Joe Biden Throws Support Behind Disastrous California Gig Economy Law

Joe Biden, the former vice president who last night basically cemented his front-runner status for the Democratic presidential nomination, has thrown his support behind Assembly Bill 5 (A.B. 5), the disastrous gig economy law in California that has even drawn the ire of many progressives.

His announcement, made over the weekend, is another reminder that the career politician has often expressed unequivocal support for the liberal issue of the moment, no matter what types of unintended consequences it might create. 

At the core of A.B. 5 is an attempt to force companies to classify contractors as employees. It enshrines into law the “ABC” standard—affirmed in Dynamex Operations West, Inc. v. Superior Court of Los Angeles—which makes it a near-impossible feat for companies to keep contractors on the payroll. According to A.B. 5, a contractor must control their workload, perform duties outside of the company’s primary scope, and be “customarily engaged” in an independent trade or profession.

While well-intentioned, the measure upended several sectors of California’s gig economy before A.B. 5 became law on January 1 of this year. Freelancers—from transcribers and translators to journalists and content creators—were initially prohibited from completing more than 35 individual assignments for a single outfit without being hired as an employee, a cap that Assemblywoman Lorena Gonzalez (D–San Diego) said was somewhat “arbitrary” in nature. It sparked a massive outcry, with many of those workers complaining that the law had decimated their livelihoods.

“Companies can simply blacklist California writers and work with writers in other states, and that’s exactly what’s happening,” Alisha Grauso, an entertainment writer and the co-leader of California Freelance Writers United (CAFWU), told Reason in December. “I don’t blame them.”

Gonzalez disagreed. “These were never good jobs,” she wrote in a now-deleted tweet. “No one has ever suggested that, even freelancers.”

Except that was patently untrue. The assemblywoman eventually carved out an exception for the industry—one of many—after upset freelancers shared a slew of stories about how A.B. 5 posed an imminent threat to their way of life. For many, the carveout came too late, with thousands of dollars in contracts already lost.

Other professions that have been granted exemptions include doctors, lawyers, architects, engineers, accountants, insurance brokers, hairstylists, and real estate agents.

With the laundry list of exempted workers, the legislation is nothing short of cronyism, granting favors to some while targeting others. It’s no secret that A.B. 5 primarily zeroed in on the gig economy tech behemoths—Uber, Lyft, DoorDash, and the like—whose flexible business models have vexed left-leaning lawmakers. Those companies are hoping that voters will save them in November with a ballot measure for which they have reportedly collected more than one million signatures

If they fail, the sharing economy in the Golden State will cease to exist in its current form. Businesses would be legally obligated to provide every contractor-turned-employee with a slate of benefits, such as a minimum wage, compensation for expenses, paid time off, and health care—an untenable change for a business model that is open to nearly anyone who wants to participate and relies on empowering workers to log on whenever they please. Labor costs are estimated to increase from 20 to 30 percent. As I reported last month

Under a 40-hour workweek, Lyft expects to kick 300,673 drivers to the curb if it experiences the more modest 20 percent increase in expenses, according to a Beacon Economics LLC study commissioned by the ridesharing company. 

But with all these problems, Biden still supports the legislation, tweeting that a victory for the gig economy in November would be a loss for its workers. That logic is difficult to square with reality when considering that gig economy work contains fewer barriers to entry than other occupations. Accordingly, it allows more vulnerable populations—like immigrants and those who may have recently lost a job—to set their own hours and make decent income.

Biden’s love for A.B. 5 shouldn’t come as a surprise. The former vice president has a track record of propping up problematic policies without giving full consideration to how they will impact people in real-time. In some instances, he’s had to distance himself from those very ideas decades later. Take the 1994 crime bill, for instance, which implemented the controversial “three-strikes” rule and sent many people to prison for life if they were convicted of a violent felony after two other past offenses (including drug crimes).

That legislation has been lampooned by Republicans and Democrats alike, but it’s worth remembering that Biden was a driving force behind it—something that would come back to haunt him for years as he attempted to dodge accountability. Earlier this year, he admitted it was a “big mistake.”

Should Biden ascend to the Oval Office and fight for gig economy measures like A.B. 5, one wonders if he’ll be issuing similar mea culpas in a few years after witnessing their awful consequences.

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Judge Adelman defends his criticism of Chief Justice Roberts and President Trump

Yesterday, I blogged about a law review article by Judge Lynn Adelman. My post drove a news cycle. Judge Adelman was praised on Slate and Above the Law. Law 360 and the ABA Journal rounded up other coverage.

