Month: August 2023

In Doe v. X Corp., decided Monday by Magistrate Judge Sallie Kim (N.D. Cal.), plaintiff—who operates the account @Midnight_Tokyo, which has >50K followers—had asked an American court for an order that would require Twitter

 to identify a wrongdoer operating certain Twitter Accounts ‘@suan_news’ and ‘@suan_team’ … who engaged in privacy invasion under Japanese tort law. The privacy invasion occurred by disclosure of direct messages on Twitter and of the information which could be taken to be Applicant’s real name and Applicant’s specific attributes such as the Applicant’s occupation….

In this case, the wrongdoer, by creating an open chat, encouraged and enticed Twitter users and readers of the articles to identify who is the operator of the Applicant’s Account. As a result of the conduct, more than 1000 people joined the open chat eagerly seeking and providing information to identify Applicant as the operator of the Twitter Account.

The goal of the order is to use the defendants’ identities in a Japanese court proceeding.

Plaintiff sought to proceed pseudonymously, and with certain identifying documents filed under seal, but the court said no. First, as to sealing:

Courts considering motions to seal recognize a “strong presumption in favor of access [a]s the starting point,” applying a “compelling reasons” standard for most motions to seal…. “Under this stringent standard, a court may seal records only when it finds a compelling reason and articulates the factual basis for its ruling, without relying on hypothesis or conjecture,” and must then “conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret.” Examples of such compelling reasons include “when a court record might be used to gratify private spite or promote public scandal, to circulate libelous statements, or as sources of business information that might harm a litigant’s competitive standing.”

A party’s motion to seal in this district must also comply with Civil Local Rule 79-5, which supplements the “compelling reasons” standard. Under Civil Local Rule 79-5, a party seeking to conceal information by filing it under seal “must explore all reasonable alternatives to filing documents under seal, minimize the number of documents filed under seal, and avoid wherever possible sealing entire documents.” The motion to seal must include a specific statement of the applicable legal standard and the reasons for keeping a document under seal, including an explanation of 1) the legitimate private or public interests that warrant sealing; 2) the injury that will result if sealing is denied; and 3) why a less restrictive alternative to sealing is not sufficient. The motion must also include evidentiary support from declarations as necessary, and a proposed order that is narrowly tailored to seal only the sealable material and which lists in table format each document or portion thereof that the party seeks to seal.

Applicant’s motion fails to satisfy the compelling reasons standard as supplemented by Civil Local Rule 79-5. As a threshold matter…. Applicant’s argument turns on the legitimacy of the interest in preventing a purportedly injurious invasion of privacy that would result from having Applicant’s identity associated with a particular Twitter account. Applicant asserts that such an association between Applicant and this Twitter account would amount to an invasion of privacy under the Japanese Constitution and Japanese tort statutes but produces no more specific authority for this proposition. Applicant also provides no specifics about the nature or severity of the injury that will occur if these documents are not sealed, claiming only that “[i]f the Court allows the record to be viewable in public, the disclosed information will be spread widely,” which “will cause Applicant further damage,” including “secondary damage.”

Applicant’s motion thus does not articulate any of the reasons that courts in the Ninth Circuit have recognized as compelling in deciding whether to seal documents in the judicial record (much less provide this Court a factual basis for its decision that would not rely on hypothesis or conjecture). The motion does not explain how, for example, the association between Applicant and the aforementioned Twitter account could be used to “gratify private spite or promote public scandal, to circulate libelous statements, or as sources of business information that might harm a litigant’s competitive standing.”

As to pseudonymity,

Applicant argues that disclosing “Applicant’s true name” would constitute a severe “infringement of the Applicant’s right to privacy” in large part because of the “high possibility that Applicant’s private information such as real name will be promptly expanded on the Internet once Applicant proceeds with the Application under the real name.” As a result, “if the public … comes to know the Applicant’s real name, the public would almost certainly start to seek and find the Applicant’s personal information other than real name,” a “further privacy invasion against Applicant” whose “harm would be irreparable.”

