7 Major Cultural Shifts The Coronavirus Crisis Should Make Happen

The spectre of one’s mortality that a global pandemic raises can be a needed and sobering opportunity to reconsider and reorder our lives, if we’re granted them longer.

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Author: Joy Pullmann


The EARN IT Act Violates the Constitution

Since senators introduced the EARN IT Act (S. 3398) in early March, EFF has called attention to the many ways in which the bill would be a disaster for Internet users’ free speech and security.

We’ve explained how the EARN IT Act could be used to drastically undermine encryption. Although the bill doesn’t use the word “encryption” in its text, it gives government officials like Attorney General William Barr the power to compel online service providers to break encryption or be exposed to potentially crushing legal liability.

The bill also violates the Constitution’s protections for free speech and privacy. As Congress considers the EARN IT Act—which would require online platforms to comply with to-be-determined “best practices” in order to preserve certain protections from criminal and civil liability for user-generated content under Section 230 (47 U.S.C. § 230)—it’s important to highlight the bill’s First and Fourth Amendment problems.

First Amendment

As we explained in a letter to Congress, the EARN IT Act violates the First Amendment in several ways.

1. The bill’s broad categories of “best practices” for online service providers amount to an impermissible regulation of editorial activity protected by the First Amendment.

The bill’s stated purpose is “to prevent, reduce, and respond to the online sexual exploitation of children.” However, it doesn’t directly target child sexual abuse material (CSAM, also referred to as child pornography) or child sex trafficking ads. (CSAM is universally condemned, and there is a broad framework of existing laws that seek to eradicate it, as we explain in the Fourth Amendment section below).

Instead, the bill would allow the government to go much further and regulate how online service providers operate their platforms and manage user-generated content—the very definition of editorial activity in the Internet age. Just as Congress cannot pass a law demanding news media cover specific stories or present the news a certain way, it similarly cannot direct how and whether online platforms host user-generated content.

2. The EARN IT Act’s selective removal of Section 230 immunity creates an unconstitutional condition.

Congress created Section 230 and, therefore, has wide authority to modify or repeal the law without violating the First Amendment (though as a policy matter, we don’t support that). However, the Supreme Court has said that the government may not condition the granting of a governmental privilege on individuals or entities doing things that amount to a violation of their First Amendment rights.

Thus, Congress may not selectively grant Section 230 immunity only to online platforms that comply with “best practices” that interfere with their First Amendment right to make editorial choices regarding their hosting of user-generated content.

3. The EARN IT Act fails strict scrutiny.

The bill seeks to hold online service providers responsible for a particular type of content and the choices they make regarding user-generated content, and so it must satisfy the strictest form of judicial scrutiny.

Although the content the EARN IT Act seeks to regulate is abhorrent and the government’s interest in stopping the creation and distribution of that content is compelling, the First Amendment still requires that the law be narrowly tailored to address those weighty concerns. Yet, given the bill’s broad scope, it will inevitably force online platforms to censor the constitutionally protected speech of their users.

Fourth Amendment

The EARN IT Act violates the Fourth Amendment by turning online platforms into government actors that search users’ accounts without a warrant based on probable cause.

The bill states, “Nothing in this Act or the amendments made by this Act shall be construed to require a provider of an interactive computer service to search, screen, or scan for instances of online child sexual exploitation.” Nevertheless, given the bill’s stated goal to, among other things, “prevent” online child sexual exploitation, it’s likely that the “best practices” will effectively coerce online platforms into proactively scanning users’ accounts for content such as CSAM or child sex trafficking ads.

Contrast this with what happens today: if an online service provider obtains actual knowledge of an apparent or imminent violation of anti-child pornography laws, it’s required to make a report to the National Center for Missing and Exploited Children’s (NCMEC) CyberTipline. NCMEC then forwards actionable reports to the appropriate law enforcement agencies.

Under this current statutory scheme, an influential decision by the U.S. Court of Appeals for the Tenth Circuit, written by then-Judge Neil Gorsuch, held that NCMEC is not simply an agent of the government, it is a government entity established by act of Congress with unique powers and duties that are granted only to the government.

On the other hand, courts have largely rejected arguments that online service providers are agents of the government in this context. That’s because the government argues that companies voluntarily scan their own networks for private purposes, namely to ensure that their services stay safe for all users. Thus, courts typically rule that these scans are considered “private searches” that are not subject to the Fourth Amendment’s warrant requirement. Under this doctrine, NCMEC and law enforcement agencies also do not need a warrant to view users’ account content already searched by the companies.

However, the EARN IT Act’s “best practices” may effectively coerce online platforms into proactively scanning users’ accounts in order to keep the companies’ legal immunity under Section 230. Not only would this result in invasive scans that risk violating all users’ privacy and security, companies would arguably become government agents subject to the Fourth Amendment. In analogous cases, courts have found private parties to be government agents when the “government knew of and acquiesced in the intrusive conduct” and “the party performing the search intended to assist law enforcement efforts or to further his own ends.”

