Tag: news

The Government Accountability
Office (GAO) has put out a new report intended to analyze the
performance of the Department of Homeland Security (DHS) and the
Transportation Security Administration (TSA) in the operation of
the watchlists that determine how much abuse passengers have to
suffer before being allowed on a plane (assuming they’re
allowed).

The American Civil Liberties Union (ACLU) read through the
report and was a bit disturbed at what they’ve discovered. The
ACLU, you may recall, has been suing the government (and
winning) over the horrible, opaque way the watchlists and
no-fly lists have been operating in secret. You may also recall a
recent report from The Intercept showing that
hundreds of thousands of Americans placed on watchlists for
extra screening have no known ties to terrorism. In fact, today
Stephen Hayes, a senior writer for The Weekly Standard,
tweeted that he discovered he’d been added to a DHS watchlist
after taking a one-way flight to Turkey in July.  

The ACLU
notes that the TSA has taken to assigning passengers to risk
categories for reasons that have nothing to do with any law
enforcement agency recommending them for review. That may explain
Hayes’ experience:

Thanks to the GAO report, we now know that the TSA has modified
the Secure Flight program so that it assigns passengers to one of
three risk categories: high risk, low risk, or unknown risk. We’ve
long been
critical of this kind of passenger profiling—which the TSA has
proposed in the past—because it inevitably leads to greater
intrusion into individuals’ private lives. And of course, it raises
the question of what criteria and information the TSA uses to sort
people into these categories.

The TSA is keeping those criteria secret, which is part of the
problem. However, the GAO report states that the “high-risk”
passengers aren’t just those who appear to match a name on the
FBI’s No Fly, Selectee, or Expanded Selectee lists (as problematic
as those lists may be). Now, the TSA is also using intelligence and
law enforcement information, along with “risk-based targeting
scenarios and assessments,” to identify passengers who may be
“unknown threats.”

In other words, the FBI’s flawed definition of someone who is a
suspected threat to aviation security isn’t relaxed enough for the
TSA, so the TSA is creating its own blacklists of people who are
hypothetical threats. Those people are also subjected to
additional screening every time they fly. To make matters worse,
another recently
published GAO report indicates that the redress process for
travelers who have been incorrectly caught up in the watchlisting
system does not apply to these new TSA blacklists. So the TSA’s
“unknown threats” are truly without recourse.

Hayes tweeted that when he attempted to file a “redress” form
online, it couldn’t be processed. Imagine that.

The ACLU also noted that there’s a “whitelist” for millions of
government employees, which allows them into the Pre-Check line. We
could potentially join them in that line, if we’re willing to give
the government enough private information to prove to them that we
aren’t terrorists.

Read the full ACLU report
here.

This year, seeking to combat “revenge porn,”
the Arizona legislature enacted a
law that makes it a felony to “disclose, display, distribute,
publish, advertise or offer” an image of a nude person who has not
consented to the disclosure. The offender need not be driven by a
malign motive, such as anger at an ex-girlfriend; nor must he cause
harm or intend to do so. It is enough that he “knows or should have
known that the depicted person has not consented to the
disclosure.” That makes him subject to a
presumptive sentence of two years in prison, which rises to two
years and six months “if the depicted person is recognizable.” What
could possibly go wrong?

To their credit, legislators did anticipate a few things. They
made exceptions for “lawful and common practices of law
enforcement,” “reporting unlawful activity,” disclosures “permitted
or required by law or rule in legal proceedings,” “lawful and
common practices of medical treatment,” and “images involving
voluntary exposure in a public or commercial setting.” But as the
American Civil Liberties Union points out in a
federal lawsuit filed today, that is hardly an exhaustive list
of the constitutionally protected speech that could be punished
under this law. Here are some more examples mentioned in the ACLU’s

complaint: selling or lending art books featuring photographic
nudes (especially if the subjects cannot verify consent because
they are dead); selling a magazine that includes pictures of
prisoners abused at the Abu Ghraib prison in Iraq; using images of
breast-feeding women copied from the Internet in an educational
program for expectant mothers; passing along the “widely published
lewd photo” that ended a congressman’s career after he sent it
to a woman he fancied; and projecting the iconic 1972
photograph of a naked girl fleeing a napalm attack as part of a
slide show on the history of the Vietnam war. The ACLU notes that
even a mother who shares a nude photo of her newborn baby with
relatives would be a felon under the plain language of this
statute.

