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A Fourth Amendment Mistake the Supreme Court Should Fix

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The Fourth Amendment requires law enforcement officials to get a warrant before searching a suspect’s person or property. Alas, the courts have concocted a number of dubious exceptions to that constitutional safeguard.

The California Court of Appeal, 1st Appellate Division, offers a recent case in point. In California v. Lange (2019), that court ruled that a police offer may enter a suspect’s home without a warrant if the officer is in pursuit of the suspect and has probable cause to believe that the suspect has committed a misdemeanor.

The court’s ruling invoked a legal doctrine known as the “hot pursuit” exception. In short, it says that if a police officer is chasing a suspected violent felon—such as a murderer or a terrorist—the officer need not stop to get a warrant before following that suspect into the suspect’s home.

The California court took the “hot pursuit” exception and ran it off the constitutional cliff. Arthur Gregory Lange was not suspected of anything that even remotely resembled a violent or dangerous crime. Lange came to the attention of a California highway patrol officer because he had honked his car horn several times and was playing his car stereo at a loud volume—both of which are traffic infractions at worst. The officer then began following Lange’s car. Just as Lange was approaching his own driveway, the officer turned on his overhead lights. Lange, who says he never saw the lights in his rearview mirror, proceeded to enter his driveway and park his car in his garage.

Lange’s failure to stop for the police could potentially qualify as a misdemeanor. But it is what happened next that is at the heart of the case: The officer parked, left his vehicle, stuck his foot under the garage door to prevent it from closing, and entered Lange’s property without a search warrant.

“Because the officer was in hot pursuit of a suspect whom he had probable cause to arrest for violation of [a misdemeanor], the officer’s warrantless entry into Lange’s driveway and garage were lawful,” the state court said.

Lange has appealed and his case will be heard by the U.S. Supreme Court sometime later this term. As Lange and his lawyers point out in a brief, the stakes are high:

A categorical misdemeanor-pursuit exception [to the Fourth Amendment’s warrant requirement] would give police officers discretion to enter private dwellings based on a vast array of minor offenses. The burden of those warrantless entries would be felt most acutely in communities that are already disproportionately subject to discretionary enforcement of misdemeanor laws. And that burden is severe: A warrantless entry invades the privacy and security of everyone in the home, not just the suspect. It also risks violent confrontations between officers and residents (who many not realize the invaders are the police). Experience has shown that, all too often, those confrontations end in tragedy.

The Supreme Court has participated in plenty of Fourth Amendment mistakes over the years. Here is one that the Court has a chance to fix.

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A Fourth Amendment Mistake the Supreme Court Should Fix

rtrltwelve306216

The Fourth Amendment requires law enforcement officials to get a warrant before searching a suspect’s person or property. Alas, the courts have concocted a number of dubious exceptions to that constitutional safeguard.

The California Court of Appeal, 1st Appellate Division, offers a recent case in point. In California v. Lange (2019), that court ruled that a police offer may enter a suspect’s home without a warrant if the officer is in pursuit of the suspect and has probable cause to believe that the suspect has committed a misdemeanor.

The court’s ruling invoked a legal doctrine known as the “hot pursuit” exception. In short, it says that if a police officer is chasing a suspected violent felon—such as a murderer or a terrorist—the officer need not stop to get a warrant before following that suspect into the suspect’s home.

The California court took the “hot pursuit” exception and ran it off the constitutional cliff. Arthur Gregory Lange was not suspected of anything that even remotely resembled a violent or dangerous crime. Lange came to the attention of a California highway patrol officer because he had honked his car horn several times and was playing his car stereo at a loud volume—both of which are traffic infractions at worst. The officer then began following Lange’s car. Just as Lange was approaching his own driveway, the officer turned on his overhead lights. Lange, who says he never saw the lights in his rearview mirror, proceeded to enter his driveway and park his car in his garage.

Lange’s failure to stop for the police could potentially qualify as a misdemeanor. But it is what happened next that is at the heart of the case: The officer parked, left his vehicle, stuck his foot under the garage door to prevent it from closing, and entered Lange’s property without a search warrant.

“Because the officer was in hot pursuit of a suspect whom he had probable cause to arrest for violation of [a misdemeanor], the officer’s warrantless entry into Lange’s driveway and garage were lawful,” the state court said.

Lange has appealed and his case will be heard by the U.S. Supreme Court sometime later this term. As Lange and his lawyers point out in a brief, the stakes are high:

A categorical misdemeanor-pursuit exception [to the Fourth Amendment’s warrant requirement] would give police officers discretion to enter private dwellings based on a vast array of minor offenses. The burden of those warrantless entries would be felt most acutely in communities that are already disproportionately subject to discretionary enforcement of misdemeanor laws. And that burden is severe: A warrantless entry invades the privacy and security of everyone in the home, not just the suspect. It also risks violent confrontations between officers and residents (who many not realize the invaders are the police). Experience has shown that, all too often, those confrontations end in tragedy.

