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    • Ethical AI at Google?  Not so much.

      At least not from the appearance of things.  Google summarily fired Timnit Gebru, one of its lead AI Ethics researchers and one of the few Black women in a leadership position at the company.  Her sin?  Producing academic research critical of biases in AI:

      “The email and the firing were the culmination of about a week of wrangling over the company’s request that Gebru retract an AI ethics paper she had co-written with six others, including four Google employees, that was submitted for consideration for an industry conference next year, Gebru said in an interview Thursday. If she wouldn’t retract the paper, Google at least wanted the names of the Google employees removed.  Gebru asked Google Research vice president Megan Kacholia for an explanation and told her that without more discussion on the paper and the way it was handled she would plan to resign after a transition period. She also wanted to make sure she was clear on what would happen with future, similar research projects her team might undertake. …. The paper called out the dangers of using large language models to train algorithms that could, for example, write tweets, answer trivia and translate poetry, according to a copy of the document. The models are essentially trained by analyzing language from the internet, which doesn’t reflect large swaths of the global population not yet online, according to the paper. Gebru highlights the risk that the models will only reflect the worldview of people who have been privileged enough to be a part of the training data”

      The company responded by “accepting” her “resignation,” effective immediately (while she was on vacation!).

      Let’s be clear: this sort of research is what Gebru does, and she’s very good at it.  Before she got to Google, she co-authored a paper that proved that facial recognition software misrecognized people of color (especially women) at much higher rates than white men.  The paper is influential, and supported efforts like the one that eventually got Amazon to stop selling its facial recognition software to police. Why is Google surprised that she would pursue this topic now?  Also, the link between biased training data and crappy outcomes is a thing.  A thing that a company like Google ought to care about.

      Gebru’s unceremonious firing suggests that Google isn’t seriously committed either to actual critical thinking about AI and ethics, or to dealing with Silicon Valley’s glaring diversity problems.  I suppose file under disappointing, but not surprising.

    • On going to Churches, Schools and Bars

      UPDATE 12/6: For more on the mess in Rhode Island, see here.

      This week’s SCOTUS opinion overturning New York’s restrictions on religious gatherings is disappointing in many ways. Most obviously, it hamstrings the ability of governors to respond with science to Covid and is part of a conservative backlash to that effort; Justice Breyer makes some of the important points in dissent, followed by more of them in Justice Sotomayor’s dissent. More ominously, it signals the accelerating arrival of the era of having to pander to right wing religious people who think that their religious freedom outweighs the harm principle (see, Thanksgiving is not just about spreading disease. It’s about imposing religion!). This has been coming for a while – recall the Court’s endorsement of Hobby Lobby’s theory that it’s ok to freeload on public services and goods, but that it does not have to extend contraception rights to citizen-employees. But Amy Coney Barrett makes it faster. That is, part of the acceleration is that the Court is illegitimate, by Mitch McConnell’s own standard: the rule is either that you seat a justice before an election or not. Those can’t both be true, except in a shameless right-wing power grab. We’ll get back to Moscow Mitch in a minute.

      Also unfortunate here is Governor Cuomo, who seems to have gone out of his way to antagonize the Hassidic community in particular. The order in question also apparently did not index capacity to the size of the building or social distancing plans. The antagonism plus the restrictions lets the Court make disingenuous comparisons between the number of people in a grocery store and a church. It also gives people like Gorsuch the opportunity to say “the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids” (2). No one should view this as anything other than opportunism; after all, Gorsuch signed onto the Court’s opinion ignoring Trump’s many, many anti-Muslim tweets on the way to upholding his Muslim travel ban.  Politicians’ chatter is only part of the law when you don’t like the politician, it seems.

      These are important, but what I haven’t seen discussed is that this opinion intersects with the other news percolating up around Thanksgiving, which is the absolute incoherence of public health restrictions. Folks like Ellie Murray and Julia Marcus have been trying to sound the alarm on Twitter, and Amanda Mull wrote about it in the Atlantic. The public health message is basically: “Thanksgiving is dangerous! It is dangerous to sit around a table with people from outside your household for a long meal! If you want to do that safely, go to Cheesecake Factory!” Ummm… in other words, it is bonkers incoherent that in most of the country, indoor dining at restaurants is still possible when pretty much anything else is closed. Indoor dining is on the same epidemiological list as church for likely spread!

