Law and Legal
ZDNet – “Many of us behave differently on social media and at work. But what are Americans hiding from their employers, and how far will they go to protect their professional reputations by securing their social media sites? Pittsburgh, PA-based screening company JDP surveyed 2007 Americans about their social media habits and how job hunting affects these habits. Over four in five (84%) believe that social media activity regularly impacts hiring decisions, and 82% have set up some degree of privacy on their social media profiles. One in four have every social platform set to private, and one in five admit to posting material that could jeopardize a current, or future opportunity. Over two in five (43%) have used privacy settings to avoid employers or co-workers, and 40% have created an alias account. Almost half (46%) have used a search engine to see what can be found online about them, and have modified their social media settings based on the information that they found. The most incriminating material was found on Facebook…”
The New York Times Opinion: “Algorithms make many important decisions for us, like our creditworthiness, best romantic prospects and whether we are qualified for a job. Employers are increasingly using them during the hiring process out of the belief they’re both more convenient and less biased than humans. However, as I describe in a new paper, this is misguided. In the past, a job applicant could walk into a clothing store, fill out an application and even hand it straight to the hiring manager. Nowadays, her application must make it through an obstacle course of online hiring algorithms before it might be considered. This is especially true for low-wage and hourly workers. The situation applies to white-collar jobs too. People applying to be summer interns and first-year analysts at Goldman Sachs have their résumés digitally scanned for keywords that can predict success at the company. And the company has now embraced automated interviewing.
The problem is that automated hiring can create a closed-loop system. Advertisements created by algorithms encourage certain people to send in their résumés. After the résumés have undergone automated culling, a lucky few are hired and then subjected to automated evaluation, the results of which are looped back to establish criteria for future job advertisements and selections. This system operates with no transparency or accountability built in to check that the criteria are fair to all job applicants…”
EveryCRSReport – The Endangered Species Act and Climate Change: Selected Legal Issues . September 20, 2019 R45926:”For more than a decade, federal agencies have grappled with how to address climate change effects when implementing the Endangered Species Act of 1973 (ESA). The ESA aims to protect threatened and endangered fish, wildlife, and plants from extinction. As set forth by Congress, one of the main purposes of the ESA is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services) have acknowledged that the changing climate may threaten the survival of and habitat for some species. As noted by courts and legal scholars, the ESA does not expressly require the Services to consider the effect of climate change in their ESA decisions. However, the ESA and its implementing regulations (1) direct the Services to consider “natural or manmade factors affecting [a species’] continued existence” when determining whether a species should be protected under the ESA; and (2) require the Services to analyze cumulative effects on a species’ survival when analyzing whether federal actions jeopardize a species protected under the Act. The courts and the Services have interpreted these provisions as requiring the Services to consider climate change effects in the ESA decision making process. Various lawsuits have challenged the Services’ interpretation of complex scientific data or models that predict short- and long-term effects from a changing global climate on specific species and their habitats.Legal challenges have influenced how the Services implement the ESA when climate change affects species and their habitats. Lawsuits typically focus on two main issues: (1) when the Services should list, delist, or reclassify a species as threatened or endangered because of climate change effects; and (2) whether the Services can or should regulate activities that affect the climate to protect species and their habitat. Judicial review has helped to ensure that the Services consider projected climate change effects on species in their ESA decisions. However, the courts have not required the Services to curb activities that may contribute to climate change to protect threatened or endangered species….”
JDSupra – Pillsbury – “The SHIELD Act will impose substantial new obligations on any employer with an employee residing in New York State, as well as on many employers across the country that conduct online hiring.
- Regardless of their location or size, employers that receive, collect or otherwise possess private information about New York residents must comply with the New York Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”)
- Even employers with no New York employees may trigger coverage based on information collected through their online hiring processes.