The Supreme Court has participated in plenty of Fourth Amendment mistakes over the years. Here is one that the Court has a chance to fix.

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The U.S. Government Spent Billions Failing To Defend Its Own Agencies From Cyberattacks

reason-hackers

As if this year wasn’t apocalyptic enough already, over a dozen federal agencies—including the one that manages all our nukes—had their internal networks compromised in what’s being described as the “worst ever” hack of the U.S. government.

On Thursday, Politico reported that the U.S. Department of Energy and the National Nuclear Security Administration (NNSA), which it oversees, both discovered evidence that hackers had accessed their networks. They’re only the latest agencies to fall prey to hackers, who’ve also managed to infiltrate the State Department, Department of Homeland Security, and parts of the Pentagon.

The revelation of this massive cyberattack came last week when cybersecurity firm FireEye announced that its own systems had been breached.

The company’s internal investigation pinpointed a vulnerability in the software they’d purchased from Texas-based technology company SolarWinds. Hackers had reportedly inserted a backdoor into SolarWinds’ Orion network management software. That corrupted software was then pushed out via an update to some 18,000 of the company’s clients, including numerous corporations and government entities.

FireEye’s discovery set off a government investigation that has produced a growing list of agencies and departments that have also been infiltrated by the hack. The initial hack of SolarWinds reportedly happened between March and June, meaning that cyberattackers have likely had access to government networks for months now.

Thomas P. Bossert, a national security adviser to President Donald Trump, said in The New York Times that this kind of “supply chain attack” is typically the work of state actors, and suggested that the Russian government was responsible.

The Washington Post, relying on “people familiar with the matter,” reported on Monday that the Russian hackers associated with the country’s foreign intelligence service were behind the attack.

Democratic politicians have been quick to echo this line.

“This is virtually a declaration of war by Russia on the United States and we should take that seriously,” said Sen. Dick Durbin (D–Ill.) on Wednesday. Sen. Richard Blumenthal (D–Conn.) said on Twitter that “today’s classified briefing on Russia’s cyberattack left me deeply alarmed, in fact downright scared. Americans deserve to know what’s going on. Declassify what’s known & unknown.”

Patrick G. Eddington, a research fellow in homeland security and civil liberties at the Cato Institute, noted that Blumenthal and his fellow senators have the power to make all of this public if they wanted to.

The State Department has yet to publicly pin the blame on the Kremlin. Journalist Glenn Greenwald also noted that no proof of Russia’s involvement has been made public as of yet.

Regardless of who’s responsible, this hack has exposed some embarrassing security vulnerabilities for both SolarWinds, and particularly the U.S. government.

In the former’s case, one security researcher told Reuters that he’d discovered last year that the company’s update server was secured with the password “solarwinds123.” The company did not have a chief information security officer either, reports The New York Times.

The Times also noted in a Wednesday article that despite the billions the federal government has spent upgrading and reorganizing its cybersecurity capabilities, it was unable to prevent or even initially detect this massive hack of government computer systems. It had to be alerted by the private sector.

One option policy makers should consider is just abolishing the Departments of Energy, Commerce, Homeland Security, and other compromised agencies we can make do without. An agency can’t be hacked if it doesn’t exist.

FREE MARKETS

On Thursday, 38 state attorneys general filed an antitrust lawsuit against Google, arguing that it had used uncompetitive practices to maintain a monopoly on internet searches. The Wall Street Journal has the details:

The states alleged that Google leverages its position as the dominant search engine—and the personal data such a perch allows the company to gather—to limit consumers from using competing search engines, force businesses to use its proprietary advertising tools and foreclose competition from specialized search engines for travel or local businesses.

This lawsuit comes a couple of months after the U.S. Department of Justice filed a similar antitrust suit against the search engine giant. How successful these efforts will be remains to be seen. Past federal investigations of Google’s supposed monopoly power have come to nothing.

FREE MINDS

The Cato and Fraser Institutes have released the latest version of their Human Freedom Index, which ranks countries around the world based on how free their populations are, as measured by a range of indicators that “encompasses personal, civil, and economic freedom.”

The report, which relies on data from 2018, once again gave top marks to New Zealand, Hong Kong, and Switzerland as the freest countries in the world. The U.S. was ranked 17th, down from 15th last year.

QUICK HITS

  • Perhaps the real victims of COVID-19 are the government officials not getting enough credit for the vaccines developed by private companies.
  • Southern California ICU capacity is officially at 0 percent.
  • The Boston Landmarks Commission would like the public’s input on whether property owners should be allowed to demolish this potentially historic garage.

