Civil suits can be very Zif's Law-prone, where a small number of actors can put an outsized number of lawsuits forward, unless the statute is very limited (and the various enforcement arms actually stick to that rather than redefining it). Laufer from Acheson Hotels v. Laufer, for example, filed "557 suits in sixteen different states, plus the District of Columbia", and while she's at the higher end of ADA testers, individual people with thousands of tester lawsuits exist.
But that depends on a number of very specific attributes: ADA tester targets have a lot of capital, they're often represented by insurance companies that are willing to give cash, the (court and administrative interpretation of) relevant statutory language in many circuits allows both standing and damages to be found without normal concrete harm, a very compliant regulatory system that writes increasingly broad material to base a lawsuit on, so on. Hence why SB8 lawsuits are very thin on the ground, and with HB1557 only allowing declaratory and injunctive relief it'll be the domain of morons tilting at windmills. The gun private right of action laws tend to be much more mixed -- lots of cash out there both to support lawsuits going in and reward them coming out, but standard of harm is a mess, and the PLCAA is only dying rather than dead.
In theory, it should be possible to write statutory language that limits testing trolls while still allowing even small lawsuits over actual harm, but a) a there's a pretty sizable portion of the support for the ADA that thinks the lawsuit heavy enforcement is a benefit, and b) it's not clear that actually would work, anyway.
gattsuru
3d ago
It was all boiled down to that 5000 number that you’ll see repeated over and over again in Republican criticisms of the bill. What’s worse is that this number is presented as a capitulation to Democrats rather than a ceiling on the use of a draconian new power granted in a heavily conservative bill. It’s presented as if the bill mandates open borders for the first 5000 illegal immigrants every day, and only then begins to enforce some border policies. This is so laughably, bafflingly wrong that it defies belief.
In addition to the obvious no-trust problems -- there was already wide suspicion that official numbers on undocumented crossings (aka gotaways) were underestimates before the feds had additional cause to massage them down, and there's no judicial authority to require the Border Patrol to actually do something even should they report the real numbers, there's some fun questions about how mandatory 'shall' language gets -- the proposed bill had a number of other wide ceilings to its use that your summary glosses over:
- The count only includes "encounters" "between the southwest land border ports", "between the ports of entry along the southern coastal borders", and "between the southwest land border ports of entry of the United States", where "encounter" means physical apprehension and/or seeking admission at a port of entry. Gotaways don't count.
- "Aliens described in subsection (a)(2)(C) [unaccompanied minors] from noncontiguous countries shall not be included in calculating the sum of aliens encountered."
- "If the President finds that it is in the national interest to temporarily suspend the border emergency authority, the President may direct the Secretary to suspend use of the border emergency authority on an emergency basis." [for 45 days out of a year]
- The Secretary of Homeland Security only shall activate the border emergency without review on crossing the numeric thresholds for 90 days for the first year, 75 days for the second year, and 60 days for the third year; the SHS has unreviewable authority to not activate the 'mandatory' emergency for 180/150/120 days, and may not activate it at all the remainder of those years.
- The Border Emergency's exception lists includes "An alien who an immigration officer determines, with the approval of a supervisory immigration officer, should be excepted from the border emergency authority based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests, or an alien who an immigration officer determines, in consultation with U.S. Immigration and Customs Enforcement, should be excepted from the border emergency authority due to operational considerations." [eg, just because there's a border emergency active and mandatory doesn't mean any alien must actually be handled.
- ‘‘(A) SUMMARY REMOVAL .—Notwithstanding any other provision of this Act, subject to subparagraph (B), the Secretary shall issue a summary removal order and summarily remove an alien to the country of which the alien is a subject, national, or citizen (or, in the case of an alien having no nationality, the country of the alien’s last habitual residence), or in accordance with the processes established under section 241, unless the summary removal of the alien to such country would be prejudicial to the interests of the United States. [emphasis added.]
gattsuru
3d ago
Wheeeeeeeeee. (details).
gattsuru
3d ago
Yes, not only do state criminal courts handle federal constitutional questions, it's actual necessary for a plaintiff or defendant to bring constitutional complaints to the trial-level court or they risk surrendering the question on appeal (with a few exceptions not relevant here).
gattsuru
3d ago
Yeah. I think the more recent immigration bills also had to deal with the aftermath of the Gang of Eight attempt in 2013, which even contemporaneously was seen as Rubio getting punked by some embarrassingly useless compromises-in-name-only
You, uh, missed a spot. Or, for one without a header, whether one can stop to piss in Albany without risking a felony. And it's not like these things are the only examples -- if I hadn't hit trans stuff separately, I'd be pointing out the entire circuit where the ADA now covers gender identity disorders, despite the explicit text of the ADA excluding that by name!