And the Washington Post actually got Judge Adelman on the phone. Judges should never answer calls from reporters about matters of public concern. Alas, Judge Adelman has already demonstrated his lack of discretion. Here is an excerpt:

In a phone interview with The Washington Post Tuesday, Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”

“Encouraged to comment on the law”? I think Judge Adelman is referring to comment [2] to Rule 2.1 of the ABA Model Code of Judicial Conduct.

Rule 2.1 provides, in its entirety,

RULE 2.1

Giving Precedence to the Duties of Judicial Office

The duties of judicial office, as prescribed by law,* shall take precedence over all of a judge’s personal and extrajudicial activities.

COMMENT

[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.

[2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system.

Judge Adelman is mistaken. A judge’s first duty is to be a judge. And that duty takes “precedence” over all extrajudicial activities–including talking to the Washington Post or publishing in the Harvard Law & Policy Review. Comment [1] explains that judges should try to minimize potential conflicts of interest. Judge Adelman expressly acknowledges that he created conflicts! But don’t worry about it, he says, because there is no-Trump related litigation in Wisconsin.

Asked if the journal article might prompt some lawyer to seek his recusal in a case, Adelman said he didn’t see that happening. He said he had been a judge for two decades and “all the parties that have ever appeared before me think I’m fair.

“Maybe someone could make an argument [for recusal] in some high-profile case about the Trump administration,” he said. “But I don’t get any of those. They’re all brought in D.C. and California.”

Judge Adelman doesn’t even see the risk for recusal right in front of his eyes. We have a presidential election coming up. Wisconsin very well may be a swing state, with the potential for election disputes. I trust Judge Adelman will recuse from any election litigation involving Trump, and perhaps others in the Republican party. His article was equally harsh on the GOP.

Comment [2] says judges are “encouraged” to engage in public commentary to “promote . . . confidence in the justice system.” Judge Adelman is doing quite the opposite. He writes that the Chief Justice perjured himself, and the Supreme Court is subverting democracy. These arguments would be perfectly valid if made by anyone else in our polity. But not judges. His comments undermine confidence in our judiciary–quite deliberately so.

Moreover, his remarks about President Trump can in no sense fit within the scope of Comment [2]. Indeed, Judge Adelman doubled down on his comments about President Trump.

He said he agreed his comments were “strong,” but defended them as “totally proper.” He was not attacking Trump or the court but rather “explaining what they’re doing. People can disagree with that explanation.”

The article, he said, was “about inequality and economic inequality” and the court. The references to Trump were for “context.” “I needed to say something about what’s going on now,” he said.

No, you did not “need” to say anything. You didn’t need to write this piece at all. And the barbs against Trump were not “context.” They were punditry–and fairly crude punditry at that. Here is a snippet:

And Trump, who has few commitments to substantive policies of any sort, found it much easier to ally himself with Congressional Republicans than to make an effort to enact policies beneficial to the general public.32 To follow through on his populist campaign promises would have required him to engage in the difficult and unpleasant work of bucking his own party. Thus, while Trump’s temperament is that of an autocrat, he is disinclined to buck the wealthy individuals and corporations who control his party.

I hope someone close to Judge Adelman can explain how he is abusing his office. Regrettably, I predict fans will simply pump him up, and call him a hero.

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Joe Biden Throws Support Behind Disastrous California Gig Economy Law

Joe Biden, the former vice president who last night basically cemented his front-runner status for the Democratic presidential nomination, has thrown his support behind Assembly Bill 5 (A.B. 5), the disastrous gig economy law in California that has even drawn the ire of many progressives.

His announcement, made over the weekend, is another reminder that the career politician has often expressed unequivocal support for the liberal issue of the moment, no matter what types of unintended consequences it might create. 

At the core of A.B. 5 is an attempt to force companies to classify contractors as employees. It enshrines into law the “ABC” standard—affirmed in Dynamex Operations West, Inc. v. Superior Court of Los Angeles—which makes it a near-impossible feat for companies to keep contractors on the payroll. According to A.B. 5, a contractor must control their workload, perform duties outside of the company’s primary scope, and be “customarily engaged” in an independent trade or profession.

While well-intentioned, the measure upended several sectors of California’s gig economy before A.B. 5 became law on January 1 of this year. Freelancers—from transcribers and translators to journalists and content creators—were initially prohibited from completing more than 35 individual assignments for a single outfit without being hired as an employee, a cap that Assemblywoman Lorena Gonzalez (D–San Diego) said was somewhat “arbitrary” in nature. It sparked a massive outcry, with many of those workers complaining that the law had decimated their livelihoods.

