Blog Ipsa Loquitur

Amanda Lewis for Buzzfeed, on the “green boom” in states where recently-legalized marijuana sales are leaving some folks behind:

For most jobs, experience will help you get ahead. In the marijuana industry, it’s not that simple. Yes, investors and state governments are eager to hire and license people with expertise in how to cultivate, cure, trim, and process cannabis. But it can’t be someone who got caught. Which for the most part means it can’t be someone who is black.

Even though research shows people of all races are about equally likely to have broken the law by growing, smoking, or selling marijuana, black people are much more likely to have been arrested for it. Black people are much more likely to have ended up with a criminal record because of it. And every state that has legalized medical or recreational marijuana bans people with drug felonies from working at, owning, investing in, or sitting on the board of a cannabis business. After having borne the brunt of the “war on drugs,” black Americans are now largely missing out on the economic opportunities created by legalization.

I would hasten to add that the burgeoning marijuana industry isn’t the only one in which a decade-old felony conviction disqualifies candidates. That’s not a knock on Lewis’s reporting. Her article is flat-out amazing, and if she interviewed non-white people from every corner of the American economy with lives shattered by war on drugs convictions, she’d never finish.

Which reminds me of the New York Times, In Heroin Crisis, White Families Seek Gentler War on Drugs:

When the nation’s long-running war against drugs was defined by the crack epidemic and based in poor, predominantly black urban areas, the public response was defined by zero tolerance and stiff prison sentences. But today’s heroin crisis is different. While heroin use has climbed among all demographic groups, it has skyrocketed among whites; nearly 90 percent of those who tried heroin for the first time in the last decade were white.

Some black scholars said they welcomed the shift, while expressing frustration that earlier calls by African-Americans for a more empathetic approach were largely ignored.

“This new turn to a more compassionate view of those addicted to heroin is welcome,” said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A. law schools. “But,” she added, “one cannot help notice that had this compassion existed for African-Americans caught up in addiction and the behaviors it produces, the devastating impact of mass incarceration upon entire communities would never have happened.”

And hey, one more for the road: the head of the Women’s Tennis Association thinks that Maria Sharapova “made an honest mistake” and Nike sounds willing to forgive her.

Recommended reading: Jeffrey Goldberg’s 20,000-word novella on President Obama’s foreign policy in The Atlantic. We’re in the final year of Obama’s presidency, so a lot of this isn’t really news, but there are still plenty of great quotes from his advisors on thought processes and sausage making. For example, you know America didn’t fight a ground war in Libya, and we’re even more hands-off in Syria. What differentiates those theaters, and how that affected the president’s decision, isn’t always clear from daily reporting. And then there are the drones:

This is one of the larger ironies of the Obama presidency: He has relentlessly questioned the efficacy of force, but he has also become the most successful terrorist-hunter in the history of the presidency, one who will hand to his successor a set of tools an accomplished assassin would envy. “He applies different standards to direct threats to the U.S.,” Ben Rhodes says. “For instance, despite his misgivings about Syria, he has not had a second thought about drones.” Some critics argue he should have had a few second thoughts about what they see as the overuse of drones. But John Brennan, Obama’s CIA director, told me recently that he and the president “have similar views. One of them is that sometimes you have to take a life to save even more lives. We have a similar view of just-war theory. The president requires near-certainty of no collateral damage. But if he believes it is necessary to act, he doesn’t hesitate.”

If anything, that paragraph understates the extent to which America has a swarm of flying murder bots. The president can and has ordered the death by remote control of thousands of foreign nationals and even a handful of American citizens. Suffice to say, the Constitution is completely silent on the issue of presidential robot death squads, flying or otherwise. But killing American citizens without due process is absolutely unconstitutional. That begs the question, though: have you ever wondered what due process means?

cool because this is a law blog

You can probably think of process as the stuff that happens during the run-up to the trial, during the trial, and then at the appeal. Your lawyer versus the government’s lawyer. Motion to do X, hearing on Y. Judge rules on this, jury finds that. There are so many moving and interlocking pieces—prejudicial evidence gets excluded, witnesses got cross-examined, etc—that even if some mistakes are made, things will balance out in the end. Overall, the legal process gets it right.

President Obama, a former constitutional law professor, would be the first to explain that the process someone is due under the Constitution can depend on the circumstances. For example, it violates due process to execute someone who has only been accused of a crime. But if that person points a gun at a police officer, they’re suddenly due a whole lot less process while the officer’s life is in danger.

