Letter to Oregon Health Authority on a Digital Vaccination Passport

This is the letter I sent to the Oregon Health Authority oppose the planned creation of a statewide digital vaccine passport:

What's a Burkini? And Why It Shouldn't Be Banned

The country of France has come up with a new way to restrict liberty and needlessly alienate Muslims within its borders.

Multiple seaside towns have adopted burkini bans, and now more are considering them. This week, French Prime Minister Valls decided to weigh in on the matter, reportedly speaking in favor of the bans and suggesting that burkinis are "not compatible with the values of France and the Republic".

All of which may have you wondering, what is a burkini? Glad you asked. In fact, it's basically what it sounds like--a rough combination of a burqa and a bikini. Or to be more precise, it's a full-body swimsuit worn by some Muslim women who apparently believe in dressing in conservatively, but still enjoy a day at the beach. While the styling is distinctive, in practice, it doesn't appear to be dramatically different than a full wetsuit. Here's a picture:

The bans are alleged to serve many practical ends, most notably hygiene. But the actual purpose of the ban is evident from the laws themselves. One municipal decree cited by Yahoo! News bans access to public beaches to (emphasis added):

...any person who is not properly dressed, respectful of moral behaviour and secularism, hygiene and bathing safety.

Iin reality, this has nothing to hygiene or "bathing safety", whatever that may mean. Rather, it's an experiment in coerced secularism.*

Ideally, in a governing context, secularism should mean that the state is separate from religion and makes no laws concerning religion. Oftentimes, however, it ceases to be a principle of good governance and becomes a policy objective. This is what we're seeing here. In other words, it's no longer enough for the government to make no laws favoring particular religions; now, it needs to make laws favoring no religion. Or at least in the present case, opposing a particular type of religion.

Verbally, the distinction seems subtle, but it makes a world of difference.

Of course, the reason any of this is in the news is because France has suffered a string of terrorist attacks, and most, if not all, of the recent attacks have been claimed by the Islamic State. The backlash against burkinis amounts to lazy collectivism, with logic that runs something like this:

• Premise 1: Some people who self-identified as believing in Islam committed attacks
• Premise 2: Some followers of Islam believe women should wear very modest clothing in public
• Therefore: If women wear very modest Islamic clothing in public, they're probably with the terrorists.

This doesn't make much sense, but it's why Muslims are being targeted now. 

Also, I think it's worth noting that, even if you accept the hysterical guilt-by-association analysis posited above, there's no plausible way in which a burkini ban would be helpful. If you really think that the burkini-wearers are just one step away from committing terrorist attacks, how would making a new law directly targeting them going to help things? Moreover, if radicalization stems in part from a sense of alienation from society as some suggest, wouldn't making a law clearly aimed at Muslims make that problem worse? Clearly, the answer is yes on both counts.

This isn't the fundamental reason to oppose the burkini ban, however. It should be opposed because it is a wholly arbitrary restriction on liberty, and people should be free to wear whatever they choose in a public place. If you don't like the burkini, look away and don't buy one.

But what makes this policy more (and worse) than just another stupid and unjust policy in a world that has its share, is the fact that it is obviously targeting members of a particular religious group. And the group being targeted is already the most marginalized and vilified group in Western societies.

In short, the burkini ban is collective punishment and intolerance masquerading as enlightened secularism. And even if you evaluate the policy on its own terms, it remains equal parts foolish and appalling.

*For what it's worth, I'm atheist. But I'm of the strong opinion that coercive secularism is just as bad as coercive religion. 

Due Process Might Let Some Bad People Go Free, Use It Anyway

One aspect of the Orlando Shooting that has been widely reported is the fact that the FBI interviewed shooter multiple times and found insufficient evidence to prove criminality. Indeed, we noted this in our own coverage, and it is a very important fact.

