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    • Big Win on Gerrymandering!

      The awful NC legislature, largely the product of breathtakingly effective partisan gerrymandering, may finally be about to get more competitive.  A lower Court in NC just unanimously ruled that the GOP maps violated the state constitution (which keeps it out of federal courts), and the state GOP apparently does not plan to appeal (virtually all observers think that they would have lost in the NC Supreme Court, after the GOP outsmarted itself and lost a Supreme Court seat to an anti-gerrymandering progressive).  The Court gave the legislature two weeks to produce new maps, and set some very stringent conditions on how they could do it.

      Vox has the story here.

      This is very, very good news!

    • Algorithmic Housing Discrimination

      It appears that HUD, as part of the general initiative to stop enforcing the housing laws it’s supposed to enforce, is poised to allow landlords to hide behind computer algorithms as they discriminate against minority tenants. As Andrew Selbst – who co-authored one of the foundational pieces on exactly this sort of problem – describes the proposed rule change in Slate:

      “The proposal, while billed as a mere update to bring regulations in line with the Supreme Court’s 2015 decision, creates entirely new rules for landlords using algorithms. There are functionally two separate defenses being created. First, the proposal allows landlords to use an algorithm as long as its inputs are not “substitutes or close proxies” for protected characteristics and as long as it’s predictive of what it purports to predict—or a “neutral third party” certifies that fact. So if a hypothetical landlord decides to predict number of noise complaints as a proxy for difficult tenants, using music streaming data they somehow obtained, they might find a correlation between preferred musical genre and how difficult a tenant is. Of course, musical preference is not a substitute or close proxy for race, but an algorithm that equates a preference for hip-hop with noise complaints is probably picking up on race as a factor in frequency of noise complaints. Unlike under existing law, under this rule, a landlord would be off the hook even where there may be less discriminatory alternatives. Second, the landlord is also immunized from any discrimination claim if he uses a tool developed and maintained by a recognized third party. These safe harbors supposedly ensure that a model is legitimate and the landlord has not himself “caused” the discriminatory outcome”

      A brief discrimination backgrounder: legally, discrimination can be on the basis of disparate intent, or disparate impact.  Disparate intent is what it sounds like: I discriminate against black tenants if I decide not to rent to any, because they are black.  As you can imagine, this sort of discrimination is hard to prove, because not so many people are dumb enough to advertise it.  The more standard strategy is to mask discrimination behind proxies that name race (or some other protected category) without actually naming it.  Given residential segregation, for example, zip code is a pretty decent proxy for race, and so a landlord might systematically disfavor applicants whose previous address is in a specific zip code.  That’s also not ok, because although the rule doesn’t (directly) “intend” to discriminate, the impact of this policy is disparate between racial groups, and so is the same as if it did.

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    • Lessons from Agre on Privacy as Capture (Part 2): Can Foucault Get Past Panopticism?

      By Gordon Hull

      A couple of weeks ago, I noted my newly discovered appreciation for Philip Agre’s “Surveillance and Capture” and outlined why I think his development of capture (and retreat from surveillance) is particularly applicable to the privacy concerns surrounding big data.  Here, I’d like to suggest that Agre’s distinction is also helpful in understanding a frequently remarked limitation in Foucault.  The limitation is this: a Foucauldian model of disciplinary power treats Bentham’s panopticon as its ideal image.  That image, and the model it subtends, has come under sustained critique over the last twenty years in a scholarship inspired by Deleuze.  Let me start with a review before getting to what capture can tell us about Foucault and surveillance.

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    • One Small Step for Trans Rights.  And a Moment for Dan Bishop Awareness.

      North Carolina took a small step today towards undoing its disgraceful HB2 legislation passed by the state’s Republican legislature back in 2016 as an effort to stop Charlotte’s attempt to allow trans people to use the bathroom matching their gender identity.  Per a consent decree today, the state has agreed that no provision in HB2’s successor, HB142, can be read to prohibit trans people from using the bathroom matching their gender identity.

      Two cheers for small victories!  It would of course mean a lot more if HB142 weren’t such a crappy law.  Although it was advertised by the legislature as a repeal to HB2, thank you, all done  discriminating, it did nothing of the sort.  The replacement – and these things are still part of state law – locks into place an explicit refusal to offer employment and other civil rights protections to LGBTQ individuals in state law, and it forbids other governmental entities in the state (cities, schools, universities) from going further on other employment laws. So this is very much a partial victory.

      In the meantime, one of the original architects of HB2, the egregious state senator Dan Bishop, is running for the state’s currently vacant House of Representatives seat.  Why is this seat vacant?  Well, the state elections board refused to certify the results of last election because of serious issues with ballot tampering emanating from Republican Mark Harris’ campaign (see here, and here to get started).  So we get a do-over.  Harris decided not to run for health reasons and now we have Bishop, who won the Republican primary between himself and a guy who honestly liked to dress up as Boss Hogg.  And who is Dan Bishop?