  • Los Angeles County is appealing a ruling from earlier this month that has stopped it from imposing a ban on outdoor dining.
  • Vaccinating the elderly first, rather than essential workers, will save more lives according to a model from the Centers for Disease Control and Prevention (CDC).

 

from Latest – Reason.com https://ift.tt/2KHgtdG
via IFTTT

The U.S. Government Spent Billions Failing To Defend Its Own Agencies From Cyberattacks

reason-hackers

As if this year wasn’t apocalyptic enough already, over a dozen federal agencies—including the one that manages all our nukes—had their internal networks compromised in what’s being described as the “worst ever” hack of the U.S. government.

On Thursday, Politico reported that the U.S. Department of Energy and the National Nuclear Security Administration (NNSA), which it oversees, both discovered evidence that hackers had accessed their networks. They’re only the latest agencies to fall prey to hackers, who’ve also managed to infiltrate the State Department, Department of Homeland Security, and parts of the Pentagon.

The revelation of this massive cyberattack came last week when cybersecurity firm FireEye announced that its own systems had been breached.

The company’s internal investigation pinpointed a vulnerability in the software they’d purchased from Texas-based technology company SolarWinds. Hackers had reportedly inserted a backdoor into SolarWinds’ Orion network management software. That corrupted software was then pushed out via an update to some 18,000 of the company’s clients, including numerous corporations and government entities.

FireEye’s discovery set off a government investigation that has produced a growing list of agencies and departments that have also been infiltrated by the hack. The initial hack of SolarWinds reportedly happened between March and June, meaning that cyberattackers have likely had access to government networks for months now.

Thomas P. Bossert, a national security adviser to President Donald Trump, said in The New York Times that this kind of “supply chain attack” is typically the work of state actors, and suggested that the Russian government was responsible.

The Washington Post, relying on “people familiar with the matter,” reported on Monday that the Russian hackers associated with the country’s foreign intelligence service were behind the attack.

Democratic politicians have been quick to echo this line.

“This is virtually a declaration of war by Russia on the United States and we should take that seriously,” said Sen. Dick Durbin (D–Ill.) on Wednesday. Sen. Richard Blumenthal (D–Conn.) said on Twitter that “today’s classified briefing on Russia’s cyberattack left me deeply alarmed, in fact downright scared. Americans deserve to know what’s going on. Declassify what’s known & unknown.”

Patrick G. Eddington, a research fellow in homeland security and civil liberties at the Cato Institute, noted that Blumenthal and his fellow senators have the power to make all of this public if they wanted to.

The State Department has yet to publicly pin the blame on the Kremlin. Journalist Glenn Greenwald also noted that no proof of Russia’s involvement has been made public as of yet.

Regardless of who’s responsible, this hack has exposed some embarrassing security vulnerabilities for both SolarWinds, and particularly the U.S. government.

In the former’s case, one security researcher told Reuters that he’d discovered last year that the company’s update server was secured with the password “solarwinds123.” The company did not have a chief information security officer either, reports The New York Times.

The Times also noted in a Wednesday article that despite the billions the federal government has spent upgrading and reorganizing its cybersecurity capabilities, it was unable to prevent or even initially detect this massive hack of government computer systems. It had to be alerted by the private sector.

One option policy makers should consider is just abolishing the Departments of Energy, Commerce, Homeland Security, and other compromised agencies we can make do without. An agency can’t be hacked if it doesn’t exist.

FREE MARKETS

On Thursday, 38 state attorneys general filed an antitrust lawsuit against Google, arguing that it had used uncompetitive practices to maintain a monopoly on internet searches. The Wall Street Journal has the details:

The states alleged that Google leverages its position as the dominant search engine—and the personal data such a perch allows the company to gather—to limit consumers from using competing search engines, force businesses to use its proprietary advertising tools and foreclose competition from specialized search engines for travel or local businesses.

This lawsuit comes a couple of months after the U.S. Department of Justice filed a similar antitrust suit against the search engine giant. How successful these efforts will be remains to be seen. Past federal investigations of Google’s supposed monopoly power have come to nothing.

FREE MINDS

The Cato and Fraser Institutes have released the latest version of their Human Freedom Index, which ranks countries around the world based on how free their populations are, as measured by a range of indicators that “encompasses personal, civil, and economic freedom.”

The report, which relies on data from 2018, once again gave top marks to New Zealand, Hong Kong, and Switzerland as the freest countries in the world. The U.S. was ranked 17th, down from 15th last year.

QUICK HITS

  • Perhaps the real victims of COVID-19 are the government officials not getting enough credit for the vaccines developed by private companies.
  • Southern California ICU capacity is officially at 0 percent.
  • The Boston Landmarks Commission would like the public’s input on whether property owners should be allowed to demolish this potentially historic garage.

