State of the Union

How Long Before a Red State Gov Says He Knew It All Along?

A few more thoughts on Gruber-gate:

1. It seems the exponents of the D.C. Circuit’s ruling on Obamacare subsidies have moved from the position that the ACA passively fails to authorize tax credits through federal exchanges to the idea that it actively prohibits them. That’s pretty astonishing.

2. A second clip featuring Gruber surfaced in which the MIT economist said the same thing he did in the first video. I don’t know what more to add to my reaction to the initial revelation. It seems to me that Gruber did not “misspeak” on either occasion; he believed residents of states that hadn’t set up exchanges would miss out on subsidies until such time as the federal exchanges came online. It’s plausible, too, that he was encouraging states to cooperate with the law in order to score consulting contracts. One could see why he’d be loath to admit this now.

3. There’s another meme that’s about to be set loose: that it took “guts” for Republicans not to set up Obamacare exchanges, that is, accept the bribe of federal money. It’s only a matter of time before a Republican governor says he interpreted Obamacare in this fashion all along. Perhaps one with presidential aspirations—say, Rick Perry. I’ll take bets on who it will be, and when.

4. Finally, on substance: A couple of bloggers at law professor Jack Balkin’s website have some helpful analysis on why the Halbig case is hogwash. Of particular interest is this:

Putting aside the fact that no one thought the states wouldn’t want to run the exchanges themselves (indeed, Senators were demanding that option for their states), the exchange provisions simply do not work in the same way as Medicaid.  Unlike the ACA’s Medicaid provisions, the exchange provisions have a federal fallback:  Medicaid is use it or lose it; the exchanges are do it, or the feds step in and do it for you.  In other words, this isn’t Medicaid; it’s the Clean Air Act (CAA).  If a state decides not to create its own implementation plan under the CAA, its citizens do not lose the benefit of the federal program—the feds run it. The same goes for the ACA’s exchanges and so it would be nonsensical to deprive citizens in federal-exchange states of the subsidies.  More importantly, if we are going to compare apples to oranges, the ACA’s Medicaid provisions have an explicit provision stating that if the state declines to participate, it loses the program funds (this was the provision at issue in NFIB v. Sebelius in 2012).   The ACA’s subsidy provisions, in contrast, have no such provision, strong evidence that the subsidies were was not intended to be forfeited if the states did not participate.  If the challengers are going to insist on strict textual arguments, this is exclusio unius 101: the rule of interpretation that provides that where Congress includes a specific provision in one part of the statute but does not include an analogous provision elsewhere, that omission is assumed intentional.”

This wiki entry on the Clean Air Act seems apposite:

Although the 1990 Clean Air Act is a federal law covering the entire country, the states do much of the work to carry out the Act. The EPA has allowed the individual states to elect responsibility for compliance with and regulation of the CAA within their own borders in exchange for funding. For example, a state air pollution agency holds a hearing on a permit application by a power or chemical plant or fines a company for violating air pollution limits. However, election is not mandatory and in some cases states have chosen to not accept responsibility for enforcement of the act and force the EPA to assume those duties.

Again: I can’t believe this contest is even necessary. Sigh. Carry on.

Posted in , , , . Tagged , . 3 comments

Jonathan Gruber and the Smoking Gun That Wasn’t

Conservative economist Scott Sumner offers up a desperately needed example of intellectual honesty on l’affaire Gruber. (For those who haven’t been keeping score at home: Some libertarians last night released a video of Obamacare “architect” Jonathan Gruber in 2012 seemingly affirming the reasoning of the D.C. Circuit Court’s ruling on the legality of offering healthcare subsidies via exchange.)

Sumner actually watched the video and noticed Gruber’s remarks were taken out of context (context: what a concept!):

That seems to suggest he agrees with the recent court ruling.  But he actually disagrees with the ruling.  Indeed he seems to regard the ruling as ludicrous.  That doesn’t look good.  Until you realize that the quote was taken out of context, and that the comments immediately preceding the quote tells a very different story: “Yes, so these health insurance exchanges . . . will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.”

