

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Camille Stewart talks in this episode about a little-known national security risk: China’s propensity to acquire US technology through the bankruptcy courts—and the many ways in which the bankruptcy system isn’t set up to combat improper tech transfers. Published by the Journal of National Security Law & Policy, Camille’s paper is available here. Camille has enjoyed great success in her young career, working with the Transformative Cyber Innovation Lab at the Foundation for Defense of Democracies, as a Cybersecurity Policy Fellow at New America, and as a 2019 Cyber Security Woman of the Year, among other achievements. Plus, of course, the great honor of working for DHS Policy.  We talk at the end of the session about life and advancement as an African American woman in cybersecurity.

In the News Roundup, Maury Shenk tells us that UK courts have so far resisted a sustained media narrative that all facial recognition tech is inherently evil. Americans seem to agree with the UK court, Matthew Heiman notes, since a majority trust law enforcement to use it responsibly. Which is more than you can say for Silicon Valley, which only 36% of Americans trust with the technology.

Mieke Eoyang and I talk about DHS’s plan to use fake identities to view publicly available social media postings and the conflict between that plan and social media sites’ terms of service. I am unsympathetic, given the need for operational security in conducting such reviews, but we agree that DHS may be biting off more than it can chew, especially in languages other than English. And really, DHS, how clueless do you look when the list of social media you’ll be scrutinizing includes sites like the three-years-dead Vine but not TikTok, which Mieke notes ironically, is “what all the kids are using these days.”

Maury brings us up to speed on EU plans for the tech sector, which will be familiar to Brits contemplating the EU’s plans for them. And speaking of EU hypocrisy and incoherence (we were, weren’t we?), Erin Egan of Facebook has written a paper on data portability that deserves more attention, since it shows the impossibility of squaring the EU’s snit over Cambridge Analytica with its insistence on the inherently vague principle of “data portability.” The paper also calls out our FTC for slamming Facebook over Cambridge Analytica while Commissioner Noah Phillips is warning that restricting data transfers can be an anticompetitive weapon. I promise to invite the commissioner on the podcast again to explore that issue.

Well, that was quick: Fraudsters used AI to mimic a CEO’s voice – German accent, “melody,” and all – in an unusual cybercrime case. But it won’t be unusual long. Anyone can do this now, Maury explains.

In short hits, Mieke and I mock Denmark’s appointment of an “ambassador” to Silicon Valley. Way to cut the Valley down to size, Denmark! Maury notes that FinFisher is under investigation for violating EU export control law by selling spyware. Mieke does her best to rebut my suggestion that Silicon Valley’s bias is showing in the latest actuarial stat: Turns out that 10% of the accounts that President Trump has retweeted have already been deplatformed. Matthew and I note that China has been caught hacking several Asian telcos to spy on Uighurs. To give the devil his due, though, if the US had 5,000 citizens fighting for ISIS and al-Qaeda, as China claims to have, we’d probably be hacking all the same telcos to keep an eye on them.

State attorneys general will launch sweeping and apparently bipartisan antitrust probes into Facebook and Google this week. Good to see Silicon Valley bringing Rs and Ds together at last; who says its business model is fomenting social division? Finally, Mieke leaves us uneasy about the online security of our pensions, as hackers steal $4.2 million from one fund via compromised email.

Download the 277th Episode (mp3).

Want to hear more from Camille on bankruptcy and national security? She’ll be speaking Friday, September 13, at a lunch event hosted by the Foundation for Defense of Democracies. She’ll be joined by fellow panelists Giovanna Cinelli, and two other Cyberlaw Podcast alums, Jamil Jaffer and Harvey Rishikof, along with moderator Dr. Samantha Ravich. The event will be livestreamed at www.fdd.org/events. If you would like to learn more about the event, contact Abigail Barnes at FDD. If you are a member of the press, please direct your inquiries to press@fdd.org.

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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My new Cato Supreme Court Review article on the Supreme Court’s recent decision in Knick v. Township of Scott– an important property rights case that overruled a longstanding  precedent is now available for free on SSRN. Here is the abstract:

The Supreme Court’s decision in Knick v. Township of Scott put a long-overdue end to a badly misguided precedent that had barred most takings cases from federal court. The big issue at stake in Knick was whether the Court should overrule Williamson County Regional Planning Commission v. Hamilton Bank (1985). Under Williamson County, a property owner who contends that the government has taken his property and therefore owes “just compensation” under the Takings Clause of the Fifth Amendment could not file a case in federal court until he or she first secured a “final decision” from the relevant state agency and “exhausted” all possible remedies in state court. The validity of this second “exhaustion” requirement was at issue in Knick. Even after both Williamson County requirements were met, it was still usually impossible to bring a federal claim because procedural rules preclude federal courts from reviewing final decisions in cases that were initially brought in state court.

