Law and Legal
In Custodia Legis: “Constitution Day is [September 17, 2019], but it’s already off to a great start with the release of the Congressional Research Service’s new version of The Constitution of the United States of America: Analysis and Interpretation, better known as the Constitution Annotated. The Constitution Annotated allows you to “read about the Constitution in plain English…providing a comprehensive overview of Supreme Court decisions interpreting the United States Constitution.” The Constitution Annotated is a Senate document created by the Congressional Research Service that makes the Constitution accessible to all Americans, regardless of their background in law. In the past, the web version of this document, which is linked from Congress.gov, consisted of PDFs that could be challenging to search. With this release, the document is available in a more accessible and user-friendly HTML format that is convenient to search and browse…”
In Custodia Legis – “Constitution Day, officially known as “Constitution Day and Citizenship Day,” is a federal commemoration observed each year to mark the signing of the U.S. Constitution on September 17, 1787, and to “recognize all who, by coming of age or by naturalization, have become citizens.” On September 17 2019, the Law Library will honor this day with a lecture entitled “The State of the Constitution” by Kannon Shanmugam. He will speak about the role of the judiciary in our constitutional system and the relationship between the judiciary and the other branches of government…”
WSJ.com [paywall]: “Amazon.com Inc. has adjusted its product-search system to more prominently feature listings that are more profitable for the company, said people who worked on the project—a move, contested internally, that could favor Amazon’s own brands. Late last year, these people said, Amazon optimized the secret algorithm that ranks listings so that instead of showing customers mainly the most-relevant and best-selling listings when they search—as it had for more than a decade—the site also gives a boost to items that are more profitable for the company. When people search for products on Amazon*, nearly two-thirds of all product clicks come from the first page of results [sound familiar Google users?]……so the proliferation of Amazon’s private-label products on the first page makes it more likely people choose those items. The issue is particularly sensitive because the U.S. and the European Union are examining Amazon’s dual role—as marketplace operator and seller of its own branded products. An algorithm skewed toward profitability could steer customers toward thousands of Amazon’s in-house products that deliver higher profit margins than competing listings on the site…”
MIT Taskforce on the Future of Work Fall 2019 – “…The world now stands on the cusp of a technological revolution in artificial intelligence and robotics that may prove as transformative for economic growth and human potential as were electrification, mass production, and electronic telecommunications in their eras. New and emerging technologies will raise aggregate economic output and boost the wealth of nations. Will these developments enable people to attain higher living standards, better working conditions, greater economic security, and improved health and longevity? The answers to these questions are not predetermined. They depend upon the institutions, investments, and policies that we deploy to harness the opportunities and confront the challenges posed by this new era. How can we move beyond unhelpful prognostications about the supposed end of work and toward insights that will enable policymakers, businesses, and people to better nav-igate the disruptions that are coming and underway? What lessons should we take from previous epochs of rapid technological change? How is it different this time? And how can we strengthen institutions, make investments, and forge policies to ensure that the labor market of the 21st century enables workers to contribute and succeed? To help answer these questions, and to provide a framework for the Task Force’s efforts over the next year, this report examines several aspects of the interaction between work and technology. We begin in Section 1 by stating an underlying premise of our project: work is intrinsically valuable to individuals and to society as a whole, and we should seek to improve rather than eliminate it. The second section introduces the broader concerns that motivated the Task Force’s formation. Here we address a paradox: despite a decade of low unemployment and generally rising prosperity in the United States and industrialized countries, public discourse around the subject of technology and work is deeply pessimis-tic. We argue that this pessimism is neither misguided nor uninformed, but rather a reflec-tion of a decades-long disconnect between rising productivity and stagnant incomes for the majority of workers…”
“The technology that allows Bitcoin and other cryptocurrencies to function could profoundly change the way government and industry do business. Distributed ledger technology allows the secure transfer of digital assets without management by a central authority. Instead, participants share synchronized copies of a ledger that records assets and transactions. Changes are visible to all participants. Questions remain about the technology, including where it may be most useful, how best to regulate it, and how to mitigate its use in illegal activities.”
