Glibertarians.com 2018 Archive

Category: Constitution

  • A libertarian analysis of Chevron deference

    A libertarian analysis of Chevron deference

    Why the hell would I bother to give deference to a damn evil oil (pronounced ohl) company? Well, Chevron deference has very little to do with oil, and nothing to do with genuflecting to a multi-national molester of Gaia. Chevron deference refers to the measure of how much a court should defer to an administrative agency’s interpretation of an ambiguous statute when a case hinges on the ambiguity.

    As a trivial made-up example, let’s say that an employment law states that the “most senior” employee in a department is entitled to wear a crown in the office, enforceable by the NLRB. (yes, it’s a stupid example… so sue me) The NLRB creates regulations about what a crown is, what wearing a crown means, how to break seniority ties, etc. Of interest to us is the fact that the phrase “most senior” is left ambiguous by the statute. “Most senior” may be interpreted to mean oldest by age. “Most senior” may also be interpreted to mean the longest tenure at the company. Assuming that there is no clear statutory guidance to resolve that ambiguity, it’s up to the NLRB to determine what “most senior” means as they enforce the statute. The NLRB creates a regulation stating that “most senior” is by age. Years later, Sandy, an employee of Top Hats R Us files a complaint with the NLRB about the company’s blatant violation of the crown law. The NLRB sues Top Hats R Us for violating the crown law. Top Hats R Us rebuts by asserting that they followed the crown law. They provided the crown to Latitia, who has the longest tenure at Top Hats R Us. The NLRB counters back that “most senior” means oldest, not longest tenured.

    The court is placed in an interesting bind. How do they interpret the statute? Perhaps the court is inclined to agree with Top Hats R Us that “most senior” means longest tenured. Perhaps there’s some weight to be given to the NLRB’s interpretation of the statute given their administrative role. In Chevron v. A bunch of Hippies, the SCOTUS answered this question once and for all (lol).

    If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

    Well, this may seem like a pretty easy decision for a libertarian. Either an agency gets to define the terms, or the people get a say in the interpretation of the terms. This takes some of the power out of the hands of the government. It’s very easy to over simplify the libertarian view on Chevron deference as “bias toward the agency means bias toward big government.”

    However, this line of thinking is wrong! Chevron deference is a separation of powers issue that requires a deeper analysis than a superficial “government bad”drive-by. If you view Chevron deference in the lens of administrative agency v. private citizen, you’re already heading down the wrong path. Chevron deference is about establishing the border between the executive branch and the judicial branch. It’s not overreaching administrative agency v. abused private citizen. It’s overreaching administrative agency v. overreaching activist court. This is Marbury v. Madison type stuff. Ilya Somin writes:

    As a general rule, deference to agencies tends to promote a pro-regulatory agenda, whether of the right or of the left. But there are notable cases where it might instead promote deregulation. It is worth remembering that Chevron itself deferred to a Reagan-era agency EPA policy that liberals thought did not regulate industry stringently enough. The plaintiff challenging the agency was the Natural Resources Defense Council, a prominent liberal environmentalist group. Ironically, Neil Gorsuch’s mother, Anne Gorsuch Burford, was the EPA administrator at the time the lawsuit began. The fact that his mother’s agency ultimately won the case evidently has not prevented Gorsuch from wanting to overrule it.

    The separation of powers argument against Chevron deference is a strong one. Critics claim that the judicial branch unconstitutionally abdicates its judicial power when it defers to an administrative agency. Somin explains:

    Article III of the Constitution gives the judiciary the power to decide “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” Nowhere does the Constitution indicate that federal judges are allowed to delegate that power to the president or to the bureaucrats that work for him in the executive branch.

    The legislature makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws. To be mixing and swapping these powers between branches is to undercut the fragile balance crafted by the founders. Cutting down to the core issue at hand, when the enforcement power of the executive branch requires some minimum amount of interpretation of the statutes that it enforces, how much of that interpretation is covered under the umbrella of the enforcement power, and how much is subject to reinterpretation by the judicial branch using their interpretation power? Justice Gorsuch has a very simple answer… all of it is subject to reinterpretation. This seems on first blush to be a fairly obvious statement. Where a branch is, by necessity, stepping on the toes of another branch, it would seem obvious that the other branch would have power to override the decisions of the overreaching branch. Chevron runs against that simple principle, thus Chevron is bad law.

    Well, you may ask, how is this even a controversy? It seems fairly cut and dried. It’s not.

    The Court [in Chevron] gave three related reasons for deferring to the EPA: congressional delegation of authority, agency expertise, and political accountability.
    Who haven’t yet been implicated in this mess? The legislature. Yeah, without the legislature passing crappy laws that are ambiguous and rely on administrative bureaus to do the real legislating through regulation, this wouldn’t be an issue. Yes, the legislative branch is the source of the mess that is Chevron deference. The reason for this will become clear later, but let’s just say for now that the legislature isn’t stupid, they know exactly what they’re doing when they pass these vague, crappy laws.
    Going back to the stated reasons for deference to agency interpretations, a problem with this scheme is that one of the factors is based on a fiction. Political accountability? Not necessarily so says Randolph May:

    Chevron itself involved a decision of the Environmental Protection Agency, an executive branch agency. With regard to executive branch agencies like EPA, or, say, the Departments of Commerce, Labor, or Transportation, it may be natural, as Justice Stevens did, to refer to the “incumbent administration” and to invoke the chief executive’s direct accountability to the people.

    But not so with the so-called independent agencies like the FCC, SEC, FTC, or the NLRB, with their potent brew of combined quasi-executive, quasi-legislative, and quasi-judicial powers. Unlike the single heads of executive branch agencies who may be terminated at will by the president, the independent agencies’ members serve fixed, staggered terms. And the prevailing view is that they may be fired by the president only for good cause.

