CRS report: Attack on U.S. Soldiers in Niger: Context and Issues for Congress

A snip from the CRS Insight, Attack on U.S. Soldiers in Niger: Context and Issues for Congress (Oct. 5, 22017 IN10797):

On October 4, four members of U.S. Special Operations Forces were killed and two wounded in an attack in western Niger, an emerging hot spot of Islamist extremist activity. The Defense Department (DOD) stated in a briefing on October 5 that the U.S. servicemembers were “conducting an advise and assist mission” with local counterparts, several of whom were also killed. The identity of perpetrators has not been confirmed. The incident has highlighted evolving security threats in West Africa’s Sahel region, as well as the growing presence of U.S. military forces engaged in counterterrorism support in Africa. The situation in Niger poses issues for Congress pertaining to oversight of U.S. policy toward fragile states in the Sahel, U.S. security assistance and foreign aid, and U.S. counterterrorism activities abroad. If an Islamist armed group was responsible, as some reports suggest, this would be the first known incident in which such a group has killed U.S. soldiers on active duty in the Sahel.

— Joe

Facebook’s impact on American democracy

“Tech journalists covering Facebook had a duty to cover what was happening before, during, and after the election,” wrote Alexis Madrigal in What Facebook Did to American Democracy, The Atlantic, Oct. 12, 2017.

Reporters tried to see past their often liberal political orientations and the unprecedented actions of Donald Trump to see how 2016 was playing out on the internet. Every component of the chaotic digital campaign has been reported on, here at The Atlantic, and elsewhere: Facebook’s enormous distribution power for political information, rapacious partisanship reinforced by distinct media information spheres, the increasing scourge of “viral” hoaxes and other kinds of misinformation that could propagate through those networks, and the Russian information ops agency.

But no one delivered the synthesis that could have tied together all these disparate threads. It’s not that this hypothetical perfect story would have changed the outcome of the election. The real problem—for all political stripes—is understanding the set of conditions that led to Trump’s victory. The informational underpinnings of democracy have eroded, and no one has explained precisely how.

In What Facebook Did to American Democracy, Alexis Madrigal traces Facebook’s impact on American democracy. — Joe

Education Sec. Betsy DeVos rescinds 72 policy documents outlining rights for disabled students

The Education Department has rescinded 72 policy documents that outline the rights of students with disabilities, reports The Washington Post.

The Office of Special Education and Rehabilitative Services wrote in a newsletter Friday that it had “a total of 72 guidance documents that have been rescinded due to being outdated, unnecessary, or ineffective — 63 from the Office of Special Education Programs (OSEP) and 9 from the Rehabilitation Services Administration (RSA).” The documents, which fleshed out students’ rights under the Individuals with Disabilities Education Act and the Rehabilitation Act, were rescinded Oct. 2.

List of Guidance Documents Rescinded (Outdated, Unnecessary, or Ineffective) October 2, 2017 — Joe

CRS report on renegotiating the “worst trade deal”

Despite some contradictory statements — typical of the Trump Administration communications strategy — President Trump has set his sights on NAFTA. Of course, the Congressional Research Service provides a timely analysis. From NAFTA Renegotiation and Modernization (Oct. 12, 2017 R44981):

Congress will likely continue to be a major participant in shaping and potentially considering an updated NAFTA. Key issues for Congress in regard to the renegotiation or modernization include the constitutional authority of Congress over international trade, its role in revising or withdrawing from the agreement, the U.S. negotiating objectives, the impact on U.S. industries and the U.S. economy, the negotiating objectives of Canada and Mexico, and the impact on broader relations with Canada and Mexico. The outcome of these negotiations will have implications for the future direction of U.S. trade policy under President Trump.

NAFTA renegotiation may provide opportunities to address issues not covered in the original text. Technology and industrial production processes have changed significantly since it was negotiated. The widespread use of the Internet has affected economic activities and the use of e-commerce, for example. A modernization could incorporate elements of more recent U.S. FTAs, such as digital and services trade and enhanced IPR protection. Many U.S. manufacturers, services providers, and agricultural producers oppose efforts to eliminate NAFTA and ask that the Trump Administration strive to “do no harm” in the negotiations because they have much to lose if the United States pulls out of the agreement. Other groups contend that NAFTA should be rewritten to include stronger and more enforceable labor protections, provisions on currency manipulation, and stricter rules of origin.

