Tag Archives: regulation

Facebook and Trust

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…seem, increasingly, a contradiction in terms.

See this image, from The Sun via Fox News, below.

The girl pictured has a laryngeal cleft, a hole between her larynx and her esophagus, which means she can’t eat normally; food or drink can pass into her airway.  The tube through her nose passes down her esophagus, bypassing that hole; it’s the only way she can take sustenance.

The girl’s mother tried to post the image on Facebook, not to garner sympathy, but to raise general awareness of the hassles and hazards of laryngeal clefts, and to raise money for her daughter’s necessary surgery.

Facebook barred the image, for the reasons listed in the text to the right of the image.  The text is hard to read; the money rationalization is this: the image

contains shocking, sensational or excessively violent content.  This type of material creates an unexpected experience for users, and goes against our core value of fostering a positive global community.

Because a smiling little girl, albeit with a tube in her nose, is shocking, sensational, or excessively violent.  Because Facebook has such contempt for its users that it considers them such snowflakes that unexpected experiences—surprises—would excessively disturb them.  Because Facebook’s view of positivity overtly excludes attempts to bring those apparent snowflakes’ attention to an uncommon medical condition so that that attention might foster increased medical research into ways of alleviating or correcting such a condition.

The mother successfully appealed the bar, but questions remain: with this sort of ban being Facebook’s kneejerk, initial action, how can Facebook be taken seriously?  How can Facebook’s management be trusted?

Privacy in a Technological World

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In a ruling rejecting an application for a search warrant, Magistrate Judge Kandis Westmore, operating in the Northern District of California, had this remark in particular.

Citizens do not contemplate waiving their civil rights when using new technology, and the Supreme Court has concluded that, to find otherwise, would leave individuals “at the mercy of advancing technology.”

Encouragingly, this remark also cited (via the quote in the remark above) a Supreme Court ruling, Carpenter v United States [citations omitted]:

We have kept this attention to Founding-era under-standings in mind when applying the Fourth Amendment to innovations in surveillance tools.  As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home.

The Founders wrote our Constitution to be technology agnostic, and in fact there is no mention of technology qua technology in it.

Westmore’s ruling can be read here. Carpenter can be read here (it’s long).

A Magistrate Judge Gets One Right

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Of course, the Magistrate Judge Kandis Westmore’s ruling can be overturned on appeal by a District judge in the Northern District of California in which she operates, or on appeal on the ruling’s way up the appellate chain.  Nevertheless, her ruling stands, for now.

In its essence Westmore ruled that, even with an otherwise valid search warrant, a person cannot be compelled to unlock a digital device like a cell phone with that person’s biometrics—a fingerprint, a face, or an iris, for example.

There was a technicality that itself would have invalidated the warrant: it was overbroad.  It requested authority to unlock and search any device found inside the otherwise legally searched premises, including those owned or controlled by anyone happening to be present at the time of the search, and Westmore found that request to be neither limited to a particular person nor a particular device as the 4th Amendment requires.  That’s a 4th Amendment failure of the warrant.

The larger principle, though, flows from a 5th Amendment bar against forced self-incrimination violation. Westmore ruled that biometrics, when used in the context of a search—vis., to unlock a personal digital device—is no different from a personal passcode, and personal passcodes have already been ruled inaccessible to the government, even with a search warrant.  That would be forced testimony against oneself.  The owner of the device must voluntarily give up the passcode, and he cannot be “compelled” to volunteer [citations omitted].

The Court finds that utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. …the Government concedes that a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. In this context, biometric features serve the same purpose of a passcode, which is to secure the owner’s content, pragmatically rendering them functionally equivalent.
…
It follows…that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.

And especially this, as I’ve argued elsewhere.

That the Government may never be able to access the complete contents of a digital device, does not affect the analysis.

Government convenience must never be allowed to override the individual liberty of an American.

In the end,

The Government may not compel or otherwise utilize fingers, thumbs, facial recognition, optical/iris, or any other biometric feature to unlock electronic devices.

It matters when, and why, biometrics are used.  The outcome here, should it survive appeal, is a stout blow in favor of individual privacy and a firm limit on Government’s authority to invade an American’s person[], houses, papers, and effects.

The magistrate judge’s ruling can be read here.

California Has Banned Insurance for Car Drivers

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As everyone (apparently except the California Insurance Commission members) knows, insurance is the transfer of risk and fiscal responsibility for its realization from one party to another for an agreed fee that’s commensurate with the risk and expected cost being transferred.  The California Insurance Commission has eliminated that for California drivers, mandating that driving coverage be provided independently of the risk transferred.

California has banned auto insurance companies from considering gender when setting insurance rates for private passenger cars.
The Gender Non-Discrimination in Automobile Insurance Rating Regulation went into effect on Jan 1, 2019.

Never mind that men and women drive differently and represent different risks while driving.  This move makes differing risk irrelevant, and so it cancels the risk aspect of coverage for events occurring while driving.

Commissioner Dave Jones claims that the move will

ensure that auto insurance rates are based on factors within a driver’s control, rather than personal characteristics over which drivers have no control.

He’s being disingenuous or ignorant.  Again: what was being insured was actual driving performance, not gender.  That that performance is measurably different between women and men has been actuarially understood for decades.

One outcome of the Commission’s move will be to drive up coverage rates for women—who had enjoyed lower rates because they are lower risks, safer drivers.

A Judge’s Error

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The Trump administration had expanded rules allowing employers to opt out of being required to provide birth control coverage to their employees at no cost to the employees, so long as the opting out was convincingly based on religious or moral grounds.  Federal District Judge Haywood Gilliam of the Northern District of California has issued an injunction blocking enforcement of the expansion while an underlying lawsuit against the expansion is underway.

Ordinarily, blocking an enforcement while the underlying case proceeds is no big deal, but this one is just plain wrong.  Gilliam based his ruling in significant part on the premise that

the [expansion] would result in a “substantial number” of women losing birth control coverage, which would be a “massive policy shift.”

For one thing, given how cheap birth control drugs and devices are and how easily obtained prescriptions for them are, it’s not at all clear that a “substantial number” of women would be unable to obtain birth control drugs or devices.

But the larger, vastly more important matter is this.  As Gilliam himself noted, the expansion would be a policy shift (massive or not, that’s irrelevant here).  Policy matters are political matters, and so they clearly are outside the purview of the courts.  Policy—political—matters are the exclusive province of the political arms of our government and of We the People.  A judge who intrudes, from his bench, into political matters clearly violates his oath to uphold the law.  Making policy has no place in his oath.