Month: June 2021

On Tuesday, the San Jose City Council unanimously advanced a number of novel gun control proposals, including requirements that gun owners carry liability insurance and that they pay a fee to cover the public costs of gun violence.

“While the Second Amendment protects the right to bear arms, it does not require taxpayers to subsidize gun ownership,” said San Jose Mayor Sam Liccardo in a Tuesday press release. “We won’t magically end gun violence, but we will stop paying for it.”

These proposals come a month after a workplace shooting at a light rail facility in San Jose left 10 people dead, including the shooter.

The mayor describes San Jose’s insurance mandate as a “first-of-its-kind” policy, although the idea has been floating around for a while. Following the 2012 Sandy Hook shooting, a flurry of state lawmakers from Connecticut to California introduced bills mandating gun owners carry insurance. None of those proposals become law.

A House bill introduced this year by Rep. Sheila Jackson Lee (D–Texas) would create a federal insurance mandate in addition to requirements that gun owners get a license, pay an $800 licensing fee, and register their individual firearms.

Most of the details of San Jose’s proposed gun laws have yet to be fleshed out, including the fee structure for gun ownership and how much insurance gun owners might be required to purchase.

The city is asking the Pacific Institute for Research Evaluation (PIRE), a nonprofit research group, to prepare a report on the costs to San Jose taxpayers of gun violence, which will then be used to calculate appropriate fees.

A preliminary report prepared by PIRE ahead of Tuesday’s vote put the annual costs to federal, state, and local governments from gun violence in San Jose at $39.7 million. That figure includes all the costs stemming from murders and assaults as well as suicides and unintentional shootings.

Fee revenue would be split with Santa Clara County, which contains San Jose, to cover things like emergency room treatment, victim assistance, jail, criminal prosecution, and mental health services.

Because the city of San Jose doesn’t have a register of firearm owners, it’d be up to individuals to proactively pay any required fees and get insurance coverage. Those who didn’t would be at risk of fines or having their guns confiscated.

Anthony Mata, chief of the San Jose Police Department, said that officers wouldn’t go door to door to enforce the coverage mandate, but would ask for proof of insurance should they find a gun during the course of other police work.

“Where there’s an interaction, a lawful car stop or consensual search, that’s the opportunity where the officer finds a gun, he can ask the question,” Mata said at Tuesday’s meeting.

San Jose’s proposal is already attracting controversy from gun rights activists. The Sacramento-based Firearms Policy Coalition, a gun rights group, and Gun Owners of California have both said they intend to sue the city. “The mayor will have his rear end handed to him in a basket by the courts,” said Sam Paderes, executive director of the Gun Owners of California, to the Guardian last week.

Liccardo himself was quite cavalier about the possibility that the city would end up in court, saying Tuesday that “when it comes to sensible gun control, no good deed goes unlitigated.” The mayor also said that the city had consulted with a number of outside groups, including the Giffords Law Center, a gun control group, on the legality of its proposals.

George Mocsary, a law professor at the University of Wyoming, says that San Jose’s proposed gun control policies raise a number of constitutional issues.

It’s highly questionable, he says, if insurers will actually write the kinds of policies that San Jose would require gun owners to purchase. If they don’t, then they would be unable to comply with the city’s mandate, and thus effectively would be prohibited from owning firearms.

“You can’t intentionally ban something indirectly if you can’t ban it directly,” he says, adding that if gun owners were required to pay exorbitant fees or to purchase more insurance than what would be considered “actuarially fair,” that would likely also be unconstitutional.

Mocsary also raises some practical concerns with requiring gun owners to carry insurance, arguing that it could increase the potential for more firearm injuries.

“The best way to incentivize more of an activity is to take away the financial consequences of that activity,” he tells Reason. “If you are taking away from individuals the financial consequences of people being hurt by their guns because their insurance will pay for it, the natural behavior will be for people to take less care.”

The memorandum that the San Jose City Council approved yesterday laid out only the broad strokes of its insurance mandate and gun ownership fees. It directs the city attorney to draft more detailed ordinances by September. Once complete, those ordinances will then go before the city council for another vote.