      In this particular context, is it any surprise that a group of people who are predisposed to prioritize religious rights noticed something amiss? This is from the per curiam:

      “In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.” (2)

      The invitation for activist judges to ignore science is too much for them to pass up. Here is Kavanaugh: “in a red zone, for example, a church or synagogue must adhere to a 10-person attendance cap, while a grocery store, pet store, or big-box store down the street does not face the same restriction.” (2). Gorsuch piles on: “Nor is the problem an isolated one. In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples” (3). And he concludes: “It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.” (7).  Kavanaugh again: “once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class” (3).

      Nevermind that you do different things in all of those facilities; as Justice Sotomayor acidly notes, “bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time” (3). She adds:

      “Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Ameri-cans each week, spreads most easily” (3).

      So the conservatives are simply wrong on the facts, even though those facts are articulated quite clearly in the decision they overturn.  And that decision will probably cost people their lives.  Freedom!

      But: bars and restaurants? Perhaps I am particularly sensitive to this point because schools are closed too (as one meme wondered – should NYC parents send their kids to the bars that are still open, now that schools are closed?), but it’s impossible not to notice that moneymaking endeavors get a different set of rules from civic ones. As Mull puts it:

      “With people out of work and small businesses set up to fail en masse, America has landed on its current contradiction: Tell people it’s safe to return to bars and restaurants and spend money inside while following some often useless restrictions, but also tell them it’s unsafe to gather in their home, where nothing is for sale. It’s a woefully inadequate stimulus plan, funded by money extracted little by little from the pockets of people who are mostly just confused about what they’re being compelled to do.”

      She cites the example of Rhode Island, whose restrictions are completely absurd:

      “Residents are prohibited from gathering with even one person outside their household, even in the open air of a public park. But inside a restaurant? Well, 25 people is fine. Hire a caterer? You’re legally cleared to have up to 75 outdoors. The governor’s executive order merely notes: “The lower attendance at such events, the lower the risk.” (The Rhode Island governor’s office did not respond to a request for comment.).”

      And how did we get here? Well, as Mull underlines, closing bars and restaurants (etc) will cause a lot of unemployment. Closing schools and churches won’t.

      In other words, it’s not that the plaintiffs in the New York case necessarily raised a compelling First Amendment argument, but they are a canary in the coal mine for a deeply problematic public health policy, one that systematically favors commercial activities over civic ones.  Governors’ hands are tied, even the ones who want to do the right thing, because the proper public health measures will cost money in the form of income guarantees to the people affected by them. And guess who has – perhaps singlehandedly – stood most in the way of that financial assistance? That’s right – Moscow Mitch and his repeated bad-faith refusals to negotiate a second stimulus package. Turns out he was so busy ramming right-wing court justices through the Senate that he made it more dangerous to do stuff that is more important, like school, worship and family Thanksgiving.

    • ToS and the Subject Position of Website Users

      By Gordon Hull

      As one knows, online privacy policies (and access to the Internet in general) are generally conditioned on a user’s acceptance of some sort of boilerplate terms of service.  Lots of people (myself included) have complained about this state of affairs as attempting to get users to consent to all sorts of practices by way of reams of unintelligible legalese.  In addition to allowing unlimited data collections, these contracts often include mandatory arbitration provisions, which means that they compel users to take disputes with the sites to arbitrators selected by the company, rather than taking them to courts.

      In other words, the idea is that using the product or service constitutes consent to a series of wildly one-sided terms that the user probably could not understand if she tried.  There is certainly no chance of negotiation or bargaining involved.  As Julie Cohen put it, “the conception of consent emerging from that default condition is unprecedented in the law of contracts or any other body of law,” and more closely resembles older status contracts than the contracts of modern liberalism (58-9).  The result is “a form of Kabuki theater that distracts both users and regulators from what is really going on” (59).