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    • Philip Agre on Privacy and Big Data (part 1)

      By Gordon Hull

      A current paper by Mireille Hildebrandt sent me to a paper from 1994 that I’m embarrassed to say I hadn’t read before: Philip Agre’s “Surveillance and Capture.”  Agre’s paper has been cited over 300 times, but it’s missing in a lot of the privacy literature I know.  After reading it, I’ve decided that’s a mistake, and it’s time to make amends.  I’ll begin by saying why I think Hildebrandt is exactly right to bring the paper up in a context of big data.

      Agre starts with quotidian examples of tracking, things like employee ID cards that let systems know where they are, to UPS package tracking.  The core argument of Agre’s paper is that there’s two conceptual models of privacy that need to be distinguished in making sense of phenomena like these: one, the one that we all talk about all the time, is surveillance.  The surveillance model grew out of experience with state bureaucracies, particularly in the Soviet bloc, and features visual metaphors (typically Orwell and Bentham); assumes that the watching is nondisruptive and secret; involves territorial metaphors like invasion of space, which tend to then lead to a dichotomy between coercion and consent; involves centralized orchestration; and is identified with the state.  This model, though ubiquitous, isn’t the only or even the best one.  Agre spends most of his time developing the alternative model, though he notes that “when applied as the sole framework of computing and privacy, the surveillance model can lead to oversimplified analysis” and suggests that it lends itself to caricature and easy dismissals such that “genuinely worrisome developments can be seen as ‘not so bad’ simply for lacking the overt horrors of Orwell’s dystopia” (116).   It’s not hard to say that Agre got this one right: whether it’s the well-trodden problems with notice-and-consent or the stubborn persistence of the “I’ve got nothing to hide” deflection, the surveillance model isn’t adequate to privacy worries now.

      The second model, which Agre ties to computer science and information systems management, is built around the idea of “capture.”  The capture model also has five characteristics, which Agre develops as a contrast with surveillance.  Capture: uses linguistic metaphors for human activities; assumes that linguistic parsing of activities is active intervention; defaults to structural metaphors; is decentralized; and is driven by to reconstruct human activity “through [its] assimilation to a transcendent (‘virtual’) order of mathematical formalism” (107).  The core concept here is grammar: the basic mechanism of capture is to pick a set of atomic elements (people, UPS packages) and to then develop a grammar that describes their possible movements or changes.  This model is then imposed – sometimes coercively – on the activities it purports to describe, mechanisms are used to then track and measure the activity according to the grammar; the system can then be further calibrated.

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    • Our Corrupt Carneades, or the Citizenship Question

      The Trump administration’s effort to add a citizenship question to the 2020 census is a farce attempting to be a tragedy.  The initial claim – that the question was needed to enforce the Voting rights Act – was so obviously pretextual that Justice Roberts had to join the Court’s liberals to strike it down (even though, as Adam Serwer points out, four justices don’t seem to care that they were being lied to).  Printing of the forms commenced, and everybody thought the case was dead, until Trump tweeted new policy and forced the Justice Department attorneys to humiliate themselves in court.  The DOJ then attempted to replace all the attorneys on the case without specifying why – though most informed commentators assumed that this was because the original attorneys felt ethically uncomfortable with whatever they were about to be asked to do, such as reverse themselves on positions that they had insisted upon before.  A federal judge rejected that request today.  There is supposedly a new rationale coming for the question, maybe by way of an unconstitutional executive order, because William Barr says so.  Any minute now.  The difference is that this new rationale will be delivered for self-evidently pretextual reasons, rather than just evidently pretextual ones (Joseph Fishkin outlines what he thinks is wrong with the best argument the DOJ can likely produce here).

      Another development that has gotten less attention is perhaps particularly intriguing.  The government has insisted over and over and over that the census had to be at the printer’s by June 30.  The ACLU has now asked the court system to enforce those words, effectively closing the case.  As Marty Lederman usefully summarizes:

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    • Lockean Data Rhetoric

      One of the standard talking points about data gets summed up in the “data imperative:” that the drive to accumulate data seems insatiable, and that firms will pursue accumulating it well beyond and definable economic end.  There’s a lot of literature on why this might be; I’ve tended to approach the question with the resources of Marx in hand: data is amenable to commodification, and tends to function as a form of primitive accumulation.  One might also argue that data functions as a form of capital.  Undoubtedly there is a case of overdetermination here, and trying to disentangle the reasons why the universe of data (broadly conceived) so readily interacts with capital is worth further reflection.

      In that regard, I’ve been reading David Beer’s excellent new Data Gaze, which looks to develop an understanding of “how data are seen,” with attention to “the implicit limits and parameters that are being set into data before or whilst they are utilized” (6).  In other words, we need to think about what data is, which is to say (following the same sort of path as the Leonelli paper I discussed, but from a different angle), we need to know what data does.  And what data is/does is heavily influenced by how it’s presented in the marketing and other apparatuses of the data industry.  “Data analytics are almost always part of the operation of capitalism and should be seen through the lens of political economy” (14).  Following Foucault’s lead about the “clinical gaze” and how it developed institutionally, Beer proposes of the “data gaze” that:

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    • The Biopolitics of Intellectual Property

      I'm very pleased to be able to say that my new book, The Biopolitics of Intellectual Property, now has a publisher's webpage on Cambridge UP!