— Joe

ProPublica spots factual errors in very limited sample of SCOTUS opinions

“ProPublica found seven errors in a modest sampling of Supreme Court opinions written from 2011 through 2015. In some cases, the errors were introduced by individual justices apparently doing their own research. In others, the errors resulted from false or deeply flawed submissions made to the court by people or organizations seeking to persuade the justices to rule one way or the other.” It’s a Fact: Supreme Court Errors Aren’t Hard to Find. Interesting.

H/T beSpacific. — Joe

Honest Ads Act has bipartisan support

A bipartisan group of lawmakers in the Senate introduced Thursday the Honest Ads Act in an attempt to create stricter rules and increase transparency for political advertisements placed online. [Text of Bill] The bill — sponsored by Senators Mark Warner, D-VA, Amy Klobuchar, D-MN, and John McCain, R-AZ — will aim to align the rules for online advertising with standards set for advertising in other forms of media including television and radio. If passed, the Honest Ads Act would require online advertising platforms — including Google and Facebook — to include disclosures that identify who purchased an ad. It would also require the ad platforms to maintain a public file of ads about candidates and political issues. — Joe

Weekend Reading: The Dangerous Case of Donald Trump

Here’s an excerpt from the blurb for Bandy Lee’s The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President (Oct. 3, 2017):

Since the start of Donald Trump’s presidential run, one question has quietly but urgently permeated the observations of concerned citizens: What is wrong with him? Constrained by the American Psychiatric Association’s “Goldwater rule,” which inhibits mental health professionals from diagnosing public figures they have not personally examined, many of those qualified to answer this question have shied away from discussing the issue at all. The public has thus been left to wonder whether he is mad, bad, or both.

In The Dangerous Case of Donald Trump, twenty-seven psychiatrists, psychologists, and other mental health experts argue that, in Mr. Trump’s case, their moral and civic “duty to warn” America supersedes professional neutrality. They then explore Trump’s symptoms and potentially relevant diagnoses to find a complex, if also dangerously mad, man.

— Joe

CRS report on the dark web

From Dark Web (Mar. 10, 2017 R44101):

The layers of the Internet go far beyond the surface content that many can easily access in their daily searches. The other content is that of the Deep Web, content that has not been indexed by traditional search engines such as Google. The furthest corners of the Deep Web, segments known as the Dark Web, contain content that has been intentionally concealed. The Dark Web may be used for legitimate purposes as well as to conceal criminal or otherwise malicious activities. It is the exploitation of the Dark Web for illegal practices that has garnered the interest of officials and policymakers.

Just as criminals can rely upon the anonymity of the Dark Web, so too can the law enforcement, military, and intelligence communities. They may, for example, use it to conduct online surveillance and sting operations and to maintain anonymous tip lines. Anonymity in the Dark Web can be used to shield officials from identification and hacking by adversaries. It can also be used to conduct a clandestine or covert computer network operation such as taking down a website or a denial of service attack, or to intercept communications. Reportedly, officials are continuously working on expanding techniques to deanonymize activity on the Dark Web and identify malicious actors online.

H/T beSpacific. — Joe

End it, mend it or leave the electoral college system alone

“The 2016 presidential contest was noteworthy for the first simultaneous occurrence in presidential election history of four rarely occurring electoral college eventualities. These included (1) the election of a President and Vice President who received fewer popular votes than their major opponents; (2) the actions of seven ‘faithless electors,’ who voted for candidates other than those to whom they were pledged; (3) the split allocation of electoral votes in Maine, which uses the district system to allocate electors; and (4) objections to electoral votes at the joint session of Congress to count the votes.” These events are examined in detail in The Electoral College: How It Works in Contemporary Presidential Elections (May 15, 2017 RL32611). Reforming the electoral college is the subject of another recent CRS report, Electoral College Reform: Contemporary Issues for Congress (Oct. 6, 2017 R43824). From the report:

Changing the electoral college system presents several options, sometimes characterized as: “end it,” “mend it,” or “leave it alone.” Proposals to end the electoral college almost always recommend direct popular election, under which the candidates winning the most popular votes nationwide would be elected. In support of direct popular election, its advocates refer to the elections of 2000 and 2016, so-called electoral college “misfires,” in which candidates were elected with an electoral college majority, but fewer popular votes than their principal opponents.

Almost all reform proposals—“mend it”—would keep electoral votes, but eliminate electors, thus ending the faithless elector phenomenon. They would then award the electoral votes directly by one of several methods: the general ticket system on a nationwide basis; the district system that awards electoral votes on a congressional district- and statewide-vote basis; or the proportional system that awards state electoral votes in proportion to the percentage of popular votes gained by each candidate. Despite more than 30 years of legislative activity from the 1940s through the late 1970s, proposed constitutional amendments did not win the approval of two-thirds of Members of both houses of Congress required by the Constitution for referral to the states.