White House lawyers wrote a memo explaining how much due process you have if you’re accused of being a terrorist, but you haven’t been tried or convicted, and if you’re in a foreign country. The relevant part of that memo starts on page 38, although you’ll note much of the discussion has been redacted. Secret logic for killing American citizens isn’t a great look, to say the least.

The memo comes down to ‘just like a police officer can kill a suspect without a trial, flying murder bots can kill American-citizen terrorists without a trial.’ There are some impressive legal phrases trotted out to frame this, like “continued and imminent threat of violence or death” to (other) American citizens, and the “highest officials in the Intelligence Community” having reviewed the facts behind the kill order. Additionally, the White House needs to show that capture is “infeasible,” but that the CIA and Department of Defense are “continually monitoring” whether the circumstances have changed so a capture would be feasible.

There’s also this odd bit about “the realities of combat” and “the weight of the government’s interest in using authorized lethal force,” and I don’t really understand the legal implications of either of those. Not to be overly reductive, but the former is essentially “hey, shit happens” and the latter boils down to “it’s important that this look official.”

Remember a few paragraphs ago, that bit where I said that the legal process was built to have a lot of moving pieces, so errors in one direction can balance out errors in another? At a certain point in this memo, it feels like the lawyers kept adding these legal standards—like the “realities of combat” test, or the “infeasible capture” test—to make the process feel as deliberative and complex as the judicial process.

It’s a tough sell, because there are other important parts to due process; the government is zealously advocating one way while the defendant’s lawyer is pushing the other way and a judge makes sure both sides follow the rules. It’s not enough to just have parts that can move. Your car’s transmission has parts that can move, but you’re going to be late for work if the gears are all laid out randomly.

my favorite part

The Atlantic article doesn’t quite go into these legal fine points. Again, at only 20,000 words, there just wasn’t enough time to squeeze in everything. But there are definitely a number of gems here:

Those who speak with Obama about jihadist thought say that he possesses a no-illusions understanding of the forces that drive apocalyptic violence among radical Muslims, but he has been careful about articulating that publicly, out of concern that he will exacerbate anti-Muslim xenophobia. He has a tragic realist’s understanding of sin, cowardice, and corruption, and a Hobbesian appreciation of how fear shapes human behavior. And yet he consistently, and with apparent sincerity, professes optimism that the world is bending toward justice. He is, in a way, a Hobbesian optimist.

A Hobbesian optimist! It’s a delightful turn of phrase that reminds me of one of my favorite quotes: “the test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.” Optimists who think that humans are built to war against each other forever? Classic!

In all seriousness, I think Hobbes’s point is that the world bends toward justice because the Leviathan sits on the bad guys until they stop being bad guys. That’s an intrinsically optimistic worldview, because the bad guys stop being bad guys and get day jobs. It makes sense for President Obama to think this way: he’s the guy whose job is basically “Leviathan of all Leviathans.” If he thinks the world is bending toward justice, that means he’s confident that he’s doing enough bending.

Woodrow Hartzog, of Stanford Law School’s Center for Internet and Society, on the FBI’s claim that iPhones are the first warrant-proof devices in history:

This is a curious argument. For most of mankind’s history, the overwhelming majority of our communications were warrant-proof in the sense that they just disappeared. They were ephemeral conversations. Even wiretapping was limited to intercepting phone transmissions, not retrieving past conversations. For law enforcement purposes, encrypted phones are equally inaccessible: no one can recover information from them. But Comey’s description of warrant-proof technologies is vague enough to apply to many different things. We should use a different term if we care about the preserving the ephemerality of some communications. Otherwise we might end up with a requirement to store everything.

Hartzog makes a good point, but I’d go further than that. A piece of paper outlining my criminal conspiracy—which I light on fire after the successful commission of my crime—is warrant-proof. A hard drive with selfies I took at the crime scene, but which I erased when the police knocked on my door, is warrant-proof. Police can get a warrant for the screwdriver used in the commission of a crime, but if I tossed the evidence into a lake, that’s a little warrant-proof; I don’t have to dive in and get it for them. The police have to go looking. They might not find it!

Everything the criminal knows is also warrant-proof, because the government can’t force anyone to testify against themselves.

Simply put, warrants are not magical evidence-summoning devices. Warrants are magical documents that judges give the police so officers can go looking in a particular place for particular evidence. Criminals destroy evidence because they know getting caught with evidence, while a great way to speed your trial along, usually ends with Not Passing Go and Not Collecting $200.