- GAO Report and Infographics – How blockchain, a form of distributed ledger technology, acts as a means of payment for cryptocurrencies
Center for Data Innovation: “Deepfakes—realistic-looking images and videos altered by AI to portray someone doing or saying something that never actually happened—have been around since the end of 2017, yet in recent months have become a major focus of policymakers. Though image and video manipulation have posed challenges for decades, the threat of deepfakes is different. The early examples were created mostly by people editing the faces of celebrities into pornography, but in April 2018, comedian and filmmaker Jordan Peele worked with BuzzFeed to create a deepfake of President Obama, kicking off a wave of fears about the potential for deepfakes to turbocharge fake news. Congress has introduced a handful of bills designed to help address this threat but preventing deepfakes from hurting people and society will require additional solutions. The risks posed by deepfakes, a portmanteau of “deep learning” and “fake,” fall into two camps: that this technology will intrude on individual rights, such as using a person’s likeness for profit or to create pornographic videos without their consent; and that this technology could be weaponized as a disinformation tool. To address these risks, Senator Ben Sasse (R-NE) introduced the Malicious Deep Fake Prohibition Act of 2018 late last year, which would make it illegal to create, with the intent to distribute, or knowingly distribute, deepfakes that would facilitate criminal or “tortious conduct” (i.e. conduct that causes harm, but is not necessary unlawful, such as creating a deepfake that might harm someone’s reputation). And at a June House Intelligence Committee hearing, Representative Yvette Clark (D-NY) introduced the DEEPFAKES Accountability Act, which would require anyone creating a deepfake to include an irremovable digital watermark indicating it as such…”
Saikrishna Prakash & Steven D. Smith, How To Remove a Federal Judge, 116 Yale L.J. (2006). Available at: https://digitalcommons.law.yale.edu/ylj/vol116/iss1/2 – “Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution’s grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, and the revolutionary state constitutions, the Article demonstrates that at the Founding, good-behavior tenure and impeachment had only the most tenuous of relationships. Good-behavior tenure was forfeitable upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Contrary to what many might suppose, judges were not the only ones who could be granted good-behavior tenure. Anything that might be held -land, licenses, employment, etc. could be granted during good behavior, and private parties could grant good-behavior tenure to other private individuals. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good-behavior tenure had forfeited her tenure by reason of misbehavior. Whether a landholder, employee, or government officer with good-behavior tenure had misbehaved would be determined in the ordinary courts of law. Moreover, the vast majority of state constitutions did not equate good-behavior tenure with impeachment either. To the contrary, many distinguished them explicitly. Taken together, these propositions devastate the conventional conflation of good-behavior tenure with impeachment. More importantly, they indicate that the original Constitution did not render impeachment the only possible means of removing federal judges with good-behavior tenure. Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law.”
See also – Politico – A document Hillary Clinton helped write nearly a half century ago has returned from the dead to threaten the man she couldn’t vanquish in 2016. The bizarre, only-in-D.C. twist centers on a congressional report penned by a bipartisan team of young attorneys that included Hillary before she was a Clinton and written in the throes of Watergate. Then, unlike now, not a single lawmaker had been alive the last time Congress impeached a president. They had little understanding of how to try and remove Richard Nixon from the White House. So they tapped Clinton and a team of ambitious staffers to dive into the history of impeachment, stretching back to the 14th century in England: How has impeachment been used? What were the justifications? Can we apply it to Nixon? The resulting document became a centerpiece of the congressional push to drive the Republican president from office. But then Nixon resigned. The memo was buried…until now….The 45-year-old report has become a handbook House Democratic lawmakers and aides say they are using to help determine whether they have the goods to mount a full-scale impeachment effort against President Donald Trump, the same man who three years ago upended Hillary Clinton’s bid for a return trip to the White House…”
Emojis Have Unsettled Grammar Rules (and Why Lawyers Should Care) – Eric Goldman discusses a new article by three Dutch researchers on the grammar of emojis, or more precisely, the lack thereof. Their abstract concludes: “while emoji may follow tendencies in their interactions with grammatical structure in multimodal text-emoji productions, they lack grammatical structure on their own.” Goldman states, in other words, when emoji symbols are strung together, we don’t have a reliable way of interpreting their meaning. He goes on to discuss the impact of emojis and the law.
Via LLRX – Pete Recommends – Weekly highlights on cyber security issues, September 14, 2019 – Privacy and security issues impact every aspect of our lives – home, work, travel, education, health and medical records – to name but a few. On a weekly basis Pete Weiss highlights articles and information that focus on the increasingly complex and wide ranging ways technology is used to compromise and diminish our privacy and security, often without our situational awareness. Four highlights from this week: Think your credit card is safe in your wallet? Think again; LinkedIn Can’t Block Analytics Company From Scraping Profiles; The Windows 10 Privacy Settings You Should Check Right Now; and Safe Online Surfing Challenge Launches.
Inversions in US Presidential Elections: 1836-2016 – Michael Geruso, Dean Spears, Ishaana Talesara – NBER Working Paper No. 26247. Issued in September 2019.