States can reform the electorial college without congressional intervention or amending the Constitution. Under the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct…” several states have entered into the National Popular Vote Compact to change how the electorial college operates for their states. See LLB’s Is the National Popular Vote Compact a better way to elect the next president? for details. — Joe

Balkin on free speech in the algorithmic society

Here’s the abstract for Yale Law Prof Jack Balkin’s Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation, UC Davis Law Review (2018 Forthcoming):

We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech.

The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak.

The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are “information fiduciaries” toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in “algorithmic nuisance”: they may not externalize the costs of their analysis and use of Big Data onto innocent third parties.

The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens.

In the pluralist model, territorial governments continue to regulate speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is “new school” speech regulation. Digital infrastructure owners, and especially social media companies, now act as private governors of speech communities, creating and enforcing various rules and norms of the communities they govern. Finally, end users, civil society organizations, hackers, and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war — rather than the traditional dyadic model of states regulating the speech of private parties — characterizes the practical ability to speak in the algorithmic society.

The essay uses the examples of the right to be forgotten and the problem of fake news to illustrate the emerging pluralist model — and new school speech regulation — in action.

As private governance becomes central to freedom of speech, both end-users and nation states put pressure on private governance. Nation states attempt to co-opt private companies into becoming bureaucracies for the enforcement of hate speech regulation and new doctrines like the right to be forgotten. Conversely, end users increasingly demand procedural guarantees, due process, transparency, and equal protection from private online companies.

The more that end-users view businesses as governors, or as special-purpose sovereigns, the more end-users will expect — and demand — that these companies should conform to the basic obligations of governors towards those they govern. These obligations include procedural fairness in handling complaints and applying sanctions, notice, transparency, reasoned explanations, consistency, and conformity to rule of law values — the “law” in this case being the publicly stated norms and policies of the company. Digital infrastructure companies, in turn, will find that they must take on new social obligations to meet these growing threats and expectations from nation states and end-users alike.

Interesting. — Joe

CRS report on EU efforts to combat disinformation

A snip from European Union Efforts to Counter Disinformation (Dec. 1, 2016 IN10614):

The European Union (EU) is increasingly concerned about the use of propaganda by both state and non-state actors and has sought to devise new strategies to combat disinformation. On November 23, the European Parliament (EP) adopted a resolution entitled “EU Strategic Communication to Counteract Anti-EU Propaganda by Third Parties.” In passing this non-binding resolution (by a vote of 304 to 179, with 208 abstentions), the EP added its support to European Union efforts to counter what Brussels believes are propaganda and disinformation campaigns against the EU and its member states by Russia and non-state actors such as the Islamic State terrorist organization.

In adopting the resolution, Members of the European Parliament (MEPs) expressed the view that propaganda and disinformation campaigns seek to distort the truth, incite fear, provoke doubt, discredit the EU institutions, divide the EU and its North American partners, and paralyze decision-making.

Check out the text of the EU Strategic Communication to Counteract Anti-EU Propaganda by Third Parties. — Joe

Cambridge Analytica and the rise of weaponized AI propaganda in political election campaigns

Cambridge Analytica, a data mining firm known for being a leader in behavioral microtargeting for election processes (and for bragging about its contribution to the successful Trump presidential campaign), is being investigated by the House Select Committee of Intelligence. See April Glaser, Congress Is Investigating Trump Campaign’s Voter Targeting Firm as Part of the Russia Probe, Slate Oct. 11, 2017. Jared Kushner, who ran the Trump campaign’s data operations, eventually may be implicated. See Jared Kushner In His Own Words On The Trump Data Operation The FBI Is Reportedly Probing, Forbes, May 26, 2017 and Did Russians Target Democratic Voters, With Kushner’s Help? Newsweek, May 23, 2017.

Before joining the Trump campaign, Steve Bannon was on the board of Cambridge Analytica. The Company’s primary financier is hedge fund billionaire and Breitbart investor Robert Mercer. Here’s a presentation at the 2016 Concordia Summit by Alexander Nix, CEO, Cambridge Analytica. Nix discusses the power of big data in global elections and Cambridge Analytica’s revolutionary approach to audience targeting, data modeling, and psychographic profiling for election processes around the world.

The Rise of the Weaponized AI Propaganda Machine discusses how this new automated propaganda machine is driving global politics. This is where big data meets computational psychology, where automated engagement scripts prey on human emotions in a propaganda network that accelerates ideas in minutes with political bots policing public debate. Highly recommended. See also Does Trump’s ‘Weaponized AI Propaganda Machine’ Hold Water? Forbes, March 5, 2017. — Joe

End note: In a separate probe, the UK’s Information Commissioner is investigating Cambridge Analytica for its successful campaign in the UK.