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Out of the 86 federal agencies that employ full-time law enforcement officers, the Government Accountability Office (GAO) surveyed 42 of them about whether they either owned and/or used facial recognition technologies from outside suppliers. At the request of members of Congress, the GAO looked at how many agencies used the technology; why they used it; and how carefully the agencies tracked their employees’ use of the technology.

In the GAO report released yesterday, 20 agencies acknowledged that they did use facial recognition technology. Three owned internal systems, 12 used outside suppliers, and 5 both owned internal systems and used outside suppliers. The report found that 10 agencies used Clearview AI and 5 used its competitor, Vigilant Systems. Most of the agencies that acknowledged using facial recognition technology admitted to exercising little oversight of employee use of the technology and having no systems in place to protect privacy.

The report notes that the agencies generally used facial recognition for verification (matching a photo of an individual to another photo of the same person) and identification (comparing an unknown individual’s photo against a set of others to determine a potential match). For instance, the Federal Bureau of Prisons uses facial recognition to verify which of its 8,000 employees could access secure network operations centers at certain facilities. In addition, the U.S. Customs and Border Protection (CBP) uses the technology to verify the identity of certain travelers entering and exiting the country. The GAO observes that the CBP has still not implemented its earlier recommendations for assuring the accuracy of that agency’s systems and establishing privacy protections for travelers’ data.

On the other hand, six agencies, including the Federal Bureau of Investigation, the U.S. Marshals Service, and the U.S. Capitol Police, reported using facial recognition technology from May through August 2020 to support criminal investigations related to civil unrest, riots, and protests following the police murder of George Floyd in Minneapolis. In addition, three agencies used facial recognition technologies seeking to identify suspects in the wake of the January 6, 2021, attack on the U.S. Capitol by supporters of former President Donald Trump.

The only reported real-time surveillance use of the technology was a now-discontinued experiment by the Secret Service that tracked volunteers as they went about their jobs in the White House complex.

One of the chief findings of the GAO report is that 13 of the surveyed agencies actually have no real idea how their employees are using outside systems in their investigative activities. In addition, most of the agencies have never formally assessed the privacy and accuracy-related risks of using non-federal facial recognition systems.

“Facial recognition is out of control, and it’s only getting worse,” said Surveillance Technology Oversight Project Executive Director Albert Fox Cahn in a statement. “It’s alarming that six federal agencies targeted facial recognition at BLM protesters. In a democracy, police should not be allowed to use surveillance to punish dissent. While the GAO’s findings are alarming, their recommendations don’t go far enough. We don’t need facial recognition regulations, we need a full ban. We can’t wait for Congress to act, so we are calling on President Biden to issue a moratorium on federal facial recognition.”

Similarly, the Electronic Privacy Information Center observes that the “GAO finds widespread use of facial recognition without adequate privacy protections.” EPIC adds that earlier this month it had “joined over 40 other organizations to detail the issues with law enforcement’s use of facial recognition and call for a law enforcement ban on the technology’s use.”

Civil liberties advocates are right to worry that expanding police use of facial recognition technologies has already placed essentially all Americans in a perpetual lineup. The longer-term concern, however, is that the ongoing normalization of cyber-surveillance will anesthetize the public and eventually enable law enforcement to begin using the technology for pervasive real-time surveillance. Deploying such tech would essentially turn our faces into ID cards on permanent display to the police.

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The Supreme Court won’t take up New Hampshire’s lawsuit against Massachusetts over teleworker taxes. Massachusetts has a policy of taxing out-of-state teleworkers working for Bay State companies.

The Court justifiably deemed the lawsuit out of its jurisdiction. But the decision to pass on the case frustrates many who were hoping to get nationwide clarity on how states can tax the income of out-of-state workers, particularly teleworkers. 

Income tax for those living in one state and working in another has always been a tangled mess, with rules and differing from state to state. The confusion has been compounded during the pandemic, with the rise of teleworkers who live and work out of state.