That seems to imply the federal backstops would provide health subsidies.  So how can we reconcile these two statements?  I believe Gruber was trying to say that the federal government was being slow in setting up the exchanges, because until they did so, those states without state exchanges would get no subsidy.  Once the federal exchanges were set up, they would all get the subsidy.

What I don’t understand is why commenters were providing me with the quote on top, but not the second quote, which provides important context.

The cherry-picking of off-the-cuff remarks isn’t the worst thing about this absurdist drama. Take a step back: Michael Cannon, the Cato mastermind, basically went on a fishing expedition to find someone with standing in the Halbig case. His lightbulb: the average citizen has standing! And now this bombshell video: the Gruber remarks were the first and so far only piece of documentary evidence I’ve seen that anyone actually believed subsidies weren’t intended to be offered via the federal exchanges. This evidence was discovered two years after the lawsuit was filed.

We already had a murder charge without a body; now we have a smoking gun with all its bullets. I’m sorry. We’re not in the realm of reasonable disagreement. The charitable explanation is that this stuff is pure unmitigated cuckoo cockamamie BS. The cynical explanation, per Sumner:

BTW, which of the following two statements represents the conservative view on the role of the courts?

A.  The courts should interpret the laws passed by the duly elected members of Congress, and should not be substituting their own views.  Original intent is what matters.  Unelected judges should not set policy.

B.  Yay!!  the courts have just gutted the ACA, which was an awful law passed by Congress.

I used to think it was A; now I wonder if it is B.

You’ll pardon me if I don’t find this behavior—this abusive legal chicanery—the least bit “conservative.”

Posted in , , , . Tagged , , . 22 comments

Obamacare vs. Dr. Evil’s Legal Eagles

Decades ago, a few friends and I were listening to Not For Kids Only, an album of Appalachian folk songs recorded for charity by Jerry Garcia and David Grisman. An older brother entered the scene, barking, “What’re you guys listening to? This stuff’s for kids!” My friend, who, it should be noted, was quite stoned, retorted, “No! It says right here—‘not’ for kids only.’ ”

I thought of my old buddy, bless his heart, when I learned of the D.C. Circuit’s ruling—its “ringing affirmation … of the rule of law,” according to the reliably florid Charles C.W. Cooke—on Obamacare’s insurance-exchange subsidies.

The right’s chortling reaction, in sum: It says right here — “Exchanges established by the State”!

I’d sincerely like to imagine that Cato’s Michael Cannon was stoned when he discovered this quirk in the text of the Affordable Care Act. But I’m afraid it’s a lot easier to imagine the pinkie ring and prideful guffawing of Mike Myers’s Dr. Evil.

I didn’t think “They’re going to make you buy broccoli next” could be topped.

Oh, was I wrong.

The two judges who comprised a majority of the D.C. Circuit panel argued that the government failed to provide evidence that the authors of the law did not intend to funnel subsidies through state exchanges only. Well, why would such evidence exist—if, as seems exceedingly likely, it never occurred to anyone that the subsidies were so structured until Cannon announced his discovery? “It was a carrot dangled in front of states, just like the promise of more Medicaid money,” the plaintiffs speculated. If so, then why the backstop of a federal exchange? What’s the point of the thing if not to convey subsidies to eligible customers? Much to the dismay of supporters of the ACA, there was no Plan B after the Supreme Court allowed states to opt out of the Medicaid expansion. And so the money remains unspent.

There’s no getting around the fact that those who drafted the law are guilty of a linguistic oversight. In a sane world, the matter would have been dispatched through a technical corrections bill, much as President Clinton and Congress ironed out a kink in U.S. Code that granted citizenship to those born abroad and one of whose parents was a U.S. citizen. Before the correction, the government granted citizenship only to those whose fathers were citizens.

But we’re not living in a sane world right now. We’re living in the world of massive resistance.