      In a recent paper, Woodrow Hartzog and Neil Richards detail this state of affairs in terms of contract theory and its imaginary of two autonomous individuals negotiating and agreeing to terms.  They argue that:

      “Consent is most valid when we are asked to choose infrequently, when the potential harms that result from the consent are easy to imagine, and when we have the correct incentives to consent consciously and seriously. The further we fall from this gold standard, the more a particular consent is pathological and thus suspect” (1465).

      The design of notice-and-consent privacy regimes is deeply pathological from this point of view.  Consent is often unwitting – consumers don’t understand either the terms or the technology behind them.  They also don’t understand the consequences and risks (which is entirely expected, given that they are futural and difficult to visualize).   If not fully coerced, consent can be induced by both the fact that it is difficult now not to use the internet (so no opt-out) and both ISPs and networks are de facto monopolies (so no market competition).  Various website design techniques make opting out difficult: pop-ups that cover up the screen, browser tabs with no ‘back’ button, and various techniques of shaming (“Yes! I want this product.  No, I choose to die a lonely death”).  And of course there is the question of children: COPPA only protects children up to age 13, even though contractual consent typically starts at age 18.  And kids can easily get around age checks anyway.

      If we step back from the normative arguments about why this situation is abusive or otherwise bad, I think there’s an interesting point to be made about subjectivity here.  Basically, the sites are trying to construct a legally cognizable subject position that users then occupy.  Both steps are important.  The contractual language presented in the ToS defines the subject position, and it seems to me that it’s important to distinguish this subject position from a few alternatives. First, this is not the traditional subject of law.  That position is foreclosed by the lack of availability of the courts.  Disputes are to be settled by a privatized procedure.  Second, it’s not the subject of administrative procedure either, such as recently upheld by SCOTUS in patent arbitration.  That procedure also allows an appeal to courts.  Third, it’s not the position of the disciplinary (?) subject that consumes mass media: there is no pretext to contract when you open a book, as Hartzog notes in an earlier paper on these contracts.  In short, I think this is a quite specific subject position constructed by the technology companies for their own advantage.

      There is also a split between the structural subject position and the phenomenological experience of users.  Users are encouraged by the sites in question to view themselves as free and emancipated by the technology, and as empowered by its affordances.  They are (for obvious reasons) not encouraged to view themselves as signing away their rights.

      The gap between user experience and described subject position leads to the second question: whether users can be said to occupy this subject position, i.e., whether these contracts are enforceable.  Can technology companies rely on the coercive power of the state to define the subjectivity of users on their terms?

      It is the position of the technology companies that use of their products constitutes acceptance of the terms of service; sometimes this requires clicking a button.  Courts have been generally unwilling to say that the contracts are objectively unenforceable as unconscionable or otherwise inconsentable (though Hartzog and Evan Selinger more recently make the case that facial recognition ought to be the sort of thing that someone cannot consent to – the harms are potentially too great and difficult to understand).  This means that the question legally has come down to whether the notice and consent procedures are adequate.  Hartzog’s earlier paper suggested that, as of roughly 2010, courts had been most likely to refuse to enforce ToS on casual users – those who just read a website but do not otherwise particularly interact with it.  Still, the law was inconsistent and this emerging de facto carve-out was far from either settled or explicit.

      Here, a recent survey of the case law by Nancy Kim is encouraging.  She reports that the case law is still very inconsistent, and users often lose.  But: there’s a movement toward demanding more of websites:

      “The standards of “notice” and “manifestation of assent” remain the same, but how those standards are applied varies depending upon the facts of the case and the jurisdiction. Berkson v. Gogo LLC and Nguyen v. Barnes & Noble, Inc. have been particularly influential in helping inform the application of the standards. Reflecting the influence of these two cases, courts have started to assess the reasonableness of notice by evaluating the website experience from the perspective of the offeree and by considering how the drafter chose to present terms. Thus, instead of asking why the offeree failed to read visible terms, more and more courts are asking why the offeror failed to draft terms in a more conspicuous manner. As the court in Rushing v. Viacom Inc. emphasized, the burden is on website owners to “put users on notice of the terms to which they wish to bind consumers.” Accordingly, courts are increasingly asking for two types of evidence from drafters. The first is in the form of screenshots or webflows that demonstrate how the terms were presented to plaintiffs. The second is in the form of the drafter’s internal records that document that the plaintiff actually accessed the website at the time the notice was allegedly presented.” (1693)