“Companies can simply blacklist California writers and work with writers in other states, and that’s exactly what’s happening,” Alisha Grauso, an entertainment writer and the co-leader of California Freelance Writers United (CAFWU), told Reason in December. “I don’t blame them.”

Gonzalez disagreed. “These were never good jobs,” she wrote in a now-deleted tweet. “No one has ever suggested that, even freelancers.”

Except that was patently untrue. The assemblywoman eventually carved out an exception for the industry—one of many—after upset freelancers shared a slew of stories about how A.B. 5 posed an imminent threat to their way of life. For many, the carveout came too late, with thousands of dollars in contracts already lost.

Other professions that have been granted exemptions include doctors, lawyers, architects, engineers, accountants, insurance brokers, hairstylists, and real estate agents.

With the laundry list of exempted workers, the legislation is nothing short of cronyism, granting favors to some while targeting others. It’s no secret that A.B. 5 primarily zeroed in on the gig economy tech behemoths—Uber, Lyft, DoorDash, and the like—whose flexible business models have vexed left-leaning lawmakers. Those companies are hoping that voters will save them in November with a ballot measure for which they have reportedly collected more than one million signatures

If they fail, the sharing economy in the Golden State will cease to exist in its current form. Businesses would be legally obligated to provide every contractor-turned-employee with a slate of benefits, such as a minimum wage, compensation for expenses, paid time off, and health care—an untenable change for a business model that is open to nearly anyone who wants to participate and relies on empowering workers to log on whenever they please. Labor costs are estimated to increase from 20 to 30 percent. As I reported last month

Under a 40-hour workweek, Lyft expects to kick 300,673 drivers to the curb if it experiences the more modest 20 percent increase in expenses, according to a Beacon Economics LLC study commissioned by the ridesharing company. 

But with all these problems, Biden still supports the legislation, tweeting that a victory for the gig economy in November would be a loss for its workers. That logic is difficult to square with reality when considering that gig economy work contains fewer barriers to entry than other occupations. Accordingly, it allows more vulnerable populations—like immigrants and those who may have recently lost a job—to set their own hours and make decent income.

Biden’s love for A.B. 5 shouldn’t come as a surprise. The former vice president has a track record of propping up problematic policies without giving full consideration to how they will impact people in real-time. In some instances, he’s had to distance himself from those very ideas decades later. Take the 1994 crime bill, for instance, which implemented the controversial “three-strikes” rule and sent many people to prison for life if they were convicted of a violent felony after two other past offenses (including drug crimes).

That legislation has been lampooned by Republicans and Democrats alike, but it’s worth remembering that Biden was a driving force behind it—something that would come back to haunt him for years as he attempted to dodge accountability. Earlier this year, he admitted it was a “big mistake.”

Should Biden ascend to the Oval Office and fight for gig economy measures like A.B. 5, one wonders if he’ll be issuing similar mea culpas in a few years after witnessing their awful consequences.

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Judge Adelman defends his criticism of Chief Justice Roberts and President Trump

Yesterday, I blogged about a law review article by Judge Lynn Adelman. My post drove a news cycle. Judge Adelman was praised on Slate and Above the Law. Law 360 and the ABA Journal rounded up other coverage.

And the Washington Post actually got Judge Adelman on the phone. Judges should never answer calls from reporters about matters of public concern. Alas, Judge Adelman has already demonstrated his lack of discretion. Here is an excerpt:

In a phone interview with The Washington Post Tuesday, Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”

“Encouraged to comment on the law”? I think Judge Adelman is referring to comment [2] to Rule 2.1 of the ABA Model Code of Judicial Conduct.

Rule 2.1 provides, in its entirety,

RULE 2.1

Giving Precedence to the Duties of Judicial Office

The duties of judicial office, as prescribed by law,* shall take precedence over all of a judge’s personal and extrajudicial activities.

COMMENT

[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.

[2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system.

Judge Adelman is mistaken. A judge’s first duty is to be a judge. And that duty takes “precedence” over all extrajudicial activities–including talking to the Washington Post or publishing in the Harvard Law & Policy Review. Comment [1] explains that judges should try to minimize potential conflicts of interest. Judge Adelman expressly acknowledges that he created conflicts! But don’t worry about it, he says, because there is no-Trump related litigation in Wisconsin.

Asked if the journal article might prompt some lawyer to seek his recusal in a case, Adelman said he didn’t see that happening. He said he had been a judge for two decades and “all the parties that have ever appeared before me think I’m fair.

“Maybe someone could make an argument [for recusal] in some high-profile case about the Trump administration,” he said. “But I don’t get any of those. They’re all brought in D.C. and California.”