Pregnant Worker's Fairness Act It should also be noted that the EEOC still has to follow the APA when it comes to procedural matters in promulgation (like notice and comment), so this lack of authority doesn't exactly make it easy for them to run wild.
By which you mean they issued a NPR, and then changed basically zip in response to significant public comment.
Saying outright that the law didn't apply to abortion would have created a situation where the EEOC guidance was directly at-odds with any reasonable canon of legislative interpretation; I don't think any textualist could argue with a straight face that abortions aren't pregnancy-related.
The statute, for whatever it matters, does not cover all pregnancy-related matters: it covers "pregnancy, childbirth, or related medical conditions." It's... actually not that hard to notice the difference between a medical procedure and a medical condition.
Maybe that difference shouldn’t on net matter, or the doctrine of constitutional avoidance should rule. There's perfectly good fairness or policy reasons that it should, and perhaps in a world where the text was about pregnancy-related anythings and conservatives had eaten the administrative agencies, I'd be making arguments that they're betrayed trust in an important compromise.
And yet we're here.
But that's all irrelevant because it's unlikely that this rule (or lack thereof) would ever result in litigation... I've personally never had an employer ask about the nature of any medical procedure I've taken time off to get, or had them ask me which doctor I was going to, and if a doctor's excuse is required, I doubt many employers are going to do internet research to determine if this is a doctor who exclusively performs abortions.
Yet rather than the answer to "It's no big deal" being "fine, then let me win" instead, we find that everyone insists it is both necessary and obvious, no matter how much they have to play with statute's language to get the job done.
Indeed, even were there some central case that were vital or some symbolic victory that should be a big deal to the progressive movement and a trivial one to conservatives, the religious freedom concerns that the EEOC itself claims never happen still can't get a "fine, then let me win". While "The Commission also received tens of thousands of comments asserting that giving certain accommodations for pregnancy, childbirth, or related medical conditions, such as providing leave for abortion, infertility treatments, or contraception, would infringe upon the employer's religious freedom", the final rule gloss over any serious management or standard of those concerns, leaving such questions open to "defenses using a case-by-case analysis" and motioning to a statutory defense that only protects religious organization's ability to hire people of that religion.
((Spoiler: there's few cases only because everyone paying attention knows defending against a suit is high-risk and staggeringly expensive, and there's absolutely no guarantee that the vague religious freedom exceptions might apply until very late in appeals, so the EEOC can get 99.9% of the impact just by noisily threatening enforcement and then shrugging that their political opponents leave the entire topic like a landmine.))
FFLs When the entire point of specific statutory language is to expand a definition, you can't complain too loudly when that definition gets expanded. If you had sole rulemaking authority with regards to this, how would you expand the definition to conform with the new law without simply restating the old definition? I'm sure you can think of a dozen ways that this could be done, but that's beside the point.
Not only could I, eighteen thousand people did, as Halbrook points out in his link, but you're right to say that, too, is besides the point. The ATF and APA do not care about the little people. But it does make this rhetorical question more than a little obnoxious.
But there's a third category of people we've talked about before who the government really doesn't like — people who want to sell guns part-time or as a hobby. You mentioned in a previous post how the ATF no longer will issue FFLs for hobbyists. You can disagree with that stance all you want, but it seems to me that Congress agrees with that and that was the specific intent behind the change in language.
But Congress did not write a law saying that you can not sell firearms as a hobbyist; it wrote that you needed an FFL to sell firearms to "predominantly earn a profit", and the ATF decided that included firearms sales that included a profit at all, or even if they didn't have a profit but might be motivated by the money. Congress has not even modified the statutory requirements for provisioning an FFL in decades! And I'll point again to the ATF happily ignoring the strict text of the statute whenever it decides that it knows best.
When you write that the government really doesn't like them, that's true in the sense that 'the government' means progressives, operating under a presumption that compromise means progressive interests get a large portion of what they demand, and conservative interests get fucked, and not in the fun way.
The problem as I see it doesn't stem so much from the law itself or ATF's interpretation of it but that there is a group of people for whom any further restrictions on gun sales is bad and needs to be stopped.