Don’t misunderstand. I’m hardly a fan of Obamacare. I’m with those who champion a cheaper and cleaner method of achieving universal coverage. I suppose it could be argued that the Halbig case is one way of getting there. But when its mastermind heads the “Anti-Universal Coverage Club,” I kind of doubt it.

Posted in , , , . Tagged , . 21 comments

Is Religious Freedom Possible?

American Life League / cc

In a post for The Immanent Frame responding to the Hobby Lobby and Wheaton College decisions, Indiana University professor Winnifred Fallers Sullivan challenges the idea of religious freedom on which those decisions are based. Although a liberal, Sullivan does not deny that private firms and religious colleges are engaged in a kind of religious practice. Rather, she argues that because religion means different things to different people, it’s impossible to systematically distinguish legitimate “religious freedom” from mere rejection of the law:

The need to delimit what counts as protected religion is a need that is, of course, inherent in any legal regime that purports to protect all sincere religious persons, while insisting on the legal system’s right to deny that protection to those it deems uncivilized, or insufficiently liberal, whether they be polygamist Mormons, Native American peyote users, or conservative Christians with a gendered theology and politics. Such distinctions cannot be made on any principled basis…Both the majority and dissenting Justices in these two cases affirm—over and over again—a commitment to religious liberty and to the accommodation of sincere religious objections. Where they disagree is on what counts as an exercise of religion. Their common refusal, together with that of their predecessors, to acknowledge the impossibility of fairly delimiting what counts as religion has produced a thicket of circumlocutions and fictions that cannot, when all is said and done, obscure the absence of any compelling logic to support the laws that purport to protect religious freedom today.

The whole post rewards careful reading. One issue that Sullivan leaves unexamined is what counts as a “principled basis”. I take it that she means a non-historical, more or less universal definition, which would make it possible to distinguish religion from non-religion in a logically consistent way. And she’s right that no such definition exists. To mention only one example, the state cult of the Romans had little in common with what we understand by “religion” today.

But why should American law be based on universal principles that can be applied in a quasi-Kantian manner? A considerable historical literature suggests that the religion clauses of the Constitution emerged from the historical experience of Anglo-Protestantism. They were developed and applied in a society that was assumed to be overwhelmingly Christian and organized, for the most part, into recognizable denominations. Of course, there were always communities whose religion was inconsistent with these assumptions. But it was assumed that they would either be demographically marginal, or identifiable under Christian theological categories.

The problem, of course, is that this world no longer exists. And not only because of secularization or immigration by Catholics, Jews, and more recently Muslims. As Sullivan observes, the American brand of evangelicalism encourages individuals to decide for themselves what religion means to an historically unprecedented degree. So we face the challenge of applying historically and theologically specific concepts of religion, liberty, and so on in a way that obscures their limits and contingency. Thus the knots into which both sides of the Court have had to twist their arguments not only in Hobby Lobby, but also in cases such as Kiryas Joel Village School District v. Grumet.

There’s no obvious solution to this problem. We can neither revive Anglo-Protestant categories in a pluralistic society, nor can we formulate a definition of religion that will satisfy everyone. My own preference is for giving as much deference as possible, consistent with public order, to congregations, non-profit institutions, and yes, private firms, to act in ways that reflect their beliefs about what they owe to God and the world. But that means giving up the dream of cultural hegemony that today inspire the secular Left at least as strongly as it once did the religious Right.

(h/t Samuel Moyn, via Facebook).

Posted in , , . Tagged , , , . 27 comments

Seven Reasons Police Brutality Is Systemic, Not Anecdotal

Darrin Manning’s unprovoked “stop and frisk” encounter with the Philadelphia police left him hospitalized with a ruptured testicle. Neykeyia Parker was violently dragged out of her car and aggressively arrested in front of her young child for “trespassing” at her own apartment complex in Houston. A Georgia toddler was burned when police threw a flash grenade into his playpen during a raid, and the manager of a Chicago tanning salon was confronted by a raiding police officer bellowing that he would kill her and her family, captured on the salon’s surveillance. An elderly man in Ohio was left in need of facial reconstructive surgery after police entered his home without a warrant to sort out a dispute about a trailer.