  • Los Angeles County is appealing a ruling from earlier this month that has stopped it from imposing a ban on outdoor dining.
  • Vaccinating the elderly first, rather than essential workers, will save more lives according to a model from the Centers for Disease Control and Prevention (CDC).

 

from Latest – Reason.com https://ift.tt/2KHgtdG
via IFTTT

The U.S. Government Spent Billions Failing To Defend Its Own Agencies From Cyberattacks

reason-hackers

As if this year wasn’t apocalyptic enough already, over a dozen federal agencies—including the one that manages all our nukes—had their internal networks compromised in what’s being described as the “worst ever” hack of the U.S. government.

On Thursday, Politico reported that the U.S. Department of Energy and the National Nuclear Security Administration (NNSA), which it oversees, both discovered evidence that hackers had accessed their networks. They’re only the latest agencies to fall prey to hackers, who’ve also managed to infiltrate the State Department, Department of Homeland Security, and parts of the Pentagon.

The revelation of this massive cyberattack came last week when cybersecurity firm FireEye announced that its own systems had been breached.

The company’s internal investigation pinpointed a vulnerability in the software they’d purchased from Texas-based technology company SolarWinds. Hackers had reportedly inserted a backdoor into SolarWinds’ Orion network management software. That corrupted software was then pushed out via an update to some 18,000 of the company’s clients, including numerous corporations and government entities.

FireEye’s discovery set off a government investigation that has produced a growing list of agencies and departments that have also been infiltrated by the hack. The initial hack of SolarWinds reportedly happened between March and June, meaning that cyberattackers have likely had access to government networks for months now.

Thomas P. Bossert, a national security adviser to President Donald Trump, said in The New York Times that this kind of “supply chain attack” is typically the work of state actors, and suggested that the Russian government was responsible.

The Washington Post, relying on “people familiar with the matter,” reported on Monday that the Russian hackers associated with the country’s foreign intelligence service were behind the attack.

Democratic politicians have been quick to echo this line.

“This is virtually a declaration of war by Russia on the United States and we should take that seriously,” said Sen. Dick Durbin (D–Ill.) on Wednesday. Sen. Richard Blumenthal (D–Conn.) said on Twitter that “today’s classified briefing on Russia’s cyberattack left me deeply alarmed, in fact downright scared. Americans deserve to know what’s going on. Declassify what’s known & unknown.”

Patrick G. Eddington, a research fellow in homeland security and civil liberties at the Cato Institute, noted that Blumenthal and his fellow senators have the power to make all of this public if they wanted to.

The State Department has yet to publicly pin the blame on the Kremlin. Journalist Glenn Greenwald also noted that no proof of Russia’s involvement has been made public as of yet.

Regardless of who’s responsible, this hack has exposed some embarrassing security vulnerabilities for both SolarWinds, and particularly the U.S. government.

In the former’s case, one security researcher told Reuters that he’d discovered last year that the company’s update server was secured with the password “solarwinds123.” The company did not have a chief information security officer either, reports The New York Times.

The Times also noted in a Wednesday article that despite the billions the federal government has spent upgrading and reorganizing its cybersecurity capabilities, it was unable to prevent or even initially detect this massive hack of government computer systems. It had to be alerted by the private sector.

One option policy makers should consider is just abolishing the Departments of Energy, Commerce, Homeland Security, and other compromised agencies we can make do without. An agency can’t be hacked if it doesn’t exist.

FREE MARKETS

On Thursday, 38 state attorneys general filed an antitrust lawsuit against Google, arguing that it had used uncompetitive practices to maintain a monopoly on internet searches. The Wall Street Journal has the details:

The states alleged that Google leverages its position as the dominant search engine—and the personal data such a perch allows the company to gather—to limit consumers from using competing search engines, force businesses to use its proprietary advertising tools and foreclose competition from specialized search engines for travel or local businesses.

This lawsuit comes a couple of months after the U.S. Department of Justice filed a similar antitrust suit against the search engine giant. How successful these efforts will be remains to be seen. Past federal investigations of Google’s supposed monopoly power have come to nothing.

FREE MINDS

The Cato and Fraser Institutes have released the latest version of their Human Freedom Index, which ranks countries around the world based on how free their populations are, as measured by a range of indicators that “encompasses personal, civil, and economic freedom.”

The report, which relies on data from 2018, once again gave top marks to New Zealand, Hong Kong, and Switzerland as the freest countries in the world. The U.S. was ranked 17th, down from 15th last year.