While a party seeking to proceed under a pseudonym need not necessarily allege a fear of threatened severe physical harm, vague allegations of threats and harassment that fail to cite a specific harm are insufficient …. Applicant’s warning of a prima facie violation of Japanese law’s privacy protections fails to constitute a harm severe enough to satisfy this factor. Insofar as Applicant appears to fear threats and harassment arising from disclosure of Applicant’s identity, “the insinuation is that the harm would be quite severe,” but Applicant “never state[s] this explicitly,” thus failing to allege a severe harm on these grounds that would satisfy this factor…. Applicant’s motion claims that Applicant fears retaliation “if the Applicant’s real name is publicly revealed,” but does not specify what form that retaliation would take beyond identification of Applicant and Applicant’s association with the aforementioned Twitter account….

The third Advanced Textile factor, the anonymous party’s vulnerability to retaliation, tends to turn on whether a party’s status or the substance of the facts about them in the case at bar would place them in a particularly vulnerable position following disclosure of their identity. See, e.g., Advanced Textile, 214 F.3d at 1072 (nonresident foreign worker); Doe v. Roblox Corp., 602 F.Supp.3d 1243, 1251 n.1 (N.D. Cal. 2022) (minor child); Doe v. Lee, No. C 13-04029, 2014 WL 630936, at *2-3 (N.D. Cal. Feb. 18, 2014) (victim of child sexual abuse); U.S. v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1980) (prisoner serving as government witness). Applicant’s argument regarding this factor consists of one sentence: “The Applicant is vulnerable to retaliation.” This fails to make the required showing. Applicant gives no reason why their status or the facts about them contained in the case would place Applicant in a particularly vulnerable position were their identity to be attached to this action. Accordingly, this factor is not satisfied….

“When anyone – local or foreign, invokes the potential power and authority of a United States District Court, the public has a legitimate right to know on whose behalf their institutions are being used, unless good cause to do otherwise is shown.” Applicant attempts to reverse this burden, arguing that no public interest will be served by revealing Applicant’s name in this case because Applicant seeks only to acquire information to be used in a substantive tort proceeding in Japan. But it is Applicant who must show good cause to conceal Applicant’s identity and deviate from the default of public access to judicial records identifying litigants.

The post No Pseudonymity or Sealing for Japanese User Seeking to Use American Courts to Subpoena Twitter Critics' Names appeared first on Reason.com.

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It’s no surprise President Joe Biden is pursuing policies that use the feds to manage trade rather than allowing the marketplace to operate in a free and efficient manner. He’s a tool of the unions, which are about “protecting” existing jobs and boosting members’ wages (and their dues).

Unions therefore fight against innovation. I often discuss the concept of “creative disruption.” As Investopedia defines it, “Creative destruction is the dismantling of long-standing practices in order to make way for innovation and is seen as a driving force of capitalism.”

If you believe in capitalism—and freedom, for that matter—you can’t also try to lock in the economy. If you support innovation and economic growth, you have to accept disruption. If I have an idea for a better mousetrap, that necessarily threatens businesses and workers who make the current ones.

That’s why corporations and unions spend so much time on political action. They want the government to put its thumb on the scales and “protect” their industries. That squelches economic activity, deprives consumers of better goods, and limits the creation of new jobs. It deprives entrepreneurs of the fruits of their creativity, but the “seen” trumps the “unseen” in the political arena. Politicians see jobs that exist but don’t see the ones never created because of their policies.

We all know how California unions lobbied for the passage of Assembly Bill 5, which tried to outlaw most contracting work. The unions are angry that tech companies have developed new work models that give workers flexibility. Unions lose their power—and the dues they collect—when new economic ideas circumvent the old 9-5 factory and cubicle model. AB 5 caused so much economic disruption and so many job losses that the Legislature (and voters) exempted 100-plus industries.

Because of his ideological blinders, President Joe Biden has nonetheless tried to impose similar anti-contractor laws at the federal level through regulatory fiat. He also has promoted the FAST Act, which embraces a European sectoral-bargaining model for fast-food restaurants—i.e., it places a union-dominated government panel in charge of setting working conditions and wages in an entire industry. Big surprise that it’s modeled on California legislation.

Less known, the administration is doing the union’s bidding when it comes to our nation’s trade policies. This is from The New York Times in April: “Since President Biden came into office two years ago, the United States has declined to pursue new comprehensive free-trade agreements with other countries, arguing that most Americans have turned against the kind of pacts that promote global commerce but that also help to send factory jobs overseas.”

