Daily Archives: March 31, 2021

Our interview this week is with Francis Fukuyama, a fellow and teacher at Stanford and a renowned scholar and public intellectual for at least three decades. He is the coauthor of the Report of the Working Group on Platform Scale. Its insightful on the structural issues that have enhanced the power of platforms to suppress and shape public debate. It understands the temptation to address those issues through an antitrust lens as well as the reasons why antitrust will fail to address the threat that platform power poses to our democracy. As a solution, it proposes to force the platforms to divest their curatorial authority over what Americans (and the world) reads, creating a host of middleware suppliers who will curate consumers feeds in the way that consumers prefer. We explore the many objections to this approach, from first amendment purists to those, mainly on the left, who really like the idea of suppressing their opponents on the right. But it remains the one policy proposal that could attract support from left and right and also make a real difference.

In the news roundup, Dmitri Alperovich, Nick Weaver, and I have a spirited debate over the wisdom of Googles decision to expose and shut down a western intelligence agencys use of zero day exploits against terrorist targets. I argue that if a vulnerabilities equities process balancing security and intelligence is something we expect from NSA, it should also be expected of Google.

Nate Jones and Dmitri explore the slightly odd policy take on SolarWinds that seems to be coming from NSA and Cyber Command the notion that the Russians exploited NSAs domestic blind spot by using US infrastructure for their attack. That suggests that NSA wants to do more spying domestically, although no such proposal has surface. Nate, Dmitri, and I are united in thinking that the solution is a change in US law, though Dmitri thinks a know your customer rule for cloud providers is the best answer, while I think I persuaded Nate that empowering faster and more automatic warrant procedures for the FBI is doable, pretty much as we did with the burner phone problem in the 90s.

The courts, meanwhile, seem to be looking for ways to bring back a Potter Stewart style of jurisprudence for new technology and the fourth amendment: I cant define it, but I know it when it creeps me out. The first circuits lengthy oral argument on how long video surveillance of public spaces can continue without violating the fourth amendment is a classic of the genre.

Dmitri and Nick weigh in on Facebooks takedown of Chinese hackers using Facebook to target Uighurs abroad.

Dmitri thinks we can learn policy lessons from the exposure (and likely sanctioning) of the private Chinese companies that carried out the operation.

Dmitri also explains why CISAs head is complaining about the refusal of private companies to tell DHS which US government agencies were compromised in SolarWinds. The companies claimed that their NDAs with, say, Treasury meant that they couldnt tell DHS that Treasury had been pawned. Thats an all too familiar example of federal turf fights hurting federal cybersecurity.

In our ongoing feature, This Week in U.S.-China Decoupling, we cover the Disaster in Alaska evaluate the latest bipartisan bill to build a Western technology sphere to compete with Chinas sector, note the completely predictable process ousting of Chinese telecom companies from the US market, and conclude that the financial sectors effort to defy the gravity of decoupling will be a hard act to maintain.

Always late to embrace a trend, I offer Episode 1 of the Cyberlaw Podcast as a Non-Fungible Token to the first listener to cough up $150, and Nick explains why it would be cheap at a tenth the price, dashing my hopes of selling the next 354 episodes and retiring.

Nick and I have kind words for whoever is doxxing Russian criminal gangs, and I suggest offering the doxxer a financial reward (not just a hat tip in a Brian Krebs column.) We have fewer kind words for the prospect that AI will soon be able to locate, track, and bankrupt problem gamblers.

I issue a rare correction to an earlier episode, noting that Israel may not have traded its citizens health data for first dibs on the Pfizer vaccine. It turns out that what was deidentified aggregate health data, Israel offered Pfizer which with proper implementation may actually stay aggregate and deidentified. And I offer my own hat tip to Peter Machtiger, for a student note in an NYU law journal that cites the Cyberlaw Podcast, twice!

And more!

Download the 355th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

Read more here:
The Cyberlaw Podcast: Can Editorial Middleware Cut the Power of the Big Platforms? - Lawfare

In this image from video, Hennepin County Judge Peter Cahill discusses motions before the court on Tuesday in the trial of former Minneapolis police officer Derek Chauvin at the Hennepin County Courthouse in Minneapolis. Court TV/AP hide caption

In this image from video, Hennepin County Judge Peter Cahill discusses motions before the court on Tuesday in the trial of former Minneapolis police officer Derek Chauvin at the Hennepin County Courthouse in Minneapolis.

On the second day of former Minneapolis police officer Derek Chauvin's murder trial, the judge considered a motion about the testimony of minors including a witness whose video of the killing of George Floyd was seen around the world.

Hennepin County District Judge Peter Cahill was asked to determine whether the court would permit broadcast of minors or former minors set to testify in the case. The high-profile trial is the first in Minnesota history to be televised.