So this whole kick that the FBI is on, about how the iPhone is the first time in history the police have had warrants thwarted? That’s ridiculous. The FBI doesn’t think that criminals kept contraband and incriminating evidence neatly piled up on their coffee tables, ready for a properly executed search warrant, riiiiight up until the invention of the iPhone.

Weirdly, it’s not just the FBI. City police departments are acting like the iPhone is the first consumer device in history that can be rendered inaccessible to a warrant, too. I’m going to invite the reader to scroll up a few paragraphs, and remember that sheets of paper are consumer devices which are quite flammable. How exactly are we supposed to trust the police with the keys to every iPhone in the country, when they can’t even be trusted to describe the scope of the issue accurately? My friend wants to borrow my car keys, but he insists it’s only because the last thirty times I’ve driven, I’ve crashed and killed us both each time. Your assessment of the situation is suspect enough that I think I’d like to keep my keys.

These folks all have such long-term memory problems; maybe they should be writing all this stuff down!

The American Civil Liberties Union’s Daniel Kahn Gillmor on why the FBI can easily circumvent the “auto-erase” feature of iPhones without forcing Apple to build a custom OS:

So the file system key (which the FBI claims it is scared will be destroyed by the phone’s auto-erase security protection) is stored in the Effaceable Storage on the iPhone in the “NAND” flash memory. … The FBI can simply remove this chip from the circuit board (“desolder” it), connect it to a device capable of reading and writing NAND flash, and copy all of its data. It can then replace the chip, and start testing passcodes.

NAND flash storage is an extremely common component. It’s found in USB thumb drives, mobile phones, portable music players, low-end laptops—pretty much every portable device. Desoldering a chip from the circuitboard is straightforward enough that there are many clips on YouTube showing the practice, and reading and writing a bare NAND chip requires a minor investment in hardware and training that the FBI has probably already made.

This isn’t some hypothetical “imagine if cryptography is like a bear with roller skates but your grandmother is like a boat with hands and they’re having a pie-eating contest” situation. This is literally how encryption works: the FBI can copy the encrypted files (text messages, emails, etc.) from the iPhone into a NAND chip. The files aren’t “locked” by encryption, they’re just scrambled. You can make as many copies of the scrambled files as you want.

Gillmore explains that the FBI can put these scrambled files into a different computer as a backup, so if the FBI guesses ten times at the password and the phone erases itself, the FBI can just copy the scrambled files back into the phone. Physically prying the NAND chips out of the circuit board and making a perfect digital copy of the 1s and 0s on them means that the phone’s operating system has no idea you’ve made backups or restored the data.

This sounds pretty obnoxious, though, right? You make ten guesses, and then you have to yank computer chips out of circuit boards and shuffle them around to make ten more? No wonder the FBI wants Apple to build them a custom OS to do all this work for them!

One last quote from Gillmore:

If it turns out that the auto-erase feature is on, and the Effaceable Storage gets erased, they can remove the chip, copy the original information back in, and replace it. If they plan to do this many times, they can attach a “test socket” to the circuit board that makes it easy and fast to do this kind of chip swapping.

If the FBI doesn’t have the equipment or expertise to do this, they can hire any one of dozens of data recovery firms that specialize in information extraction from digital devices.

I would expect nothing less than a cogent analysis and impassioned defense of the Constitutional principles at stake from the ACLU. I wasn’t expecting such a detailed technical breakdown of how absurd the FBI’s position is. The more technologists weigh on this, the more disingenuous the government’s request for help circumventing encryption becomes.

Premise: hedge funds are usually a waste of money. Hedge funds are, almost without exception, unable to pick winning stocks for more than a year or two in a row. Worse, the hedge fund managers charge you to let them play with your money. If they lose your money, you pay their salary. If they win you money, you pay them a bonus.

From where I’m sitting, the smarter play is to just invest in all the stocks, because over the long term, the stock market goes up even if individual stocks go down. This is the sort of strategy that investment firms like Vanguard use. Here’s Ben Carlson noting that major universities’ endowment funds have chosen… poorly:

Vanguard beat the average [university’s fund] over the past 5 years for every endowment size and came up just shy of the ‘$1 billion and over group’ over 10 years while besting the rest of the group averages. Think about these results for a minute — these endowment funds hire the biggest investment consultants, have huge investment committees, connections with alumni at some of the best money managers in the world and fully-staffed investment offices in many cases.

All that work, all of those due diligence trips, all of those extra fees paid to money managers and the majority of these funds still couldn’t beat a low-cost Vanguard index portfolio that was simply rebalanced once a year.