Judge Adelman doesn’t even see the risk for recusal right in front of his eyes. We have a presidential election coming up. Wisconsin very well may be a swing state, with the potential for election disputes. I trust Judge Adelman will recuse from any election litigation involving Trump, and perhaps others in the Republican party. His article was equally harsh on the GOP.

Comment [2] says judges are “encouraged” to engage in public commentary to “promote . . . confidence in the justice system.” Judge Adelman is doing quite the opposite. He writes that the Chief Justice perjured himself, and the Supreme Court is subverting democracy. These arguments would be perfectly valid if made by anyone else in our polity. But not judges. His comments undermine confidence in our judiciary–quite deliberately so.

Moreover, his remarks about President Trump can in no sense fit within the scope of Comment [2]. Indeed, Judge Adelman doubled down on his comments about President Trump.

He said he agreed his comments were “strong,” but defended them as “totally proper.” He was not attacking Trump or the court but rather “explaining what they’re doing. People can disagree with that explanation.”

The article, he said, was “about inequality and economic inequality” and the court. The references to Trump were for “context.” “I needed to say something about what’s going on now,” he said.

No, you did not “need” to say anything. You didn’t need to write this piece at all. And the barbs against Trump were not “context.” They were punditry–and fairly crude punditry at that. Here is a snippet:

And Trump, who has few commitments to substantive policies of any sort, found it much easier to ally himself with Congressional Republicans than to make an effort to enact policies beneficial to the general public.32 To follow through on his populist campaign promises would have required him to engage in the difficult and unpleasant work of bucking his own party. Thus, while Trump’s temperament is that of an autocrat, he is disinclined to buck the wealthy individuals and corporations who control his party.

I hope someone close to Judge Adelman can explain how he is abusing his office. Regrettably, I predict fans will simply pump him up, and call him a hero.

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A Compromise Bill on Domestic Surveillance Reform Aims to Do Just Enough to Shut Trump Up

A lackluster compromise bill to reauthorize and reform federal surveillance powers has been released, and privacy rights activists on both the left and the right are speaking out against it.

At the end of the week, the USA Freedom Act will sunset if it’s not renewed. Passed after Edward Snowden revealed that the National Security Agency (NSA) was secretly using the Patriot Act to collect mass amounts of Americans’ phone and internet records, the act formalized the process but also added restrictions on the ability of the feds to actually access that information.

The feds have actually abandoned the practice of collecting and retaining all our metadata because—surprise!—not only is it a violation of our privacy rights, it’s not a particularly effective way of fighting terrorism or crime.

Nevertheless, the government, once granted power, rarely gives it up completely. Rather than simply letting these authorities all expire, Congress is hammering out a renewal with reforms intended to further restrict the ability to use those powers against Americans without getting a warrant first.

But there’s little agreement on what those reforms should look like. Yesterday evening, Reps. Jerry Nadler (D–N.Y.) and Adam Schiff (D–Calif.) introduced the compromise bill they’re pushing forward as ranking members of the House Judiciary Committee and House Select Intelligence Committee, respectively. The bill is H.R. 6172, the USA Freedom Reauthorization Act.

This bill is not a compromise designed to truly embrace the proposition that the U.S. government shouldn’t secretly snoop on its own citizens. Rather it’s about eliminating its worst excesses, some of which have already stopped on their own, and preserving the general nature of the authority.

One of the good things the bill does is completely eliminate the call records collection program. These have already been stopped, but it was the NSA’s own decision because it was ineffective and they kept accidentally collecting more data than they were permitted. This also means that under current law, the NSA could decide to fire it back up. These reforms would stop it from happening.

The proposed reforms would also prohibit authorities treating cell location and global positioning system (GPS) information as though they’re part of a “business record” (meaning the agencies will treat collecting this data as a form of surveillance subject to stricter regulation).

The proposal would require the destruction of collected records of Americans after five years, but there are so many exceptions that it’s hard to treat these stipulations seriously. One of the exceptions allows the feds to retain records if they’re “enciphered or reasonably believed to have a secret meaning,” strongly suggesting that they can store data just on the basis of it being encrypted, which online communications increasingly are.

Directly related to the Foreign Intelligence Surveillance Amendment (FISA) Court warrants approved to wiretap Carter Page and the serious problems with the FBI’s behavior, there are some reforms that are not connected to the authorities provided by the USA Freedom Act. It calls for the attorney general to sign off on any surveillance of a federal official or candidate for federal office, punishment and possible removal of any federal official who makes false declarations (or engages in misconduct) before the FISA court, and increases the potential penalty for criminal penalties related to the misuse of FISA from five years of imprisonment to eight.