QUICK HITS

  • Perhaps the real victims of COVID-19 are the government officials not getting enough credit for the vaccines developed by private companies.
  • Southern California ICU capacity is officially at 0 percent.
  • The Boston Landmarks Commission would like the public’s input on whether property owners should be allowed to demolish this potentially historic garage.

  • Los Angeles County is appealing a ruling from earlier this month that has stopped it from imposing a ban on outdoor dining.
  • Vaccinating the elderly first, rather than essential workers, will save more lives according to a model from the Centers for Disease Control and Prevention (CDC).

 

from Latest – Reason.com https://ift.tt/2KHgtdG
via IFTTT

A Better Way to Study Lawyer Well-Being

In our previous two posts and in the article on which those posts are based, we described how data from the National Health Interview Survey partially contradict the conventional wisdom about lawyer well-being and substance abuse. The ABA’s Task Force on Lawyer Well Being, relying on surveys made available to all members of a State Bar but completed by a small fraction of the population, expresses concern about extraordinary rates of depression in the legal profession. Our more representative data, which allows us to compare measures of well-being across professions, indicates low rates of mental illness within the legal profession relative to the median American and comparable rates of mental illness to other professionals such as doctors and dentists. Rates of alcohol abuse among lawyers are much higher than rates in comparable professions.

Unfortunately, we think that the ABA task force’s problematic conclusions were not caused only by using the wrong survey. All empirical studies are flawed, ours very much included, and data is hard to interpret. Rather, we think the task force conclusions are driven by a tendency for lawyers to believe that we struggle uniquely with well-being. We lawyers suffer, but not uniquely. Indeed, our data indicate that we suffer much less serious and moderate mental illness than the typical American.

Two commonly cited “facts” about lawyer well-being illustrate that the problem is not simply one of data interpretation. First, articles about mental health in the legal profession regularly assert that “lawyers are 3.6 times more likely to suffer from depression than nonlawyers.” This fact comes from a 1990 paper in the Journal of Occupational Medicine, using a dataset from the early 1980s that included only 52 lawyers (10 of whom were depressed). The 95% confidence interval for lawyer depression rates includes the possibility that lawyers suffer less from depression than the average person in the sample as well as the headline conclusion that regularly gets cited. Moreover, the paper finds that the lawyers in the sample are 2.2 times more likely to suffer depression than the average person in the sample. The 3.6 times figure that is most often cited today “controls” for the fact that lawyers have higher socio-economic status, which may in part be “caused” by becoming a lawyer and so should not be controlled for if we want to know the effect of becoming a lawyer on mental health.

How does a tiny study using almost 40 year old data become a regularly (but incorrectly) cited piece of evidence about lawyer well being? There are many larger and more recent studies of lawyer well-being that could be used instead. If one is already inclined to believe that lawyers suffer uniquely from mental illness, however, than the article provides confirmation, making it an attractive source.

A similar story applies to commonly repeated facts about suicide rates in the legal profession. In discussions of suicide in the legal profession, there are many statements of fact that give the impression that lawyers commit suicide at extraordinary rates. One regularly cited statistic is from a 1992 OSHA study finding that “male lawyers in the US are two times more likely to commit suicide than men in the general population” or that “lawyers rank 5th in incidence of suicide by occupation.” Needless to say, the 1992 study is not up-to-date. It is a thin foundation at best for a narrative about high suicide rates in the legal profession.

The most recent CDC data, by contrast, indicate that males working in the “legal” occupational category commit suicide at low rates. Across all industries and occupations, the CDC calculates that men committed suicide in 2016 at a rate of 27.4 annual suicides per 100,000 people. Males in the legal occupation, however, committed suicide at a rate of 16.3 per 100,000 in 2016 (41% lower than the mean rate for all occupations). Of 22 occupational categories listed by the CDC, male lawyers had the 17th highest suicide rate.

The male suicide rate in the legal profession looks particularly low when compared with other professions. The male suicide rate in the “healthcare practitioners and technical” occupation was 23.6 per 100,000, 50 percent higher than the rate for lawyers. Suicide rates in the “architecture and engineering” occupational category were 23.2 per 100,000, again much higher than the rate for those working in the legal occupation. The most recent  data thus indicates that male lawyers have low suicide rates compared to both the general population and compared to similarly highly educated professionals working in other occupations.

Female lawyers, by contrast, committed suicide at a higher rate than females in the general population. Across all occupation, women committed suicide in 2016 at a rate of 7.7 per 100,000. The rate for female lawyers was 7.9, 2.6% higher than the average rate for females and the 9th highest rate of the 20 industries reported by the CDC. Because men commit suicide at much higher rates than women and the male lawyer suicide rate is so low, the combined rate of suicide for all genders in the legal profession is well below the average rate for all occupations.