However, it's a fact that's easy to be misused. On the one hand, it shows the apparent futility of mass surveillance--this guy was flagged for additional investigation and nothing got through. Given that successful mass surveillance would likely look a lot like this, with a future terror suspect being well before the actual attack, it should make the argument for additional mass surveillance or policing powers thoroughly absurd. Here, existing tools worked in the sense of identifying a potential threat. But because predicting a future terrorist or terror attack is very difficult, it did not actually prevent the atrocity in this case.

The problem is that this argument can also be spun in the other way. Here, the focus is not on the apparent futility of counterterror efforts, but on the question of why exactly the FBI let this man go? There are several interesting possible explanations for this, in addition to the obvious one that he wasn't a credible threat and had done nothing criminal. There's also the suggestion that the FBI's resources may have been distracted by some de facto terrorist entrapment jobs elsewhere in Florida, which have very little to do with keeping American safe. It has also been suggested that the FBI's policy of pursuing every lead prevents them from focusing resources on the real threats that may unfold over a longer period. And of course, there's the sentiment expressed by the reliably awful Senator Lindsey Graham, "The FBI closed this file because the Obama administration treats radical Islamic threats as common crimes." Because, of course, everyone knows that responsible people Call It Radical Islam (TM) and would use the military to bomb people in countries on the other side of the world to solve it once and for all. Just like we solved terrorism after 9/11 by bombing Afghanistan and ... wait, that didn't happen.

Morbid joking aside, the Senator's camp has emerged as a dominant one. Obviously, the argument goes, people like Mateen shouldn't be released into society because look what happened. Thus, we should get rid of whatever restrictions prevented the FBI from holding him.

It's not hard to follow the train of thoughts that gets you to the conclusion above. The issue is that those restrictions amount to basic due process, and they're kind of the foundation of the criminal justice system, at least in theory. The assumption here is that expanding police powers in this way, by effectively allowing the government to hold people on mere suspicion of wrongdoing rather than any actual proof, the government would be able to prevent these attacks. This is unlikely to be true, but in a time of intense anxiety and fear after a very public attack, many people are desperate for anything to help.

All of which makes Glenn Greenwald's recent article in The Washington Post a very timely and welcome defense of due process. The whole piece is exceptional and I'd encourage you to read it in full if you're remotely on the fence on this subject. This excerpt offers a look into his conclusion:

...based on what we know, the FBI acted properly [in this case]. Agents have the power they need, and they were right to close the case on Mateen. Just because someone successfully carried out a violent mass attack does not prove that police powers were inadequate or that existing powers were misapplied. No minimally free society can prevent all violence. In the United States, we do not hold suspects for crimes they have not committed.

In some ways, it's an old argument--there's a trade-off between liberty and security, and in the wake of terror attack, people only look at one side of the coin. But as Greenwald himself notes, this argument needs to be rehashed in the wake of every terror attack. Because there will also be politicians willing to promise the impossible by sacrificing rights that ought to be off the table.

And with that, here's the link to Greenwald's article:

The FBI was right not to arrest Omar Mateen before the shooting

US Circuit Court Deals a Major Blow to Civil Liberties

The 4th Circuit Court of Appeals ruled this week that the government can ask a company for a user's location data without getting a warrant in a 12-3 decision. More specifically, they decided that asking for such information doesn't qualify as a search under the Fourth Amendment, and therefore doesn't require any protection.

If this sounds crazy, it should. If I keep a detailed journal of my whereabouts and travels each day and write it down in a notebook, that would be information that would require a warrant. If I use an app that records and stores the same information, it would not require a warrant, under this ruling.

Why it Matters
It's not difficult to see how this might help law enforcement--readily knowing a suspect's whereabouts would be quite useful indeed. And if they can get it without even demonstrating probable cause to a (likely compliant) judge, that makes it even easier by eliminating some of the bureaucracy. But this is one area where bureaucracy should be celebrated. The Fourth Amendment's prohibition against unreasonable searches and the due process guarantees in the Constitution exist for precisely this purpose: to limit law enforcement powers. This is essential not only for protecting basic privacy but also protecting political freedom.