Part I of this article briefly describes the background of the Knick case and the Williamson County decision that the Court ended up reversing. In Part II, I explain why the Court was right to conclude that Williamson County created an indefensible double standard under which takings claims against state governments were effectively barred from federal court in situations where other types of constitutional claims would not be. Part III explains why overruling Williamson County is justified under the Supreme Court’s admittedly imprecise doctrine on overruling precedent. Justice Elena Kagan’s dissenting opinion is wrong to argue that overruling Williamson County also entails overruling numerous earlier precedents. Finally, Part IV assesses the potential real-world impact of the Knick decision. In many cases, it will make little difference whether a takings claim gets litigated in state court or federal court. In some situations, however, the right to bring a claim in federal court is a vital tool to avoid potential bias in state courts and procedural hoops that subject property owners to a prolonged ordeal before they have an opportunity to vindicate their rights. Claims that Knick will lead to a flood of new takings litigation are overblown. But to the extent that substantial new litigation does result, that is likely to be a feature, not a bug.

 

Star Trek fans will be happy to know that this may be the first-ever law journal to discuss the subject of changing depictions of Klingon foreheads—in the course of analyzing the notorious (and ultimately unsuccessful) “Klingon forehead” argument put forward by the federal government in their amicus brief in the case (see pp. 158-59 of my article). Sadly, I was not able to include actual pictures of the evolution of Klingon foreheads in the article. But they can be seen here. Prominent takings expert Robert Thomas deserves credit for the analogy between the government’s argument and Star Trek’s “retconning” of Klingon foreheads.

I will be speaking about the Knick decision and my article at the Cato Institute’s annual Constitution Day conference,  on Tuesday, September 17. I will be on a panel that runs from 2:15 to 3:30 PM. The event is free and open to the public.

 

 

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Judging by last week’s six-hour CNN presidential candidate town hall on climate change, the rough Democratic consensus is that we’ve got 12 years until DOOM—and that we should probably ban the greenhouse-gas-reducing energy technologies of nuclear power and hydraulically fractured natural gas. Nonsense on stilts, argue Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and Matt Welch on the latest Editors’ Roundtable edition of the Reason Podcast.

The gang previews this week’s Democratic presidential debate, notes the tension between an increasingly crowded Republican race and the GOP’s decision to call off state primaries, analyzes President Donald Trump’s move to call off withdrawal talks with the Taliban, and gives the moderator an earful about his WrongThink on West Side Story.

Audio production by Ian Keyser.

Music Credit: ‘Song of Mirrors’ by Unicorn Heads

Relevant links from the show:

“Four Memorable Moments from CNN’s Climate Town Hall,” by Nick Gillespie

“Dems to Talk for 6 (!) Hours About Climate Change on CNN Tonight,” by Elizabeth Nolan Brown

“Despite What Democrats Said at Their Debate, We’re Not Heading Toward Climate Apocalypse,” by Ronald Bailey

“Democrats Debate To Determine Who Will Spend Us Into Oblivion,” by Steven Greenhut

“Warren Wants ‘Big, Structural Change’ That Goes Beyond Anything Previous Democratic Administrations Have Proposed,” by Ira Stoll

“Kamala Harris Is a Cop Who Wants To Be President,” by Elizabeth Nolan Brown

“Biden’s Age Matters, Even if Democrats Want To Ignore It,” by Ira Stoll

“Former S.C. Congressman Mark Sanford Launches Longshot Primary Bid One Day After GOP Cancels S.C. Primary,” by Eric Boehm

“The GOP Deals With Trump Competition by Canceling Elections,” by Matt Welch

“Joe Walsh Isn’t Running on the Issues,” by Billy Binion

“Mark Sanford Gives Himself Two Weeks to Decide if He Wants to Be Trump Roadkill,” by Matt Welch

“Bill Weld Raises a Pathetic $688,000 in Second Quarter,” by Matt Welch

“Trump Caves to Lindsey Graham; U.S. Troops To Stay the Neverending Course in Afghanistan,” by Elizabeth Nolan Brown

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Food delivery app services like Grubhub and Uber Eats might have to get liquor licenses if they want to keep doing business in New York state.

A proposal from the New York State Liquor Authority (SLA) would require third-party vendors who charge commissions on a liquor-license-holding restaurant’s sales to be added as a principal on that liquor license, if those commissions work out be greater than 10 percent of the restaurant’s profits.