I can separately argue that the law was badly intended, but I don't think there's anything insightful to point out that people want to ban guns entirely and make being an FFL as difficult as possible and impossible for many. Yes, duh, I predicted that literally before Biden was sworn in as President, I can't pretend to be surprised today. Props to you for at least admitting that the whole point is make onerous rules that drive hobbyists and part-timers from the field, but it isn't exactly some deep cover.
No, the problem as I'm trying to highlight is that there is a group of people who claimed at length that this was -- as held in the name -- a Bipartisan compromise that would include both further restrictions and clarifications protecting gunnies, and this didn't happen at all. The statute still explicitly recognizes private sales, but the ATF doesn't actually recognize any way to clearly comply with it in this rule-making.
In many ways, they would have been better served by flipping anyone who offered claimed concessions the bird. It matters, that for many, that is increasingly clear.
FACE Act It's telling that this law has only become controversial in recent years, after the Biden Administration used it aggressively in the wake of Dobbs. For the first 30 or so years of its existence, the fact that it was never used in cases of church vandalism was never an issue.
It... actually was a pretty big controversy back in the 2008-2012 timeframe, as activists had begun disrupting church services, while both feds and state officials left the matter to civil litigation. The ADF actually brought suit with some limited success in that case, though both the org and the individuals were basically judgement proof.
At least not enough of an issue for 2 Republican presidents to invoke it in 12 years, one of whom was devoutly religious and the other of whom was devoutly into culture warring.
At the same 2008-2012 timeframe, the DoJ was highlighting increased use from the pre-Obama framework where it was largely perceived as targeting bad actors on the scale of arson or bombings. If you want to rest your argument on the masterful control of the DoJ Trump demonstrated, I hope you have fun, but I'm gonna have a hard time taking it seriously.
But it doesn't compare to the Houck case, at least if you actually look at the procedural posture. The information in the Nota case was filed the day before the plea was entered. This itself was several months after the incident. What this suggests was that this was already a done deal by the time it was even on the court's docket; for all we know, the prosecutor could have threatened to throw the book at Nota before offering a misdemeanor charge and a sentencing recommendation as a lifeline.
The information that we can't see or find or read, even presuming it actually exists, does not actually do a good job of protecting trust, especially given the extent this glosses over a wide variety of other stuff in the reporting (Nota spraypainting an employee's face and threw a rock at them, and also spray-painted a police car). The lack of SWAT, I am sure, has a similarly plausible and similarly unprovable charitable explanation.
Indeed, yes, the guy who didn't destroy property or spraypaint anyone in the face could have gotten a plea bargain. Of course, Houck was found not-guilty, while Nota was caught spraypaint-handed. Interestingly, we do happen to have another example I linked where the people were actually guilty of a FACE Act violation against abortion clinics, and one of the protestors plead guilty, turned government witness, and got 10 months in prison for her plea deal.
Yes, I'm sure there's some post-hoc way that This One Is Different. There might even be ways to argue it that doesn't look hilariously biased (Davis conspired to block a hallway! something something sentencing guidelines! two counts, because Nota didn't do two illegal things at once!), though I'm not optimistic. But the readiness that people defending these disparities can discover that it is impossible to evaluate the merits or compare in any statistically meaningful way are starting to echo.
gattsuru
4d ago
Six months update:
As of 14 February 2024, 112 hostages had been returned alive to Israel, with 105 being released in a prisoner exchange deal, four released by Hamas unilaterally and three rescued by the Israel Defense Forces (IDF). Twelve bodies of hostages were repatriated to Israel, with three of the hostages killed by friendly fire from the IDF[22] and the bodies of nine hostages repatriated through military operations. 49 hostages were reportedly killed on October 7 or in Hamas captivity according to Israel. According to unconfirmed Israeli intelligence, at least 20 additional hostages may be deceased, with their bodies being held captive in Gaza. As of 3 May 2024, 132 hostages remained in captivity in the Gaza Strip, 128 of whom had been abducted on 7 October 2023; the other four hostages having been captured earlier.
About 130 hostages remain unaccounted for after being kidnapped by Hamas on 7 October last year - at least 34 of them are presumed dead. According to Israel, more than 250 Israelis and foreigners were taken during the attacks. Israel gives an official figure of 134 hostages because it includes four people taken hostage in 2014 and 2015. Two of these are believed to have died.
My sad working theory has been that one reason talks were stalled was that a deal would force Hamas to reveal that most of the hostages were either dead or pregnant. Now this: AFAIK, there are still ca 125 hostages in Gaza, and Hamas can't produce 33 who are still alive?