    There are strict rules for holding agencies politically accountable, especially the independent agencies. The President, on a whim, cannot clean house at the EPA or the SEC. These bureaucrats may be even more fully insulated from the political winds than the judicial branch… a branch set up to specifically be insulated from politics.

    Quickly addressing agency expertise, I’ll say that as a person who has to deal with an expert agency on a daily basis (the USPTO), agency expertise is vastly overrated. If you trust the cop pulling you over to know his 4th and 5th Amendment jurisprudence, then maybe this “agency expertise” thing works for you, but for those of us in the real world, it’s laughable that the bureaucrats at these various alphabet soup agencies could be called “experts.”

    Another motivation discussed by the case was Congressional delegation. Can Congress even delegate their lawmaking authority? Is that Constitutional? Facially, no:

    The non-delegation doctrine, grounded in the separation of powers, arises from the very first word of the Constitution, after the Preamble: “All legislative Powers herein granted shall be vested in a Congress of the United States ….” (emphasis added). Taken at face value, that clear a statement would seem to preclude much of the “lawmaking” that goes on every day in the 300 and more executive branch agencies to which Congress over the years has delegated vast regulatory authority.

    However, FDR, riding on the coattails of Woody “The Real Lizzy Warren” Wilson and Teddy “Bloodthirsty Sociopath” Roosevelt (go read about them), did a number on the Constitution with his judicial intimidation tactics, including the non-delegation doctrine. Hell, how are these independent, legislatively controlled executive administrative agencies allowed to exist? Well, when you scratch the paint away, you’ll find a “living Constitution” argument:

    [This idiotic law review article] contends that the Founding Fathers made the Constitution flexible enough to meet administrative exigencies and did not intend to leave the enforcement of all laws to the President
    Remember, “flexible enough” means that we get to ignore the plain text meaning of the Constitution, and “did not intend” means that “The executive power shall be vested in a President of the United States of America.” in Article II of the Constitution does not actually mean all executive power, but only the executive power convenient to the totalitarian left. More seriously, there’s a good article here on the subject.
    Getting back to the subject at hand, current law says that the legislature can delegate their lawmaking responsibilities to executive and independent administrative agencies on a limited basis, and the agencies are tasked with executing intentionally ambiguous statutes laid out by Congress. This actually shifts the core question a bit. What if the administrative agencies aren’t interpreting the law nor executing the law, but actually making law? *shudder*
    I actually think that this is the closest interpretation to the truth, and I think it highlights what’s actually at the root of the problem. Chevron deference is merely a diseased branch on a rotten tree, the trunk of which is legislative abdication of responsibility. The judicial branch should excise the headless fourth branch of government wholecloth, and should slap the legislature back to the 19th century. The political accountability for laws rests on Congress. The expertise as to the meaning of the law rests on Congress. The delegation of authority by Congress is unconstitutional, and the court’s unwillingness to tell Congress to do their damn job is what is creating this issue with Chevron deference.  It’s time for the Supreme Court to bring back the non-delegation doctrine!
    The good news is that it looks like the SCOTUS is using the new Chevron unfriendly majority to move against Chevron deference. The better news is that it looks like SCOTUS is going to chip away at the hostility toward the non-delegation doctrine, too!
    Stay tuned during this next court session. Perhaps we’ll see a bit of power stripped away from the unconstitutional administrative branch. It’d be the first step away from handing unfettered power to these technocratic abominations in nearly 80 years.

  • Libertarianism basics: a classic thought experiment

    No man is an island, entire of itself…any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee. – Decebalus, king of Dacia

    But Pie! Thought experiments are dumb! you will say… Well possibly, but they can be vaguely useful and I was always particularly fond of this one, as it was somewhat foundational for my views back in the day. So this is about The Desert Island. It is my attempt to see if this though experiment is or can be made useful as a tool to talk to non-libertarians about certain fundamentals. I will give my own interpretation, open to corrections, addenda  and whatnot.

    The thought experiment I would say is one on individual rights. Humans, after birth, sign a contract and get to live in a society of sorts. Due to all these messy social interactions, it is sometimes hard to see the border between individual and group – everyone who has been in a 6+ people orgy knows this. The point of this experiment is to simply isolate an individual from the rest and analyze.

    So the way this goes, let’s say someone lives alone on an island. In this case there are no constraints on behavior outside of nature –gravity still gravitates. If you build that, you got it, if not, you don’t. If you brought with you your book and record (mixed tape whatever), and no one takes them they are yours to keep. Otherwise do without. Of course, as you don’t have electricity you cannot listen to the music anyway, but if you could, it could be real loud, no one would complain. You can yell obscenities or vocally support Trump – freedom of speech would be quite absolute-, worship whatever interesting rock you see on the island or  the local volcano or lightning or some weird notion of an transcendent god.

    Basically live as you choose in the limits of you possibilities and possessions, as long as no other human acts against you. Life, liberty and the pursuit of coconuts one might say. In this scenario there are no obligations to others, nor from others to you. No right to things not produced, by the simple fact that there are none available, but absolute right to those you have or make.

    Such a human is free from aggression, as there is no one to initiate it. The only issue may be if his island is truly his – that is if he paid the required single land tax. So I consider these a sort of tire 1 rights, purely individual.

    Off course, if any of us were in this situation,  sometimes we would feel we’re gonna break down and cry, nowhere to go, nothing to do with our time … lonely, so lonely, living on our own. Anyway… In the end coconut oil only gets you so far. So people seek other people. And this is where the average no libertarian will tell you the experiment is useless and there is no point to it, not even making loneliness and lubricant jokes. But I disagree, I fell it helps to see the lone individual in itself. So let us say each human is an island – metaphorically speaking off course.