The standard line of argument in favor of expanded law enforcement powers, whether we're talking about the local police or the National Security Agency, is that you shouldn't care if you don't have anything to hide. However, the problem with this is that there are so many laws in existence, so many in fact, that no one knows the exact number, that we're all bound to violate some of them from time-to-time. And if a law enforcement agency has access to intimate data about your life--like location data or even just metadata showing who you call on your cell phone--it would be easy to eventually find some transgression, given enough time and desire.

The above should not come off as conspiratorial. There are actually high profile cases in the past where law enforcement has attempted to intimidate political activists by investigating them to find unrelated issues. Perhaps the most famous case was that of Martin Luther King, Jr., whom the FBI unconstitutionally spied on. The FBI found nothing criminal to charge him, but did uncover evidence of adultery and tried to blackmail King with it.

Third Party Doctrine
Back to the story at hand, the court's ruling relied on a precedent known as the "Third Party Doctrine". Basically, this is the idea that if you willingly share information with a private third-party (say Google, your cell phone provider, an app maker, etc.), you no longer have any expectation of privacy with respect to that information and the government can access it without a warrant. This doesn't really make sense. If I willfully share my information with Google and the contract terms say Google won't share it with third-parties, I should logically expect that information to remain unknown to everyone except Google. However, the courts tend to land on the side of increasing government power, and so things like the Third Party Doctrine come into being.

There's a chance this case, or another that deals with this issue, will ultimately rise to the Supreme Court for a final ruling. But since the Supreme Court itself tends to have a pro-government power bias, it's not clear this would improve things. The more likely path to a positive outcome would involve state level legislation that could at least prohibit state agencies this power. It'd be great if it happened on the federal level also, but expanding civil liberties is never high on Congress's agenda.

For more on this story, you can check out the full write-up at The Intercept.

Brussels Attacks and The Continuing Failure of the "War on Terror"

As most people have probably heard, Brussels, Belgium was hit by a string of terrorist attacks yesterday. The most recent reports put the death toll at a minimum of 36 people with over 200 wounded through a combination of bombings and shootings at multiple locations.

But as the old saying goes, the more things change, the more they stay the same. The specifics of the most recent attacks are different, but the broad contours are very similar to the Paris Attacks that occurred last fall. ISIS has claimed responsibility for the latest atrocity. The targeted city is highly involved in the Western intervention in Syria; Belgium is the seat of both NATO and the EU. The Belgian authorities responded by launching widespread raids--which are likely to impact innocent people. Prior to the attacks, Belgian authorities had already significantly expanded policing powers in the name of preventing a terrorist attacks. And as with Paris, the attacks in Belgium come after a spate of human tragedies in more exotic countries that inspire considerably less sympathy--such as Turkey and Yemen.

Given all these similarities, it's worth recapitulating much of the analysis we offered in the wake of the Paris Attacks. The motivation and targets were similar; unfortunately, the response looks like it will be as well.

Unequal Suffering
It goes without saying that tragedies in Western countries tend to inspire more sympathy and attention than suffering in other places. Many observers pointed this disparity out in the last major terrorist attack in Europe, and now it appears many outlets have become conscious of it. Today, you could choose from a host of articles that highlighted other recent terrorist attacks in less prominent countries. Many emphasize the recent bombings in Ankara, Turkey, though this piece at US Uncut takes a broader view to discuss the places that have been most affected terrorist attacks in recent years, with Kenya and Lebanon registering near the top.

What is less common, however, is emphasizing civilian casualties caused by Western nations and their allies. Just this past week in Yemen, the Saudi-led coalition, which is backed and supplied by the US, killed upwards of 120 civilians. A UN official commendably made a few headlines about this incident being a "possible" war crime, but that was about it.