The bill also boosts the ability of the FISA court to bring in independent amicus curiae advisers to evaluate what the court is doing and help assure that FBI officials aren’t attempting to seek warrants to snoop on activities protected by the First Amendment. And the reauthorization sunsets again in three years. This is not a permanent renewal.

And that’s good because privacy activists don’t believe the bill goes nearly far enough. Adam Brandon, president of the conservative think tank FreedomWorks, is telling lawmakers today to vote no on the bill:

Not included are many common sense protections that would have garnered widespread bipartisan support had they been allowed their day as part of a real legislative process. These include stronger protections against surveillance orders targeted substantially at activities protected under the First Amendment, such as communications with journalists, protests, or religious observance. They include limitations on the use of business records collection and the requirement that surveillance applications directed towards a US person be subject to a probable cause warrant standard. They also include a much stronger role of an amicus curiae in assessing whether FISA applications conform with the legal rights afforded to Americans under the Fourth Amendment.

Importantly, neither Title II nor the amicus expansions in this bill are likely to have actually prevented the FISA process abuses revealed by the report of DoJ Inspector General Michael Horowitz with respect to the surveillance of Trump campaign employee Carter Page. Neither President Trump’s concerns about the use of FISA against his campaign, nor larger-scale concerns about how the government has violated the privacy of millions of ordinary Americans, are well addressed in this bill.

Sen. Rand Paul (R–Ky.) is also not a fan:

Demand Progress is attacking the bill from the left for many of the same reasons. The group is encouraging members of Congress to vote no in a statement that reads in part, “These reforms are fully inadequate. Further, they are part of an ongoing effort to prevent Congress from considering surveillance reforms that would meaningfully protect their constituents’ privacy.”

Given that the part of the bill that requires more oversight by the attorney general only covers federal officials and candidates, it seems designed to assure President Donald Trump that he’s “safe,” even though he was never even personally wiretapped. Page himself was not a candidate for office when he was wiretapped and these new rules wouldn’t have stopped what happened to him.

As Spencer Ackerman at The Daily Beast notes, there are alternate bipartisan proposals to meaningfully restrain the use of secret FISA warrants against Americans that could protect against future abuses and mistakes that we saw in the Page case. But that’s not what’s being pushed forward. Historically, the strongest voices for more privacy here (like Paul’s) are in the minority. The political establishment prefers to reform as little about domestic surveillance that it can possibly get away with.

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A Compromise Bill on Domestic Surveillance Reform Aims to Do Just Enough to Shut Trump Up

A lackluster compromise bill to reauthorize and reform federal surveillance powers has been released, and privacy rights activists on both the left and the right are speaking out against it.

At the end of the week, the USA Freedom Act will sunset if it’s not renewed. Passed after Edward Snowden revealed that the National Security Agency (NSA) was secretly using the Patriot Act to collect mass amounts of Americans’ phone and internet records, the act formalized the process but also added restrictions on the ability of the feds to actually access that information.

The feds have actually abandoned the practice of collecting and retaining all our metadata because—surprise!—not only is it a violation of our privacy rights, it’s not a particularly effective way of fighting terrorism or crime.

Nevertheless, the government, once granted power, rarely gives it up completely. Rather than simply letting these authorities all expire, Congress is hammering out a renewal with reforms intended to further restrict the ability to use those powers against Americans without getting a warrant first.

But there’s little agreement on what those reforms should look like. Yesterday evening, Reps. Jerry Nadler (D–N.Y.) and Adam Schiff (D–Calif.) introduced the compromise bill they’re pushing forward as ranking members of the House Judiciary Committee and House Select Intelligence Committee, respectively. The bill is H.R. 6172, the USA Freedom Reauthorization Act.

This bill is not a compromise designed to truly embrace the proposition that the U.S. government shouldn’t secretly snoop on its own citizens. Rather it’s about eliminating its worst excesses, some of which have already stopped on their own, and preserving the general nature of the authority.

One of the good things the bill does is completely eliminate the call records collection program. These have already been stopped, but it was the NSA’s own decision because it was ineffective and they kept accidentally collecting more data than they were permitted. This also means that under current law, the NSA could decide to fire it back up. These reforms would stop it from happening.

The proposed reforms would also prohibit authorities treating cell location and global positioning system (GPS) information as though they’re part of a “business record” (meaning the agencies will treat collecting this data as a form of surveillance subject to stricter regulation).