PEN America’s fake news report

From the executive summary of Faking News: Fraudulent News and the Fight for Truth:

Faking News: Fraudulent News and the Fight for Truth examines the rise of fraudulent news, defined here as demonstrably false information that is being presented as a factual news report with the intention to deceive the public, and the related erosion of public faith in traditional journalism. The report identifies proposed solutions at the intersection of technology, journalism, and civil society to empower news consumers with better skills and tools to help them process the torrents of information they see online.

Faking News looks at how the spread of fraudulent news has been facilitated by Facebook, Google, and Twitter, and the ways each company is responding to the problem. The report also discusses how traditional journalism has in part contributed to the breakdown of public trust in the media—through partisan reporting, the blurring of fact and opinion, a lack of transparency around policies and procedures, and even honest mistakes, among other reasons—and what newsrooms are doing to rebuild that trust and improve the accuracy and transparency of their reporting processes. Civil-society-led initiatives, including professional fact-checkers and news literacy education programs round out PEN America’s examination of proposed solutions to the fraudulent news crisis.

H/T to beSpacific. — Joe

IEEE Spectrum special report: Blockchain World

Sections of the report, which can be found here, include how smart contracts work, how blockchains work, blockchain terminology, how Wall Street firms plan to move trillions to blockchains in 2018, Illinois vs. Dubai, two experiments bring blockchains to government, and more. — Joe

Withheld JFK assassination records faces Oct. 26th disclosure deadline

From President John F. Kennedy Assassination Records Collection: Toward Final Disclosure of Withheld Records in October 2017 (May 26, 2017 IN10709):

The JFK Records Act, 44 U.S.C. 2107 Note, set a deadline of 25 years from its enactment for each assassination record to be publicly disclosed, subject to some limitations. The deadline falls on October 26, 2017, and has raised some interest about the potential extent of disclosure of redacted portions of records that are partially available, and those that are withheld in full. No legislation related to the JFK Records Act has been introduced in the 115th Congress.

The October 26 deadline marks the end of the final, statutorily mandated assessment of assassination records, and might mark the conclusion of a long process of records preservation and assessment for the suitability of their release that began in the days and weeks following President Kennedy’s death. The JFK Records Act prohibited the destruction or alteration of assassination records, and required each government office, including Congress, various investigatory commissions and panels, executive branch entities, independent agencies, courts, and involved state or local law enforcement agencies, to identify and organize its assassination records, determine which were officially disclosed or publicly available in a complete, unredacted form, and which were covered by the Act’s standards for postponement of public disclosure. Officially disclosed records were to be made available immediately in 1992, following enactment of the JFK Records Act.

Visit the JFK Assassination Records Collection hosted by the National Archives. — Joe

How Do We Solve a Problem Like the Donald?

Here’s the abstract for Julie Novkov’s How Do We Solve a Problem Like the Donald? (Sept. 29, 2017):

Political observers have debated whether and how to remove Donald J. Trump from the office of the presidency. This article explains the difficulties associated with both the Twenty-Fifth Amendment’s incapacity route and impeachment. These difficulties illuminate a larger underlying problem with American democracy that the Trump presidency both crystallizes and reinforces: the emergence of an energized core of political participants who unite around racialized identity and reject some core principles of democracy.

— Joe

Text of first Articles of Impeachment against President Trump submitted to Congress

Back on May 12, 2017, CNN ran a story listing Democrats who were discussing the impeachment of President Trump. Two months later, H.Res. 438 – Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, was introduced by Rep. Brad Sherman [D-CA-30] and referred to the House Committee on the Judiciary. Here’s the text of the first articles of impeachment filed against President Trump.

H. RES. 438: Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.


July 12, 2017

Mr.  Sherman (for himself and Mr. Al Green of Texas) submitted the following resolution; which was referred to the Committee on the Judiciary

Resolved,  That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.


In his conduct while President of the United States, Donald John Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed and impeded the administration of justice during a Federal investigation in that:

Knowing that Federal law enforcement authorities were investigating possible criminal law violations of his former National Security Advisor, General Michael Flynn and knowing that Federal law enforcement authorities were conducting one or more investigations into Russian state interference in the 2016 campaign for President of the United States, and that such investigation(s) included the conduct of his campaign personnel and associates acting on behalf of the campaign, to include the possible collusion by those individuals with the Russian government, Donald John Trump sought to use his authority to hinder and cause the termination of such investigation(s) including through threatening, and then terminating, James Comey, who was until such termination the Director of the Federal Bureau of Investigation.

