Monthly Archives: April 2017

It’s Much More Than Just Fake News

This is the time of year when my students–graduate and undergraduate–present the results of their research projects to their classmates (and, of course, me). One of my better undergraduate students focused upon the legal implications of the increasing use of household “personal assistants”–those sort of “Siri for home use” voice-activated electronic devices like Amazon’s “Echo.”

In addition to detailing the investigative uses of such devices by law enforcement, he pointed out potentials for informational mischief, especially when those devices are asked to conduct a search; unlike a google search performed on a computer screen, which yields pages of results and thus highlights inconsistent responses and the questionable credibility of certain of those responses, a virtual assistant simply responds with whatever information has been moved up in the response list by someone good at search engine optimization.

His example: responding to question “who won the popular vote,” one personal assistant read from a single (conspiracy) site reporting that Trump had actually won the popular vote.  No list, no context, no description of the source.

If the implications of his presentation weren’t troubling enough,a report from the Medium website gave me chills.

A data scientist and others had begun digging into so-called “fake news” sites after the election.  It soon became clear to them that they were dealing with a phenomenon that encompassed much more than just a few fake news stories. It was a piece of a much bigger and darker puzzle — a Weaponized AI Propaganda Machine being used to manipulate public opinions and behaviors to advance specific political agendas.

By leveraging automated emotional manipulation alongside swarms of bots, Facebook dark posts, A/B testing, and fake news networks, a company called Cambridge Analytica has activated an invisible machine that preys on the personalities of individual voters to create large shifts in public opinion. Many of these technologies have been used individually to some effect before, but together they make up a nearly impenetrable voter manipulation machine that is quickly becoming the new deciding factor in elections around the world.

Most recently, Analytica helped elect U.S. President Donald Trump, secured a win for the Brexit Leave campaign, and led Ted Cruz’s 2016 campaign surge, shepherding him from the back of the GOP primary pack to the front.

The company is owned and controlled by conservative and alt-right interests that are also deeply entwined in the Trump administration. The Mercer family is both a major owner of Cambridge Analytica and one of Trump’s biggest donors. Steve Bannon, in addition to acting as Trump’s Chief Strategist and a member of the White House Security Council, is a Cambridge Analytica board member. Until recently, Analytica’s CTO was the acting CTO at the Republican National Convention.

Analytica has declined to work on any Democratic campaigns,  and according to the story, is negotiating to help Trump manage both public opinion around his presidency and to expand sales for the Trump Organization.

Cambridge Analytica is now expanding aggressively into U.S. commercial markets and is also meeting with right-wing parties and governments in Europe, Asia, and Latin America….

There’s been a wave of reporting on Cambridge Analytica itself and solid coverage of individual aspects of the machine — bots, fake news, microtargeting — but none so far (that we have seen) that portrays the intense collective power of these technologies or the frightening level of influence they’re likely to have on future elections.

 The article has much more detail on the way these “bots” work, and the ambitions of Cambridge Analytica. We are entering very uncharted waters, and it is by no means clear that we have the tools we need to deal with a challenge of this magnitude.
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Markets and Inequality

Those of us who believe in the efficacy of markets (a fundamental tenet of capitalism) must be prepared to accept a certain degree of inequality. Your invention of a better mousetrap will cause my older model to lose market share; your admirable work ethic will earn you a higher wage than my preference for taking long weekends.

Theoretically, in a genuinely capitalist system, the market will reward merit more liberally than it will reward mediocrity.

Of course, a genuinely capitalist system will not be rigged to benefit the powerful and/or well-connected at the expense of others. America has long since morphed from capitalism to corporatism, a system in which lobbyists for powerful interests are able to ensure that government regulations favor their well-heeled clients.

In capitalist systems, the theory is that the promise of greater rewards is an incentive for innovation and diligence; advocates justify the resulting inequalities by pointing out that everyone benefits from the resulting entrepreneurship. A rising tide, we are told, lifts all boats.

When capitalism devolves into corporatism, only the boats of the powerful and well-connected get lifted, and it becomes much more difficult to sustain the pretense of meritocracy.

In capitalist/corporatist systems, rampant inequality poses challenges that ideology cannot satisfactorily address. Social scientists and historians tell us that when the gap between rich and poor widens too much, there are very negative consequences for social and political stability. In order to manage the size of the disparities, most first-world countries today have “mixed” economies; governments socialize the services that markets cannot provide (public safety, environmental protection, healthcare, etc.) and—importantly—recognize the existence of an obligation to citizens who for one reason or another, cannot earn a living wage.

In the United States, we have a number of elected officials—in Congress, certainly, but also in statehouses around the country—who reject the logic of mixed economies, and refuse to recognize the threat that extreme inequality poses to social stability and national cohesion. Paul Ryan’s attacks on the Affordable Care Act, Trump’s brutal (kick ‘em when they’re down) budget proposals, the persistent efforts to defund organizations like Planned Parenthood that provide critical medical care to the needy, are assaults that strike many of us as indefensible—especially since they are almost always accompanied by tax giveaways to the rich.