So more than I feared, less than I hoped, and it's become increasingly possible to say publicly among mainstream sources that it's probably not gonna look better.
Perhaps they'll issue a clarification, but from the note in this section, I think someone could read this as "memory"; it has "memory" right in the name!
Maybe, but so does CMOS RAM, and that's a central example of where you probably do want this rule to apply, and it's (usually) more volatile than FRAM. 5.4-1 to my read isn't about access modes or media type, but about storage volatility, and that makes some amount of sense for certain attack vectors -- you don't want someone reading cloud passwords by probing random SPI flash, as weird as that particular threat is.
But it also makes a lot of design spaces for low-power devices goofy, in ways that don't make sense. There's probably a class of low-power device where it's a really critical security problem is someone delid the main processors and inspects individual FRAM cells during a toggle-off state, but 99% of the time even if someone could hijack a session id from that it's less big of a deal than having access to the board to start with.
5.4-2 (unique IDs) : This one is conditional, and I imagine ultra-small or ultra-disposable devices won't qualify in the first place.
Yeah, but the condition is only that applies where ever "a hard-coded unique per device identity is used for security purposes". I think that includes virtually every LoRaWan (DevEUI) and probably every LoRa device, for one common example, but also technically at least most Bluetooth implementations. There's other places where it's a good idea to use hard-coded unique identities per device for security purposes even where it doesn't 'matter', and that's largely going to result in people just dealing with stupid hacks instead to avoid triggering the requirement whenever possible.
5.3.4/6/10 (updates): Same here; conditional. We'd at least have to get down to the level of thinking about each of the devices you've mentioned in terms of the conditions.
Yeah, but the conditions for 5.3-4 is "an update mechanism is implemented", 5.3-6 "an update mechanism is implemented" and "the device supports automatic updates and/or update notifications", and 5.3-10 that "updates are delivered over a network interface" and "an update mechanism is implemented". These are fine when you're talking a full web-UI/app-equipped device, but twenty sensors on a LIN line that can be updated still hit the requirement for 5.3-4, which is on its own a requirement for automatic updates so you now hit 5.3-6. Then you're trying to figure out how 5.3-10 works for devices that don't have user interfaces (and may not have user physical access!), and now you're either stuck tossing an authentication layer on your LIN, implementing a cryptographic security function for comms on said LIN, or spamming users with update notifications like they were running Arch Linux.
5.3-15: I think I would interpret this as, sure, you need to support any part of a product until you tell the customer that you're not supporting it anymore, and the type of support can vary.
Eh...
Let's take the example of a lightning switches attached to a base station, as a fairly common home automation setup where the switches and adapters are... not actually a central case of the constrained device model (they have wall power!) but are at least arguably close. If you build one of these, you're probably going to support a wide variety of light bulb sockets and switch types, but not all of those are going to make sense over the longer term -- maybe a socket type falls out of popularity, or a new lightbulb tech drops that doesn't play well with dimmer circuits, or a vendor you partner with stops selling a product that makes that particular device make sense.
By the text, is a lighting hub "isolable and hardware replaceable" if the vendor doesn't want to sell every attachment for the hub's life cycle? Removing one attached device doesn't make the attached device 'isolable', because turning on and off that light is its core feature. Nor is removing the entire hub from the internet, since there's no sane way to call that a "self-contained environment with other devices if and only if the integrity of devices within that environment can be ensured", when the especially if the entire reason to pop them off the internet has to do with their ability to communicate securely with the local hub. Would it be hardware replaceable is the only hardware replacement doesn't actually fit into the same socket, just because something attaches to the same hub?
Yes, in practice your interpretation is the sane one, and hopefully it's probably going to end up as the sort of asterisk that just confuses people, like vendors just putting out generic 'support may stop without notice for some devices' clauses. But at best that turns the requirement into aspirational text instead of the actual policy.
(5.5-3) How easy is that? You don't even have to update it at all. But if you do, then at least make sure your shit isn't trivially broken, at least so long as you're telling the customer that you're still supporting it.
I think the interpretation of that standard is closer to page 45-46 here, if not on the exact same timelines, and that quickly turns into an eWaste and version hop mandate for a lot of stuff pretty quickly in order to theoretically prevent the plausibility of certain attack classes, rather than blocking trivial ones. But even for its steelman of "don't use WPA2-only chips in new products", I think it's still costly even if well-intended, and a lot of those costs don't make a ton of sense. There's a number of chips and equipment that can't connect on WPA3 at all, and even where it's something that can be implemented in software that doesn't mean it's exactly easy.