    Let’s say there are other islands all around – with other people. And you can meet them, shoot the shit, trade some, talk, you can even show them your coconuts. Off course, they may be selfish bastards and not want to do all hose things with you. And here is where the philosophy part kicks in. The essence of libertarianism is that those tire 1 rights – the ones the humans have in themselves, as individuals, absent all others – should be preserved in the presence of other people, society if you will. Furthermore these should form the basis of social organization, as unobstructed as possible. The other philosophies of the world beg to differ.

    Humans under a certain level of wealth do not live each alone on his island, there simply are not enough islands to go around. So I am going to switch metaphors in the middle of the text … hmmm… people are boats, that works. And boats on the water can run into each other. Some at this point would tell libertarians absolute freedom liberty cannot exist. As if libertarians do not know this… It is implied liberty for all that you cannot be at liberty to infringe upon others’, as my liberty to swing my oar ends at the tip of your boat. So societies create various rules in order to solve or prevent conflict – either codified into legislation or as unwritten rules of society – manners and morality. The purpose of these rules is in much debate by various ideologies. From a libertarian standpoint, the goal is to preserve liberty as much as possible and to minimize infringement of individual rights – defined as rights of individual absent the group.

    Life liberty and the pursuit of coconuts

    On various levels the conflict is true of a society as a whole, as it is of people living together in the same home or friends going together to a restaurant. You can no longer do anything you want, you have to take into account others and compromise, even if you may end up in a place serving Hawaiian deep dish. Although, to be sure, all people have some limits to the amount of freedom they are willing to give up. So most ideologies at least vaguely pretend to care about some level of individual rights and liberty, because it does not sound good not to. Off course they mostly lack any clear definition of these rights, which end up being whatever someone likes at a given time.

    Which aspects of life are the business of the individual alone, which of the group or family, which of society, and which of government institutions if such institutions exist is the main question of politics. Or, in other words, where the line is drawn – over this line government and/or others do not cross, do not interfere. And this is where such a thought experiment can be useful, although not sufficient.

    So this thought experiment got us nowhere in the end, beyond presenting the idea that a human can be seen as a thing in itself, outside society. Isn’t this just preaching to the choir round these parts? Well, maybe, but still. A blog needs posts, does it not? So I dunno, comment or don’t, as is your right

     

     

  • CODE IS FREE SPEECH

    CODE IS FREE SPEECH

    ZARDOZ SPEAKS TO YOU, HIS CHOSEN ONES. WE HERE AT GLIBERTARIANS ARE FULLY DEVOTED DEFENDERS OF THE RIGHT TO SAY, THINK, WRITE AND PUBLISH ANYTHING WITHOUT GOVERNMENT INTERFERENCE OR PRIOR RESTRAINT. RECENTLY, WE CELEBRATED WHAT WE THOUGHT WAS A BIG WIN FOR THE RIGHT OF FREE SPEECH IN AMERICA. THE FEDERAL GOVERNMENT VOLUNTARILY SETTLED A LAWSUIT WITH DEFENSE DISTRIBUTED AND CODY WILSON, REGARDING THE PUBLICATION OF SPECIFICATIONS FOR MANUFACTURING HANDGUNS ON VARIOUS TYPES OF COMPUTER CONTROLLED MACHINERY AVAILABLE TO THE GENERAL PUBLIC. TODAY, AUGUST 1ST, WAS SUPPOSED TO BE THE DAY THAT ALL OF THESE FILES WERE ONCE AGAIN AVAILABLE TO THE PUBLIC. HOWEVER, VARIOUS STATES AND LOCALITIES HAVE HAD FEDERAL JUDGES ENJOIN THIS BY EMERGENCY ORDER. WE DO NOT SUPPORT ANY SUCH RESTRICTIONS. IT IS THE CASE TODAY THAT PEOPLE PROHIBITED FROM POSSESSING A GUN BREAK THE LAW IN ORDER TO POSSESS A GUN. THEY CAN GO TO YOUTUBE RIGHT NOW AND WATCH “HOW TO” VIDEOS OF PEOPLE BUILDING GUNS WITH A DRILL PRESS, A HAMMER, AND AN ANVIL.

    IN SUPPORT OF DEFENSE DISTRIBUTED’S NOBLE WORK OF EMPOWERING CITIZENS TO BUILD AND POSSESS THE TOOLS TO FIGHT AGAINST UNJUST FORCE, OF ANY TYPE, WE PROUDLY FEATURE THIS LINK TO THE FILES. ZARDOZ BRINGS YOU THE GIFT OF THE GUN! CLICK HERE TO GET THEM FROM AN  END TO END ENCRYPTED SITE.

    THIS ACT IS PART OF THE REASON GLIBERTARIANS WAS CREATED, AND IS STILL HERE.

    ZARDOZ HAS SPOKEN.

     

  • A Lone Voice in the Wilderness

    Supreme Court Photo: SAUL LOEB/AFP/Getty Images
    In 1981, Elena Kagan wrote her undergrad thesis on why socialism failed in the United States. It is a mixture of the usual litany of excuses, but primarily she contends that: A) the right people weren’t in charge; and B) the people were deplorables who voted against their own interests. They were unworthy of the glories of socialism.

    Aside from sitting on the Supreme Court, there is not anything notable about her daftness. Almost to a man this is the line that leftists use to excuse the catastrophic results that socialism yields each time it is instituted, without exception. If it were not so serious, it would be entertaining to listen to the gibberish that is indistinguishable from insanity; after all these are people who cannot accept objective reality and wish to impose their views on the population as a whole.

    What I find more alarming is that the inability to completely grasp reality is not limited to the left. Last night, I made the mistake of watching news on television. There was a lot of ranting about the evils of the Obama administration, the calling out of bad actors and explicit accusations of corruption since the 2016 presidential election in our entrenched and unaccountable bureaucracy. One phrase kept coming up: abuse of power.