The proposal would require the destruction of collected records of Americans after five years, but there are so many exceptions that it’s hard to treat these stipulations seriously. One of the exceptions allows the feds to retain records if they’re “enciphered or reasonably believed to have a secret meaning,” strongly suggesting that they can store data just on the basis of it being encrypted, which online communications increasingly are.

Directly related to the Foreign Intelligence Surveillance Amendment (FISA) Court warrants approved to wiretap Carter Page and the serious problems with the FBI’s behavior, there are some reforms that are not connected to the authorities provided by the USA Freedom Act. It calls for the attorney general to sign off on any surveillance of a federal official or candidate for federal office, punishment and possible removal of any federal official who makes false declarations (or engages in misconduct) before the FISA court, and increases the potential penalty for criminal penalties related to the misuse of FISA from five years of imprisonment to eight.

The bill also boosts the ability of the FISA court to bring in independent amicus curiae advisers to evaluate what the court is doing and help assure that FBI officials aren’t attempting to seek warrants to snoop on activities protected by the First Amendment. And the reauthorization sunsets again in three years. This is not a permanent renewal.

And that’s good because privacy activists don’t believe the bill goes nearly far enough. Adam Brandon, president of the conservative think tank FreedomWorks, is telling lawmakers today to vote no on the bill:

Not included are many common sense protections that would have garnered widespread bipartisan support had they been allowed their day as part of a real legislative process. These include stronger protections against surveillance orders targeted substantially at activities protected under the First Amendment, such as communications with journalists, protests, or religious observance. They include limitations on the use of business records collection and the requirement that surveillance applications directed towards a US person be subject to a probable cause warrant standard. They also include a much stronger role of an amicus curiae in assessing whether FISA applications conform with the legal rights afforded to Americans under the Fourth Amendment.

Importantly, neither Title II nor the amicus expansions in this bill are likely to have actually prevented the FISA process abuses revealed by the report of DoJ Inspector General Michael Horowitz with respect to the surveillance of Trump campaign employee Carter Page. Neither President Trump’s concerns about the use of FISA against his campaign, nor larger-scale concerns about how the government has violated the privacy of millions of ordinary Americans, are well addressed in this bill.

Sen. Rand Paul (R–Ky.) is also not a fan:

Demand Progress is attacking the bill from the left for many of the same reasons. The group is encouraging members of Congress to vote no in a statement that reads in part, “These reforms are fully inadequate. Further, they are part of an ongoing effort to prevent Congress from considering surveillance reforms that would meaningfully protect their constituents’ privacy.”

Given that the part of the bill that requires more oversight by the attorney general only covers federal officials and candidates, it seems designed to assure President Donald Trump that he’s “safe,” even though he was never even personally wiretapped. Page himself was not a candidate for office when he was wiretapped and these new rules wouldn’t have stopped what happened to him.

As Spencer Ackerman at The Daily Beast notes, there are alternate bipartisan proposals to meaningfully restrain the use of secret FISA warrants against Americans that could protect against future abuses and mistakes that we saw in the Page case. But that’s not what’s being pushed forward. Historically, the strongest voices for more privacy here (like Paul’s) are in the minority. The political establishment prefers to reform as little about domestic surveillance that it can possibly get away with.

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Can Law Ban False Reporting About Coronavirus?

The Newark Department of Public Safety writes:

Newark Public Safety Director Anthony F. Ambrose strongly urges the public against posting false information on social media regarding the presence of the coronavirus in the City of Newark.

“Any false reporting of the coronavirus in our city will result in criminal prosecution,” Director Ambrose said. “We are putting forth every investigative effort to identify anyone making false allegations on social media to ensure that any posted misinformation is immediately addressed.”

Director Ambrose adds that misleading information on social media may cause an unnecessary public alarm.

“The State of New Jersey has laws regarding causing a false public alarm and we will enforce those laws,” Ambrose said. “Individuals who make any false or baseless reports about the coronavirus in Newark can set off a domino effect that can result in injury to residents and visitors and affect schools, houses of worship, businesses and entire neighborhoods,” he added.

New Jersey law doesn’t threaten to punish people for honest (even unreasonable) mistakes in what they say about epidemics or other immediate threats, but it does forbid certain knowing lies, see N.J. Stats. 2C § 33-3:

(a) [A] person is guilty of a crime … if he initiates or circulates a report or warning of an impending fire, explosion, crime, catastrophe, emergency, or any other incident knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.

(b) A person is guilty of a [more serious crime] if the false alarm involves a report or warning of an impending bombing, hostage situation, person armed with a deadly weapon …, or any other incident that elicits an immediate or heightened response by law enforcement or emergency services.