The ACLU—which is joined in the lawsuit by several bookstores,
the Voice Media Group (which publishes the Phoenix New
Times), the American Booksellers Foundation for Free
Expression, the Association of American Publishers, the Freedom to
Read Foundation, and the National Press Photographers
Association—argues that the Arizona law violates the First
Amendment because it “criminalizes non-obscene speech”
and imposes overbroad, content-based restrictions that are
“not tailored to a compelling or important governmental purpose.”
The suit also argues that the statute is unconstitutionally vague
and that its application to online content “unjustifiably burdens
interstate commerce and regulates conduct that occurs wholly
outside the borders of Arizona.”

Reason TV on revenge porn:

This year, seeking to combat “revenge porn,”
the Arizona legislature enacted a
law that makes it a felony to “disclose, display, distribute,
publish, advertise or offer” an image of a nude person who has not
consented to the disclosure. The offender need not be driven by a
malign motive, such as anger at an ex-girlfriend; nor must he cause
harm or intend to do so. It is enough that he “knows or should have
known that the depicted person has not consented to the
disclosure.” That makes him subject to a
presumptive sentence of two years in prison, which rises to two
years and six months “if the depicted person is recognizable.” What
could possibly go wrong?

To their credit, legislators did anticipate a few things. They
made exceptions for “lawful and common practices of law
enforcement,” “reporting unlawful activity,” disclosures “permitted
or required by law or rule in legal proceedings,” “lawful and
common practices of medical treatment,” and “images involving
voluntary exposure in a public or commercial setting.” But as the
American Civil Liberties Union points out in a
federal lawsuit filed today, that is hardly an exhaustive list
of the constitutionally protected speech that could be punished
under this law. Here are some more examples mentioned in the ACLU’s

complaint: selling or lending art books featuring photographic
nudes (especially if the subjects cannot verify consent because
they are dead); selling a magazine that includes pictures of
prisoners abused at the Abu Ghraib prison in Iraq; using images of
breast-feeding women copied from the Internet in an educational
program for expectant mothers; passing along the “widely published
lewd photo” that ended a congressman’s career after he sent it
to a woman he fancied; and projecting the iconic 1972
photograph of a naked girl fleeing a napalm attack as part of a
slide show on the history of the Vietnam war. The ACLU notes that
even a mother who shares a nude photo of her newborn baby with
relatives would be a felon under the plain language of this
statute.

The ACLU—which is joined in the lawsuit by several bookstores,
the Voice Media Group (which publishes the Phoenix New
Times), the American Booksellers Foundation for Free
Expression, the Association of American Publishers, the Freedom to
Read Foundation, and the National Press Photographers
Association—argues that the Arizona law violates the First
Amendment because it “criminalizes non-obscene speech”
and imposes overbroad, content-based restrictions that are
“not tailored to a compelling or important governmental purpose.”
The suit also argues that the statute is unconstitutionally vague
and that its application to online content “unjustifiably burdens
interstate commerce and regulates conduct that occurs wholly
outside the borders of Arizona.”

Reason TV on revenge porn:

Last
night, the Pentagon announced that bombing operations by the U.S.
and its anti-ISIS coalition “partners” had begun over Syria. The
air campaign in Syria against ISIS, the Islamic State of Iraq and
al-Sham (or Syria), extends the U.S. war on the terrorist
group-cum-self-proclaimed caliphate from Iraq, where an American
air campaign began earlier this month. Barack Obama became the
fourth consecutive U.S. president to order air strikes in Iraq.
Predictably, the U.S. war against ISIS, which claims territory in
Iraq and Syria, has reached into Syria itself. The bombings in
Syria are a bad idea, writes Ed Krayewski, as is the wider war
against ISIS, for a host of reasons.

View this article.

Last
night, the Pentagon announced that bombing operations by the U.S.
and its anti-ISIS coalition “partners” had begun over Syria. The
air campaign in Syria against ISIS, the Islamic State of Iraq and
al-Sham (or Syria), extends the U.S. war on the terrorist
group-cum-self-proclaimed caliphate from Iraq, where an American
air campaign began earlier this month. Barack Obama became the
fourth consecutive U.S. president to order air strikes in Iraq.
Predictably, the U.S. war against ISIS, which claims territory in
Iraq and Syria, has reached into Syria itself. The bombings in
Syria are a bad idea, writes Ed Krayewski, as is the wider war
against ISIS, for a host of reasons.

View this article.