More broadly, though, it seems like overbroad application of a rule. A presumption toward encrypting everything makes sense when it's free or nearly-free, but there are a lot of entire devices where it's just not that relevant. If your equipment does literally nothing but relay temperature and humidity values over ISM bands, you might want some amount of authentication to prevent spoofing, but it's really not that big a deal if someone can listen in. And there's a lot of IoT stuff that goes into that category.
There's some parts of the rules that motion around this -- 5.5-1's "Appropriateness of security controls and the use of best practice cryptography is dependent on many factors including the usage context" or the exceptions for ARP, DHCP, DNS, ICMP, and NTP in 5.5-5 -- but again that turns the requirement into aspirational text.
gattsuru
4d ago
Although it seems baked into the post is the unsaid premise that the problem is the laws were crafted poorly/maliciously.
Oh, my apologies; I don't really mean to take a position on that. It's quite possible that even the most consequential and hidden stuff, like the coverage for gender identity stuff in the ACA, was totally well-intended to the most circumscribed bounds (though I'm not optimistic). It's possible that Obama genuine did at the time not want to fund health insurance for DACA, and there are almost certainly cases where the law was far more explicit and clearly written and reversed anyway. Halbrook's examples of ATF adventurism probably fall there, and I'm a long fan of pointing to problems like whether FOPA means you can stop to piss in Albany, or where a certain high-profile someone revised multiple statutory requirements to destroy records and not record or transfer them at a government facility to instead permit keeping them.
Similarly, one can readily imagine a world where every law was written in the most backhanded way by some evil grand vizier, yet it wouldn't matter because they were enforced by some even-handed personification of justice. We're just not in that world.
But, IMHO, the problem is all the enforcement agencies have been captured by neoliberals. And so there simply is no law that they won't interpret in the manner that most suits their objectives.
Yeah, there's definitely that.
But while that's definitely a bigger problem, and maybe even a coup-complete one, I think it's worth noting the separate issue and incentive where enacting a law or portion of a law to prevent something instead turned into ammunition to enact the desired change. And even if that's a rare matter, even if biased enforcement agencies are replaced or abolished, it's going to be something that will remain as a failure mode.
I just doubt that these particular requirements are that onerous.
Eh... they vary a lot, both on context and use case. Requiring secure storage for persistent storage of security parameters (5.4-1) makes sense and has trivial cost for applications like a network storage device, but it'd break a lot of assumptions on FRAM-heavy low-power devices, and that rule notably isn't conditional or a mere recommendation -- perhaps they didn't think about FRAM, or other persistent memory, but I wouldn't bet against UK compliance checks taking that as an excuse. Making security-focused unique IDs tamper-resistant (5.4-2) isn't too bad on a device with a real MAC (though not costless; there are benefits to software-changeable settings here), but for the more ultra-small or ultra-disposable equipment that's largely going to mandate more and more of program flash be devoted to encryption keys (unless you want to decrypt something on discrete flash every time you're doing an update check). Mandating a network update happen over a trusted relationship (5.3-10) and be timely (5.3-6) and be automatic (5.3-4) isn't too bad for a situation like deploying a bunch of wifi access points or phones, as much as I hate 99% of implementations work, but it's an absolute mess for wide deployment public LoRaWAN devices, and a mess for things like CAN- or LIN-networked embedded devices.
Others vary heavily on interpretation. Mandating that "For constrained devices that cannot have their software updated, the product should be isolable and the hardware replaceable" (5.3-15) could mean almost nothing, or it could require vendors to commit to support any optional part of a product until they retire an entire series. And these all definitely kill EPROM devices that it covers -- I'd expect this ends up with a ton of explicit or implicit exceptions, mostly around the "On devices with several microcontrollers (e.g. one for communication and one for the application) some of them might not be updateable", but it's not really obvious from the text.
That gets worse if they start dialing Mandatory-Conditional or Recommended rules into plain Mandatory ones down the road, and a lot of the text suggests that they're planning it:
As consumer IoT products become increasingly secure, it is envisioned that future revisions of the present document will mandate provisions that are currently recommendations in the present document.