These stories are a small selection of recent police brutality reports, as police misconduct has become a fixture of the news cycle.

But the plural of anecdote is not data, and the media is inevitably drawn toward tales of conflict. Despite the increasing frequency with which we hear of misbehaving cops, many Americans maintain a default respect for the man in uniform. As an NYPD assistant chief put it, “We don’t want a few bad apples or a few rogue cops damaging” the police’s good name.

This is an attractive proposal, certainly, but unfortunately it doesn’t hold up to scrutiny. Here are seven reasons why police misconduct is a systemic problem, not “a few bad apples”:

1. Many departments don’t provide adequate training in nonviolent solutions.

This is particularly obvious when it comes to dealing with family pets. “Police kill family dog” is practically its own subgenre of police brutality reports, and most of these cases—like the story of the Minnesota children who were made to sit, handcuffed, next to their dead and bleeding pet—are all too preventable. Some police departments have begun to train their officers to deal more appropriately with pets, but Thomas Aveni of the Police Policy Studies Council, a police consulting firm, says it’s still extremely rare. In the absence of this training, police are less likely to view violence as a last resort.

2. Standards for what constitutes brutality vary widely.

“Excess is in the eyes of the beholder,” explains William Terrill, a former police officer and professor of criminal justice at Michigan State. “To one officer ‘objectively reasonable’ means that if you don’t give me your license, I get to use soft hands, and in another town the same resistance means I can pull you through the car window, [or] I can tase you.” The special deference police are widely given in American culture feeds this inconsistency of standards, producing something of a legal Wild West. While national legislation would likely only complicate matters further, local or state-wide ballot propositions should allow the public—not the police—to define reasonable use of force.

3. Consequences for misconduct are minimal.

In central New Jersey, for instance, 99 percent of police brutality complaints are never investigated. Nor can that be explained away as stereotypical New Jersey corruption. Only one out of every three accused cops are convicted nationwide, while the conviction rate for civilians is literally double that. In Chicago, the numbers are even more skewed: There were 10,000 abuse complaints filed against the Chicago PD between 2002 and 2004, and just 19 of them ”resulted in meaningful disciplinary action.” On a national level, upwards of 95 percent of police misconduct cases referred for federal prosecution are declined by prosecutors because, as reported in USA Today, juries “are conditioned to believe cops, and victims’ credibility is often challenged.” Failure to remedy this police/civilian double standard cultivates an abuse-friendly legal environment.

4. Settlements are shifted to taxpayers.

Those officers who are found guilty of brutality typically find the settlement to their victims paid from city coffers. Research from Human Rights Watch reveals that in some places, taxpayers “are paying three times for officers who repeatedly commit abuses: once to cover their salaries while they commit abuses; next to pay settlements or civil jury awards against officers; and a third time through payments into police ‘defense’ funds provided by the cities.” In larger cities, these settlements easily cost the public tens of millions of dollars annually while removing a substantial incentive against police misconduct. Read More…

Posted in , . Tagged . 49 comments

Hobby Lobby Has Won, But Have We?

http://www.shutterstock.com/pic-126388286/stock-photo-the-united-states-supreme-court-in-washington-dc.html?src=D3B5-R5yAqiq7l1eHhW21w-1-1

Hobby Lobby has won. The big box craft store’s lawsuit challenging the contraceptive mandate regulation issued by the Department of Health and Human Services in its implementation of Obamacare had become seen as high-stakes test case determining the future balance between the religious liberty of conservative Christians and the mandates of sexual modernity. When the case was first heard back in March, Patrick Deneen weighed in here at TAC with a decidedly unorthodox argument. To Deneen, Christians relying on a big box retailer to represent them against a secular leviathan signaled “the culminating absurdity of what Polanyi called the ‘utopia’ of our modern economic disembedding”:

The dominant narrative—religious liberty against state-mandated contraception—altogether ignores the economic nature of the case, and the deeper connections between the economy in which Hobby Lobby successfully and eagerly engages and a society that embraces contraception, abortion, sterilization, and, altogether, infertility. Largely ignored is the fact Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. …

Hobby Lobby—like every chain store of its kind—participates in an economy that is no longer “religious” or even “moral.” That is, it participates in an economy that arose based on the rejection of the subordination of markets embedded within, and subject to, social and moral structures. This “Great Transformation” was detailed and described with great acuity by Karl Polanyi in his masterful 1944 book of that title. … As he succinctly described this “transformation,” previous economic arrangements in which markets were “embedded” within moral and social structures, practices, and customs were replaced by ones in which markets were liberated from those contexts, and shorn of controlling moral and religious norms and ends. …

How delicious he would doubtless find the irony of a “religious corporation” seeking to push back against the State’s understanding of humans as radically autonomous, individuated, biologically sterile, and even hostile to their offspring. For that “religious corporation” operates in an economic system in which it has been wholly disembedded from a pervasive moral and religious context. Its “religion” is no less individuated and “disembedded” than the conception of the self being advanced by the State. …

I hope Hobby Lobby wins its case. But we should not deceive ourselves for a minute that what we are seeing is the contestation between a religious corporation and a secular State. We are seeing, rather, the culminating absurdity of what Polanyi called the “utopia” of our modern economic disembedding—the absurdity of a chain store representing the voice of religion in the defense of life amid an economy and polity that values turning people and nature into things. Our entire economy is an education in how to be “pro-choice.” What it most certainly is not in any way, shape or form, is about helping us to understand our true condition as embedded human beings.

Scott Galupo responded to distinguish his position as “a counterweight to the despair of both moral traditionalists like Deneen and Dreher and market purists-slash-declinists like Kevin Williamson.” On the Hobby Lobby case in particular, he invoked Yuval Levin and Garry Wills to contrast the Obama administration’s drive from a more appropriately modest accommodation:

Here, Levin calls to mind Garry Wills’s distinction between the progressive-liberal “order of justice” and the “order of convenience.” To sum up a complex essay, Wills believed it should not be the aim of the state to dispense “raw justice” (Chesterton’s phrase), but rather to facilitate convenience (in the John Calhoun sense of the word—to “convene” or “concur” or bring about social peace). …

A proper order of convenience would be able to accommodate Hobby Lobby’s religious objections. On this matter and others, the Obama administration seeks an order of justice. I hope, in this case, that it loses.

Micah Mattix demurred from definitively judging Hobby Lobby’s particular moral merits, but criticized Deneen’s sweeping judgment against modern markets: Read More…

Posted in , , . Tagged , , , , , . 27 comments

The Washington Redskins Go to Trademark Court

When the U.S. Patent and Trademark Office issued a decision yesterday in favor of cancelling six trademarks registered by the Washington Redskins, critics saw the “landmark” decision to be indicative of an administration perennially on a mission to “find another federal agency to weaponize against its opponents.” The pseudo-judicial veneer on the bureaucratic act seemed to line up with such caricatures of politicized overreach, as did the opinion’s strong wording: “It is difficult to justify a balancing of equities where a registrant’s financial interest is weighed against human dignity.” But legally speaking, the decision was neither particularly important nor unusual.

The 2-1 decision was issued by the Trademark Trial and Appeal Board, a body within the USPTO that deals with cases lodged against trademarks that violate the laws under which the USPTO operates. The plaintiffs in this specific case claimed that the Redskins trademarks violate the federal law known as the Lanham Act, which requires that no trademark constitute “disparagement.” The details of interpreting “disparagement” are left to the judgment of the board, which drew upon previous cases to conclude that the trademarks had to be explicitly found disparaging by a “significant composite” of the relevant group, and that the owner of the trademark had to explicitly associate the trademark with that group.