• President Barack Obama today
  said that his Syrian war “is not America’s fight alone.”
  Besides bombing ISIS, we also attacked an Al Qaeda affiliated
  called the “Khorasan Group,” which the Pentagon says
  poses a
  bigger threat. Sen. Tim Kaine (D-Va.) blames his
  fellow congress critters for being passively allowing a new
  “Cheney
  pre-emptive war doctrine,” because, obviously, the president
  can’t be expected to demonstrate any self-restraint, and Kaine
  can’t be expected to call it the “Obama pre-emptive war
  doctrine.”
• Speaking of Big O’s lack of self-restraint, he’s got a
  new executive order on climate change.
• Sen. Harry Reid (D-Nev.) says an
  Internet sales tax law “is long, long overdue.” Apparently not
  that long, because he’s waiting until after the midterm
  elections to try cramming this bad idea down America’s throat.
• Conservative filmmaker Dinesh D’Souza, who was found guilty of
  campaign finance fraud,
  will be spared from having to serve prison time. Before you
  applaud the former Reagan advisor, do you think you’d get the same
  treatment in court?
• Since some guy managed to get over the first one, there’s
  a new
  fence around the White House. Insert your own border joke
  here.
• Nearly forty years later, the U.S. is preparing to
  end its arms embargo on Vietnam. If only we could celebrate
  with Cuban cigars.
• The Ebola outbreak in Africa looks to be “far
  worse than the authorities acknowledge,” and the Center for
  Disease Control and Prevention estimates that in 4 months there
  could be
  1.4 million infected. The Food and Drug Administration just
  OK’d an
  experimental drug to fight the virus. 

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up for Reason‘s daily
updates for more content.

As calls to
“end” campus rape reach a fever pitch, I want to highlight a
few recent pieces on sexual consent from around the web. California
is currently
considering “affirmative consent”
legislation that would create a separate definition
of rape for college students, one in which the absense of
“affirmative, conscious, and voluntary” (though not
necessarily verbal) agreement to proceed at each step of sexual
activity would be considered assault. 

One of the biggest areas of controversy in
the legislation is a section concerning consent and
intoxication. “In the evaluation of complaints in the disciplinary
process,” the bill states, “it shall not be a valid excuse that the
accused believed that the complainant affirmatively consented…if
the accused knew or reasonably should have known that the
complainant was unable to consent to the sexual activity” because
of incapacitation “due to the influence of drugs, alcohol, or
medication.” Many have pointed out that this standard is awfully
vague, leaving much room for discretion in what constitutes
too incapacitated to consent.

Megan McArdle suggests that this is a feature, not a bug,
for those pushing affirmative-consent policies: 

Prosecutors, and regulators more generally, like vague standards
that are impossible to enforce consistently. It gives them a great
deal of discretion in whom they target and how. It is a threat that
can be wielded to force pleas to lesser crimes or other “voluntary”
actions that obviate the need for a messy trial they might
lose.

If university administrators moved to an affirmative-consent
standard by themselves, parents and alumni, particularly the
parents of sons, might complain. But if lawmakers force them to it
… well, it’s another weapon in the arsenal that allows them to
target men who, say, generate too many plausible but
impossible-to-prove complaints. The part of me that was a
potentially vulnerable college woman understands the desire. But
the part of me that is suspicious of authorities with broad and
vague powers nonetheless thinks we should look for a better
way.

At Bustle, Pamela Stubbart considers a

sexual assault case from Occidental College and articulates
something that’s long bothered me about the affirmative consent
movement:
If drunk people can’t give consent, how can they
perceive consent?

Everyone understands the intuition that a policy (and more
importantly, a real culture) of meaningful consent helps to protect
incapacitated people from non-incapacitated (or less-incapacitated)
potential assailants. But when both parties in a
sexual encounter are (by their own admissions) blackout drunk…it
doesn’t take a trained philosopher to point out the underlying
principle: if fall-down, blackout drunkenness really does
incapacitate someone morally and relieve them of
responsibility for their actions, for consistency’s sake that must
count both for ability to give consent and ability to
perceive it. The burden might be reasonably placed on the
clear initiator to prove that he or she was drunk, but in the
Occidental case, neither Jane nor John Doe denies that both were as
drunk as can be.