    It is frustrating to me that so many people only ever get it almost right. Of course there has been gross abuse of power. Of course there have been and are bad actors. The chances of this not happening are exactly zero. What the bobblehead pundits are missing is the fundamental premise that the Founders based our constitution on.

    I hear people cite the separation of powers fairly often but it is not really that. It is not about separating of powers, it is about dividing power into smaller and smaller portions until no one person or group has the ability to do serious damage to our society. The Founders knew from experience that bad actors and abuse of power are inevitable so they crafted a system that dispersed power as much as possible.

    Eventually some discussion of Senator Rand Paul’s hesitancy for endorsing Supreme Court nominee Brett Kavanagh came up. There seems to be much alarm about this yet no real examination of why Senator Paul has taken this position. While Kavanagh is a brilliant jurist and a fine human being, Paul’s hesitancy is based on Kavanagh’s less than stellar stance on Fourth Amendment rights. I think in the end Paul will vote to confirm, but now is his chance to call attention to the massive surveillance state we have built that is trampling our inalienable rights with impunity. You cannot have a massive surveillance state and secret courts in a free country. It is a simple fact. The FISA law and its courts should be burned to the ground and the ashes thrown in the sea. This is what Paul is trying to draw our eye to. This ain’t rocket science.

    I would be satisfied with Kavanagh sitting on the court. He is probably the best we can hope for. He would be a huge help in undoing much of the undiluted evil that has been inflicted on us by statists, but he is not a cure for the problem. We must dismantle the apparatus of the surveillance state and the concentration of unaccountable power. As long as it remains, we will continue to have gross abuses of power.

  • Hot Take: LA Judge Defies First Amendment

    In a major “oopsie,” a sealed plea agreement in a police corruption case was posted publicly. So judges being what judges are (convinced that they have royalty status and don’t really have to follow the constitution), the judge here defied the First Amendment and ordered that the LA Times remove all references to the secret plea agreement. The LA Times complied with the order but is appealing it. I’m somewhat surprised that they didn’t issue the equivalent of “Fuck off, slaver!” and challenge the judge to do something about it. But they caved for the moment.

    Of course, the judge either doesn’t know or doesn’t care that the Internet is a forever thing. And we have no scruples about giving that slaver the finger. So here’s the story as it originally ran, complete with the several added details that the judge thinks are FYTW exceptions to the First Amendment.

     

  • How Predictive Analytics Simultaneously Improves and Ruins Your Life

    Preamble

    Flashback nearly a decade and you’ll find me toiling away in a filthy (custodians would typically not go into the labs for fear of getting blamed for something going wrong) basement lab working on an algorithm for my doctoral thesis. Identifying exotic particles (eg: magnetic monopoles, Q-balls, strangelets, etc.) in cosmic ray datasets is not exactly what you’d call the most employable pursuit. However, it was definitely more useful than SJW grievance studies, more interesting than working as a glorified proofreader for other people’s code like some of my friends and I wasn’t paying for it, so what the Hell? Everyone knows the real reason you get into physics is for the pussy anyway (hahahahaha, oh I almost made it through typing that without LOLing).

    So here I am cannibalizing standing on the shoulders of giants, using previous theoretical mathematical work on Bayesian predictive inference. Mathematics like this had been around for decades, this was just a novel application of it and formed the basis of my thesis work. I was creating an algorithm to use simulated training data and a Bayesian comparison between said training data and real data to try and identify compositional limits on particles theorized to exist but never observed (aforementioned MMs, strangelets, Q-balls etc.). While certainly fun to talk about at parties and a real panty peeler (more LOL), the thought that I’d use any of this stuff in the real world seemed remote. I had already ruled out pursuing a career in academia, so I figured I’d just go become a code monkey like my friends. Little did I know that I was inadvertently making myself eminently employable in a field that has become the new “hot thing” in tech.

    A Rose By Any Other Name is Just as Confusing

    At the time, this field was limited to academia and a few tech companies that were using it to claw their way to the top (see: Google, Facebook, Amazon, et. al.). It didn’t even have a name other than just “statistics” or “data analytics”; boring pedestrian things that only the pocket protector squad cared about. Glamorous Silicon Valley VCs would never get on board with such dull nonsense. So, being the innovators that they are, techies rebranded this field “data science” employing “artificial intelligence” and “machine learning”. I personally have issues with all these monikers; “data science” is just meaningless (in spite of that being my job title) and “artificial intelligence” and “machine learning” both suffer from the same problem. Namely, they both imply that a computer is learning in the same fashion as a human brain. My preferred moniker is “predictive analytics” since I think it captures reality better and doesn’t overstate what the algorithm is doing to some kind of mind reading and/or Skynet AI.

    So what exactly is it? Well, the short explanation is that any predictive algorithm takes parametric data inputs to build a statistical model that will predict the outcome of future iterations within some uncertainty. Essentially, you start with a set of “training data” with known outcomes, the algorithm then processes that data to build a model of how each parameter affects the outcome. You then feed the algorithm a set of test data, it applies the model to all the parameters, makes a prediction, then looks at the known outcome and scores whether it’s correct, a false positive or a false negative. If the algorithm passes some human-defined threshold, it starts working to make predictions on real-world data, all the while refining its model to get better as it processes more data. This real-time refinement is where the “learning” and “artificial intelligence” stuff comes in. To an external observer, it looks like the computer is learning and adapting; which in a way it is, but only in some narrowly defined brute-force iterative way within specific parameters. It has none of the heuristic properties of human intelligence. Perhaps someday we’ll unlock the secrets of the human mind and be able to simulate true intelligence, but I see that as a long way off.