- Employers with such data must adopt cybersecurity data safeguards that comply with the provisions of the SHIELD Act and are subject to notification requirements in the event of a data breach…”
Via Italian photographer Claudio Piccoli – Dogs in Action [a range of dog breeds engaged in full throttle enthusiasm and exuberance – take some time to share their joy – it’s good for you]
USA Today: “Four years ago, the Supreme Court legalized same-sex marriage across the United States, and many Americans believed the fight for LGBTQ equality was finally won. But that ruling did not address all the ways LGBTQ people experience discrimination in their everyday lives. Same-sex partners can now legally marry, but in a majority of states you can still be fired for being gay. On [October 8, 2019] the Supreme Court heard three cases on whether it is legal to fire workers because of their sexual orientation or gender identity. Experts say they set the stage for a landmark civil rights ruling that will serve as the true test of where the nation stands on LGBTQ rights…”
CNN – Historic Supreme Court arguments Tuesday in LGBTQ workplace rights dispute – The Supreme Court grappled at times on Tuesday with historic cases that could impact millions of LGBTQ Americans. At the end of two hours of lively arguments, it seemed clear that the four liberals on the bench believed that federal employment law that bars discrimination based on sex includes claims of sexual orientation and gender identity. Two separate cases were argued on Tuesday. One concerning whether the law encompasses claims of sexual orientation brought by Gerald Bostock, and the estate of Donald Zarda. The other concerned a transgender woman, Aimee Stephens, marking the first time the court heard arguments regarding the civil rights of a transgender individual. How the justices rule could have critical implications for the LGBTQ community made up of approximately 1 million workers who identify as transgender and 7.1 million lesbian, gay and bisexual workers, according to UCLA’s Williams Institute. While the four liberals may side with the LGBTQ petitioners, it is unclear if one of the five conservative justices will join them. All eyes were on conservative Justice Neil Gorsuch who often focuses on the plain text of a law when analyzing it…”
Lawfare: “On Oct. 7, the United Kingdom and the United States released the text of the long-awaited data-sharing agreement—the first of the executive agreements envisioned by the CLOUD Act, enacted in May 2018 in order to better facilitate cross-border access to data in the investigation of serious crime. At the time of enactment, there was a heated debate about whether these executive agreements would result in the lowering or raising of privacy and other civil liberties protections—with the two of us taking the position that they held out the promise to induce privacy-enhancing reforms. That argument depended, in part, on nations entering into these agreements and updating—in our view, improving—their laws and practices to meet the CLOUD Act requirements, and the agreements themselves incorporating additional provisions that would ensure key protections are met. This first agreement is critically important, providing not just a window into the U.S. and U.K.’s approach but also presumably setting out a basic blueprint for other agreements that may follow—the European Union has begun discussions over a potential CLOUD Act executive agreement, and this week the United States and Australia formally announced negotiations as well. Notably, the agreement includes a set of additional safeguards not included in the CLOUD Act itself. Congress will now have 180 days to examine the agreement. Absent objection, it will go into effect after that time period. Here we assess what’s new about the agreement; what’s surprising; and why—despite the critics—we continue to view these agreements as positive developments that protect privacy and civil liberties, accommodate divergent norms across borders, and respond to the reality that digital evidence critical even to wholly local crimes is often located across international borders…”
“Today, Senate Select Committee on Intelligence Chairman Richard Burr (R-NC) and Vice Chairman Mark Warner (D-VA) released a new report titled, “Russia’s Use of Social Media.” It is the second volume released in the Committee’s bipartisan investigation into Russia’s attempts to interfere with the 2016 U.S. election. The new report examines Russia’s efforts to use social media to sow societal discord and influence the outcome of the 2016 election, led by the Kremlin-backed Internet Research Agency (IRA). The analysis draws on data provided to the Committee by social media companies and input from a Technical Advisory Group comprising experts in social media network analysis, disinformation campaigns, and the technical analysis of complex data sets and images to discern the dissemination of disinformation across social media platforms…”