The slew of various violent attacks over the past several months, and the reactions they generated, allow us to see the de facto media prioritization of violence. It appears to look roughly like this, from most to least important:

• Western victims of terrorist violence
• Western victims of Western violence (for example, the US attack on the Doctors Without Borders facility in Kunduz)
• Non-Western victims of terrorist violence
• 
  
• 
  
• 
  
• Non-Western victims of Western (and allied) violence

There's no particular reason things ought to be this way, but it's how they tend to line up. And when you think of all the posturing and saber-rattling endemic of the current Presidential campaign--and all that will be prompted by the Brussels Attacks--it's worth wondering about the last time you heard anyone talk about Yemen.

The Purpose Is To Spark a Reaction

A few sensational terrorist attacks in France, Belgium, or the US is not an existential threat to any of these countries. One has to think about this topic for all of three seconds to know this truth. And it's almost certain that the leaders of ISIS know this as well.

That's because these attacks are not launched on the premise that, by themselves, they'll have any meaningful effect. On the contrary, the purpose to spark an overreaction by Belgian and EU authorities and everyday citizens. That is the only way these attacks succeed.

If Belgium responds by further cracking down on Muslim residents out of fear or launching an expanded bombing campaign in Syria for retribution, then it will bolster ISIS's narrative. Similarly, if Islamophobia rises in earnest from these attacks and leads to discrimination against Muslims, that too increases ISIS's chances of recruiting sympathizers. That's precisely their strategy, because it's their only hope.

The details of the attackers were not fully known at the time of this writing, but it's a relatively safe bet that they were European residents of some stripe. The refugee screening process is likely too time-consuming to get through, and non-Western, non-EU citizens would face heightened scrutiny after the attacks occurred already. Thus, radicalizing people that are already Western residents is ISIS's only chance. And it's why the response to this tragedy is what really matters. If Paris is any guide, Belgium is likely to play right in ISIS's strategy.

The False Trade-off between Liberty and Security

In the aftermath of the Paris Attacks, it was widely reported that France dramatically expanded its emergency policing powers and, presumably, swept up numerous innocent people in the process. France also continuously extended those powers until they appear to have become something like the new normal.

We must not forget, however, that France's neighbor Belgium also dramatically stepped up its own policing powers in the wake of those attacks. This was justified in part the fact that some of the suspects in the Paris Attacks were Belgian citizens. Predictably, the moves were framed as attempting to balance the competing priorities of liberty and security. And of course, in the wake of a vivid terrorist attack, most people are perfectly willing to trade liberty for security.

But this is a mistake. Not chiefly because liberty matters more than security, but because there's no way to make the trade. The idea of trading liberty for security implies that something like total security is attainable--a world where nothing like the Brussels Attacks can happen. Unfortunately, this is all but impossible. It's a problem of asymmetry. Would-be attackers need to find only one vulnerability in the public security in order to be successful--basically just any crowded place without an overwhelming police presence. Meanwhile, law enforcement agencies are tasked with trying to prevent every vulnerability imaginable. Even with vastly expanded resources and assuming the highest level of confidence in the law enforcement personnel, this is an impossible task. That the Brussels Attacks just happened even after such powers were expanded offers the latest evidence of this reality.

Ultimately, when thinking about the response to these terrorist attacks, we need to consider which is more likely to produce a better outcome: charging law enforcement with the power and duty to think of and thwart every every conceivable terrorist plan in advance, or ending the aggressive actions that enrage people enough to try to kill Western civilians and themselves in the first place. On pragmatic grounds alone, that should not be a hard question.

Let's hope political leaders find the right answer. Somehow, I'm not optimistic.

Initial Legal Victory for Apple Against FBI on Encryption

The FBI is currently engaged in a very public legal battle with Apple over encryption. As we discussed recently, the FBI wants Apple to build a program that will allow the FBI to hack into an iPhone. Apple refused the initial request and so the FBI is trying to convince a judge to force them to do so. The main case in question involves the phone of one of the deceased suspects in the San Bernardino terror attack. In other words, it's a case where the defendant in question is about the least sympathetic character imaginable to the American public--and of course, this was not a coincidence. The threat of terrorism is the best, if not the only, chance the FBI has to get Apple to create what amounts to a special backdoor to their product for the government.