      There’s a lot to be done here, of course, but it’s nice to see some legal pushback, and to see how courts understand evidence and other traditional legal concepts in this context.  Kim cites several cases where courts determined that reasonably prudent users would not realize that they were entering into a contractual relation – for example, there was a hyperlinked “terms of service” but it was buried several pages into a website and well below the prominent “click here for the next step of your purchase.”  Nearly all of the cases Kim cites are about the enforceability of mandatory arbitration clauses, which suggests both the specificity of the subject position the websites are constructing, and the extent to which its enforceability is an artifact of their power over not just users but the state.

    • Encouraging case on Qualified Immunity

      Given the role of qualified immunity in absolving police officers of murdering unarmed black men (and doing all sorts of other nefarious things), it’s encouraging to see that the Supreme Court said in a per curiam opinion today that there is an outer limit to how far that doctrine can be extended.  Recall the problem: courts will rule that yes, some behavior or another would be unconstitutional, but the law on the subject is not “clearly established,” so the officer is shielded from liability.  The trick is that “clearly established” morphs into “an officer in an identical situation has already been found liable for doing exactly what is alleged here.”  Then of course liability becomes almost impossible to establish.

      Consider now the case of Trent Taylor:

      “Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in “massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “packed inside the water faucet.” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage”

      Like clockwork, the extra-conservative 5th Circuit concluded that the treatment was unconstitutional, but that there was no liability (I’m quoting SCOTUS) because “based on its [the 5th Circuit’s] assessment that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in  cells teeming with human waste” “for only six days,” the court concluded that the prison officials responsible for Taylor’s confinement did not have “ ‘fair warning’ that their specific acts were unconstitutional.” SCOTUS points out the obvious: “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”  They add: “Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”  So back to litigation – no summary judgment in favor of the officers.

      We still have a long way to go before qualified immunity is reined in adequately, but this shows there is at least a floor.  In the meantime, Justice Alito writes a concurrence in which he first says that the SCOTUS shouldn’t have reviewed the case, but given that it has, he concurs in the judgment.  Oh, and Justice Thomas dissented.  But you could have guessed that.  More importantly, at least seven justices realized that there could be limits to qualified immunity.  These days, it’s important to recognize even small first steps.

    • Foucault on Public Opinion

      If you’re like me, you spend too much time – way too much time – these days looking at polling data.  I ran across some interesting remarks by Foucault on opinion yesterday, which I’ll share here as a technique of distraction.  He makes them in the context of a 1976 conversation with J. P. Barou and Michelle Perrot (whose work on resistance to disciplinary power he favorably cites near the end of the conversation) that was published as the preface to an edition of Bentham’s Panopticon writings.  It appears as “L’oeil du pouvoir” (D&E #195, pp. 190-207 in my 2 volume edition) and is translated in Foucault Live (=FL).   For context, then, the conversation appears in the year after Discipline and Punish.  It covers a range of topics, including Foucault’s own path to discovering the panopticon (initially via hospital architecture, which had the dual need to see patients and keep them physically separated to avoid the spread of disease).

      Foucault suggests that Bentham’s original work enjoyed considerable uptake in revolutionary France.  Barou sets Foucault up: “isn’t it surprising to realize that the French Revolution, in the persons of people such as Lafayette, favorably received the project of the panopticon?” (D&E 195).  Foucault answers that Bentham “is the complement of Rousseau” because the “Rousseauian dream” that “animated the revolutionaries” was of a “transparent society, both visible and legible in each of its parts, which had no more obscure zones, no zones established by the privileges of royal power or by the prerogatives of such and such body, or indeed by disorder; that each, from the point that he occupies, is able to see the entirety of society; that their hearts communicate with one another, that the gazes encounter no more obstacles, that opinion rules, that of each on each [celle de chacun sur chacun]” (D&E 195/FL 230).  Opinion thus functions similar to what Foucault will later identify as a function of pastoral power (omnes et singulatim), simultaneously totalizing and individuating.  “Opinion” is an object of “police” power in Discipline and Punish (213), that power that is concerned with understanding and managing the minutiae of daily life.