The proposed rule would reverse a ruling issued by the SLA in 2017. That decision declared that delivery apps could remain off businesses’ liquor licenses so long as their fees were less than 10 percent of the profits restaurants were making on beer sales.

The change puts food delivery app businesses, who typically charge restaurants a percentage of each order delivered, in a bit of a bind.

Businesses that are included on liquor licenses “would essentially be subject to any violations of the [alcohol beverage control] law in New York whether or not they are the guilty party so to speak,” says John Olsen of the Internet Association, a trade group that represents several food delivery app businesses.

And trying to avoid those added liabilities—either by keeping their commissions below 10 percent of a business’s profits or by switching to a flat fee—would require restaurants to share a lot more information with delivery apps, something that would probably prove logistically challenging. These same models might prove uneconomical for restaurants in regions of the state where order volumes are lower, says Olsen.

On the other side of the issue are New York City restaurants that rely on delivery apps to reach more customers but resent the high commissions they have to pay to participate on these platforms.

“This would be a major and positive change for our industry, as we currently suffer from unfair demands from companies like Grubhub-Seamless to hand over to exorbitant percentages of our sales,” said the New York City Hospitality Alliance, which represents bars and restaurants in the city, in a press release about the SLA’s proposal.

Andrew Rigie, the group’s executive director, tells Reason the rule change could curb “excessive fees some companies are extracting from restaurants as a percentage of their sales.”

The New York City government has also been looking hard at the fees charged by food delivery apps. At a June oversight hearing, the city council’s Small Business Committee grilled representatives of Grubhub and Uber Eats over their billing practices.

City Councilmember Mark Gjonaj, who chairs the small business committee, floated the idea of a restaurant association negotiating collectively with app companies as a way of lowering the fees they could charge.

Restaurants that don’t like Grubhub or Uber Eats’ business practices or who find the fees they charge excessive could, of course, simply decide to not partner with these companies. That they still continue to do so shows that they derive some benefit from being able to reach customers through these apps. But they’re happy to enlist the government in a dispute with vendors whose services they value.

The SLA’s proposal was first posted in August. It will still have to be approved by the full SLA board, which will solicit feedback on the rules at its October meeting.

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Sixteen years ago, Western Illinois University (WIU) eliminated its “free speech zone” and announced that it would recognize students’ First Amendment rights on all areas of campus.

But the university has not lived up to this promise. Earlier this year, a campus police officer scolded a student for engaging in political speech “outside the free speech zone.”

The student, Dylan Crowl, was recruiting members of Young Americans for Liberty. He had a sign that read “Free ‘Pot’ Brownies” and invited students to take a brownie from a pot. It was a pun; the brownies did not actually contain marijuana.

According to the Foundation for Individual Rights in Education:

Within minutes, the students were stopped by two members of the WIU Police, who told Crowl that the officers were “going to give [him] an education” on the repercussions of bringing marijuana to campus. At least one of the officers noted his personal disagreement with the policy positions advocated by the students and asked them to remove the word “pot” from the sign. Crowl refused.

The officers further explained that they “came out here because people thought you were handing out actual THC brownies and, anyways, you’re outside of the free speech zone right behind the Union.”

For that reason, literal speech police shut down the event.

WIU did not immediately respond to a request for comment.

The students were well within their rights to try to recruit members of their group and to give away harmless brownies. The university should reconfirm this, and make sure its enforcers understand that after nearly two decades, the free speech zone is still dead.

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The Trump administration is reportedly considering a pitch from former NBC Chairman Robert Wright, a presidential pal, for a research program aimed at preventing mass shootings by electronically monitoring people who have received psychiatric diagnoses. That Orwellian plan may or may not be defeated by its utter impracticability.

Wright has dubbed his idea SAFEHOME—an acronym for Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes. The Washington Post reports that his three-page proposal imagines using “technology like phones and smart watches” to “detect when mentally ill people are about to turn violent.” The idea, the paper says, is to look for “small changes that might foretell violence.”

The Post notes that “only a quarter or less” of mass shooters “have diagnosed mental illness.” But that is only the beginning of the difficulties with this half-baked scheme.

The larger problem is that the percentage of “mentally ill people” (a group that, by some estimates, includes more than a quarter of the U.S. population in any given year) who will use a gun to commit mass murder is approximately zero. Likewise for the general population, since mass shootings are very rare events, accounting for less than 1 percent of gun homicides.