Why does a 1992 government study of suicide rates by occupation receive so much attention in the legal community when much more up-to-date government data is one click away? We cannot know for sure, but one possibility is that the older studies confirm the narrative of lawyers suffering uniquely. The more up-to-date data, however, complicate this narrative. Suicide is far too prevalent in all occupations, including law. But there is no evidence that being a lawyer raises the risk for suicide. Indeed, becoming a lawyer is associated with low suicide risk.

The empirical studies most often cited in discussions of mental health in the legal profession, such as the two just discussed, share one thing in common—they suggest that well-being in the profession is uniquely bad. This, more than the inevitable flaws associated with any empirical study, is problematic. To improve well-being in the legal profession, we first need to understand it. Claims of uniquely suffering lawyers may bring needed attention to the issue of lawyer well-being, but they get in the way of development of effective interventions to improve well-being. We hope that our paper, and these blog posts, represent a small step in the development of a more accurate empirical description of the problem.

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The Bipartisan Push To Gut Section 230 Will Suppress Online Speech

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Keep in mind two immutable—albeit cynical—rules whenever you mull over some proposed government action. First, the public always is most vulnerable whenever there’s bipartisan agreement because there’s little organized resistance to the proposal. Second, the likely result will be nearly the opposite of whatever it is the government promises.

Those two points are of particular importance as Republicans and Democrats move forward with plans to “fix” a key regulation that governs the internet. I could offer a couple of other rules, too: Be wary when the government targets something that affects your everyday life, and be extra, extra wary when emotion is motivating our lawmakers. But you get the idea.

Plans to gut Section 230, which passed as a part of the 1996 Communications Decency Act, are abominations that should raise the hackles of free-speech-loving Americans. That section in federal law includes the following: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

It means that if Joe Blow posts a defamatory comment on a social-media forum, only Mr. Blow is liable for it—rather than Facebook, Twitter, or whatever company is hosting the forum. Those sites are not traditional publishers. They are platforms that allow you, dear reader, to post whatever uplifting or nonsensical thing that pops into your head.

Section 230 is not only reasonable from a legal-liability standpoint but has allowed the internet to foster the kind of boisterous debates that we enjoy. Unfortunately, conservatives and liberals are upset at the state of discourse on those platforms.

President Trump and his supporters believe that liberally biased tech comments are “censoring” their speech by moderating their posts. “Section 230, which is a liability shielding gift from the U.S. to ‘Big Tech’ (the only companies in America that have it—corporate welfare!), is a serious threat to our National Security & Election Integrity,” the president recently tweeted.

His newly confirmed appointment to the FCC, Nate Simington, likewise wants to limit those liability protections. Democrats don’t like Section 230, either, although their beef is that internet companies don’t do an aggressive enough job moderating social-media speech. The incoming Biden administration almost certainly has 230 in its crosshairs.

Last week, Reps. Tulsi Gabbard (D–Hawaii) and Paul Gosar (R-Ariz.) introduced the not-so-subtly titled “Break Up Big Tech Act.” The authors say it will “take away legal immunity from interactive computer service providers that engage in certain manipulative activities, including social media companies who act as publishers by moderating and censoring content.” It might not go anywhere, but it captures the bipartisan mood.

Section 230 was a grand achievement because it allows the marketplace of ideas to flourish—and enables individuals to choose the sites that conform to their preferences. “User empowerment recognizes that some platforms may moderate more than others and users will decide which to gravitate toward. This framing ultimately favors the free market over government regulation,” argued Jeff Kosseff in a Lawfare blog last year.

Despite the emotional arguments of social-media’s critics, moderation is not publishing. Section 230 fixes what is known as the “moderator’s dilemma.” I recall when newspapers first started publishing online and we had to figure out how to handle the often-inflammatory comments that readers would post at the end of articles.

To avoid liability, the publisher could not edit comments—but could determine which comments were out of line and remove them. One might not agree with the publisher’s standards for moderation, but, as Kosseff noted, Section 230 allows the proliferation of sites, ranging from tightly moderated family-friendly ones to laissez-faire sites that give voice to weirdos.

Without such protections, social-media platforms would have a stark choice. They could take responsibility for everyone’s posts. They would therefore place stricter limits on what we write—and we’d see a likely return to posting delays as the sites review comments. It would undermine the informal nature of these discussions.

Or they could allow anyone to post whatever they choose, which would mean that forums—especially the more freewheeling ones that conservatives increasingly seem to prefer—would be swamped with garbage, targeted attacks, incitements to violence, and the like. Anyone with an email spam folder should know what to expect.

Instead of hobbling the big tech firms that Trump and others despise, it would make them more powerful. They could afford armies of people to review posts, whereas smaller sites would go out of business or become unusable cesspools. It would open the door to endless litigation—to the detriment of everyone except for trial lawyers.