Cahill ruled in favor of prosecutors that no television images would be allowed during the testimony of people who were under 18 at the time they saw Floyd die, but audio of their testimony would be allowed.

The hearing centered on at least four people whose names would be kept confidential and off livestreaming during their testimony.

The judge agreed with Leita Walker, the attorney representing the media coalition covering the trial, that the First Amendment allows for the press to decide whether to publish names of the witnesses who are minors. He said an option is to refer to the individuals by their first names only if the witnesses are comfortable with that.

A key eyewitness in the case, referred to in court Tuesday as D.F. , was 17 when she took the bystander video with a mobile phone. The images taken by D.F. showed Chauvin kneeling on the neck of Floyd, who was prone and handcuffed for nearly nine minutes. Floyd was also still handcuffed on the stretcher when paramedics arrived.

Chauvin is charged with second- and third-degree murder and second-degree manslaughter.

Witness testimony resumed at 9:15 a.m. local time, including testimony by eyewitness Donald Williams, a pro martial arts fighter. He said he called 911 "to call the police on the police" after officers at the scene didn't respond to his shouting and swearing for Chauvin to take his knee off Floyd's neck.

From the stand, Williams has described a variety of chokeholds, including what he called a "blood choke" used on Floyd.

See more here:
Judge In Chauvin Trial Rules That Underage Witnesses Can Testify - NPR

Former President Trumps actions preceding the riot were a disgraceful dereliction of duty, said Senator Mitch McConnell on the last day of President Donald Trumps second impeachment trial. There is no question that President Trump is practically and morally responsible for provoking the events of that day.

McConnell spoke these words while acquitting Trump on procedural grounds for his involvement in the Jan. 6 insurrection. Many Republican senators have similarly acknowledged that Trump bears responsibility for the attack. Yet most refused to convict the former president during his impeachment trial, claiming against the weight of scholarship and precedent to the contrary that they thought the Senate did not have jurisdiction to try a former officeholder. Without a clear procedure for holding Trump and other powerful officials accountable for engaging in the Jan. 6 insurrection, the U.S. government can only prosecute their followers who were physically at the Capitol.

The problem with prosecuting only those physical crimes is the resulting lack of consequences for officials who fully engaged in the insurrection, but who did not literally storm the Capitol. Those present at the invasion may receive prison time, but their powerful government enablers will continue operating just underneath the threshold for arrest. They have come away from this attack confident that their powerful positions are safe as long as their supporters take the fall for them. Without a slate of proportional responses to conduct like Trumps including disqualification from office, rather than criminal penalties alone the U.S. incentivizes the next crop of insurrectionist officials.

Fortunately, a perfectly tailored deterrent already exists in the Constitution: Section Three of the Fourteenth Amendment. Section Three bars from office anyone who engages in insurrection or rebellion after taking an oath to support the U.S. Constitution. In this way, it defines an unequivocal requirement for office, one which governs the behavior of current and former officials alike. While there is debate over whether Section Three requires an enabling statutein other words, whether it is enforceable on its ownthere is no doubt that Congress can choose to legislate a specific process for enforcing it.

Last month, the introduction of H.R. 1405 marked Congresss first effort to enforce Section Three since Reconstruction. Introduced by Representative Steve Cohen (D-TN), the legislation creates a civil procedure for enforcing Section Three of the Fourteenth Amendment in federal court. Passage of the bill would be an appropriate first step in holding accountable the officeholders who engaged in the Jan. 6 insurrection. The bill is an unambiguous belt-and-suspenders measure, clarifying that eligibility for office is still dependent on allegiance to the United States. Responsibly, it preserves the defendants rights by establishing a fair, non-partisan judicial procedure to determine ones continued ability to hold office.

Congress should enact H.R. 1405 not only to effectuate accountability for Jan. 6, but also to lay out clear expectations of consequences for any future insurrectionist activity. H.R. 1405s proposed process is good public policy. It would lend legitimacy to the enforcement process, letting those who engaged in the Jan. 6 insurrection defend themselves in court, while breathing life into the Constitutions bare-minimum mandate: preservation of the republic.

History

Section Three initially disqualified confederates from office after the Civil War, but Congress granted them amnesty shortly afterward. Since then, Section Three historically has been a little-used and little-studied constitutional provision. Its rare enforcement is not because it is dormant or of limited effect Congress intended that it would govern all future insurrectionist conduct but because those who take constitutional oaths seldom engage in insurrection or rebellion.