In particular, SecureBoot (5.7-1), hardware memory access controls (5.6-8), and guaranteeing cryptographic updates for the life cycle of the product (5.5-3) mean throwing out a lot of existing microcontrollers, microprocessors, and often related code. It's clearly intended for big GHz+ microprocessors, but there's a lot of new (mmu'd!) chips that don't have this capabilities. SecureBoot there's some arguable conclusions for some of the bigger devices, like throwing a ATECC608 after a PIC, but a) I'm not sure if that actually complies with the recommendation, and b) no, god, no. Hardware memory access controls... maybe ESP32 memory protect would cover it (though they're software-settable, though the software settings are code-private?). Wherever these hit, a lot of chips aren't going to pass it, and businesses focused around them are going to have to toss inventory and code -- there's just too much of this stuff that isn't portable.
A number are probably gonna have to start now on the off chance that it happens in a couple years.
gattsuru
5d ago
I'd expect it's more likely that the UK just gets flooded with more CE crap, while the bottom end of the domestic or near-business market lifts its skirt up over the floodwaters, same as the rest of the EU user privacy data stuff. Sorry if that's cynical, but the last time I went to the UK a coworker got zapped because none of the three-prong power adapters he'd locally-purchased actually had connections between the input and output ground plugs.
Some of these restrictions, even some of the good ones, aren't that readily implemented. SecureBoot is only a recommendation, which is good, given that even a lot of mid-range microprocessors don't support it, nevermind the microcontroller world where it's gfl. I've got two projects I'm running now (STM32F103Cx- and Nuvoton NUC980) that don't support it at all, and these aren't exactly ancient PICs. Same, maybe even worse, for the recommendation for memory access controls. Mandating a default-off mode for any debug interface is understandable from a Serious IT Perspective, but it also makes a lot of stuff e-waste in a wide variety of circumstances, and makes a lot of useful prosumer and enthusiast concepts unavailable.
More broadly, this reads a bit like it was written by a mid-studies electrical engineering student, for better or worse. There's a lot of good recommendations, but trying to make a clear distinction between IoT and 'constrained' devices as a simple binary... it's bad enough trying to split microcontrollers from microprocessors, but from a quick read this reg would put harder restrictions on an ESP32 lighting controller than solar-powered NVR system.
On net, it's probably not bad to have a document people can look at, even if they end up shrugging on actual implementations at points, but it's frustrating.
gattsuru
5d ago
The Death of Trust in Bipartisan Lawmaking
The Pregnant Workers Fairness Act is a 2023 law, driven by nearly a decade of cross-party and cross-tribe interests, best summarized by the intro to this 2018 Atlantic piece:
Mattes honed in on one particular case from the Times story, in which a salesperson at the healthcare company Novartis, a single mother was told by her boss she should consider an abortion. “She didn’t, and after her maternity leave, she said they advised her not to pursue any more promotions due to her ‘unfortunate circumstances at home,’” Mattes said. Those weren’t unfortunate circumstances at home, Mattes said: “That is her son Anthony. Pregnancy isn’t a disease. Babies are a blessing.”
On this particular issue, the conservative Mattes had an unusual ally. A week earlier, several hundred miles away, New York’s Democratic governor Andrew Cuomo had ordered an investigation into New York companies accused of pregnancy discrimination...
While a 1978 amendment to Title VII established pregnancy as a protected characteristic, the PWFA's congressional support saw it as too limited in scope and in what accommodations it could require businesses to hold.
Another point, however, dropped in mid-April:
This isn't necessarily new, or a surprise: some courts had already held that the 1978 Title VII amendment protected abortion as a pregnancy-related medical condition, albeit with the more restricted scope. There are good pragmatic or philosophical arguments in favor or against, either in regards to abortion specifically or as a law in general, and some !!fun!! questions about a possible that the EEOC's rule-making treats as purely theoretical. There are some, if not exactly strong, arguments that the text of the law requires it.
Several Republican congresscritters who voted for and cosponsored the bill promptly blasted this interpretation, swearing that they were sure and assured it wouldn't happen. Social conservatives, on the other hand, prompted sang I told you so.
Mattes and his organization do still exist, but haven't commented on the new regulation. They're not, it can be fairly readily assumed, in a huge hurry to partner with the ACLU on statute-writing or sponsor-wrangling any time soon.
Okay, well that's not a policy I actually care about, so it's at least kinda funny, and .
FFLs and How To Get Your Dog Shot By The ATF
The 2022 Bipartisan Safer Communities Act had many components, but one of many that gun rights advocates pointed out at length as a matter of concern, even well before the law's language was fully concrete, was the redefinition of gun dealers and engaging in the business of firearms sales, from "principal objective of livelihood and profit" to "predominantly earn a profit". The ATF released its final rule on this new statutory definition in early April, shortly after shooting someone in the head while all their agents forgot their cameras at home, explicitly citing the BSCA's new language as cause.