Think it through before you embrace proposals to revise Section 230, even if they are bipartisan efforts. Instead of boosting speech, they will bridle the way you communicate. That’s a high price to pay because some politicians are angry about a little Facebook moderation.

This column was first published in The Orange County Register.

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A Better Way to Study Lawyer Well-Being

In our previous two posts and in the article on which those posts are based, we described how data from the National Health Interview Survey partially contradict the conventional wisdom about lawyer well-being and substance abuse. The ABA’s Task Force on Lawyer Well Being, relying on surveys made available to all members of a State Bar but completed by a small fraction of the population, expresses concern about extraordinary rates of depression in the legal profession. Our more representative data, which allows us to compare measures of well-being across professions, indicates low rates of mental illness within the legal profession relative to the median American and comparable rates of mental illness to other professionals such as doctors and dentists. Rates of alcohol abuse among lawyers are much higher than rates in comparable professions.

Unfortunately, we think that the ABA task force’s problematic conclusions were not caused only by using the wrong survey. All empirical studies are flawed, ours very much included, and data is hard to interpret. Rather, we think the task force conclusions are driven by a tendency for lawyers to believe that we struggle uniquely with well-being. We lawyers suffer, but not uniquely. Indeed, our data indicate that we suffer much less serious and moderate mental illness than the typical American.

Two commonly cited “facts” about lawyer well-being illustrate that the problem is not simply one of data interpretation. First, articles about mental health in the legal profession regularly assert that “lawyers are 3.6 times more likely to suffer from depression than nonlawyers.” This fact comes from a 1990 paper in the Journal of Occupational Medicine, using a dataset from the early 1980s that included only 52 lawyers (10 of whom were depressed). The 95% confidence interval for lawyer depression rates includes the possibility that lawyers suffer less from depression than the average person in the sample as well as the headline conclusion that regularly gets cited. Moreover, the paper finds that the lawyers in the sample are 2.2 times more likely to suffer depression than the average person in the sample. The 3.6 times figure that is most often cited today “controls” for the fact that lawyers have higher socio-economic status, which may in part be “caused” by becoming a lawyer and so should not be controlled for if we want to know the effect of becoming a lawyer on mental health.

How does a tiny study using almost 40 year old data become a regularly (but incorrectly) cited piece of evidence about lawyer well being? There are many larger and more recent studies of lawyer well-being that could be used instead. If one is already inclined to believe that lawyers suffer uniquely from mental illness, however, than the article provides confirmation, making it an attractive source.

A similar story applies to commonly repeated facts about suicide rates in the legal profession. In discussions of suicide in the legal profession, there are many statements of fact that give the impression that lawyers commit suicide at extraordinary rates. One regularly cited statistic is from a 1992 OSHA study finding that “male lawyers in the US are two times more likely to commit suicide than men in the general population” or that “lawyers rank 5th in incidence of suicide by occupation.” Needless to say, the 1992 study is not up-to-date. It is a thin foundation at best for a narrative about high suicide rates in the legal profession.

The most recent CDC data, by contrast, indicate that males working in the “legal” occupational category commit suicide at low rates. Across all industries and occupations, the CDC calculates that men committed suicide in 2016 at a rate of 27.4 annual suicides per 100,000 people. Males in the legal occupation, however, committed suicide at a rate of 16.3 per 100,000 in 2016 (41% lower than the mean rate for all occupations). Of 22 occupational categories listed by the CDC, male lawyers had the 17th highest suicide rate.

The male suicide rate in the legal profession looks particularly low when compared with other professions. The male suicide rate in the “healthcare practitioners and technical” occupation was 23.6 per 100,000, 50 percent higher than the rate for lawyers. Suicide rates in the “architecture and engineering” occupational category were 23.2 per 100,000, again much higher than the rate for those working in the legal occupation. The most recent  data thus indicates that male lawyers have low suicide rates compared to both the general population and compared to similarly highly educated professionals working in other occupations.

Female lawyers, by contrast, committed suicide at a higher rate than females in the general population. Across all occupation, women committed suicide in 2016 at a rate of 7.7 per 100,000. The rate for female lawyers was 7.9, 2.6% higher than the average rate for females and the 9th highest rate of the 20 industries reported by the CDC. Because men commit suicide at much higher rates than women and the male lawyer suicide rate is so low, the combined rate of suicide for all genders in the legal profession is well below the average rate for all occupations.

Why does a 1992 government study of suicide rates by occupation receive so much attention in the legal community when much more up-to-date government data is one click away? We cannot know for sure, but one possibility is that the older studies confirm the narrative of lawyers suffering uniquely. The more up-to-date data, however, complicate this narrative. Suicide is far too prevalent in all occupations, including law. But there is no evidence that being a lawyer raises the risk for suicide. Indeed, becoming a lawyer is associated with low suicide risk.