“Inversions—in which the popular vote winner loses the election—have occurred in 4 US Presidential elections. We show that rather than being statistical flukes, inversions have been ex ante likely since the 1800s. In elections yielding a popular vote margin within one percentage point (which has happened in one-eighth of Presidential elections), 40% will be inversions in expectation. Inversion probabilities are asymmetric, in various periods favoring Whigs, Democrats, or Republicans. Feasible policy changes—including awarding each state’s Electoral College ballots proportionally between parties rather than awarding all to the state winner—could substantially reduce inversion probabilities, though not in close elections.”
FT.com – Special Report – Innovative Lawyers in Europe – How patterns in data affect getting legal work done – This article includes a annotated chart that ranks law firms and in-house teams for Data, Knowledge and Intelligence per the FT Innovative Lawyers Europe awards.
“The U.S. Government Accountability Office (GAO) formally launched its new Center for Strategic Foresight activities today with a conference focused on critical issues confronting policymakers today. The inaugural conference brought together experts to explore two topics with a direct bearing on the future security and well-being of the United States: the management of space policy by government and the private sector, as well as the growing use worldwide of “deep fake” synthetic media to manipulate online and real-world interactions….GAO created the Center to enhance its ability to identify, monitor, and analyze emerging issues. Located in GAO’s Office of Strategic Planning and External Liaison, the Center is a unique entity in the federal government, one that reflects the non-partisan independent watchdog agency’s broad mandate to provide Congress with reliable, fact-based information for overseeing federal agencies and programs. The Center currently has nine non-resident Fellows who are leading experts in foresight, planning, and futures studies. Their backgrounds include stints in government, the private sector, non-governmental organizations, academia, and international organizations…”
Google Blog: “Google Search was built to provide everyone access to information on the web—and with tens of thousands of web pages, hundreds of hours of video, thousands of tweets and news stories published every minute of the day, our job is to sift through that content and find the most helpful results possible. With news in particular, we always aim to show a diversity of articles and sources to give users as much context and insight as possible. An important element of the coverage we want to provide is original reporting, an endeavor which requires significant time, effort and resources by the publisher. Some stories can also be both critically important in the impact they can have on our world and difficult to put together, requiring reporters to engage in deep investigative pursuits to dig up facts and sources. These are among the reasons why we aim to support these industry efforts and help people get access to the most authoritative reporting.
Recently, we’ve made ranking updates and published changes to our search rater guidelines to help us better recognize original reporting, surface it more prominently in Search and ensure it stays there longer. This means readers interested in the latest news can find the story that started it all, and publishers can benefit from having their original reporting more widely seen…”
TED Talk: “The use of deepfake technology to manipulate video and audio for malicious purposes — whether it’s to stoke violence or defame politicians and journalists — is becoming a real threat. As these tools become more accessible and their products more realistic, how will they shape what we believe about the world? In a portentous talk, law professor Danielle Citron reveals how deepfakes magnify our distrust — and suggests approaches to safeguarding the truth.”
“The Dark Web is used to sell stolen data, drugs, and weapons—but it’s also used by legitimate outfits, like news organizations and the UN. This ebook looks at what the Dark Web is and how it affects you. The Dark Web is a network of websites and servers that use encryption to obscure traffic. Dark Web sites require the .onion top-level domain, use non-memorable URL strings, and can be accessed only by using the open source, security-focused Tor browser. Because it’s portable and disposable, Tails, a Linux-based operating system that boots from a flash drive, adds a layer of security to Deep Web activity. Because the tools required to access Dark Web sites help protect user—and server—anonymity, in the past decade the Dark Web has become a magnet for criminal activity. The Silk Road, an eBay-like market for drugs and weapons, famously helped establish the market for peer-to-peer anonymous criminal commerce. The site grabbed mainstream headlines in 2013 when it was taken down by the FBI. In its place rose a number of copycat markets. The negative press, coupled with YouTube horror stories, glued the Dark Web’s reputation to illicit behavior. Today, the Dark Web markets sell drugs, weapons, malicious software, and piles of consumer and sensitive corporate data. But the Dark Web is not all bad news. ProPublica, a well-respected investigative news organization, has a Dark Web site to help the company securely communicate with sources. The United Nations law enforcement department, the Office on Drugs and Crime, monitors the Dark Web and shares data with the public and global police organizations. Even Facebook, the world’s largest social network, has a Dark Web site relied on by more than one million users per month…”