The government initially claimed that this was an isolated incident and that it was not trying to establish a broader precedent. It was quickly discovered, however, that they were trying to force Apple to play a similar role in several other cases around the country--using the same legal justification as used for the San Bernardino case.

This week, one of those other cases was decided, and it was decided squarely in favor of Apple. The judge's ruling is very thoughtful and offers a thorough rebuke to the government's position on virtually every count. Here were a few of the important points made in the ruling:

• The key issue at stake was whether the government had the right compel a service from a private individual or company that was not involved in any alleged wrongdoing. The judge concluded the government had no such authority.
• The FBI was deliberately trying to get new powers through the court's because it wouldn't be able actually get a law passed by the Congress
• Related, The FBI clearly was trying to establish a precedent despite claiming otherwise.
• Complying with the request would be a massive liability for Apple's brand that it could not be adequately compensated for.
• The government argued that Apple had a duty to assist in the investigation because it was a US company that benefited from the existence of and services provided by the US government. The judge rightly mocked this argument, noting it could be used to justify virtually any burden on private citizens or companies.

It's easy to get bogged down in the weeds when it comes to a technical discussion on encryption. But in reality, the most important questions here are not technological in nature. No one seems to dispute that Apple could assist in this case. And it's actually not that relevant whether Apple's assistance would create a major security vulnerability in their other devices (though most experts, and Apple itself, claim that it certainly would).

There are really two key issues here: coercion and privacy.

On the question of coercion, the judge hit the nail on the head. If a suspected criminal had a safe in his house and the FBI got a warrant to search it, the FBI could lawfully try to break into said safe. But the FBI could not coerce a random locksmith or the safe's manufacturer into helping them break it. They could ask for assistance, and the manufacturer or locksmith could willingly provide it. But there can be no justification for forcing them to do so. To believe otherwise is to believe that conscription is okay, and it would lead to outcomes that are "impermissibly absurd" in the words of the ruling.

In this case, Apple is the same as the safe manufacturer. It cannot acquire responsibilities because one of its millions of customers happened to commit a crime it had nothing to do with.

The question of privacy is just as important. In the context of this debate, the FBI recently claimed that Apple and others were effectively creating "warrantproof" devices--the idea being that encryption is basically preventing the FBI from doing its job. (Given that most "terrorists" the FBI catches these days it also created with informants originally, I'm definitely open to the argument that the FBI is not doing its job.) But encryption isn't the problem. And the fact that the FBI (or law enforcement generally) isn't able to access every piece of information available in a case, is not a new or unique problem.

To prove this, consider what an investigation must have entailed before the advent of smart phones. In that environment, most communication would have taken place through written correspondence, phone calls, or in person. It's true that written correspondence would have been accessible to the law enforcement agencies of yore, but how many criminals would be dumb enough to commit illicit (and therefore unenforceable) plans and contracts to writing? And even if they did so for convenient communication, how likely is it they would keep a record of overtly incriminating evidence close at hand? I'm going to suggest it's not too likely, for anyone with the slightest intelligence.

So most of the communication must have taken place through phone calls and in-person conversations. The only record of those communications would be the other people involved, which law enforcement would be able interrogate and subpoena to get the necessary evidence in the case. That was their only option then. And it remains an option today.

Clearly, it could be useful from the FBI's perspective to have the power to search a smart phone, which contains much more detailed information and communication than has ever been available before. But even without this ability, they likely already have access to vastly more information about their suspects than was ever possible in the past, through detailed phone records, social media, credit card transactions, and so on.

So the idea that they cannot possibly do their job because of encryption is deeply unpersuasive. It suggests that they are either a) overtly lying for political purposes or b) deeply incompetent compared to their predecessors. Either way, it's not clear how conscripting private companies or banning encryption is likely to solve the underlying problem.

For more on this story and the details of the judge's excellent ruling, check out this article at The Intercept from Glenn Greenwald and Jenna McLaughlin:

Apple Wins Major Court Victory in a Case Similar to San Bernardino