Three guesses on how that went, and the first two don't count:
The activities described in these presumptions are not an exclusive list of activities that may indicate that someone is ‘‘engaged in the business’’ or intends ‘‘to predominantly earn a profit.’’ These presumptions will provide clarification and guidance to persons who are potentially subject to the license requirement and will apply in administrative and civil proceedings.
The presumptions will be used, for example, to help a fact finder determine in civil asset forfeiture proceedings whether seized firearms should be forfeited to the Government and in administrative licensing proceedings to determine whether to deny or revoke a Federal firearms license. These presumptions do not apply in any criminal proceedings but may be useful to judges in such proceedings when, for example, they decide how to instruct juries regarding permissible inferences.
The only thing that the new rule explicitly does not consider to be "predominantly earn[ing] a profit" is if an individual is liquidating all or part of their owned firearms, without (ever?) purchasing new ones, and I wouldn't bet my pet's life on it. In some ways, it's kinda impressive: the final rule, as opposed to the original proposal, reacted to gunnie concerns about the underspecificity of one resale exception by explicitly removing firearms owned for personal protection from it. In some cases, it breaks from the text of the statute. Halbrook highlights a statutory exception that the ATF refines down to covers repair and customization.
I've written before about the same act smothering archery and hunter training programs at schools, and while this was eventually (and to my surprise) amended, that passed late enough to leave programs screwed over for last school year. We'll see how many schools are willing or able to bring them back.
All around me are familiar faces, Worn out places, worn out FACEs
The Freedom of Access to Clinic Entrances Act is a 1994 statute from the old days before backronyms were popularized outside of the military, and consisted of three major prohibitions:
- blocking someone from trying to access or provide abortion services
- blocking someone exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship
- destroying or damaging a reproductive health care facility or a place of worship
It was considered the height of bipartisan compromise at a difficult time (and Bill Clinton's statescraft, in contrast to the then-expensive Assault Weapons Ban), and like many laws from that era, it reflects a draconian view of punishment. While a first nonviolent offense can 'only' result in a maximum of six months imprisonment and a 10k USD fine, these numbers scale rapidly for repeat offenses, and can be rapidly stacked, even in marginal cases, with other charges to boost the scope of a trial and the possible punishment.
Uh. Except you might notice a pattern in what direction both the successful and failed cases go, and what prongs of the FACE Act they cover. It's not that the feds never prosecute someone for clear violations of this law; they just do it by using an entirely different law that predated and does not scale, and accept plea bargains for the most minimal punishments. That disparity has been around for a while, even if it's only become more obvious with Jane's Revenge floating around.
It does not, as a matter of law, matter whether the FACEs is ever enforced against a specific political viewpoint. And from the view of the 'don't break the laws, fucko' or 'don't block access to public spaces' caucus, I've got little sympathy for protestors getting burned when they signed up for the frying pan. But if you sent a message back in time to the 1994 GOP and told them they were just repeating the 1988 18 USC 247, I doubt they'd have trumpeted it.
Joe Wilson and the Affordable Care Act
There's a number of famous controversies during the run-up to the passage of the Affordable Care Act, along with some lesser-known ones. The extent trans-related healthcare would be covered and what expectations that invoked was a sleeper, while the question of "encouraged end-of-life" care rather famously got above the fold at length.
Joe Wilson is best-remembered, to the extent he's remembered at all, for one of the better-known ones. He shouted out "You lie" during the middle of a joint session of congress where then-President Obama disavowed that "our reform efforts would insure illegal immigrants", a matter Republicans feared would be thrown.
Thanks to the Biden-Harris Administration’s actions, today’s final rule will remove the prohibition on DACA recipients’ eligibility for Affordable Care Act coverage for the first time, and is projected to help more than 100,000 young people gain health insurance. Starting in November, DACA recipients can apply for coverage through HealthCare.gov and state-based marketplaces, where they may qualify for financial assistance to help them purchase quality health insurance.
To be fair to President Obama, he's (officially) been out of office for the better part of a decade. To be less fair to Biden, there's no statute changed about any of this in that whole timeframe, and Obama was using the future tense. Whatever Obama thought he was proposing, this is what his proposal got, and it's not like he's complaining.