That first requirement’s “significant composites” proved the key problem. In the majority opinion, Administrative Trademark Judge Karen Kuhlke explained that the views of the overall American public were not the central concern, but rather the views of Native Americans in particular. A “significant composite” of Native Americans did not have to be a statistical majority, either. Rather, the board judged that the 30 percent of Native Americans administratively represented by the National Congress of American Indians in 1993, when the organization adopted a resolution declaring the term (and team) “Redskins” offensive, would be sufficient.

All this is in keeping with the normal responsibilities of trademark judges. Read More…

Posted in , . Tagged , , . 5 comments

The Limits of Science in Matters of Justice

Chris Mooney of Mother Jones recently reviewed Harry Collins’s book, Are We All Scientific Experts Now?, and argued that the public has “no business challenging scientific experts.” Collins’s early work was actually an attempt to debunk the 1950s unthinking reverence for scientific expertise. “Coming out of the 1950s heyday, [Collins] argues, scientists were treated as almost mythic luminaries and geniuses who couldn’t be questioned. And that just wasn’t accurate.”

But Collins’s recent book, the subject of Mooney’s article, combats the subsequent devaluation of expertise brought on by popular skepticism of the scientific community. The assumption of a radically postmodern attitude toward the authority of information caused many to assume that knowledge, like belief, is purely socially constructed. This presupposition undermines much of the scientific community’s rhetorical clout, in addition to muddying the public forum: if expertise cannot be trusted, what can be?

But, as a recent National Geographic article points out, the authority of science has often been misappropriated, with dangerous consequences. For instance, it has been relied upon by the judicial system to legitimate unjust rulings: in one particularly infamous case, Buck v. Bell, the court cited scientific evidence to prove that reproduction on Carrie Buck’s part would burden society with criminality and imbecility. She was forcibly sterilized. Justice Oliver Wendell Holmes Jr. famously wrote in the opinion, “three generations of imbeciles are enough.”

The National Geographic article explores the implications for the use of scientific data in contemporary court cases, pointing out that genetics research is being pointed to by defense attorneys with increasing frequency in order to mitigate their clients’ sentences. But the author also takes note of the limitations of scientific findings when they are applied to complex human situations far from the laboratory. She notes that after the Newtown shooting, the Connecticut Medical Examiner took the unusual step of commissioning a screening of 20-year-old Adam Lanza‘s DNA:

The screen will find something. Each of us carries genetic mutations somewhere along our 3-billion-letter DNA code. Some mutations are benign, some are not; some have huge effects, others tiny. But there’s no way to know how (or whether) any of them affects behavior.

Another thing I’d bet on: The media (and the public) will use the results of that genetic screen to explain what Lanza did. We all want answers, and a genetic test seemingly provides a long string of them. Answers from science, no less. But, as was pointed out by many scientists and commentators at the time, searching for answers in Lanza’s DNA is futile. “There is no one-to-one relationship between genetics and mental health or between mental health and violence,” read an editorial in Nature. “Something as simple as a DNA sequence cannot explain anything as complex as behaviour.”

That’s just it: science answers questions of how, not why. Insofar as the American code of law was written to uphold a set of moral goods—the sanctity of human life, property, and liberty among them—the judgments of the courts are not strictly rational, but moral as well. Read More…

Posted in , , . 25 comments

For D.C. Schools, Brown Wasn’t Enough

When Brown v. Board of Education, the 9-0 Warren Court ruling, came down 60 years ago, desegregating America’s public schools, this writer was a sophomore at Gonzaga in Washington, D.C. In the shadow of the Capitol, Gonzaga was deep inside the city. And hitchhiking to school every day, one could see the “for sale” signs marching block by block out to Montgomery County, Maryland. Democratic and liberal Washington was not resisting integration, just exercising its right to flee its blessings by getting out of town. The white flight to the Washington suburbs was on.

When this writer graduated in 1956, all-white high schools of 1954 like McKinley Tech, Roosevelt, Coolidge, and Anacostia had been desegregated, but were on their way to becoming all black. Across the South, there was “massive resistance” to Brown, marked by the “Dixie Manifesto” of 1956, Gov. Orval Faubus’ effort to keep black students out of Little Rock Central High in 1957, and the defiance of U.S. court orders to desegregate the universities of Mississippi and Alabama by Govs. Ross Barnett and George Wallace. While he has received little credit, it was Richard Nixon who desegregated Southern schools. When he took office, not one in 10 black children was going to school with whites in the Old Confederacy. When Nixon left, the figure was close to 70 percent.