(c) A person is guilty of a [similarly serious crime] if the false alarm involves a report or warning about … any building, place of assembly, or facility [in the State] that is indispensably necessary for national security, economic stability, or public safety….

Such bans on these sorts of knowing lies are likely constitutional (and might even be constitutional if applied to “reckless” falsehoods, which is to say statements that the speaker knows are probably though not certainly false).

U.S. v. Alvarez (2012) did hold that some lies are constitutionally protected; there, the Court struck down the Stolen Valor Act, which broadly banned lies about one’s own military decorations. But the two-Justice concurrence concluded that lies are generally less protected than other speech, and in particular that lies that are likely to cause tangible harm (beyond just the emotional distress or misplaced affection created by the deceit) are often prohibitable. And the three-Justice dissent would have gone even further, and would have treated most lies as generally unprotected.

This having been said, the concurrence and the dissent agreed that “[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like” create “a grave and unacceptable danger of suppressing truthful speech,” and are thus generally unconstitutional. The same may be true about the life sciences, so any attempt to punish even lies about (for instance) how coronavirus is generally transmitted would likely be unconstitutional; the remedy for such lies is public argument, and not criminal punishment. But the law likely can properly punish specific lies about whether one has been diagnosed with coronavirus, whether a person diagnosed with coronavirus has been present in some place, and so on; if the New Jersey statute (which is a bit vague on such matters) is interpreted as limited to lies on such specific topics, it will likely be upheld.

Thanks to reader Matt Monforton for the pointer.

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Can Law Ban False Reporting About Coronavirus?

The Newark Department of Public Safety writes:

Newark Public Safety Director Anthony F. Ambrose strongly urges the public against posting false information on social media regarding the presence of the coronavirus in the City of Newark.

“Any false reporting of the coronavirus in our city will result in criminal prosecution,” Director Ambrose said. “We are putting forth every investigative effort to identify anyone making false allegations on social media to ensure that any posted misinformation is immediately addressed.”

Director Ambrose adds that misleading information on social media may cause an unnecessary public alarm.

“The State of New Jersey has laws regarding causing a false public alarm and we will enforce those laws,” Ambrose said. “Individuals who make any false or baseless reports about the coronavirus in Newark can set off a domino effect that can result in injury to residents and visitors and affect schools, houses of worship, businesses and entire neighborhoods,” he added.

New Jersey law doesn’t threaten to punish people for honest (even unreasonable) mistakes in what they say about epidemics or other immediate threats, but it does forbid certain knowing lies, see N.J. Stats. 2C § 33-3:

(a) [A] person is guilty of a crime … if he initiates or circulates a report or warning of an impending fire, explosion, crime, catastrophe, emergency, or any other incident knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm.

(b) A person is guilty of a [more serious crime] if the false alarm involves a report or warning of an impending bombing, hostage situation, person armed with a deadly weapon …, or any other incident that elicits an immediate or heightened response by law enforcement or emergency services.

(c) A person is guilty of a [similarly serious crime] if the false alarm involves a report or warning about … any building, place of assembly, or facility [in the State] that is indispensably necessary for national security, economic stability, or public safety….

Such bans on these sorts of knowing lies are likely constitutional (and might even be constitutional if applied to “reckless” falsehoods, which is to say statements that the speaker knows are probably though not certainly false).

U.S. v. Alvarez (2012) did hold that some lies are constitutionally protected; there, the Court struck down the Stolen Valor Act, which broadly banned lies about one’s own military decorations. But the two-Justice concurrence concluded that lies are generally less protected than other speech, and in particular that lies that are likely to cause tangible harm (beyond just the emotional distress or misplaced affection created by the deceit) are often prohibitable. And the three-Justice dissent would have gone even further, and would have treated most lies as generally unprotected.

This having been said, the concurrence and the dissent agreed that “[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like” create “a grave and unacceptable danger of suppressing truthful speech,” and are thus generally unconstitutional. The same may be true about the life sciences, so any attempt to punish even lies about (for instance) how coronavirus is generally transmitted would likely be unconstitutional; the remedy for such lies is public argument, and not criminal punishment. But the law likely can properly punish specific lies about whether one has been diagnosed with coronavirus, whether a person diagnosed with coronavirus has been present in some place, and so on; if the New Jersey statute (which is a bit vague on such matters) is interpreted as limited to lies on such specific topics, it will likely be upheld.

Thanks to reader Matt Monforton for the pointer.

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How Government Red Tape Stymied Testing and Made the Coronavirus Epidemic Worse

The United States is home to the most innovative biotech companies and university research laboratories in the world. That fact should have given our country a huge advantage with respect to detecting and monitoring emerging cases of COVID-19 caused by the new coronavirus outbreak.