While rare, Congress has taken H.R. 1405s approach before, and to great effect. In the 1800s, Congress passed a statute requiring federal prosecutors to bring quo warranto actions, cases challenging an officials right to hold office, against former confederates. The resulting enforcement actions resulted in multiple resignations, but no useful judicial decisions, before Congress granted the confederates amnesty and repealed the statute. Accordingly, there is precedent for legislating a cause of action under Section Three.

As explained by Mark A. Graber, because a bill invoking Section Three would merely enforce an existing qualification for office in the Constitution, and would provide for judicial review, it would not violate the Bill of Attainder Clause. It also would not violate the First Amendment, for the same reasons that the First Amendment did not bar Trumps impeachment. As a government official during the relevant conduct, Trumps First Amendment rights are narrower than a private citizens. Nor does the First Amendment immunize Trumps non-speech conduct that violated Section Three such as his inexcusable delay in coming to the assistance of Congress.

The Bill

H.R. 1405 provides useful clarity on a number of essential questions. First, the proposed bill seeks to codify Congresss definitions of terms in Section Three that may not otherwise be clearly defined, and could cause confusion:

The bill also seeks to clarify some basic questions about the mechanics of applying Section Three:

Conclusion

As detailed elsewhere, Trumps behavior on Jan. 6, his widespread efforts to overturn the election, and his attempt to prevent a transition of power caused the Jan. 6 insurrection. His failure to protect members of Congress from attack as they engaged in a constitutionally mandated act similarly amounts to engagement in the insurrection. Section Three of the Fourteenth Amendment instructs that he is unfit for future office.

Even if one substantively disagrees with this conclusion, disagreement underscores the point. Since Jan. 6, people have attempted in various ways to hold those responsible for the insurrection accountable. The U.S. needs a centralized, non-partisan, non-political forum to resolve this questionfor Trump, for others who engaged in the Jan. 6 insurrection, and for those who might learn from our inaction in the future. The Constitution contains a mechanismSection Three of the Fourteenth Amendmentthat was created for situations exactly like this one, and H.R. 1405 sets out fair procedures for effectuating it.

* * *

The best way to move past the worst attack on our seat of government since the 1800s is distinctly American: to give the accused a fair process in front of impartial judges. Though H.R. 1405 would establish a framework, ultimately a panel of federal judges would apply the law to the facts and determine who Section Three disqualifies. This transparent and fair system would simply enforce an existing qualification for office. Regardless of outcome, public hearings help ensure public accountability, and are integral to the rule of lawespecially when someone thinks theyre above it.

See the rest here:
An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots - Just Security

By Claudia Yaw

The (Centralia) Chronicle

After a heated and lengthy debate, the state House of Representatives passed a bill this weekend prohibiting open carry on Capitol grounds or at permitted demonstrations across the state.

The 57-40 vote means the bill clears a major hurdle, and if the Senate concurs with adopted amendments, the bill heads to the governors desk to be signed into law.

On the House floor this weekend, Democrats said the bill balances first and second amendment rights by preserving space for protesters to assemble without fear of intimidation. The Capitol grounds are traditionally where constituents have gathered to protest and show support for issues considered by lawmakers.

Southwest Washingtons Republican lawmakers stood fast in their opposition. Ultimately, 19th District state Rep. Jim Walsh, R-Aberdeen, refused to cast a vote.

I refuse to vote on this bill, Madam Speaker. Its unconstitutional, he said.

Walsh, who called debate on the bill a profound matter, suggested that it could embolden sexual predators and encourage bad actors to terrorize citizens and attack law enforcement officers.

The staunch conservative also referenced the recent stabbing of a Thurston County Sheriffs Deputy in Yelm an incident unrelated to any demonstration saying we get there by trying to draw equivalence between feelings of intimidation and foundational rights to self protection.

20th District State Rep. Ed Orcutt R-Kalama, added that many folks who open carry at demonstrations are not threatening in any way.

Thats what Im hearing from my constituents: Why are you turning me into a criminal? he told lawmakers.

The legislation comes after months of what became regular armed demonstrations at the Capitol building. It also comes on the heels of armed protesters breaking through the gates of the governors mansion, as well as an incident last year in which more than 100 armed, angry and unpermitted demonstrators made their way into the statehouse.

Rep. Drew Hansen, D-Bainbridge Island, pointed to similar laws that prohibit firearms during court proceedings in order to insulate judicial proceedings from intimidation.

The right to petition for redress of grievances is no less worthy of that protection, he said.

Several Republicans argued that, under the bill, unknowing citizens could find themselves in zones where carrying weapons is criminalized. Many others said that brandishing weapons is not only a Second Amendment right, but a First Amendment right.