Thus, to the extent that online service providers scan users’ accounts to comply with the EARN IT Act, and do so without a probable cause warrant, defendants would have a much stronger argument that these scans violate the Fourth Amendment. Given Congress’ goal of protecting children from online sexual exploitation, it should not risk the suppression of evidence by effectively coercing companies to scan their networks.

Next Steps

Presently, the EARN IT Act has been introduced in the Senate and assigned to the Senate Judiciary Committee, which held a hearing on March 11. The next step is for the committee to consider amendments during a markup proceeding (though given the current state of affairs it’s unclear when that will be). We urge you to contact your members of Congress and ask them to reject the bill.

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Author: Sophia Cope

Victory! Federal Circuit Enables Public to Hear Arguments In Important Patent Case

Just like us, federal judges are continuing to grapple with the challenges of COVID-19 and its impact on their ability to do their jobs. Less than two weeks ago, the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. announced that April’s oral arguments in our case would take place telephonically or not at all. Since that time, the court has cancelled arguments for a substantial number of cases on its calendar, but EFF’s argument on behalf of the public’s right to access court documents in patent cases is among those the Court has scheduled for telephonic argument.

Whatever challenges lie ahead, courts must ensure that their proceedings remain as accessible to the public as possible.

Before the court ruled out in-person argument, EFF had filed a motion asking the court to make public video of the oral argument so that people unable to travel to the Washington, D.C., courtroom could see the argument too. The motion for video access was, of course, denied when in-person arguments were cancelled. But today, the Federal Circuit embraced the EFF’s push for live access to oral argument, announcing that it will provide “media and public access to the live audio of each panel scheduled for argument during the April 2020 session.

This is the first time the Federal Circuit has provided the public and press with access to oral argument audio in real time. It will ensure that during the outbreak, the public and press do not altogether lose the ability to access court proceedings as they happen. We commend the Court for taking this crucial step to enhance public access. And we are deeply grateful to the court staff working to make sure that arguments can proceed and be heard by members of the press and public alike.

Whatever challenges lie ahead, courts must ensure that their proceedings remain as accessible to the public as possible. We hope this precedent cements the public’s right to remotely access oral arguments in real time, and paves the way for greater public access in the future.

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Author: Alex Moss

When the Kissing Had to Stop

Ausweis in pocket, I head out for my morning constitutional on Avenue de Breteuil, a spacious esplanade lined with double rows of plane trees leading to the monumental golden dome of Les Invalides and Napoleon’s tomb. A police car cruises by, stops, and disgorges several officers. One comes up to me with that sauntering cop-walk. I half-expect him to demand in guttural tones, Achtung, ausweis bitte! But no, he is not requesting the pass required of Paris residents under Nazi occupation.

What he wants is my Attestation de déplacement, duly signed and dated, giving my name, date and place of birth, home address, time of leaving my residence, and reason for doing so. “Where are you going?” he asks politely. Showing him the form, I explain that I am walking for exercise as prescribed by my cardiologist. “Please return to your apartment,” he says in a tone not inviting any backchat. I point out that exercise is one of the seven acceptable motives for being outside mentioned on the form. But to his mind, jogging is exercise, not walking. (Perversely, it would be okay if I were accompanied by a dog.) I know when I’ve lost an argument with a cop. I trudge back home, reflecting that this must be what it’s like in a police state.

France in confinement isn’t a police state, of course. I was in no danger of being packed off to a concentration camp. The worst that could happen would be a stiff fine of 135 euros, about $150. But even during the darkest days of World War II occupation, the Nazis didn’t forbid walking in the street. Nor did they ban going to work or bring the whole economy to a standstill. So the French are finding lockdown due to a viral enemy almost as stressful as occupation by a jackbooted army.

In some ways, their reactions to both have been similar. Even in times of crisis — especially in times of crisis — national character is still fate. Or as they say here, plus ça change, plus c’est la même chose.

Thus the first thing many did when it became clear that lockdown was coming was, as in the great exodus of 1940 with German tanks speeding toward Paris, pack up and leave. In mid-March, Panicked Parisians swamped train stations or took to the A6 autoroute south to get to country homes or drop in on relatives in the provinces for extended stays. Some estimates run as high as 15 percent of the city’s population that fled. (Provincials were less than pleased by the influx of visitors from the capital, fearing they would bring the virus; cars bearing the telltale “75” of Paris on their license plates often had their tires slashed.)