Those arguing on behalf of these measures insist that their purpose is to defend market economics. Most of them know better; the rhetoric is an effort to divert attention from the fact that government is doing the bidding of powerful, rich and very greedy special interests.

Perhaps the most pernicious aspect of this assault on the poor is the not-so-subtle characterizing of needy Americans as “Other.” “They” are immigrants, living off the sweat of “real” Americans; “they” are lazy people of color. If “they” are female, they’re immoral sluts popping out babies in order to qualify for the public dole. It doesn’t matter that none of these characterizations are remotely factual; the dog-whistle references and dishonest descriptions find a willing audience among people who see themselves as part of an America that is rapidly losing cultural hegemony.

The “Other” is the shiny object that distracts attention from corporatist wheeling and dealing.

If current levels of material inequality are bad for America—and they are—this cynical effort to distract our attention by widening our social divisions is even worse.

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A Good Question–And Some Dispiriting Answers

A recent article in the New Yorker raised a troubling question: How is it that an Administration as disorganized as Donald Trump’s has been so methodical when it comes to attacking the environment?

Next week, millions of Americans will celebrate Earth Day, even though, three months into Donald Trump’s Presidency, there sure isn’t much to celebrate. A White House characterized by flaming incompetence has nevertheless managed to do one thing effectively: it has trashed years’ worth of work to protect the planet. As David Horsey put it recently, in the Los Angeles Times, “Donald Trump’s foreign policy and legislative agenda may be a confused mess,” but “his administration’s attack on the environment is operating with the focus and zeal of the Spanish Inquisition.”

The list of steps that the Trump Administration has already taken to make America polluted again is so long that fully cataloguing them in this space would be impossible.

The author did follow that disclaimer with a long list of actions that were increasingly depressing as I read them. And she pointed out that the Administration’s horrendous budget proposal would  slash the E.P.A.’s budget by thirty-one per cent–more than it proposes reducing the State Department’s budget (twenty-nine per cent) or the Labor Department’s (twenty-one per cent).

The proposed cuts would entail firing a quarter of the agency’s workforce and eliminating many programs entirely, including the radiation-protection program, which does what its name suggests, and the Energy Star program, which establishes voluntary efficiency standards for electronics and appliances.

These initiatives are, of course, insane. But so much of Trump and his Keystone Kop Administration is insane. What is particularly worrisome is that in this one area, the Administration appears to be moving effectively to accomplish its goals. (I’ve been counting on the disarray and incompetence of the Trump White House to blunt the effect of his actions.)

How is it that a group as disorganized as the Trump Administration has been so methodical when it comes to the (anti) environment? The simplest answer is that money focusses the mind. Lots of corporations stand to profit from Trump’s regulatory rollback, even as American consumers suffer. …

But, while money is clearly key, it doesn’t seem entirely sufficient as an explanation. There’s arguably more money, in the long run, to be made from imposing the regulations—from investing in solar and wind power, for example, and updating the country’s electrical grid. Writing recently in the Washington Post, Amanda Erickson proposed an alternative, or at least complementary, explanation. Combatting a global environmental problem like climate change would seem to require global coöperation. If you don’t believe in global coöperation because “America comes first,” then you’re faced with a dilemma. You can either come up with an alternative approach—tough to do—or simply pretend that the problem doesn’t exist.

We evidently live in a world where significant numbers of people would rather make the planet unlivable for their children and grandchildren than face unpleasant realities or co-operate with Others.

I find this incomprehensible. And deeply worrisome.

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Remember Knowledgable Republicans?

I’m getting used to having my students express surprise when they discover that I used to be a Republican–that I even ran for Congress as a Republican.

I try to explain to them that the radical fringe that constitutes today’s GOP is nothing like the party I worked for over a period of 35 years. I tell them that although both parties have always included zealots and know-nothings of various sorts, I remember a time when serious people who cared about America’s prospects and were even willing to work across the political aisle could be found in both parties.

A recent media release from the Lugar Center is evidence not just of the accuracy of that recollection, but the distance between then and now.

Washington–Former Sen. Richard G. Lugar said today many of President Trump’s stated foreign policy goals are “simplistic, prosaic and reactive,” and are characteristic of “a selfish, inward looking nation that is being motivated by fear, not a great superpower with capacity to shape global affairs.”

In remarks prepared for a Washington event hosted by the Foreign Policy Association, Lugar, a former chairman and ranking member of the Senate Foreign Relations Committee, said that if Trump fully followed through on his current policies for trade, immigration and international alliances, “the net effect…would be an economic and geopolitical disaster.”

Lugar, a Republican from Indiana who served 36 years in the Senate, said the president is relying too much on beefing up the military while “squandering America’s international leverage.”

“We cannot bomb our way to security,” Lugar said.