Rep. Tana Senn, D-Mercer Island, who introduced similar legislation last year, argued that civil discourse critical to democracy does not require the type of tactical gear and long guns that have become commonplace at demonstrations. She pointed to the incident last February in which supporters of Rep. Matt Shea ousted by his colleagues after he was found to have planned acts of domestic terrorism flooded the Capitol building.

These people were here banging on this House chambers doors, shouting for (Shea). We and our staff were told to shelter in place or leave the premises if we could, Senn said. Is this political speech? Or intimidation versus debate?

Read the original here:
Rep. Walsh refuses to vote as House approves firearms ban at Capitol grounds - The Daily World

When is a students sexuality a fit topic for classroom debate?

All day, every day, at least according to the Sixth Circuit which ruled last week that a university violated a professors First Amendment rights by forcing him to use appropriate pronouns for students in his class. Because academic freedom to discuss a hotly contested matter of public concern makes an individual students gender a fit topic for classroom debate.

Professor Meriwether, a professor at Shawnee State University is a devout Christian who strives to live out his faith each day and believes that God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individuals feelings or desires.

Being faithful to his religion was never a problem at Shawnee State, Judge Amul Thapar recounts ominously. But in 2016, things changed.

UH OH. What changed? Well, heres how Prof. Meriwether described it in an opinion piece at The Hill.

On the first day of my political philosophy class at Shawnee State University in the spring of 2019, a biologically male student raised his hand and I called on him, unwittingly using the now-incendiary words, Yes, sir.

Because the real victim here is the teacher who refused to address a female student using appropriate pronouns, not the student who was singled out for repeated misidentification or addressed only by her last name when everyone else was Ms. X or Mr. Y, a Socratic practice Prof. Meriwether insists is vital to help[] them view the academic enterprise as a serious, weighty endeavor and foster an atmosphere of seriousness and mutual respect.

Mutual respect being the professors highest priority, obviously.

The school told Prof. Meriwether to cut it out. He could either refer to all students by their last names only, something the court refers to as a practical impossibility that would also alter the pedagogical environment in his classroom, or he could just treat the student the way he did every other woman in the room, even though doing so would violate Meriwethers religious beliefs.

And even though the Supreme Court already ruled that discrimination on the basis of gender identity violates Title VIIs prohibition on discrimination on the basis of sex, the Sixth Circuit is still dribbling out nonsense about the publics interest in exposing our future leaders to different viewpoints.

Wouldnt these future leaders benefit from forcing one of their cohort to defend her gender identity via robust and insightful in-class discussion with the teacher every time she was called on?

Judge Thapar is so committed to the bit that he invents a strawman university which might order teachers to misgender all students, codifying sex discrimination into university code and inviting a million anti-discrimination lawsuits. It could happen!

Remember, too, that the universitys position on titles and pronouns goes both ways. By defendants logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronounsno matter the professors own views

Then the court goes on to endorse, not just the right of academics to express personal opinions on issues of gender identity, but the right to treat students differently on the basis of those opinions.

Meriwether did just that in refusing to use gender-identity-based pronouns. And the point of his speech (or his refusal to speak in a particular manner) was to convey a message. Id. at 1187. Taken in context, his speech concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes. Professors Amicus Br. at 1. That is, his mode of address was the message.

Referring to it as a Hobsons Choice between adhering to the universitys orthodoxy or betraying his religious faith, the court finds that the university policy violates both the Free Exercise Clause and Freedom of Speech. Because if you cant treat trans women differently from every other woman, then the woke terrorists win.

Not to put too fine a point on it, this opinion isfucking gross. Fingers crossed for a better en banc panel.

Meriwether v. Hartop

Elizabeth Dyelives in Baltimore where she writes about law and politics.

Read the original:
Sixth Circuit Rules That Religious Freedom Entitles Professor To Debate Students Gender Identity In Class - Above the Law

The attorney for Karl Manke says the Owosso barber wont pay $9,000 in fines ordered by a state professional board. The board found Manke violated state COVID-19 restrictions as well as other health rules.

Half the citations were aimed specifically at a protest last May. Manke and other barbers and stylists cut hair in front of the state Capitol.

David Kallman is Mankes attorney.

Thats a clear violation of his First Amendment rights to free speech and to protest, and thats what he did and theyre imposing fines for simply exercising his 1st Amendment rights.

Kallman said other sanctions were for minor violations that dont deserve such heavy penalties.

I mean $6,000 of the $9,000 in fines are for Operation Haircut and Karl cutting hair at the state Capitol," Kallman said. "They were not these minor violations. They were the protests that happened at the Capitol."

Kallman said the Capitol protests are protected by the First Amendment. He says a court challenge to the fines will be filed in Shiawassee County.

See the rest here:
Attorney: Owosso Barber Won't Pay $9000 In Fines Following 'Operation Haircut' Protest - WKAR