As in 1940, when the inept governments of the crumbling Third Republic misled and confused the French about the real danger of invasion, Emmanuel Macron’s administration — caught unawares like many others — has vacillated and confused the public with contradictory declarations. France’s health-care system was the best in the world, we were assured in February, and all would be well. Besides, the vast majority of those infected would be just fine. Unless, maybe, they were elderly, in which case they were done for. Oh, and the young were at risk too. The vaunted health-care system was quickly overwhelmed, with protective masks and ventilators in disastrously short supply. The government is pinning its hopes on Chinese largess to save the situation. It has set up a weeks-long airlift from Beijing to supply billions of masks.

Were cinemas, theaters, restaurants, and cafés, the lifeblood of Paris social life, safe? That was unclear for weeks until suddenly they were to be shuttered and shunned. France’s 8,000 street markets, where crowds of housewives jostle for a vast assortment of viands, were deemed important enough to be left open — until unexpectedly they were counter-deemed not so important and were closed. The confinement itself was to be for only two weeks. Then the government admitted what everyone suspected: that it would run through the whole month of April, maybe longer. Now no public pronouncement about the virus is taken at face value.

Confusion peaked over the nationwide municipal elections to be held on March 15. Experts advised against gatherings of 10 persons or more, so they couldn’t be held safely. They must be held, went the official line; nothing less than democracy itself was at stake. And held they were — with a record abstention rate of 55 percent due to the frightened absence of older, usually more conservative, voters. That skewed the results toward the youth vote, with surprising wins by the ecologists. Now there is a torrent of demands by those who lost to nullify the results and hold a new ballot.

Just as the Occupation often brought out the worst in the French, with scammers skimming profits from the black market and many settling accounts by denouncing neighbors to the Gestapo, today’s hard times are exposing some ugly latent traits.

Police and gendarmes attempting to enforce the lockdown in the seething Paris suburbs are attacked with rocks, and roman candles are fired at them. Tens of thousands of masks have disappeared from hospitals; by one estimate some 20 percent of their supply has been stolen and sold on the black market for many times their value. Doctors and nurses have their cars broken into in the search for masks or other protective gear. They are threatened and told to go live elsewhere by craven neighbors who fear they bear the virus. Some things never change.

Some things will be changed for good. The French habit of close-up contact is a prime example. When meeting, they stand closer than we Anglo-Saxons; in conversation I am constantly moving back to maintain my physical comfort zone, while my interlocutor keeps moving toward me — a sort of talking tango. Arriving at work, be it in an office or factory, they shake hands with everybody in sight (known, to the logical Gallic mind, as the shake-hand) for several minutes before doing anything else.

Often at work and on social occasions there is a cheek kiss — whether it’s twice as in Paris or three or more pecks in the provinces. Unwritten codes determine all this; failure to do it properly, and at the right time and place, can be a faux pas or even prima facie evidence of ill humor or perhaps a secret quarrel. There are almost as many slang names for kissing as for money: baiser, bise, bisou, bec, smack, for starters.

Imagine then the shock when the government, in the interest of social distancing, not only told the French to stay farther apart but also banned both the shake-hand and the bise. It puts considerable effort into promoting this wrenching change. There are leaflets, posters, and radio announcements several times a day reminding citizens they are not to shake hands or kiss. At the government’s bidding, companies still operating issue warnings to employees to back off and, above all, not to kiss.

Experts on etiquette and savoir-vivre explain at length that it’s not really impolite, after all, and there’s no reason to feel insulted if there’s no bise or other accolade. Strange as it may seem, they point out, people in other countries actually have different ways of greeting. Besides, explains one, “Shaking hands is a fairly recent habit. It only dates from the middle ages [sic].”

As the confinement goes on, there is as yet no agreement on what replaces such signs of camaraderie. Touching elbows or feet, fist bumps, and other such foreign barbarisms are not catching on. Still, there are hopeful signs that social distancing changes will be permanent, making it unnecessary for me to backpedal when I meet a French friend. Or to wonder, as a socially tone-deaf American, whether and how to buss or not to buss (see “To Tu or Not to Tu” in the October 2007 American Spectator). Some are beginning to admit they feel a pleasant deliverance from the burden of having to embrace, shake, and kiss on every occasion. “What a relief,” writes one frank commentator. “Exonerating us from the kissing chore, from feigning to like people we detest, is at least one good thing about the coronavirus.”

French joy may yet reign unconfined.

Joseph A. Harriss is The American Spectator’s Paris correspondent. His latest book is Jean Gabin: The Actor Who Was France (McFarland).

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Author: Joseph A. Harriss

National Symphony Orchestra Calls Kennedy Center Furlough ‘Illegal’ After $25 Million Federal Bailout

The National Symphony Orchestra teamed up with a D.C. law firm to fire back at the Kennedy Center and Deborah Rutter for her decision to furlough the orchestra. 

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Author: Chrissy Clark