Statement from Vice Chairman Warner – “The bipartisan work that this Committee has done to uncover and detail the extent of that effort has significantly advanced the public’s understanding of how, in 2016, Russia took advantage of our openness and innovation, exploiting American-bred social media platforms to spread disinformation, divide the public, and undermine our democracy. Now, with the 2020 elections on the horizon, there’s no doubt that bad actors will continue to try to weaponize the scale and reach of social media platforms to erode public confidence and foster chaos. The Russian playbook is out in the open for other foreign and domestic adversaries to expand upon – and their techniques will only get more sophisticated…”
The Hill – “The secretive Foreign Intelligence Surveillance Court (FISC) ruled last year that some FBI surveillance violated the targets’ constitutional rights, the intelligence community revealed Tuesday. The ruling, a rare loss for the government on surveillance matters, found that the FBI may have violated the law, as well as constitutional protections against unreasonable searches, as it searched through databases connected to its a warrantless communications surveillance program. Judge James Boasberg, who sits on the Foreign Intelligence Surveillance Court, found last year that the FBI’s efforts to query the sensitive databases and purge unnecessary results were “inconsistent with statutory minimization requirements and the requirements of the Fourth Amendment.” The ruling identified tens of thousands of improper FBI searches of intelligence databases in 2017 and 2018, according to the ruling, which found these searches may have been used to vet personnel and cooperating sources. It also found that the FBI was not properly identifying and documenting which searches were connected to people in the U.S…”
CRS report via FAS – Legal Authority to Repurpose Funds for Border Barrier Construction. Updated October 2, 2019: “President Trump has prioritized the construction of border barriers along the U.S.-Mexico border. Over the course of negotiations for FY2019 appropriations, the Administration asked Congress to appropriate $5.7 billion to the Department of Homeland Security (DHS) for that purpose. When Congress appropriated $1.375 billion to DHS for border fencing, the President announced that his Administration would fund the construction of border barriers by repurposing funds appropriated to the Department of Defense (DOD) and transferring funds from the Department of the Treasury. The Administration asserted that these funding transfers were authorized by a combination of the following federal laws:
- National Emergencies Act (NEA). The NEA establishes a framework for the President to declare national emergencies. The NEA does not itself appropriate or authorize the transfer of funds, but the declaration of a national emergency triggers other statutory provisions that allow certain executive departments to repurpose existing appropriations.
- 10 U.S.C. § 2808. Section 2808 becomes available upon the President’s declaration of a national emergency under the NEA. This provision authorizes the Secretary of Defense to use unobligated military construction funds for the construction of otherwise unauthorized military construction projects.
- Sections 8005 and 9002 of the 2019 DOD Appropriations Act. Sections 8005 and 9002 of the 2019 DOD Appropriations Act authorize the transfer of up to $6 billion appropriated in that act for “military functions” arising from “unforeseen military requirements.” Funds may be transferred under these authorities only for “unforeseen military requirements” where the item for which funds will be transferred “has [not] been denied by the Congress.”
- 10 U.S.C. § 284. The 2019 DOD Appropriations Act also appropriated funds to a Drug Interdiction Account. Pursuant to 10 U.S.C. § 284, money in this fund may be spent by DOD in support of other agencies’ counterdrug activities, including by constructing “roads and fencing . . . to block drug smuggling corridors across international borders of the United States.” The Trump Administration proposed to use Sections 8005 and 9002 of the 2019 DOD Appropriations Act to transfer additional funds into the Drug Interdiction Account, which would then be used to construct border barriers.
- 31 U.S.C. § 9705. This provision establishes a Treasury Forfeiture Fund (TFF) in the Department of the Treasury and authorizes the Secretary of the Treasury to make payments from unobligated sums in the TFF to federal, state, and local law enforcement agencies for various law enforcement purposes….”