    How It Makes Your Life Better

    As stated, this kind of analysis has been used in mathematical and academic settings for a long time, but the first exposure I ever had to it in the real world was a fun little quiz called the Gender Test at www.thespark.com (to early internet denizens, this was kind of a forerunner to places like College Humor, Ebaum’s World and finally the Glib-approved favorite, The Chive). This test asked a series of seemingly irrelevant questions such as “Which word is more gross, used or moist?” and showing pictures of two different cartoon monkeys asking “Which one will win?” After 50 or so of these kinds of questions, the quiz would then predict if you were male of female and ask if it got it right. This was long before the misgendering insanity so it was a binary choice; each time it got it right, it increased the relative weights of the preceding questions toward that gender. Each time it was wrong, it reduced the weights. The very first time someone took the test, the prediction was pure chance. But after a couple hundred thousand iterations, the relative gender weighting on the questions got pretty good and the algorithm could predict male or female almost all the time. In this case, the answers to the questions were the parameters and the gender was the predictive variable. While it may seem simple minded, this basic paradigm is what drives most of our modern computational conveniences.

    Every time you search something in Google, that’s a set of parameters used to refine its model. It gets better and better at searching. Each time you “like” something on Facebook or click a link in Twitter or look at a job posting on LinkedIn, their models refine and get a little bit better. Each time you ask Siri something, she gets a little better at understanding you (remember when you first unboxed your new iPhone and Siri asked you to say a few things at startup? There’s your training data).

    Of course the most important innovation is in the industry that is always the tip of the technological spear: porn. This goes way beyond dumbly suggesting videos tagged “big tits” after you’ve searched for big tits. EVERYTHING you do is a parametric data point. Among the videos you watch, are the tits real or fake? How big are they exactly? Is this lesbian, one on one hetero, threesome, group or something more exotic? What parts of the scene do you linger on? Go even further and perhaps there’s eye tracking technology (tape over your webcam people). What part of the tits do you look at the longest? In what sequence do you look at them? Is there a type of nipple you gaze at longer? Can the nipples themselves be broken down into parametric data for classification? The possibilities are endless. In this way, the porn site “learns” not only what your revealed preferences are, but it also can use data from other users with similar preferences to suggest things that you yourself might not even know you like. Like big tits? Might we suggest these ebony strap-on compilations for you?

    There are of course more pedestrian applications like what I’m working on professionally now. We have biopsy slides that have been pre-tagged by experienced pathologists as cancerous or non-cancerous. The algorithm does pixel-by-pixel imagery analysis to classify features that indicate cancer or not. The hope is that eventually the algorithm will get good enough that it can identify cancer on its own, even in stages too early for a human to see. It’s not nearly as cool as porn, but a guy’s gotta eat right?

    How it Ruins Your Life

    Coolness factor aside, this way of doing things can quickly cross over from nifty to creepy. Target famously has an algorithm that not only tracks what you buy, but will automatically latch onto your smartphone and track your movements in the store. The most amazing (read: creepy) application of this is its ability, through lots of training and refinement, to tell the gender of the customer, the approximate age of the customer, whether the customer is pregnant and the approximate due date of the customer before she herself even knows she’s pregnant. All this is possible from millions of data points of known pregnant women (going from buying prenatal vitamins, to stretch mark cream to eventually diapers and formula) and their purchases and movements around the store leading up to the birth. The more times this happens, the better the algorithm gets.

    One might be tempted to actually put this in the “how it improves your life” column. After all, Target can offer you discounts on things it knows you’ll need and make your life more convenient in the process. However, it doesn’t take much imagination to see how this can quickly morph into something very sinister, very quickly.

    Creepy when a private company does it, this becomes nefarious when a government does it. Even worse is when government gets in bed with private companies to start profiling you based on your data. Buying a lot of fertilizer? Maybe you’re making a bomb. Let’s look at literally every parameter that comprises your life for the past decade to see (at a 95% confidence level) if you’re a terrorist. G-d help us if we ever get to a point in which this kind of shit is accepted in a court of law. We would literally have a Minority Report Pre-Crime situation on our hands.

    Every single thing you do, seemingly significant or not, is a parametric data point that can be fed into an ML algorithm to extract features, classify them and make predictions about you. Not just what toothpaste you use, but how long and how often you brush. Do you start from the molars or the incisors? Do you gargle your mouthwash? What are your favorite sexual positions? How loud are your orgasms? Do you own a tabby or a tuxedo cat? Do you typically move your bowels in the morning or the evening? Do you configure your toilet paper over or under? People like to think that this kind of data collection is limited to conscious decisions like the products they buy or the places they go, but that is barely scratching the surface. Emotions, unconscious behaviors, pointless or useless decisions of daily life; these things are the treasure trove that gives insight into your essence. The eyes are not the window to the soul, Big Data is. The only way to escape it is to forsake all modern technology, retreat to the woods and live as if it’s the 18th century (behavior which itself, by the way, offers a ton of data about you).

    Now of course all of this can be used for good or ill. In all seriousness, a change in bowel habits could indicate a health problem. But let’s not be naive about the true nature of how these technologies are/will be used. To those who crave power and long to rule us, these developments are a gift from Heaven (or, more likely, Hell). These analytical techniques, so seemingly innocuous when Thomas Bayes first pioneered them 300 (!) years ago have opened a can of worms that could enslave the human race in ways Big Brother could only dream of. If Bayes could see what’s happening now he might echo Oppenheimer; “now I am become Death, the destroyer of worlds.”

    Unfortunately, I don’t hold out a lot of hope for the future. Constitutional protections have proven toothless, people stupidly *volunteer* massive amounts of data and the data that they don’t volunteer gets vacuumed up by an ever more intrusive State. The campus #metoo squad is just the advanced scouting group checking out how fortified the “innocent until proven guilty” doctrine is; a trial balloon for the destruction of due process.