States have the ability to tax income that was earned by working in the state and income that was earned by residents of the state. This means that if someone works in New York and lives in Vermont, then New York can tax it because it was earned by working in New York, and Vermont can tax it because it was earned by a resident of Vermont. Fortunately, like most states, Vermont offers a refund of the amount one pays in New York income tax, so the income would not be taxed twice. 

But these refund schemes vary from state to state, creating a complicated web that can make filing as an out-of-state worker a headache. 

For remote workers, the confusion only grows. Take the case of a person who lives in New Hampshire but, under typical circumstances, commutes to work in Massachusetts. As of 2017, more than 103,000 people—that’s more than 15 percent of all New Hampshire workers—were in this position.

During the pandemic, many of these people were forced to work from home. This would seem to mean that because they earned the income while working at home in New Hampshire and are residents of New Hampshire, that income could only be taxed in New Hampshire. And since New Hampshire has no income tax, that means they would owe nothing on that money. 

This is where the controversial Massachusetts rule comes in. Effective March 10, 2020, Massachusetts instituted a temporary rule that gave the state the power to tax the income of remote workers who typically work in Massachusetts. For those in income tax-free states like New Hampshire, that means being subject to income taxes that people who work non-remote jobs in the state don’t have to pay.

The rule states: “All compensation received for services performed by a non-resident who, immediately prior to the Massachusetts COVID-19 state of emergency was an employee engaged in performing such services in Massachusetts, and who is performing services from a location outside Massachusetts due to a Pandemic-Related Circumstance will continue to be treated as Massachusetts source income subject to personal income tax.” 

New Hampshire officials sued Massachusetts over this policy, considering it an affront to their sovereignty to decide how workers in their state are taxed. 

“In the middle of a global pandemic, Massachusetts has taken deliberate aim at the New Hampshire Advantage by purporting to impose Massachusetts income tax on New Hampshire residents for income earned while working within New Hampshire,” reads New Hampshire’s complaint. “Upending decades of consistent practice, Massachusetts now taxes income earned entirely outside its borders. Through its unprecedented action, Massachusetts has unilaterally imposed an income tax within New Hampshire that New Hampshire, in its sovereign discretion, has deliberately chosen not to impose.” 

In its brief, the Supreme Court said that it passed on the case because—as established by the precedent set by Mississippi v. Louisiana and other similar cases in order to protect the rights of states—the court will not take state-on-state suits “unless the threatened invasion of rights is of serious magnitude and established by clear and convincing evidence.” 

Legal scholars note that, in general terms, this means the court will not take on state-on-state suits unless there is a clear reason why this suit is being brought by a state and not by a private citizen affected by the issue. 

“New Hampshire does not invoke the types of interests that would warrant such an exercise,” reads the Supreme Court brief, “and the issues New Hampshire seeks to present can adequately be raised and litigated by New Hampshire residents who are subject to the Massachusetts income tax.”

While this may be the right decision, the Court passing on the case leaves open the question of whether states have the ability to tax out-of-state remote workers. The Massachusetts rule, although temporary, could set a precedent that remote workers in another state have strong enough economic ties and impact to the state where their company is located to merit being taxed out of state. 

This could cause further problems, especially for those who live and work remotely in states that do have an income tax, unlike New Hampshire. As of now, state rules regarding refunds for those who work out of state do not usually include remote workers. This means that if teleworkers were taxed in the state where their company is, they could be taxed twice on the same income. 

In our increasingly remote-work world, people now have the opportunity to choose where they want to live, and, independently from that, where they want to work. This gives them the opportunity to live in lower-tax states like New Hampshire and work for companies based in urban centers in states like Massachusetts, New York, and California.

Remote employees of Massachusetts companies living in New Hampshire aren’t using the roads in Massachusetts or creating trash that Massachusetts must dispose of. Their employers are already paying corporate taxes in Massachusetts. Out-of-state employees are not consuming in-state public goods, and should not be required to pay for them.

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