      It's currently in production, and should be coming out this winter.  Here's the blurb from the site:

      "As a central part of the regulation of contemporary economies, intellectual property (IP) is central to all aspects of our lives. It matters for the works we create, the brands we identify and the medicines we consume. But if IP is power, what kind of power is it, and what does it do? Building on the work of Michel Foucault, Gordon Hull examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and as promotion of neoliberal privatization. He argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions. This work should be read by anyone interested in understanding why the struggle to conceptualize IP matters."

    • Gun Profit Litany

      A week ago, two people were killed in a mass shooting at UNC Charlotte that was only one of several shootings in Charlotte that week.

      Yesterday, one student was killed and several injured in a mass shooting at a high school in the Denver suburbs.

      As of now (5/8), there have been 118 mass shootings in 2019.  There have been eleven since the UNC Charlotte shooting.

      In 2018, the gun manufacturing industry made a profit of $1.5 billion.  Gun and ammunition stores made a profit of nearly $500 million.

      Guns killed nearly 40,000 Americans last year.  Wayne LaPierre, the head of the NRA, makes more than $1 million per year, sometimes as much as $5 million.  The CEO’s of gun companies all make millions of dollars a year.  For example, Christopher J. Killoy, president, CEO & director, Sturm, Ruger & Company, received $2.5 million in total compensation in 2016.  P. James Debney, CEO & president, American Outdoor Brands Corporation (formerly Smith & Wesson Holding Corporation) received $5.3 million in 2017.

      Laurence D. Fink, CEO & chairman, Blackrock Inc., the largest institutional shareholder of American Outdoor Brands Corporation, said this in his letter to shareholders in 2018:

      “Society is demanding that companies, both public and private, serve a social purpose. To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society. Companies must benefit all of their stakeholders, including shareholders, employees, customers, and the communities in which they operate.”

      Fink’s total compensation in 2016 was $25.5 million.

      The reference in the title of this post is to Allen Ginsberg.

    • Run, Hide, Fight

      On April 30, a man shot and killed two students in a classroom at my university, UNC Charlotte.  He injured four others.

      On May 1, the day after the mass shooting at UNC Charlotte, a man was shot and killed in an apartment complex near the university.  On April 30, the day of the mass shooting at UNC Charlotte, a man was shot and killed outside a Charlotte restaurant.  On the weekend before the mass shooting at UNC Charlotte, three people in Charlotte were shot and killed in separate shootings.   Also on the weekend before the mass shooting at UNC Charlotte, a man walked into a synagogue near San Diego full of people praying.  He shot four people and killed one person before his gun malfunctioned.  He had over 50 rounds of ammunition.  During the week of April 27-May 3, 238 Americans were shot and killed.

      As of May 3, there have been at least 109 mass shootings in the U.S. in 2019.  May 3 is the 123rd day of 2019.

      In 2018, more than 14,000 Americans were shot and killed by someone else.

      Over 22,000 people a year in the U.S. commit suicide with a gun.

      As of May 3, the NRA (I will not link to the NRA, for the same reason that I have not named the shooter at UNC Charlotte) had not tweeted anything about the mass shooting at the university.  On April 29, the day of the mass shooting, the NRA did tweet the speech of Candace Owens of Turning Point USA, complaining (according to the headline) about “leftist and Democrat politicians” who say that “you are responsible when something horrific happens.”

      The gun industry has spent between $19 and $60 million since 2005 funding the NRA.  Many of the nation’s largest gun manufacturers are “corporate partners of the NRA.”  The gun industry spent $3.3 million in lobbying in 2017.  The NRA spends much more than that.

      The gun industry sells between 1 million and 1.5 million guns per month, or 12 to 18 million guns per year.  30% of Americans own a gun, a number which is declining slowly, but 29% of those own five or more.  The gun industry is marketing increasingly lethal products to repeat customers. 

      Gun deaths in 2017 were the highest in at least fifty years by total number, and the highest since the mid-1990s by rate.

      The Protection of Lawful Commerce in Arms Act of 2005 shielded gun manufacturers from liability in most cases when people used their increasingly lethal products to shoot and kill other people.  This disastrous example of regulatory capture must immediately be repealed, in order to force gun manufacturers to design their products to minimize the risk to the thousands of innocent people shot and killed by them every year.  Since they apparently won’t do this on their own, they should be forced to make it a priority.

      Last week, Insys Therapeutics executives were found guilty of criminal conspiracy to profit by getting doctors to prescribe opioid drugs to patients who did not need them, and who would be far more likely to be harmed than helped.  There should be analogous criminal trials for gun industry executives.  It would be a start.