The pattern of behavior leading to the conclusion that he sought to cause the hindrance or termination of said investigation(s) include the following:

(1) Requesting that the Director of the Federal Bureau of Investigation curtail the investigation of the activities of General Michael Flynn under circumstances wherein it appeared that Director Comey might be terminated if he failed to adhere to such request.

(2) Making a determination to terminate the Director of the Federal Bureau of Investigation, and only thereafter requesting that the Deputy Attorney General provide him with a memorandum detailing inadequacies in the Director’s performance of his duties.

(3) Despite offering differing rationales for the termination of the Director of the Federal Bureau of Investigation, admitted subsequently that the main reason for the termination was that the Director would not close or alter the investigation of matters related to the involvement of Russia in the 2016 campaign for President of the United States.

(4) Stated that, once he had terminated the Director of the Federal Bureau of Investigation, the pressure of said investigation had been significantly reduced.

In all of this, Donald John Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office.

— Joe

Critical thinking in the fake news era: Levitin’s Weaponized Lies

Except from the blurb for Daniel Levitin’s Weaponized Lies: How to Think Critically in the Post-Truth Era (Dutton, 2017):

Investigating numerical misinformation, Daniel Levitin shows how mishandled statistics and graphs can give a grossly distorted perspective and lead us to terrible decisions. Wordy arguments on the other hand can easily be persuasive as they drift away from the facts in an appealing yet misguided way. The steps we can take to better evaluate news, advertisements, and reports are clearly detailed. Ultimately, Levitin turns to what underlies our ability to determine if something is true or false: the scientific method. He grapples with the limits of what we can and cannot know. Case studies are offered to demonstrate the applications of logical thinking to quite varied settings, spanning courtroom testimony, medical decision making, magic, modern physics, and conspiracy theories.

This urgently needed book enables us to avoid the extremes of passive gullibility and cynical rejection. As Levitin attests: Truth matters. A post-truth era is an era of willful irrationality, reversing all the great advances humankind has made. Euphemisms like “fringe theories,” “extreme views,” “alt truth,” and even “fake news” can literally be dangerous. Let’s call lies what they are and catch those making them in the act.

— Joe

Presidential administration under Trump

Here’s the abstract for Daniel Farber’s Presidential Administration Under Trump:

In an enormously influential 2001 article about the increasingly dominant role of the President in regulation, then-Professor Elena Kagan celebrated the rise of what she called presidential administration. Recognizing the unpredictability of future developments, however, she observed that “the practice of presidential control over administration likely will continue to evolve in ways that raise new issues and cast doubt on old conclusions.” In that spirit, this Essay reexamines her thesis in light of experience under subsequent presidents, with a particular focus on the Trump Administration.

Though the Trump Administration is still less than a year old, it is not too early to start drawing conclusions about its institutional structure and decision-making processes. These seem to be at odds with Kagan’s assumptions about the implementation of presidential administration. Doctrines must be designed with a range of possible executive behavior in mind, not on the basis of one presidency. But that range has turned out to be broader than many scholars had assumed. The Trump Presidency has highlighted risks to presidential administration that were less evident previously. As a result, we need to recalibrate our expectations about presidential behavior and correspondingly our understanding of the functioning of the executive branch. Thus, we may gain a newfound appreciation for some of the institutions and doctrines such as State Farm that may blunt presidential power and strengthen the role of agencies and their professional staffs.

— Joe

Implications of AI for lawyers and law schools

From the abstract for David Barnhizer’s Artificial Intelligence and Its Implications for Lawyers and Law Schools:

This brief look at the effects of technological development on law jobs and law schools is derived from research and analysis developed in a book I have been writing for the past year and a half, Artificial Intelligence, Robotics and Their Impact on Work and Democracy.   Although legal education and lawyers are not any direct part of that book’s focus, the developments described there are relevant to law schools and lawyers.  So, just “for fun”, the analysis offered below sets out some of the best predictions and warnings related to AI/robotics and asks readers to think about the extent to which the developments have implications for the traditional practice of law as we know it, for law schools as institutions, and for the delivery of legal education and law knowledge.

In setting the framework for this analysis I want to begin with understanding the potential of AI/robotics systems along with some predictions that are being made concerning how those technologies will rapidly alter our society and the nature of employment.  A report by researchers at the London Business School concludes there will be sweeping replacement of many human workers by robotic ones within the next twenty years.  Lawyers and doctors will be among those affected to a considerably greater extent than is generally understood.

— Joe