For nearly half a century, no black child has been denied entry to his or her neighborhood school because of race. Ought we not then, with Stephan and Abigail Thernstrom in the Wall Street Journal, celebrate Brown “as a truly heartening American success story”?

Certainly, by striking down state laws segregating school children, Brown advanced the cause of freedom. But as for realizing the hopes of black parents, that their children’s educational progress would now proceed alongside that of their new white classmates, it is not so easy to celebrate. For despite half a century of desegregation, three in four black and Hispanic children are in schools that are largely black and Hispanic. And the old racial gap in test scores has never been closed.

A May story in the Washington Post reports that not only has there been no gain in U.S. high school test scores in reading and math—the USA has been steadily sinking in rank in international competition—the disparity between black and white students has deepened. The quadrennial test given in 2013 to 92,000 12th-graders by the National Assessment of Education Progress, the nation’s report card, found that the test scores of Latino students are today as far behind those of whites’ as in 1999. The gap between white and black high school seniors in reading and math has widened. Read More…

Posted in , . 23 comments

The Rights and Responsibilities of Search Engine Users

While truth has usually been a defense to charges of libel, Google is running into a higher standard in Europe. The European Union Court of Justice, considering the threat that Google can pose to privacy, seems to be applying a standard closer to the “Is it True? Is it Kind? Is it Necessary?” test.

In the press release announcing their decision, the European Court ruling found that Google was trampling on a right to be forgotten. Even if the information Google was linking to was accurate and lawfully published, Google and other search engines could be at fault for making that information too easy to find. Google wouldn’t have to purge this information preemptively, just in response to complaints, but, still, acceding to this ruling would still be tremendously difficult.

Google is already engaged in one enormous curation problem: policing content uploaded to YouTube. Although algorithms can detect piracy and copyright infringement, detecting obscenity still relies on the “I know it when I see it” test, which requires a human viewer. Google contractors have to watch content flagged as abusive, violent, or obscene in order to rule it in or out. Screening links for “relevance” would be emotionally easier than taking a shift in the YouTube curatorial department, but the judgement calls will be a lot harder to defend.

Google’s leadership presumably would like to avoid being dragged into culture fights, especially when only one month ago they faced controversy over the decision to purge ads for crisis pregnancy centers from searches related to abortion. But the European ruling could force them to play referee on a host of new issues. Google (in partnership with a European court) would now be expected to assess the relevance of any information and the prominence of the person filing.

Would Google have a duty to keep abreast of the employment history of the people asking to be removed from searches? If not, people just on the cusp of prominence might file general takedowns, to avoid the fate of the Benham brothers. Their show on HGTV was cancelled before it began when their Google histories of anti-gay marriage and anti-Islam activism caught up with them. Asking Google to manage your online identity would still be easier than the solution that former Google CEO Eric Schmidt once proposed: declare identity bankruptcy and legally change your name to escape your search results.

If Europe has an expansive view of the right to be forgotten, America has a sprawling understanding of the right to information. Anything that enters the public sphere, even phone calls recorded illegally, can be fair game for public comment and calls to action. Simply leaving your house and going to WalMart is enough to put you in the public eye as a public figure to be discussed and disparaged on People of Walmart.

Just because information is easy to come by, through Google or any other source, doesn’t exempt us from responsibility for seeking it out and acting upon it. Instead of depending on a right to be forgotten, our society is healthier when people choose to avert their eyes or look with charity.

The solution may not be for Google to become a curator but for searchers to learn to practice better custody of the eyes. After all, hasn’t the internet age taught us that large duties are easier to handle when they’re crowdsourced?


Posted in , . Tagged , . 8 comments
← Older posts