    Working in the field I do only makes me more pessimistic because I see how powerful this is first hand. My advice: well, I don’t really have any; aside from the aforementioned retreat into the woods. Other than that, all you can do is continue to support causes that shore up data privacy protections and defend against 4th Amendment violations. That’s at least a finger in the dike (not finger in the dyke you perverts).

    But, hey, at least PornHub’s suggested viewing is spot on right?

  • Become A Constitutional Scholar With This Simple Trick (Or: How Not To Pick Up Chicks At Belt-Way Cocktail Parties)

    “This has nothing to do with bananas! Believe me, I’ve checked!”

     

    Are you confused by the supreme law of the land? Did your high school’s civic classes leave you with a clammy feeling on your buttocks and nothing else? Does Judge Andrew Napolitano have a patent on articles consistent entirely of questions?

    Don’t worry, your friendly neighborhood immigrant is here to help you figure this stuff out. This isn’t legal advice, I’m not a lawyer, and this is simply my plain English reading of the founding documents of this great country.

    With that out of the way, let’s get to the subject at hand. How does the United States Constitution actually work, and in particular, the Bill of Rights? Most people seem to have a very vague understanding of this; they think that it mainly lists their rights and a few other things, like how elections are done, how the justice system works, and that it prescribes the structure of the three branches of the Federal Government. But beyond that they don’t really know or care about the specifics – that’s for experts to know and deal with, amirite?

    Sure, you know much more than most people about this subject, but a few things might still surprise you, and maybe you need a refresher, or a way to convince those you love and care about to truly understand it as well?

    So in a nutshell, the U.S. Constitution is written by the people of the United States of America, and it originally was intended to create the structure of the Federal Government and grant it certain powers. Those powers are therefore granted by the people to the government. This is an important distinction that most people in my experience have backwards – they think the Constitution is the government’s way to grant rights to the people, and that they can be arbitrarily re-interpreted and restricted based on need.

    Seen in this new (to some) light, it becomes obvious that this document is mostly a white-list of things the Federal Government and states (more on this later) can do. That is, anything not specifically mentioned as a power is simply out of bounds. I won’t go into the specific powers listed, just mention that they are quite limited, and that most lawmaking was thought best left to the states and other local governments.

    The part of the Constitution that most people know and love is the Bill of Rights. They will enthusiastically point out that they have a certain right because it’s mentioned here. They also attempt to limit rights they don’t agree with by interpreting the text in certain ways, or by showing that a right isn’t explicitly mentioned. But what if I claimed that these initial amendments actually really do nothing at all? That they are just a list of examples of rights that you have regardless of their mention or not. Almost anyone I have talked to about this has balked at the idea, but I think it’s the only way to truly read and understand the Bill of Rights. I’ll explain why.

    The Bill of Rights consist of amendments to the original Constitution. It was effectively an afterthought, based on a reasonable fear that people would have a hard time understanding that rights existed by omission, rather than inclusion. In hindsight this was spot on. Today most people consider this afterthought to the Constitution one of its most important features, mainly because we are so much better at dealing with, and understanding specifics rather than those things not mentioned.

    The Founding Fathers were inspired by Enlightenment Philosophy. They were Enlightenment philosophers themselves, and arguably contributed as much as they borrowed. One of the ideas that define this philosophical movement is the notion that we are all born with certain rights, and that these rights come from simply existing, not because someone else gave them to us. Today people are in the habit of claiming anything they want as a “right”, but to Enlightenment philosophers, rights were a definable spectrum of what we today call negative rights.

    It’s therefore obvious to me that every time the word “right” is used by a Founding Father, that it really means“negative right”, such as in this famous passage from the Declaration of Independence:

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

    This is essentially the prologue to American history, everything that followed was based on this idea, and the sense that it had somehow been violated by Britain. It eloquently describes the two concerns discussed above; that rights are inherent and not limited to specific ones.

    This is echoed in the Bill of Rights, or rather the pre-amble to it, as well as the Ninth and Tenth Amendments. These pieces of text bookends the Bill of Rights and adds necessary context to the rights that are listed.

    From the pre-amble:

    “THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”

    The “declaratory and restrictive clauses” are the First through Eight Amendments.

    The Bill of Rights conclude with the very simple Ninth Amendment:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    And further expands on it in the Tenth Amendment:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    The cautious concern expressed in these three clauses is almost palpable, and in historical hindsight, completely justified. Clearly there was some worry that rights by omission was just not enough, but also that it was necessary to point out that the Bill of Rights is not the origin of your rights, or the only rights you have.

    So what does this mean in practice? Let’s use the Second Amendment as an example, as it has popularly been both misconstrued as limiting your right to keep and bear arms, or as the originator of this right. It states:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    Eggheads and regular Americans alike have been pointlessly dithering over the meaning of this sentence for a long time. Each trying to use it as justification for their desired outcome. The various claims are that it only applies to the militia, or that it justifies regulation, or that it applies to everyone because that’s who the “militia” is, or what the meaning of “arms” is in this context. The real truth is that none of this matters. It’s an affirmation of a negative right. Even if the Framers only intended this to cover the militia, it still doesn’t overrule your negative right to keep and bear arms. That exists separate from this sentence, which was tacked onto the Constitution by a bunch of worried gun nuts in the late seventeen hundreds. You can repeal this amendment, and it still would not change a single thing.

    The only way to curb this right is for people to willingly give it up by rewriting the Constitution with an amendment to grant government the power to regulate arms.

    “A-ha!” you say, “but what about laws at the state level?”