CRS report Via FAS – Executive Branch Service and the “Revolving Door” in Cabinet Departments: Background and Issues for Congress. October 7, 2019. “Individuals may be subject to certain restrictions when leaving the government for private employment or joining the government from the private sector. These restrictions were enacted in response to what is often referred to as the revolving door. Generally, the revolving door is described as the movement of individuals between the public and private sector. Individuals may move because they possess policy and procedural knowledge and have relationships with former colleagues that are useful to prospective employers…To date, much of the empirical work concerning the revolving door has focused on former Members of Congress or congressional staff leaving Capitol Hill, especially those who become lobbyists in their post congressional careers. This report provides some empirical data about a different aspect of the revolving door—the movement into and out of government by executive branch personnel. Using research conducted by the Bush School of Government and Public Service at Texas A&M University’s capstone class over the 2017-2018 academic year, this report presents data about the revolving door in the executive branch through the lens of President George W. Bush’s and President Barack Obama’s Administrations. The analysis includes Cabinet department officials who were listed, for either Administration, in the United States Government Policy and Supporting Positions (the Plum Book)…”
Center for Data Visualization – “The Wall Street Journal has created a series of data visualizations showing how bad weather and the United States-China trade war have created significant challenges for U.S. farmers. The visualizations show that the months between July 2018 and June 2019 were the wettest in the United States since record-keeping began in 1895, resulting in soggy fields that farmers could not plant in. In addition, U.S. exports for crops such as soybeans have declined due to the trade war with China. This combined strain has accelerated the decline of the number of farms in the United States, which will fall below two million for the first time in over a century.”
Take a look. [paywall]
Berkman Klein Center – Harvard University – ““When Brandt Jean hugged the white police officer who had just been convicted of murdering his unarmed brother while he was in his own home, the act sparked a wider conversation about forgiveness, the law, and race in America. And while some saw officer Amber Guyger’s 10-year prison sentence as a fair outcome, others said it was too light a punishment, and pointed to many ways in which the American criminal justice system has systematically incarcerated people of color at high rates and with long sentences. In her new book, When Should Law Forgive?, Harvard Law School professor Martha Minow examines a range of areas where the legal system offers opportunities for absolution, and asks where they might be used more, and where they should not.”
The New Yorker – [“At the end of every section in this article, you can read the text that an artificial intelligence predicted would come next.”] “…But Smart Compose goes well beyond spell-checking. It isn’t correcting words I’ve already formed in my head; it’s coming up with them for me, by harnessing the predictive power of deep learning, a subset of machine learning. Machine learning is the sophisticated method of computing probabilities in large data sets, and it underlies virtually all the extraordinary A.I. advances of recent years, including those in navigation, image recognition, search, game playing, and autonomous vehicles. In this case, it’s making billions of lightning-fast probability calculations about word patterns from a year’s worth of e-mails sent from Gmail.com. (It does not include e-mails sent by G Suite customers.)
“…In February, OpenAI, an artificial-intelligence company, announced that the release of the full version of its A.I. writer, called GPT-2—a kind of supercharged version of Smart Compose—would be delayed, because the machine was too good at writing. The announcement struck critics as a grandiose publicity stunt (on Twitter, the insults flew), but it was in keeping with the company’s somewhat paradoxical mission, which is both to advance research in artificial intelligence as rapidly as possible and to prepare for the potential threat posed by superintelligent machines that haven’t been taught to “love humanity,” as Greg Brockman, OpenAI’s chief technology officer, put it to me…”
Smithsonian.com – A machine learning algorithm helped decode the squeaks Egyptian fruit bats make in their roost, revealing that they “speak” to one another as individuals: “Plenty of animals communicate with one another, at least in a general way—wolves howl to each other, birds sing and dance to attract mates and big cats mark their territory with urine. But researchers at Tel Aviv University recently discovered that when at least one species communicates, it gets very specific. Egyptian fruit bats, it turns out, aren’t just making high pitched squeals when they gather together in their roosts. They’re communicating specific problems, reports Bob Yirka at Phys.org. According to Ramin Skibba at Nature, neuroecologist Yossi Yovel and his colleagues recorded a group of 22 Egyptian fruit bats, Rousettus aegyptiacus, for 75 days. Using a modified machine learning algorithm originally designed for recognizing human voices, they fed 15,000 calls into the software. They then analyzed the corresponding video to see if they could match the calls to certain activities.