Instead, as The New York Times reports in a terrific new article, officials at the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) stymied private and academic development of diagnostic tests that might have provided an early warning and a head start on controlling the epidemic that is now spreading across the country.

As the Times reports, Seattle infectious disease expert Dr. Helen Chu had, by January, collected a huge number of nasal swabs from local residents who were experiencing symptoms as part of a research project on flu. She proposed, to federal and state officials, testing those samples for coronavirus infections. As the Times reports, the CDC told Chu and her team that they could not test the samples unless their laboratory test was approved by the FDA. The FDA refused to approve Chu’s test on the grounds that her lab, according to the Times, “was not certified as a clinical laboratory under regulations established by the Centers for Medicare & Medicaid Services, a process that could take months.”

In the meantime, the CDC required that public health officials could only use the diagnostic test designed by the agency. That test released on February 5 turned out to be badly flawed. The CDC’s insistence on a top-down centralized testing regime greatly slowed down the process of disease detection as the infection rate was accelerating.

A frustrated Chu and her colleagues began testing on February 25 without government approval. They almost immediately detected a coronavirus infection in a local teenager with no recent travel history. Chu warned local public health officials of her lab’s finding and the teenager’s school was closed as a precaution. The teen’s diagnosis strongly suggested that the disease had been circulating throughout the western part of Washington for weeks. We now know that that is likely true.

Did the FDA and CDC functionaries commend Chu for being proactive? Not at all. Washington state epidemiologist Scott Lindquist recalled, “What they said on that phone call very clearly was cease and desist to Helen Chu. Stop testing.” On February 29, the FDA finally agreed to unleash America’s vibrant biotech companies and academic labs by allowing them to develop and deploy new tests for the coronavirus that causes COVID-19.

The Times notes:

The Seattle Flu Study illustrates how existing regulations and red tape—sometimes designed to protect privacy and health—have impeded the rapid rollout of testing nationally, while other countries ramped up much earlier and faster. Faced with a public health emergency on a scale potentially not seen in a century, the United States has not responded nimbly.

Due to red tape, the coronavirus outbreak in the U.S. will be worse than it should have been.

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How Government Red Tape Stymied Testing and Made the Coronavirus Epidemic Worse

The United States is home to the most innovative biotech companies and university research laboratories in the world. That fact should have given our country a huge advantage with respect to detecting and monitoring emerging cases of COVID-19 caused by the new coronavirus outbreak.

Instead, as The New York Times reports in a terrific new article, officials at the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) stymied private and academic development of diagnostic tests that might have provided an early warning and a head start on controlling the epidemic that is now spreading across the country.

As the Times reports, Seattle infectious disease expert Dr. Helen Chu had, by January, collected a huge number of nasal swabs from local residents who were experiencing symptoms as part of a research project on flu. She proposed, to federal and state officials, testing those samples for coronavirus infections. As the Times reports, the CDC told Chu and her team that they could not test the samples unless their laboratory test was approved by the FDA. The FDA refused to approve Chu’s test on the grounds that her lab, according to the Times, “was not certified as a clinical laboratory under regulations established by the Centers for Medicare & Medicaid Services, a process that could take months.”

In the meantime, the CDC required that public health officials could only use the diagnostic test designed by the agency. That test released on February 5 turned out to be badly flawed. The CDC’s insistence on a top-down centralized testing regime greatly slowed down the process of disease detection as the infection rate was accelerating.

A frustrated Chu and her colleagues began testing on February 25 without government approval. They almost immediately detected a coronavirus infection in a local teenager with no recent travel history. Chu warned local public health officials of her lab’s finding and the teenager’s school was closed as a precaution. The teen’s diagnosis strongly suggested that the disease had been circulating throughout the western part of Washington for weeks. We now know that that is likely true.

Did the FDA and CDC functionaries commend Chu for being proactive? Not at all. Washington state epidemiologist Scott Lindquist recalled, “What they said on that phone call very clearly was cease and desist to Helen Chu. Stop testing.” On February 29, the FDA finally agreed to unleash America’s vibrant biotech companies and academic labs by allowing them to develop and deploy new tests for the coronavirus that causes COVID-19.

The Times notes:

The Seattle Flu Study illustrates how existing regulations and red tape—sometimes designed to protect privacy and health—have impeded the rapid rollout of testing nationally, while other countries ramped up much earlier and faster. Faced with a public health emergency on a scale potentially not seen in a century, the United States has not responded nimbly.

Due to red tape, the coronavirus outbreak in the U.S. will be worse than it should have been.

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