      In the interview, Foucault suggests that Bentham is “both this [Rousseauian dream] and its complete opposite” because he understands the problem of visibility “while thinking of a visibility organized entirely around a dominant and surveillant gaze” (D&E 195/FL 230).  Thus you have joined the “lyricism of Rousseau and the obsession of Bentham.”  Foucault then suggests:

      “A fear haunted the second half of the 18th century: there is a dark space, a screen of obscurity which provides an obstacle to the complete visibility of things, of people, of truths. [One needs] to dissolve the fragments of night which were opposed to the light, to make it so that there is no more dark space in society; to demolish the black rooms where arbitrary political power, the caprices of the monarch, religious superstitions, conspiracies of tyrants and priests, illusions of ignorance and epidemics [all] fomented” (D&E 196/FL 231).

      In this context, the then proposes that “the rule of ‘opinion’ that we invoke so often in our age is a mode of functioning where power will be able to be exercised on the sole condition that things are known and that people are seen by a type of immediate gaze [par une sorte de regard immédiat] that is collective and anonymous” (D&E 197/FL 232).

      Hold on to the word "immediate" – it will be important in a moment.  But for now, notice the extent to which this is a pretty good description of nights spent gazing at opinion polls, both the obsession with knowing, and the fear that there are (say) hidden Trump voters like there were last time.  More light!  This sort of epistemology is driven by a fundamentally paranoid logic, as Wendy Chun emphasized a while ago: once I use some sort of optical device to see beyond what my naked eye tells me, that opens the fundamental possibility that a better device would see more.  See a molecule with the microscope?  Is that really the smallest particle?  After all, there were molecules lurking below the surface that you hadn’t seen before.  Here the paranoia is inevitable given a sampling process.  The poll represents underlying opinions, and the process of sampling invariably “sees” only part of the data, even when it’s done exactly right.  And that’s before you factor in questions about whether people who don’t have landlines are proportionally represented, or whether young people who say they will vote will actually do so, and so on.  That’s also before you get to issue polling, which I complained about before the last election, arguing that it worked to create populations and truths about them that were fully the product of the polling questions, making it (for example) impossible to express views that didn’t fit the categories the polling firm wanted to hear.

      In any case, as anybody who works in data will tell you, our access to data is fundamentally mediated by the process of its collection and description, which means that the immediacy we want – to just see clearly whether Trump has enough hidden voters somewhere in Pennsylvania to pull off the upset.  We have to content ourselves with something like the fivethirtyeight statistical runs: crunch all the polling data (including weighting it by quality of poll), simulate the election 40,000 times (there’s a vision of hell: 40,000 occurrences of this election!) and see what happens (as of this minute, Biden wins 88% of the time).  But the human brain just doesn’t like that: a pair of papers, one in Philosophy and Public Affairs,  and one in the Stanford Law Review, by David Enoch, Levi Spectre and Talia Fisher make the case that we prefer juridical reasoning in the sense that we can explain why somebody is wrong, rather than living with the statistical truth (in this case, that Trump could win and there’s nothing wrong with the model at all.  Enoch Spectre and Fisher use the example of liability for a bus accident).

      All of which leads to the following remarkable paragraph.  In response to Perrot’s suggestion that Bentham seems to overstate the power of his panopticon, Foucault says:

      “This is the illusion of almost all of the reformers of the 18th century who lent to opinion a considerable power.  Opinion is only able to be good when it is the immediate consciousness of the complete social body; they believed that people would become virtuous by the fact that they were observed [regardés].  For them, opinion was a spontaneous reactualization of the social contract.  They misunderstood the real conditions of opinion, of the media, a materiality which is caught in the mechanisms of the economy and power” (D&E 204/FL 238).