They found that the bat noises are not just random, as previously thought, reports Skibba. They were able to classify 60 percent of the calls into four categories. One of the call types indicates the bats are arguing about food. Another indicates a dispute about their positions within the sleeping cluster. A third call is reserved for males making unwanted mating advances and the fourth happens when a bat argues with another bat sitting too close. In fact, the bats make slightly different versions of the calls when speaking to different individuals within the group, similar to a human using a different tone of voice when talking to different people. Skibba points out that besides humans, only dolphins and a handful of other species are known to address individuals rather than making broad communication sounds. The research appears in the journal Scientific Reports…”
The Atlantic – Schools have been on a mission to reinvent campus libraries—even though students just want the basics – “So far, the internet has not killed libraries either. But the percentage of higher-education budgets dedicated to libraries has been dwindling since the 1980s, and at many institutions there’s been a corresponding drop in reported spending on print materials while that on electronic resources has grown. Likely in the hopes of proving that they have more to offer than a simple internet connection does, many college libraries are pouring resources into interior-design updates and building renovations, or into “glitzy technology,” such as 3-D printers and green screens, that is often housed in “media centers” or “makerspaces.” The Claremont Colleges’ shared library now has a “digital tool shed”—“a technology-rich active-learning center,” according to a 2016 press release previewing the resource, where people are able to “try out innovative pedagogy” such as a data-visualization wall and cutting-edge video- and audio-recording software. Minnesota’s Macalester College library has an “Idea Lab,” which it describes as “a co-working space resembling that of many big tech companies,” where students can needle-felt miniature animals and wear virtual-reality helmets. The goal is, ultimately, to stay relevant and increase appeal. (See: the “Mad Librarian Escape Room” at Goodwin College’s library, which tasks teams of students with salvaging a rare book—a “precious volume!”—via clues they gather in a scavenger hunt.)
Yet much of the glitz may be just that—glitz. Survey data and experts suggest that students generally appreciate libraries most for their simple, traditional offerings: a quiet place to study or collaborate on a group project, the ability to print research papers, and access to books. Notably, many students say they like relying on librarians to help them track down hard-to-find texts or navigate scholarly journal databases. “Google can bring you back 100,000 answers,” as the writer Neil Gaiman once said. “A librarian can bring you back the right one.”
The New York Times – “Almost a decade ago, Warren Buffett made a claim that would become famous. He said that he paid a lower tax rate than his secretary, thanks to the many loopholes and deductions that benefit the wealthy. His claim sparked a debate about the fairness of the tax system. In the end, the expert consensus was that, whatever Buffett’s specific situation, most wealthy Americans did not actually pay a lower tax rate than the middle class. “Is it the norm?” the fact-checking outfit Politifact asked. “No.” Time for an update: It’s the norm now. For the first time on record, the 400 wealthiest Americans last year paid a lower total tax rate — spanning federal, state and local taxes — than any other income group, according to newly released data….President Trump’s 2017 tax cut, which was largely a handout to the rich, plays a role, too. It helped push the tax rate on the 400 wealthiest households below the rates for almost everyone else.