Fortunately, rapists do not get themselves blackout drunk and
then go out planning to rape people and “get away with it.” When
both people are that drunk,
and equally drunk, it’s usually the result of a
voluntary (if ill-advised) organic social situation. Here’s
the reality of the matter, which is kind of both good and bad news:
rape is not some kind of mutual poor decision or
drunken accident (which would make it easier to educate or engineer
away). Instead, there really are men who prey on women sexually,
often by getting them drunk.

Affirmative consent legislation suggests that misinterpreation
of consent is a major root of sexual violence. But
most rapes are committed by repeat offenders with calculated
agendas, not students confused about whether the absense of a ‘no’
means ‘yes’.

“Given the horrors of sexual assault, the desire to do something
is powerful and totally understandable,”
writes Freddie de Boer. “But the establishment of explicit
consent policies strikes me as a perfect example of the flawed
thinking of ‘we need to do something, this is something, therefore
we need to do this.'” He, too, sees affirmative consent laws as
promoting misunderstanding about rape: 

Rapists are those who engage in sexual behaviors against others
who have not consented to those behaviors. Whether the standard is
“no means no” or “only yes means yes,” rapists will violate that
standard, because they are rapists. Perhaps such policies will make
it easier to prosecute cases against offenders, but again—it is as
easy for someone to claim after the fact that he asked for and
received a yes as it is to claim after the fact that the other
person didn’t say no. These policies seem only to solve problems
under the assumption that many rapes are so-called “gray rapes,”
and yet anti-rape activists have long worked to insist that there
is no such thing, or that such situations are quite rare.

De Boer also sees hypocrisy in attempting to promote individual
agency and autonomy by requiring that agency be used in a very
particular way:  

One of the most important parts of the feminist project is
insisting that women own their own bodies. This has application to
abortion, where the pro-life movement seeks to take physical
control of women’s bodies away from them. And it has application to
rape. The insistence of those who work against rape is that only
the individual has the right to define appropriate and wanted
sexual practice. With the informed consent of all adult parties, no
sexual practice is illegitimate. Without that consent, no sexual
practice is permissible. This is a humane, moral standard that has
the benefit of simplicity in application and clarity in
responsibility.

But it stems first and foremost from the recognition of
individual ownership. To define the exact methods through which
individuals can request and give consent takes away that control
and turns it over to the state, or even more ludicrously, to a dean
or some academic grievance board. We should be expanding the
individual’s control over their own sexual practice, not lessening
it. And we should maintain the simplest standard that there is:
that if a person rejects a sexual advance, or is in such an
incapacitated state that they cannot rejected that advance, or is
under the power of the other party to the extent that they feel
compelled to consent, sexual contact cannot morally or legally take
place.

Yet mainstream feminists have taken up the cause of affirmative
consent on campus with vigor. It seems to epitomize critics’ charge
that these feminists are only concerned with the problems of the
privileged and middle-class. Only about one-third of Americans ever
earn a college degree. Only about six percent of Americans are
currently
enrolled in college, and far less on traditional college
campuses. Why are the intricacies of consent for this population so
much more important than, say, finding funding to test
the backlog
of rape kits—something that could help catch existing rapists
and protect people regardless of their educational attainment (or
incapacitation) level?

As calls to
“end” campus rape reach a fever pitch, I want to highlight a
few recent pieces on sexual consent from around the web. California
is currently
considering “affirmative consent”
legislation that would create a separate definition
of rape for college students, one in which the absense of
“affirmative, conscious, and voluntary” (though not
necessarily verbal) agreement to proceed at each step of sexual
activity would be considered assault. 

One of the biggest areas of controversy in
the legislation is a section concerning consent and
intoxication. “In the evaluation of complaints in the disciplinary
process,” the bill states, “it shall not be a valid excuse that the
accused believed that the complainant affirmatively consented…if
the accused knew or reasonably should have known that the
complainant was unable to consent to the sexual activity” because
of incapacitation “due to the influence of drugs, alcohol, or
medication.” Many have pointed out that this standard is awfully
vague, leaving much room for discretion in what constitutes
too incapacitated to consent.

Megan McArdle suggests that this is a feature, not a bug,
for those pushing affirmative-consent policies: 

Prosecutors, and regulators more generally, like vague standards
that are impossible to enforce consistently. It gives them a great
deal of discretion in whom they target and how. It is a threat that
can be wielded to force pleas to lesser crimes or other “voluntary”
actions that obviate the need for a messy trial they might
lose.