      And:

      “They also failed to understand that the media would necessarily be controlled by economic and political interests. They did not perceive the material and economic components of public opinion. They thought that public opinion would be just by its very nature, that it would spread on its own accord, and provide a kind of democratic surveillance. It was essentially journalism—a crucial innovation of the 19th century—that manifested the utopian characteristics of this entire politics of the gaze” (D&E 204/FL 238)

      Of course as Foucault notes, journalism comes with its own politics, and different forms of it come with different politics.  I’ll close with two tidbits.  First, one large study found that false news traveled further, faster and deeper on Twitter than true news, almost no matter how one measured diffusion.  It’s the materiality of the news infrastructure and the business models of the platforms through which opinion is constituted.  Second, there appears to be a horrible nexus of Instagram, Facebook, QAnon and multi-level marketing schemes that’s contributing to the diffusion of that conspiracy: it turns out that QAnon and multi-level marketing share a lot in common, and social media tends to facilitate that.  I can’t describe it better, but the article is worth a read.  The paranoid logic is baked in!

    • Trump’s Corruption of the CDC

      Among the indefinitely many evil things the Trump administration has done that will take years and years to fix (and in this case has undoubtedly cost many lives already).  Propublica has the story.

    • Hardin vs. Demsetz, or The Tragedy of the Commons versus the Economists

      By Gordon Hull

      I’m going to be teaching Harold Demsetz’s “Toward a Theory of Property Rights” (1967) tomorrow, and noticed a couple of things that I hadn’t before. I suspect they’re related, and say something about the moment the article appeared.  At least, that’s what I want to propose here.  To set it up: Demsetz is known for the theory that property rights emerge when it is efficient to internalize externalities.  His example is land rights among Native Americans; he says that property in land increases with the arrival of the fur trade.  Absent land rights, there was always a risk in overly intensive hunting occurring: without private property, it is in nobody’s interest to invest in the growth and maintenance of hunting stock.  Before the arrival of Europeans, this was fine because there was no particular incentive to hunt too intensively.  When the European fur trade arrived however, the incentives to intensive hunting grew, and property rights emerged as a management strategy.  If I have to live with the consequences of depletion of the hunting stock on my land, I’ll have the incentive to manage it correctly.  That, at least, is the story.  It’s quasi descriptive in the sense that Demsetz thinks this is an explanation for why we have property regimes, and somewhat normative in that it’s clear between the lines that he thinks private property is a good way to go.  Here’s the observations: first, the piece is heavily reliant on Ronald Coase, and second, although the narrative sounds like a tragedy of the commons narrative, it actually flies in the face of what Hardin was trying to do in that article.

      (more…)

    • If this is true, it is horrific, even for an agency that locks children in cages

      UPDATE: Dahlia Lithwick has some helpful context, including litigation from the 1970s involving forced sterilizations of poor Latina women in California.  Lithwick also recounts some of the more familiar history about the early 20c legal history of forced sterilization (endorsed by SCOTUS in Buck v. Bell and Justice Holmes' declaration that "three generations of imbeciles is enough" and supposedly ending in another case in 1942), but I didn't know about the California cases.

      Mass hysterectomies at an ICE detention center:

      Several legal advocacy groups on Monday filed a whistleblower complaint on behalf of a nurse at an Immigration and Customs Enforcement (ICE) detention center documenting “jarring medical neglect” within the facility, including a refusal to test detainees for the novel coronavirus and an exorbitant rate of hysterectomies being performed on immigrant women …. Multiple women came forward to tell Project South about what they perceived to be the inordinate rate at which women in ICDC were subjected to hysterectomies – a surgical operation in which all or part of the uterus is removed. Additionally, many of the immigrant women who underwent the procedure were reportedly “confused” when asked to explain why they had the surgery, with one detainee likening their treatment to prisoners in concentration camps.

      A little more:

      The complaint details several accounts from detainees, including one woman who was not properly anesthetized during the procedure and heard the aforementioned doctor tell the nurse he had mistakenly removed the wrong ovary, resulting in her losing all reproductive ability. Another said she was scheduled for the procedure but when she questioned why it was necessary, she was given at least three completely different answers.