…The data here come from the most important book on government policy that I’ve read in a long time — called “The Triumph of Injustice,” to be released next week. The authors are Emmanuel Saez and Gabriel Zucman, both professors at the University of California, Berkeley, who have done pathbreaking work on taxes. Saez has won the award that goes to the top academic economist under age 40, and Zucman was recently profiled on the cover of Bloomberg BusinessWeek magazine as “the wealth detective.” They have constructed a historical database that tracks the tax payments of households at different points along the income spectrum going back to 1913, when the federal income tax began. The story they tell is maddening — and yet ultimately energizing…”
The New York Times – “Governments are spending a remarkable amount of resources attacking books — because their supposed limitations are beginning to look like ageless strengths. Around the world, many authoritarian regimes — having largely corralled the internet — now have declared war on the written word, their oldest enemy. The received wisdom after the close of the Cold War was that physical books were outdated, soon to be swept aside in the digital age; and that the internet was instead the real threat to governments seeking to repress provocative thinking. A generation later, the opposite may be true. The People’s Republic of China has been the most successful in curbing the internet. But their stranglehold on society is also the result of their largely successful push in the past decade to ban nearly all bookstores, books, authors and academics that do not adhere to the Communist Party’s line. Even before the current Hong Kong protests, there was a crackdown on Hong Kong publishers. In the fall of 2015, associates of the Causeway Bay Books store disappeared, later discovered to have been detained on the mainland, accused of trafficking in “illegal” books critiquing leading members of the Communist Party. In 2017, the Communist Party formally took control of all print media, including books…”
IEEE Spectrum – A new report finds that deepfake software is still prohibitively hard to use, but that may not be true for much longer – “If you wanted to make a deepfake video right now, where would you start? Today, an Amsterdam-based startup has published an audit of all the online resources that exist to help you make your own deepfakes. And its authors say it’s a first step in the quest to fight the people doing so. In weeding through software repositories and deepfake tools, they found some unexpected trends—and verified a few things that experts have long suspected. The deepfake apocalypse has been lurking just over the horizon since about 2017. That’s the year the term was invented by the eponymous reddit user “u/deepfakes,” who weaponized the face-swapping technology to graft famous actresses into porn. Fears of other kinds of misuse quickly spread: In the two years since, U.S. Congressional panels have convened to assess whether faked video scandals will undermine democracy. Apps have popped up that use deepfake methods to turn any photo of a fully-clothed woman into a naked snapshot. There have been reports of fraud and identity theft abetted by deepfakes. And yet, so far rumors have largely outpaced actual deployment. To be sure, nonconsensual pornographic videos are a scourge. But deepfakes have not spread beyond these boundaries. Politics is dogged more often by “cheapfakes” and “shallowfakes,” low-tech media manipulations best characterized by the infamous video of U.S. house majority leader Nancy Pelosi slowed down to make her look unwell or drunk. “The apocalypse is a little overhyped in my view,” says Siddharth Garg, a researcher at New York University.
So—is a true crisis coming, and if so, when? The new report, issued today by the counter-deepfake firm Deeptrace, based in Amsterdam, tries to answer those questions. Deeptrace is one of several new startups and academic groups that aim to build ”deepfake detectors” to guard against the coming storm of AI-generated content. But the company’s employees realized they first needed to better understand what exactly is out there. So they conducted the first major audit of the deepfake environment on the open web…”
The New York Times – Opinion – They are not partisans but stewards of our constitutional democracy. By Allison Stanger. Dr. Stanger is the author of “Whistleblowers: Honesty in America From Washington to Trump.”
“In accusing the intelligence community whistle-blower of partisanship and treason, President Trump has redefined whistle-blowing to serve his private interests rather than the rule of law. In the American tradition, whistle-blowers expose illegal or unconstitutional acts that the powerful want to keep secret. That the current game-changing official intelligence community whistle-blower complaint has reached the American people is a miracle for which we should be grateful. Americans must focus on the content of the whistle-blower complaint, which the White House has not denied. The president has obvious reasons to spin the complaint, but genuine whistle-blowers are not partisans. They are stewards of our constitutional democracy. Whistle-blower protection is as old as the Republic itself. The Continental Congress passed the world’s first whistle-blower protection legislation in 1778 in an effort to keep American elites honest. The current whistle-blower complaint shines light on an attempted cover-up and an intelligence community that sees the president advancing the Trump brand at the expense of American national security. But the whistle-blower is just the tip of the iceberg. In Mr. Trump’s presidency, there have been unprecedented disclosures from the intelligence community on his behavior. While overturning longstanding intelligence community norms, Mr. Trump has repeatedly charged it with partisanship. But members of the intelligence community swear allegiance to the Constitution, not the president. They serve their country regardless of the party in the White House…”