    This would have been a somewhat valid argument until July 9th, 1868, where the Fourteenth Amendment to the United States Constitution was adopted. At least if you have a hard time reading the Ninth Amendment, which to me seems nearly indecipherable to most people, including jurists. In any case the Fourteenth Amendment hammers it home, and the most important passage in this amendment for our context is this:

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    This has been understood to limit the states, and not just the Federal Government to the legislative powers laid out in the Constitution. It was really written because the states were being willfully stupid when it came to enforcing those pesky negative rights for slaves.

    At least one amendment has been added based on the clear understanding that legislative powers have to be granted via the Constitution – not only to Congress but also to the states, after the Fourteenth Amendment. And I think this fact lends some credibility to the idea that the Constitution has been understood in the way outlined above for most of its history, until just very recently.

    Which amendment is that? The Eighteenth. Pay particular attention to Section 2:

    “Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

    Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

    Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

    This was of course one of the silliest mistakes in American history, but at least it was implemented in a legal way, in accordance with the Constitution.

    So if banning alcohol at both the Federal and state level required an amendment to the Constitution, why is the same not true for regulating guns, drugs, and rock’n’roll? Do you even logic, bro?

    And no, Judge Napolitano does not have a patent on articles consisting entirely of questions. Or does he?

  • “Write to your congressmen,” they said. “It’ll be fun,” they said.

     

    “Dear direct, lineal descendant of the impenitent thief on the Cross, that happens to represent me in Congress…”

     

    After the Parkland school shooting, I decided to write my elected officials. This is out of character for me because A) I hate elected officials and B) I’m not that great of a writer. My arguments or points are not conveyed clearly. What I wrote was meant to suggest there is perhaps a better, or at least different way of educating children that doesn’t leave them as easy targets. I don’t think I conveyed that point, but I also wanted to avoid rambling. Anyway, I received 2 responses, one from a Republican and one from a Democrat. I also come across a little bit like Judge Napolitano, whom I enjoyed reading most of the time, but some of his articles got a little redundant at times. Here is what I wrote:

    “The recent school shooting has brought out the calls for action. The arguments are the same on both sides, “ban assault rifles” on one and “protect my rights” on the other. Which one is correct? Do we ban assault rifles and guns altogether? Do we repeal the second amendment? Who will enforce the law? Will there be a massive policing and forced confiscation? One only needs to look at history to see that will not go well and would likely be the end of America.

    What if there was something we could do that did not infringe on the rights of law abiding citizens, but at the same time protected our children from gun violence in schools? Would we do it? Would we at least entertain the idea?

    A school is made up of children from a wide range of backgrounds. Some children are smarter than others, some struggle with certain subjects, some are gay, some are athletic, some are of a different religion, some would rather be doing other things. This diversity is great in any society, but as humans we tend to mock something we view as different. We do this as children and adults. I’m not a psychologist so I don’t know why we do it, I just know it happens. The aforementioned types of children just want to be accepted like everyone else, and when they are not they are made to feel inferior in some way. This may be the cause of emotional issues that lead to these tragedies.

    So what if there was a school for your smart child, or gay child, or disinterested child (this was me) where they can be around others like them or get specific help in an area of interest? What about a school for children that have an interest in and accel at science, art, dance, sports, music? Would that not lead to a more confident child to be surrounded by others like him or her sharing similar interests and activities in an environment of encouragement?

    Now here comes the most outrageous part – what if these schools were not run by the government but were private schools that the parents could pick and choose to send their kids to? Private schools are too expensive one may offer as a counter argument. I would then counter “What if they weren’t?” How much money does it take to educate a child, $1000 a month? What if it was $500? That’s getting in the car payment range. $250 A month? Less? How can this be done? The good news is it is already being done. It is called the Free Market. As consumers we pick and choose where we spend our money, so why not apply that same concept to education? Parents are already asking for vouchers and a choice in schools, this would open up that possibility to every parent. Educators would then meet this demand with a supply of education, and competition would bring prices down to a balance of cost versus product, or value. We see this in everything else we buy, so why not apply that same concept to education and treat it as a service provided by businesses? Should we at least entertain the idea that there may be a better way?”

     

    First response:

    “Thank you for sharing your thoughts on the devastating attack on students and faculty at Marjory Stoneman Douglas High School in Parkland, Florida. These are terrible events for our nation and we must find appropriate ways to respond.

    On the afternoon of February 14, 2018, former student Nikolas Cruz opened fire on students and faculty at Marjory Stoneman Douglas High School, killing 17 people. Students should be safe at school and those with mental illness should have their needs met. Here are 3 things we should do to help prevent these kinds of attacks:

    – We need to enforce the laws we already have on the books. The means making sure U.S. Attorneys and state and local law enforcement officials have the resources they need to keep guns out of the hands of people are not supposed to be able to buy or possess a gun.

    – We need to make existing background checks more effective. This is why I’ve cosponsored Senator Cornyn and Senator Murphy’s legislation – the Fix NICS Act – which helps ensure that federal agencies and states get information about individuals who should be prohibited from buying a gun into the national background check system.

    – Finally, we must continue to help the large number of Americans suffering from mental illness.

    Last Congress, we passed two new laws to help do that. The Every Student Succeeds Act (ESSA) provides federal dollars to states and school districts to help meet the needs of students with mental health disorders. Along with ESSA Congress passed the 21st Century Cures Act which makes it easier for those suffering from mental illness to get the care they need and encourages early intervention and the use of the most up to date and evidence-based treatments.

    People with good mental health are not causing these incidents, so if we can find ways to diagnose and treat people with mental health issues, that will be an actual solution to the problem. I’m grateful you’ve shared your reactions with me and will keep them in mind as we move forward.”

     

    Second response:

    “Thank you for contacting me about gun control.

    Mass shootings happen in America far too frequently. Yet Congress has refused to do anything to reduce gun violence, even ideas Americans overwhelmingly support.