The empirical studies most often cited in discussions of mental health in the legal profession, such as the two just discussed, share one thing in common—they suggest that well-being in the profession is uniquely bad. This, more than the inevitable flaws associated with any empirical study, is problematic. To improve well-being in the legal profession, we first need to understand it. Claims of uniquely suffering lawyers may bring needed attention to the issue of lawyer well-being, but they get in the way of development of effective interventions to improve well-being. We hope that our paper, and these blog posts, represent a small step in the development of a more accurate empirical description of the problem.

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The Bipartisan Push To Gut Section 230 Will Suppress Online Speech

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Keep in mind two immutable—albeit cynical—rules whenever you mull over some proposed government action. First, the public always is most vulnerable whenever there’s bipartisan agreement because there’s little organized resistance to the proposal. Second, the likely result will be nearly the opposite of whatever it is the government promises.

Those two points are of particular importance as Republicans and Democrats move forward with plans to “fix” a key regulation that governs the internet. I could offer a couple of other rules, too: Be wary when the government targets something that affects your everyday life, and be extra, extra wary when emotion is motivating our lawmakers. But you get the idea.

Plans to gut Section 230, which passed as a part of the 1996 Communications Decency Act, are abominations that should raise the hackles of free-speech-loving Americans. That section in federal law includes the following: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

It means that if Joe Blow posts a defamatory comment on a social-media forum, only Mr. Blow is liable for it—rather than Facebook, Twitter, or whatever company is hosting the forum. Those sites are not traditional publishers. They are platforms that allow you, dear reader, to post whatever uplifting or nonsensical thing that pops into your head.

Section 230 is not only reasonable from a legal-liability standpoint but has allowed the internet to foster the kind of boisterous debates that we enjoy. Unfortunately, conservatives and liberals are upset at the state of discourse on those platforms.

President Trump and his supporters believe that liberally biased tech comments are “censoring” their speech by moderating their posts. “Section 230, which is a liability shielding gift from the U.S. to ‘Big Tech’ (the only companies in America that have it—corporate welfare!), is a serious threat to our National Security & Election Integrity,” the president recently tweeted.

His newly confirmed appointment to the FCC, Nate Simington, likewise wants to limit those liability protections. Democrats don’t like Section 230, either, although their beef is that internet companies don’t do an aggressive enough job moderating social-media speech. The incoming Biden administration almost certainly has 230 in its crosshairs.

Last week, Reps. Tulsi Gabbard (D–Hawaii) and Paul Gosar (R-Ariz.) introduced the not-so-subtly titled “Break Up Big Tech Act.” The authors say it will “take away legal immunity from interactive computer service providers that engage in certain manipulative activities, including social media companies who act as publishers by moderating and censoring content.” It might not go anywhere, but it captures the bipartisan mood.

Section 230 was a grand achievement because it allows the marketplace of ideas to flourish—and enables individuals to choose the sites that conform to their preferences. “User empowerment recognizes that some platforms may moderate more than others and users will decide which to gravitate toward. This framing ultimately favors the free market over government regulation,” argued Jeff Kosseff in a Lawfare blog last year.

Despite the emotional arguments of social-media’s critics, moderation is not publishing. Section 230 fixes what is known as the “moderator’s dilemma.” I recall when newspapers first started publishing online and we had to figure out how to handle the often-inflammatory comments that readers would post at the end of articles.

To avoid liability, the publisher could not edit comments—but could determine which comments were out of line and remove them. One might not agree with the publisher’s standards for moderation, but, as Kosseff noted, Section 230 allows the proliferation of sites, ranging from tightly moderated family-friendly ones to laissez-faire sites that give voice to weirdos.

Without such protections, social-media platforms would have a stark choice. They could take responsibility for everyone’s posts. They would therefore place stricter limits on what we write—and we’d see a likely return to posting delays as the sites review comments. It would undermine the informal nature of these discussions.

Or they could allow anyone to post whatever they choose, which would mean that forums—especially the more freewheeling ones that conservatives increasingly seem to prefer—would be swamped with garbage, targeted attacks, incitements to violence, and the like. Anyone with an email spam folder should know what to expect.

Instead of hobbling the big tech firms that Trump and others despise, it would make them more powerful. They could afford armies of people to review posts, whereas smaller sites would go out of business or become unusable cesspools. It would open the door to endless litigation—to the detriment of everyone except for trial lawyers.

Think it through before you embrace proposals to revise Section 230, even if they are bipartisan efforts. Instead of boosting speech, they will bridle the way you communicate. That’s a high price to pay because some politicians are angry about a little Facebook moderation.

This column was first published in The Orange County Register.

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