InsideHook – That DIY project you’ve been putting off for months just got a whole lot easier – “Need audio equipment to record a podcast? Want to make your own tagliatelle pasta? Lacking the right wire strippers to build your own quadcopter drone? The new Chicago Tool Library has your back, so you can explore your inner Leonardo DaVinci without having to buy and store gear you use once in a blue moon. Just launched this summer in Bridgeport, The Chicago Tool Library is a community-driven nonprofit organization that rents out donated tools. The inventory is stacked, ranging from power drills to masonry to woodworking to food-preparation hardware. To earn the right to check out gadgets, you just need to pay an annual fee set on a sliding scale: it’s $1 for every $1,000 you make in annual income. No surprise, you must also be a Chicago resident. Hours are 10 a.m. to 3 p.m. on Saturdays and Sundays, and the library is located at 1048 W. 37th Street…”
Slate – “If I wanted to borrow A Better Man by Louise Penny—the country’s current No. 1 fiction bestseller—from my local library in my preferred format, e-book, I’d be looking at about a 10-week waitlist. And soon, if the book’s publisher, a division of Macmillan, has its way, that already-lengthy wait time could get significantly longer. In July, Macmillan announced that come November, the company will only allow libraries to purchase a single copy of its new titles for the first eight weeks of their release—and that’s one copy whether it’s the New York Public Library or a small-town operation that’s barely moved on from its card catalog. This has sparked an appropriately quiet revolt. Librarians and their allies quickly denounced the decision when it came down, and now the American Library Association is escalating the protest by enlisting the public to stand with libraries by signing an online petition with a populist call against such restrictive practices. (The association announced the petition Wednesday at Digital Book World, an industry conference in Nashville, Tennessee.) What’s unclear is whether the association can get the public to understand a byzantine-seeming dispute over electronic files and the right to download them…”
Washington Post – “Cruise Instagram or Pinterest, and you’ll find numerous examples of warm, cushy reading areas decked out with twinkling string lights and endless built-in shelves. How do you evoke the feeling of having your own library in a small space with a small budget? We surveyed some experts for advice…” [this article made me laugh – I have bookshelves in almost every room – and thousands of real print books – that I have read!]
Atlas Obscura – Reuniting stumped readers with the books from the edges of their memories. “The carpet was khaki, the lights yellow, the walls a dishwater beige. The basement computer lab in Midtown Manhattan didn’t have much ambience. But 20 librarians from the New York Public Library were seated in the room—and they were there to crack mysteries. Their tools were a whiteboard, a marker, a series of screens, and a metal bell of the sort you’d find on a hotel-lobby desk. Whenever it dinged, it meant a case had been closed. Before we each had a little, flickering encyclopedia in our hands, we had librarians, and they’re still experts at finding the answers to tricky questions. Through the Ask NYPL portal, a decades-old phone and text service, the staff has triaged everything from queries about the Pope’s sex life to what it means if you dream about being chased by elephants. The library staff are ace researchers with a massive trove at their fingertips. A sense of mystery in their work comes when people approach them with vague questions and patchy details—particularly when they’re looking for books, but they don’t remember the authors or titles. A few years ago, staffers in the New York Public Library’s reader services division drafted a blog post about how to track down a book when its title eludes you. This post spurred a follow-up, in which reader services librarian Gwen Glazer recommended library resources and a number of other strategies (among them are Goodreads groups, a sprawling Reddit thread called whatsthatbook, an indie bookseller in Ohio who is happy to poke around for a $4 fee). Thanks to Google—“how to find a book”—many stumped people seem to land on that post, and they have often written about their enduring puzzles in the comments section. The messages now number in the thousands. Glazer says she often arrives at work to see another 10 title requests…” [h/t Lea Wade]
Atlas Obscura – 257 small steps for our human cousins, one giant leap for paleoanthropology. “Of the variety of ancient hominins who have roamed this planet, Neanderthals are among the most recently departed. Long stigmatized as lumbering, backwards versions of us—think “caveman” and all that implies—scholarship is increasingly overwriting this view. Neanderthals, it turns out, were culturally and socially complex beings (who interbred with humans for thousands of years). We know what we know about Neanderthals from a sparse fossil record and a healthier lithic one, but a new discovery, published today in Proceedings of the National Academy of Sciences, has advanced our knowledge by baby steps—many, many baby steps. Ossified in the escarpments of Le Rozel, in Normandy, France, are hundreds of footprints of our close relatives, including those of children. “The footprints were preserved by being quickly covered by sand brought by the wind,” says Jérémy Duveau, a paleoanthropologist at the Museum of Mankind in Paris and coauthor of the study. Formed 80,000 years ago, the prints were made by about a dozen Neanderthals, who occupied the site seasonally. At Le Rozel, archaeologists also found evidence of stone tool making, and a butchery area where they processed carcasses they hunted or scavenged. There were even handprints, too, Duveau says, “maybe [caused by] individuals leaning on the ground when they are sitting, or when they wish to stand up.”..