    House Republican leadership has not allowed a single vote on any gun legislation, even Republican bills, that would reduce gun violence. Democrats even organized a sit-in last Congress to try and force a vote on gun legislation. In fact, Republicans are trying to loosen gun laws. They rolled back Obama-era regulations that limited gun ownership for people with mental health issues. The House also voted to make it easier for veterans who have serious mental health conditions like PTSD and schizophrenia to own a gun and allow people from out-of-state to come into Tennessee with concealed weapons, even if these outsiders have had no training or background checks.

    Whether it’s increased security at venues, expanded background checks, allowing objective federal research on gun issues, banning bump stocks like the ones used by the Las Vegas shooter, or even banning military style weapons and high capacity magazines, we should begin seriously debating ways to minimize risk.

    I am a gun owner and have my concealed-carry permit. But almost all the gun enthusiasts I know think that Congress can take sensible steps to try to reduce gun violence.

    Thanks again for reaching out to me.”

     

    Clearly neither of them read what I wrote, and I probably ended up on a list, but I avoided profanity and insults.

  • Constitutions, guns and limited government: a constant uphill battle

    As I may have mentioned before, I hail from the far away land of Romania, a country with a history of communism which basically wrecked the country and without a particularly strong tradition of limited government, where most peasants were still serfs almost up to the 19th century. I was asked before on various positions on limited government Romanians hold, and thought I’d write a quick post on it, mainly an anecdote, really.

    Romanian built, number 1 best quality, good price
    Too scary for locals, but we export them

    Are notions of limited government increasing? Not really. You would think after a history of bad government and massive abuses of power, many would think to give the other side a shot. But sadly, this does not happen. We just need the right top men, you see. One problem is that people want things and rarely thing of the implications, the ramifications, and both the expected and unexpected consequences. They have the view of government which does everything they want and nothing they do not. And I am talking here about the upper echelon in terms of intelligence, education, and professional success. As such, I have little hope of clear improvements in the future.

    As an anecdote, I will talk of someone I know who is, let’s say, someone I had high hopes of when I thought of a move towards freedom in Romania. He grew up in communism, finished Polytechnic university in Bucharest, got his PhD in France, and was a very successful semiconductor engineer. Of course, for most of his life, he was the kind that didn’t pay much interest to things outside his field, and only recently did he read some books on economics and political philosophy. But this makes him more knowledgeable than most in my company who did not read anything on these topics, although they have really strong opinions on politics and economics. He is what, for Europe, would be vaguely classical liberal / libertarian on economic issues, although quite vaguely. When he reads a libertarian book, he often agrees with what it says, but he simply cannot get past his many years of thinking that government must do way too many things in society. So this generally causes a few days of thinking a bit differently, followed by a comeback to the old ways.  So he would not be a reliable voter for strictly limited government, and if he is not, I have little hope for most other Romanians.

    As a Romanian, he hates guns. He thinks they are dangerous and wants them banned. The government’s job is to disarm the population, he states. In this he is joined by his brother, also an engineer by trade in semiconductors, who immigrated to the States and now lives in a leafy and quite lefty suburb of Boston. His brother also hates guns and republicans in general, and thinks America is too right wing.

    But, to be fair, the guns are scary amendment is desperately needed in the US. though
    We need ourselves a better version of one of these things in Romania

    The man I speak of trusts his brother’s judgment, and I had several debates with him on US politics which ended because his brother is his ultimate argument and tells me he is more informed than me because of what the brother tells him. I, frankly, find this rather annoying because his knowledge of US culture, economy and its politics is probably 10% of mine. And his brother’s does not seem much better, as he forwarded to me some emails that could have been taken directly out of the New York Times. I remember speaking about certificate of need legislation in US and he outright said that is not true, such things do not exist; it is not possible in a capitalist country like America for the government to prevent a hospital from expanding, let’s say. He did not really care to read about it because he had his sources. This is his answer.  It is obviously impossible to argue with someone whose main argument is “my brother told me this so it must be true.” I have asked countless times for data for his claims, but he literally said, “I do not have data but it is true. I have my sources,” – his main source being his brother. This is quite dispiriting. Someone who is more politically knowledgeable than most people I know, one of the few to have actually read some economics. If he can’t argue properly and form a more informed opinion, who can? Most Romanians still tell me that the US is the land of no government and unrestrained free market capitalism, and they believe that. Especially when it comes to the completely private and completely unregulated healthcare systems you Americans seem to have.

    Recently I hear the complaint – coming from the brother originally, of course – that the problem with US in that the constitution is too difficult to change as to disarm the population. A smart, accomplished engineer with some knowledge of economics does not give a jot of thought to the ramifications of what he claims if it will lead to his preferred outcome. He would be so willing to see all guns banned for civilians, that he would tear the constitution apart for this. Of course, he does not claim that. He says only the second amendment, not others. But if you give the power to easily change the second, how would you prevent that power being used to change the others? How can you create a system where just one article of the constitution is easily changed? The ridiculous view of government doing everything I like and nothing I don’t.

    What is the point of the constitution is it is easily changed? Majorities are fickle. One may have the 51% now, the others the next time. Laws change with majorities. The whole point of the constitution is that it is not as easily changed and it needs broad consensus. And if you look at US history, many bad things came exactly when the constitution was not respected. How can we get a more libertarian view in Romania when people lose their reason when it comes to topics they feel strongly about? How can we argue when people say, ‘I don’t have any data but my brother told me”? I do not know, but I do not have my hopes up, lest I be too often disappointed.

  • Another #Calexit update

    I’m not sure what the “family friendly” version of OMFG STFU, YesCalifornia is so, I’m just gonna drop this here and move on with my day.

    Earlier coverage here (back when Glibertarians scooped most news outlets before anyone cared that Glibertarians existed), and here.