That policy, which provides tax credits to U.S. electric vehicle and battery manufacturers, is angering other nations. In response, as the article notes, the president has created a “complicated work around” that involves signing individual trade agreements with complaining countries. Free-trade agreements are problematic in that they include all sorts of complicated regulations, but they’re fine to the degree that they promote more open trade.

The best solution is to open the doors to trade (perhaps with some limits involving the protection of intellectual property), rather than have bureaucrats manage it, but that would mean angering politically powerful domestic industries and unions even if it would make the rest of us richer and freer.

Reason‘s Eric Boehm has explained that Biden’s trade war with China has become extremely expansive, as the administration “targets exports and investments in any technology the U.S. government deems vital to national security—a category that may be nearly limitless, given the government’s propensity for stretching the limits of that term.” Essentially, the president is viewing trade through a “military lens.” It’s an excuse to protect domestic manufacturers and unions.

The Republican Party used to be the party of free trade, but in its current “national conservative” iteration isn’t much different than the Democratic Party on these issues. Donald Trump likewise promoted a trade war with China and strongly supported tariffs. His steel tariffs may have protected some steel jobs, but, as the Cato Institute found, “caused higher steel prices that in turn hurt other U.S. manufacturers, resulting in approximately 75,000 fewer manufacturing jobs than would have otherwise existed in the absence of the tariffs.”

Why is free trade a good thing?

Here’s Ronald Reagan from a 1988 radio address where he took on growing Democratic calls for protectionism: “We should beware of the demagogues who are ready to declare a trade war against our friends—weakening our economy, our national security, and the entire free world—all while cynically waving the American flag. The expansion of the international economy is not a foreign invasion; it is an American triumph, one we worked hard to achieve, and something central to our vision of a peaceful and prosperous world of freedom.”

The current president should listen to that address—and so should his Republican challengers. Instead, Donald Trump is proposing a 10-percent automatic tariff on all imports and called for a “ring around the collar” of the economy. That would mean a policy even worse than Biden’s.

This column was first published in The Orange County Register.

The post Republicans Should Be Pouncing on Biden's Opposition to Free Trade appeared first on Reason.com.

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8/25/1998: Justice Lewis Powell dies.

The post Today in Supreme Court History: August 25, 1998 appeared first on Reason.com.

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There’s a fine art to refusing to learn lessons that are right in front of your eyes. A recent newspaper column demonstrated mastery of that art, managing to simultaneously acknowledge the failures of America’s drug policy while calling for more of the same. The author acknowledged that mandatory minimums do no good and then suggested that the right course of action is to prosecute drug dealers harder. But harder drug law enforcement gets you harder drug problems.

Off to a Good Start

“News coverage of a Mesa police officer losing consciousness in his patrol car from an overdose certainly highlights, if sensationally, the crisis that is opioids, in particular fentanyl,” wrote Abe Kwok, editorial page planner for the Arizona Republic. “As critics such as the libertarian think tank Cato Institute note, harsh mandatory sentencing laws do nothing to blunt narcotic drugs’ effects.”

He added that “the institute pointed to a 1,500% spike in methamphetamine deaths in the United States between 2006 and 2021, following voter-approved Proposition 301 in Arizona that imposed mandatory minimum prison sentences for possessing, transferring, selling, distributing or manufacturing meth.”

Kwok also acknowledged that other restrictive policies, especially limitations on opioid prescriptions “did little to slow deaths from overdoses but created their own set of problems, such as blocking access to relief for chronic pain sufferers.” This is an important point championed by the late Siobhan Reynolds and the Pain Relief Network over a decade ago and still a matter of serious concern for many Americans. Last year, the Centers for Disease Control and Prevention finally acknowledged that opioid guidelines are being interpreted inflexibly. The CDC emphasized that “some policies purportedly drawn from the 2016 CDC Opioid Prescribing Guideline have been notably inconsistent with it and have gone well beyond its clinical recommendations” resulting in “untreated and undertreated pain.”

So far, so good for Kwok. Except, he refuses to take these arguments to their logical conclusion.

Missing the Point

“Most people know, especially those who peddle the drug, that just a tiny amount of fentanyl can be lethal,” Kwok writes. He calls for “law enforcement agencies to commit to aggressively investigate the direct source of the drug(s) in an overdose fatality and for prosecutors’ offices to vigorously pursue charges when there’s sufficient evidence.”

Umm… No. If Kwok had read further in the Cato Institute piece by Jeffrey Singer to which he’d linked, he would understand why this makes no sense.