Always the diplomat, Lugar attributed the “missteps” of the Trump Administration to a period in which it was “finding its footing.” (Those of us who are far less diplomatic might suggest that in order to find one’s footing, it is helpful to know what a floor is…But I digress.) He did, however, address several of the issues that he clearly considers troubling, if not disastrous.

What worries him Lugar said,

are Trump’s “campaign-driven foreign policy themes that are fundamentally contradicted by centuries of world history.”  For instance, Trump’s protectionist trade agenda ignores the powerful impact of technology on job displacement, Lugar said, and “attempting to isolate a nation from trade competition is a self-defeating strategy that will hurt those at the bottom of the economic ladder before anyone else.”

“On immigration, we are mired in a debate of distraction,” Lugar said. “In a world where dampening the rise of new terrorists is as important as dealing with existing ones, the ban on entrants from Muslim countries represents the most obvious recruitment tool against the United States since Abu Ghraib…The ban has been a steep net loss to U.S. national security.”

Lugar, a strong supporter of NATO throughout his Senate career, also expressed concern about Trump’s willingness to question U.S. commitment to our allies as he seeks to wring more contributions from them. “Such ambiguity is not clever,” Lugar said. “It is dangerous and can lead to deadly miscalculation.”

A couple of things about these public remarks struck me: first–and most obvious–is the monumental distance between statesmen like Richard Lugar and the Keystone Kops party of Trump, Pence, Ryan, McConnell and “Freedom Caucus” ideologues who now are both the face and the substance of a once-responsible GOP. Where we once had thoughtful, intellectually-honest elected officials who understood the complexities of government and world affairs, we now have posturing fools who don’t know what they don’t know.

The second thing that struck me was how unlike Dick Lugar it is to voice these concerns publicly. Lugar has always been a good “soldier,” unwilling to go public with criticisms of others in his party (and muted in his critiques of Democrats, for that matter). Even out of office, he has been collegial to a fault.

He must be really, really worried.

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He Who Frames the Issue…

As I often tell my students, the most important thing I learned in law school was that “he who frames the issue wins the debate.” In other words, whoever is successful in defining what’s at stake generally prevails.

You can see that truism pretty vividly in debates over culture war issues like abortion and LGBTQ rights: if  abortion is the right to kill babies, the anti-choice folks win. If the issue is whether government gets to decide what a woman does with her own body,  choice wins.  If gay people are demanding “special rights,” the homophobes win; if they are  petitioning for equal rights, gays win.

Framing also plays an important role in the struggle to defend what some Americans call “religious liberty” and others call “privileging Christianity” (because let’s face it, no one is  arguing that Jews or Muslims should be able to ignore the civil rights of other Americans).

As readers of this blog know, I’m a pretty staunch defender of separation of church and state. But I’m also aware that those of us who look askance at the persistent efforts of self-proclaimed “devout Christians” to breach that wall of separation sometimes see theocratic threats in situations requiring a more nuanced response.

Case in point: Above the Law has posted an article about a case that will confront our newest Supreme Court Judge.

The state of Missouri has a program that reimburses non-profit organizations that resurface playgrounds with rubber surfaces made from used tires. The program is paid for by a state sales surcharge on new tire purchases. Missouri gets fewer tires in its landfills, the children of Missouri get a safe surface to play on, everybody wins.

I am definitely not a “cultural conservative,” but I don’t think this is a fair framing of the issue.

In my reading, the religion clauses of the First Amendment require government neutrality in matters of belief; that is, government may neither benefit nor burden the exercise of religion.

The Missouri case–at least, as described in this article–reminds me of an older case from Ohio, the name of which I’ve long since forgotten. As I recall, the state required that all third-grade children be vaccinated, and sent public health folks into the public schools to administer the shots. The question before the court was whether they could also provide the inoculations in parochial school classrooms. The court said yes: using third-grade classrooms where children were already gathered was for the convenience of the state, and giving children vaccines pursuant to a state requirement hardly constituted support of religion.

Missouri could not constitutionally fund classrooms or teachers or books at a religious school. But it is by no means clear how a voluntary program designed to solve a problem for the state (disposing of used tires) while enhancing the safety of children’s playgrounds (by providing a softer surface) would amount to support for religion, or for a religious institution.

Medicaid dollars routinely cover the costs of elderly patients in religiously-affiliated nursing homes; we recognize that the public dollars are buying medical and custodial care, not supporting religion.

The Missouri issue is complicated by the fact that there evidently isn’t enough money to fund every school that wants to participate; the state should be able to prioritize its own school systems. There are other factors to be considered that didn’t make it into the article. (For example, it appears that Missouri’s “rule” against funding religious institutions is a so-called “Blaine Amendment” in the state’s constitution. That changes the calculus somewhat.) There were obviously factors that persuaded the lower courts to rule for the state.

That said, those of us on the front lines of Establishment Clause defense need to acknowledge that not all payments to a religious organization are support for religion.

Determining what constitutes neutrality for First Amendment purposes depends upon how we frame the issue–and we need to approach that framing in good faith. (No pun intended….)

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