A 2012 study that the Defense Department commissioned after the 2009 mass shooting at Fort Hood in Texas explains the significance of that fact in an appendix titled “Prediction: Why It Won’t Work.” The appendix observes that “low-base-rate events with high consequence pose a management challenge.” In the case of “targeted violence,” for example, “there may be pre-existing behavior markers that are specifiable.” But “while such markers may be sensitive, they are of low specificity and thus carry the baggage of an unavoidable false alarm rate, which limits feasibility of prediction-intervention strategies.” In other words, even if certain “red flags” are common among mass shooters, almost none of the people who display those signs are bent on murderous violence.

The Defense Department report illustrates the problem with a hypothetical example. “Suppose we actually had a behavioral or biological screening test to identify those who are capable of targeted violent behavior with moderately high accuracy,” the report says. If “a population of 10,000 military personnel…includes ten individuals with extreme violent tendencies, capable of executing an event such as that which occurred at Ft. Hood,” a test that correctly identified eight of those 10 dangerous people would wrongly implicate “1,598 personnel who do not have these violent tendencies.”

That scenario assumes a predictive test that does not actually exist. “We cannot overemphasize that there is no scientific basis for a screening instrument to test for future targeted violent behavior that is anywhere close to being as accurate as the hypothetical example above,” the report says.

The research program imagined by Wright is aimed at developing a predictive test. But even in the unlikely event that it succeeded, the enormous false-positive problem would remain.

“According to a copy of the SAFEHOME proposal,” the Post says, “all subjects involved [in the research] would be volunteers,” and “great care would be taken to ‘protect each individual’s privacy,'” while “‘profiling of any kind must be avoided.'” It is hard to see how profiling can be avoided, since the whole premise of the project is that people who fit a certain psychiatric profile are especially prone to mass murder.

Once the research has been completed, of course, the resulting information would be pretty useless if it could be deployed only against volunteers. So how would that work? Would people with certain psychiatric diagnoses be legally required to carry electronic monitors aimed at detecting “small changes that might foretell violence”? How could such a requirement be reconciled with due process or the Fourth Amendment?

Maybe the requirement would be limited to people who pose an especially high risk of violence. But how would they be identified? Since mental health specialists are notoriously bad at predicting violence, SAFEHOME would have to develop two kinds of tests: one that identifies people who are prone to violence and one that predicts when those people are about to commit a crime. “I would love if some new technology suddenly came along that would help us identify violent risk,” Marisa Randazzo, former chief research psychologist for the U.S. Secret Service, told the Post, “but there’s so many things about this idea of predicting violence that [don’t] make sense.”

The Post also interviewed Johns Hopkins neurologist Geoffrey Ling, who advised Wright on his proposal. “To those who say this is a half-baked idea, I would say, ‘What’s your idea? What are you doing about this?'” Ling said. “The [worst] you can do is fail, and failing is where we are already.” Given the potential for mass stigma, invasions of privacy, and violations of due process, I’d say we can do a lot worse than failing.

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Massachusetts’ top court has ruled that a judge overstepped his bounds by trying to keep the local district attorney from dropping charges against a protester. The protester was arrested at a recent “Straight Pride” march in Boston.

On Saturday, August 31, progressive protesters collided with alt-righters at a trollish “Straight Pride” march intended to inflame antagonism. Police used pepper spray on some protesters and ultimately arrested 36 people, some of whom they said were throwing rocks and unidentified liquids at the police themselves. Four officers reported non-life-threatening injuries.

One man, Roderick Webber, was recorded being arrested while apparently peacefully speaking and filming the event. Recently elected Suffolk County District Attorney Rachael Rollins decided she would not press charges against Webber and others brought in for nonviolent crimes at the rally, part of her effort to scale back overprosecution of petty crimes.

This did not sit well with Boston Municipal Court Judge Richard Sinnott, who last week refused to let Rollins drop charges against seven defendants, including Webber. And when a defense attorney tried to object to Sinnott’s behavior and to argue that he was overreaching his authority, he had her removed from the court.

Rollins criticized Sinnott’s behavior and petitioned the Supreme Judicial Court (Massachusetts’ top court) asking for some sort of intervention. Today, the Boston Globe reports, Rollins got her wish. Justice Frank Ganziano agreed that Sinnott had overstepped his authority and infringed on separation of powers when he attempted to push these cases forward in defiance of the District Attorney’s Office’s requests.

“The prosecutor’s sole authority to determine which cases to prosecute, and when not to pursue a prosecution, has been affirmed repeatedly by this court since the beginning of the nineteenth century,” he wrote, citing Massachusetts case law going all the way back to 1806.

This ruling specifically applies to Webber, but the same arguments clearly extend to any cases that Rollins chooses to drop. As I wrote last week as this drama was unfolding, if Sinnott objects to Rollins’ prosecutorial priorities, the constitutionally proper response is to support her opponent in the next election—or just run against her himself.

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