“The harder the law enforcement, the harder the drug,” Singer, an Arizona surgeon and senior fellow at the Cato Institute, wrote while praising a veto of mandatory minimums legislation by Arizona Gov. Katie Hobbs. “Enforcing prohibition incentivizes those who market prohibited substances to develop more potent forms that are easier to smuggle in smaller sizes and subdivide into more units to sell.”

What Singer calls the “Iron Law of Prohibition” is why bootleggers specialized in distilled liquor instead of beer. The law is why powdered cocaine was concentrated into crack. And the iron law is why headlines about drugs now feature fentanyl, a potent synthetic opioid many times stronger than heroin. If prohibitionist policies continue, expect illegal products of the future to be marketed in a concentrated form to evade detection. Because these drugs are so potent they allow little room for leeway, making it relatively easy to overdose.

The fact that these drugs have been driven underground where they are often adulterated and of uncertain dosage makes them that much more dangerous.

Which is to say, the illegal fentanyl market that Abe Kwok worries about now is a direct result of the aggressive law enforcement efforts and vigorous prosecutions that he champions. More aggressive arrests and vigorous prosecutions will get you more results along the lines of illegal trafficking in big-bang-for-your-buck drugs like fentanyl. “Tranq”—the street name of the animal tranquilizer xylazine—is already here to fill the role of the next nasty high to gain users and news coverage.

Oddly, Kwok admits that his preference for harder law enforcement won’t accomplish anything but doesn’t budge from the idea.

“Pursuing criminal charges in those roughly 1,300 cases may not make a dent in drug supply or demand,” the Arizona Republic writer notes of a flurry of drug-related deaths in Maricopa County. “But they would represent a closer step toward justice.”

Justice? Of what kind?

The Real Lesson from Drug War Failure

Instead of doubling down on failure, what if Kwok had been willing to read Singer’s March testimony to the U.S. House Judiciary Subcommittee on Crime and Federal Government Surveillance, which is linked from the Cato piece he cited? Or, more likely, what would he have passed along if he’d been more inclined to take the testimony to heart and to suggest remedies he fears his audience doesn’t want to hear?

“If policymakers double down on the same prohibitionist policies they have employed for over 50 years, deaths from illicit drug overdoses will continue to rise. Doing the same thing repeatedly, with even more vigor this time, will not yield a different result,” Singer told lawmakers. “Prohibition makes the black market dangerous because people who buy drugs on the black market can never be sure of the drug’s purity, dosage, or even if it is the drug they think they are buying.”

Singer recommends ending drug prohibition to allow for a legal market that deals in products of known dosage and purity. A legal market won’t stop people from getting high, but it will end the escalation between punitive law enforcement on the one hand and drug innovation and potency on the other.

Short of legalization, the Arizona surgeon suggests lawmakers focus on eliminating laws that stand in the way of harm reduction, such as those that criminalize drug paraphernalia (driving users to share needles and diseases) and bar the distribution of drug test strips (rendering it difficult to identify drugs). Making naloxone available over-the-counter was a good step towards reducing deaths since it reverses the effects of opioid overdoses. That’s an approach that gets law enforcement out of the way rather than doubling down on failure.

Stepping back from prohibitionist policies that Kwok concedes do harm and accomplish little if any good might not accord with his sense of “justice.” But recognizing reality by abandoning counterproductive authoritarianism might just make the world a somewhat better place and save lives.

The post Some Drug Warriors Just Won't Concede Defeat appeared first on Reason.com.

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The Covenant isn’t based on a specific true story, but its war-and-dishonor narrative is rooted in the reality of America’s shabby treatment of local allies during and after the Afghan war, especially those promised special immigrant visas for aiding U.S. forces. It tracks the close bond that develops between a U.S. military commander and his Afghan interpreter after the two escape a Taliban attack that leaves the rest of their squad dead.

After being saved by his interpreter, the commander wakes up back in the United States. The interpreter himself is forced into hiding in Afghanistan, without the promised visa. The commander then struggles to obtain the visa from an incomprehensible and uncaring immigration system, which eventually becomes a full-on quest to rescue his friend. The gripping film is a pointed indictment of both the war and the madness of U.S. immigration policy.

The post Review: <i>The Covenant</i> Dramatizes the Plight of Afghan Interpreters appeared first on Reason.com.

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