It could be worse, though. Take New York City’s pension fund: that’s the money used to pay 715,000 current and future retirees. The city can make each employee’s savings go farther if, instead of letting that money sit around, it invests the money while waiting for employees to retire. By and large, the Wall Street firms paid to invest that money on NYC’s behalf do an okay job.

Until NYC gets the bill:

Over the last 10 years, the return on those “public asset classes” has surpassed expectations by more than $2 billion, according to the comptroller’s analysis. But nearly all of that extra gain — about 97 percent — has been eaten up by management fees, leaving just $40 million for the retirees, it found.

Pretty amazing coincidence that the cost of making $2.5 billion was almost exactly $2.5 billion, eh?

Super PACs, man

But finance isn’t the only industry in which you can pay lots of money to get almost nothing in return. David Frum, former speechwriter for President George W. Bush, wrote a great article in February on what he sees as a slight issue with Republican political spending:

Increasingly, super PACs look like the political world’s equivalent of hedge funds: institutions that charge vastly above-market fees to deliver sub-market returns. […] In an interview on election night 2012, Chris Wallace challenged Karl Rove: “[American] Crossroads, which you helped found, spent—what?—$325 million, and we’ve ended up with the same president, the same Democratic majority in the Senate, and the same Republican majority in the House. Was it worth it?”

Now, most of that money was spent by Karl Rove’s 501c4, which is forbidden under federal law from supporting or opposing a specific candidate. But virtually all of the $110 million spent by Karl Rove’s Super PAC supported losing candidates and/or opposed winning candidates. It’s left as an exercise for the reader to determine whether the c4 backed the same horses.

Frum notes that it’s not just Karl Rove and it’s not just the 2012 election:

Late Sunday night, CNN reported a remarkable allegation. An anonymous Jeb Bush bundler estimated that Mike Murphy, the director of Bush’s Right to Rise, had billed the super PAC $14 million for his services—more than 10 percent of all the super PAC’s revenues. Murphy fiercely disputed the claim, and the next day CNN updated the original post with additional information.

Sidebar: “Jeb” is actually J.E.B.: John Ellis Bush. When you call him Jeb Bush, it’s John Ellis Bush Bush. It’s like saying PIN Number or ATM Machine. That always bothered me.

Realistically, though? Saving $14 million for more ads probably wouldn’t have helped Jeb. There’s no limit to the amount of money a Super PAC can take from donors, so if Right to Rise was doing well, they probably could just have raised more money from the same crop of investors.

Which brings me to maybe my favorite bit of Frum’s column:

A long time ago, I wrote a history of the 1970s. One of its sub-themes was the emergence of the post-Watergate campaign-finance system. I was surprised to learn that some of the strongest proponents of limits on campaign donations were the donors themselves. Many had felt extorted by the 1972 Richard Nixon re-election campaign.

That campaign had targeted executives in federally regulated industries, notably aviation, with a strong message of “Nice little price-regulated airline you have here, it would be a shame if the president’s appointees disapproved your requests for fare increases to keep pace with inflation.”

You know, it’s this sort of Machiavellian maneuvering that really threatens to tarnish Nixon’s legacy.

It certainly sounds like the 1970s were a nightmare for our most vulnerable citizens: the extremely wealthy. Thank goodness we as a society have done away with unlimited political spending, and the rich no longer get fleeced by unscrupulous political operatives.

Jonathan Zdziarski, on how badly the FBI bungled the investigation into the San Bernardino shooting by (1) resetting Syed Farook’s iCloud password and (2) powering down his phone:

1. [It prevented the FBI from] talking directly to Siri, and asking her to display call records, contacts, email, and other information.

2. If the iOS was 9.0.1 or lower, a known lock screen bypass bug would have potentially allowed them access to a significant amount of data on the device (data that is unlocked “after first user authentication”)

3. Dozens of known vulnerabilities exist for older firmware that may have been able to penetrate the device with a PoC, that otherwise couldn’t be used if the encryption is locked. Simply reading Apple’s release notes would have provided contact information for a number of researchers and universities who likely had PoC exploit code they would have loaned to FBI.

He goes on like that for quite a while, and explains what the FBI should have done in this case. Zdziarski isn’t an armchair expert on this stuff: he literally wrote the book on iPhone forensics back in the day, and still consults with law enforcement agencies who want to break into phones. What the FBI missed is absurd.

Look, if local police in a tiny town in the middle of nowhere had screwed up this badly, we’d wonder why the FBI wasn’t entrusted with this. But the FBI made their jobs a lot harder; this can’t be their first time at the iPhone Evidence Rodeo, so how could they have locked themselves out of the phone?