      “She was originally told by the doctor that she had an ovarian cyst and was going to have a small twenty-minute procedure done drilling three small holes in her stomach to drain the cyst,” according to the complaint. “The officer who was transporting her to the hospital told her that she was receiving a hysterectomy to have her womb removed. When the hospital refused to operate on her because her COVID-19 test came back positive for antibodies, she was transferred back to ICDC where the ICDC nurse said that the procedure she was going to have done entailed dilating her vagina and scraping tissue off. “

      Another nurse then told her the procedure was to mitigate her heavy menstrual bleeding, which the woman had never experienced. When she explained that, the nurse “responded by getting angry and agitated and began yelling at her.”

      Here's a refresher on how ICE has been treating children.

    • A Deleuzian Undercurrent to “What is an Author” (part 6: Instaurateur as Event)

      By Gordon Hull

      I want here to tie together the preceding several posts (one, two, three, four, five) and finish the case for a Deleuzian undercurrent (perhaps better to say, Deleuzian and Althusserian undercurrents) to Foucault’s 1969 “What is an Author” seminar.  Recall the specific point of interest: in a somewhat odd moment near the end of the lecture, Foucault distinguishes between authors and “instaurateurs.”  The first move is to distinguish Marx and Freud from Ann Radcliff, the founder of Gothic novels.  Radcliff “opened the way for a certain number of resemblances and analogies which have their model or princiuple in her work” (114).  Marx and Freud, on the other hand, “have created a possibility for something other than their discourse, yet something belonging to what they founded” (115).  He then disginguishes Marx/Freud from science as established by Galileo; for Marx/Freud, “the initiation of a discursive practice is heterogenous to its subsequent transformations” (115) rather than a development of it.

      The most direct Deleuzian way to express this distinction is to say that instaurateurs are repetitions (as I explored earlier) or “events.”  Before doing that, though, it’s worth noting that Foucault did not have to mention Marx in this context.  Indeed, given his dismissals of Marxism and his hostility to the PCF, it is perhaps striking that he does so.  After all, while it is certainly the case that Foucault sees himself as offering a different critical approach from that in Marxism, he could achieve that simply by distinguishing his approach from Marxism.  Why the reference to Marx?  As I have suggested, the Foucault-Marx relation is one that’s under-explored in the literature; here, it’s only necessary to note that Foucault takes appreciative notice of Althusser’s circle and its efforts at rereading Marx.  In a decisive passage (that I noted last time), Althusser  writes:

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    • Epistemology of Covid: Testing Technologies

      By Gordon Hull

      Early on in the Covid-19 pandemic, I dedicated a post (and a short follow-up) to the idea that our knowledge of Covid-19 is mediated by the indicators we have to represent it, and that those indicators are themselves epistemically tricky.  In particular, there’s a difficulty in understanding “Covid incidence,” because of difficulties in translating from “positive Covid tests” to how many Covid cases are actually present in a given population.  The standard shorthand way of addressing this has been to look at percentage of positive tests, with the guideline that unless this percentage is low enough, the number of positive tests likely significantly under-represents the number of cases. The situation reminded me of the ambiguity of “malaria cases” in parts of Africa, where the dashboard tally of number of cases does not transparently communicate the number of people who actually have malaria.

      The last couple of weeks have indicated the extent to which there’s a further STS point lurking.  The standard test for Covid-19 is a PCR, which has the advantage of being highly sensitive.  It has the disadvantage of requiring complicated reagents and a lab, and so one reason (and the only even faintly forgivable reason) for the lack of testing in the U.S. is bottlenecks at the lab and supply level.  A number of folks have been arguing that there isn’t enough capacity in the system, even if it were done well, to test as many people as need testing.  Certainly in the status quo, where lots of people have to wait a week to get their test results, the test is useless for a lot of purposes, since they’ll probably no longer be contagious by the time they get the test result.  The test, in other words, doesn’t produce any actionable information.

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