If university administrators moved to an affirmative-consent
standard by themselves, parents and alumni, particularly the
parents of sons, might complain. But if lawmakers force them to it
… well, it’s another weapon in the arsenal that allows them to
target men who, say, generate too many plausible but
impossible-to-prove complaints. The part of me that was a
potentially vulnerable college woman understands the desire. But
the part of me that is suspicious of authorities with broad and
vague powers nonetheless thinks we should look for a better
way.

At Bustle, Pamela Stubbart considers a

sexual assault case from Occidental College and articulates
something that’s long bothered me about the affirmative consent
movement:
If drunk people can’t give consent, how can they
perceive consent?

Everyone understands the intuition that a policy (and more
importantly, a real culture) of meaningful consent helps to protect
incapacitated people from non-incapacitated (or less-incapacitated)
potential assailants. But when both parties in a
sexual encounter are (by their own admissions) blackout drunk…it
doesn’t take a trained philosopher to point out the underlying
principle: if fall-down, blackout drunkenness really does
incapacitate someone morally and relieve them of
responsibility for their actions, for consistency’s sake that must
count both for ability to give consent and ability to
perceive it. The burden might be reasonably placed on the
clear initiator to prove that he or she was drunk, but in the
Occidental case, neither Jane nor John Doe denies that both were as
drunk as can be.

Fortunately, rapists do not get themselves blackout drunk and
then go out planning to rape people and “get away with it.” When
both people are that drunk,
and equally drunk, it’s usually the result of a
voluntary (if ill-advised) organic social situation. Here’s
the reality of the matter, which is kind of both good and bad news:
rape is not some kind of mutual poor decision or
drunken accident (which would make it easier to educate or engineer
away). Instead, there really are men who prey on women sexually,
often by getting them drunk.

Affirmative consent legislation suggests that misinterpreation
of consent is a major root of sexual violence. But
most rapes are committed by repeat offenders with calculated
agendas, not students confused about whether the absense of a ‘no’
means ‘yes’.

“Given the horrors of sexual assault, the desire to do something
is powerful and totally understandable,”
writes Freddie de Boer. “But the establishment of explicit
consent policies strikes me as a perfect example of the flawed
thinking of ‘we need to do something, this is something, therefore
we need to do this.'” He, too, sees affirmative consent laws as
promoting misunderstanding about rape: 

Rapists are those who engage in sexual behaviors against others
who have not consented to those behaviors. Whether the standard is
“no means no” or “only yes means yes,” rapists will violate that
standard, because they are rapists. Perhaps such policies will make
it easier to prosecute cases against offenders, but again—it is as
easy for someone to claim after the fact that he asked for and
received a yes as it is to claim after the fact that the other
person didn’t say no. These policies seem only to solve problems
under the assumption that many rapes are so-called “gray rapes,”
and yet anti-rape activists have long worked to insist that there
is no such thing, or that such situations are quite rare.

De Boer also sees hypocrisy in attempting to promote individual
agency and autonomy by requiring that agency be used in a very
particular way:  

One of the most important parts of the feminist project is
insisting that women own their own bodies. This has application to
abortion, where the pro-life movement seeks to take physical
control of women’s bodies away from them. And it has application to
rape. The insistence of those who work against rape is that only
the individual has the right to define appropriate and wanted
sexual practice. With the informed consent of all adult parties, no
sexual practice is illegitimate. Without that consent, no sexual
practice is permissible. This is a humane, moral standard that has
the benefit of simplicity in application and clarity in
responsibility.

But it stems first and foremost from the recognition of
individual ownership. To define the exact methods through which
individuals can request and give consent takes away that control
and turns it over to the state, or even more ludicrously, to a dean
or some academic grievance board. We should be expanding the
individual’s control over their own sexual practice, not lessening
it. And we should maintain the simplest standard that there is:
that if a person rejects a sexual advance, or is in such an
incapacitated state that they cannot rejected that advance, or is
under the power of the other party to the extent that they feel
compelled to consent, sexual contact cannot morally or legally take
place.

Yet mainstream feminists have taken up the cause of affirmative
consent on campus with vigor. It seems to epitomize critics’ charge
that these feminists are only concerned with the problems of the
privileged and middle-class. Only about one-third of Americans ever
earn a college degree. Only about six percent of Americans are
currently
enrolled in college, and far less on traditional college
campuses. Why are the intricacies of consent for this population so
much more important than, say, finding funding to test
the backlog
of rape kits—something that could help catch existing rapists
and protect people regardless of their educational attainment (or
incapacitation) level?