Wilson received a reprimand for his outburst. There'd be some irony in him living long enough to crow about it, though he hasn't done so yet. And even if he did, being right is cold comfort for anyone other than the politicians.
One of These Things Is Not Like The Others
The Affordable Care Act, unlike the Bipartisan Safer Communities Act or Pregnant Workers Fairness Act or Freedom of Access to Clinic Entrances Act, was more the result of long negotiation rather than long negotiation and compromise between the parties. There are no Republican cosponsors or even congressional votes for the law to be betrayed, because there were no Republican congressional votes for the ACA at all; at most, there were some (long-booted) Blue Dogs.
Quite a large number of moderates, of one stripe or another, drew that as a particular failure. They could, we were told, have gotten more serious concessions; they could, we were told, have achieved their own separate goals. How much they were moderates or 'moderates' often said how much 'they' in the previous passages stood for the GOP or for that particular person's particular goals. During the second half of the Obama years, many of the particular goals side painted the Republicans as the Party of No; after, this obstinate unwillingness to give up a slice of the cake was drawn as both cause and effect of various Republican maladies, from poll numbers among young professionals to failure to integrate into the administrative class to the price of tea in China.
The PWFA and BSCA rulemakings and FACEs prosecutions come as the punchlines to those particularly jokes. No one's come away from any statute feeling the GOP has a better finger on the interests of the public, or was able to represent its people's interests better than the What's The Matter With Kansas asshole. Perhaps these laws are all cherry-picked, and every other major bipartisan statute had everyone walk away smiling, or the GOP betrayed the Democratic Party. Nor, given the speed that even matters as simple as dictionaries have turned to political ends, is there any way to promise that the next time would be different, or that even laws and statutes that conservatives badly want would be resistant. Indeed, the longest delay was the case where they compromised in no amount at all!
You still don't get that many tries to break trust, and it's expensive to rebuild.
One part, about banning one person (JR), seemed to be a controversy over whether a defense contractor (Anduril) should be allowed to sponsor the project, with the losing faction being "NATO defense contractors are what prevent Russia from conquering Ukraine and the rest of the world", and the winning faction being "defense contractors kill people and are icky and we don't want their name near us" (various positions were put forth, but I can't come up with a coherent charitable interpretation)
The charitable steelman is that Anduril's products flirt increasingly closely with autonomous weapons, and the extent humans are in the loop (for autonomous weapons made by other people) has at best diffused responsibility regarding validity of target selection, and more practically put to a point where oversight and responsibility aren't enforceable. The... less charitable bit is that, like Palantir, the (surveillance) equipment and technology is also used by ICE and police, and a lot of Nix tech could be and/or could be driven to be very useful for that equipment and technology. The even less charitable one is that, while Palmer Luckey isn't as No Go politics-wise as Peter Thiel, it's known, in ways that kept people from supporting him.
And what really got my attention were the comments by people speaking in support of him that were "flagged by the community and temporarily hidden".
Yeah. On one hand, that's a Discourse (the forum software designed by CodingHorror's lead) default behavior, and one reason (among many) I'm glad that Zorba didn't base this forum off Discourse. On the other hand, the moderation team can override it, or allow successor threads, and didn't.
I still can't figure out what side of the culture war the people fleeing the project are on, and that's probably intentional.
Dunno. There's at least some text from big names in the github from the TotsNotBlueTriberJustUsingTheirAssumptions, and not much explicit red triber, but that doesn't exclude the porque no los dos.
gattsuru
6d ago
It's... had a lot of governance Issues for a long time, and there's the normal coastal politics (did you know NixCon had Anduril sponsorships, the sridhar ban). I don't grok the entire point of the Nix project, but from what I've seen via shlevy on twitter, the NixOS governance has been kinda the center of a turf war since ~2021 (with the first community team rfc, not enacted).
A lot of recent heat seems to be downstream of Eelco, the original dev, officially stepping down and handing control over to the Foundation Board. He's not been active much for a while, but the community was largely willing to overlook a lot of moderation and management decisions running very much by the seat of everyone's pants, under the auspices that he'd be kinda overlooking things. In theory, there's supposed to be constitutional convention and a foundation board meeting and a whole bunch of stuff about distribution of power and oversight, but in practice, there's not really much clear way for anything to happen beyond the Foundation writing whatever policies it thinks will be popular in California -- see the sponsorship policy snafu, and specifically how the forum auto-locked the discussion and moderators forbid opening new threads on it (and the thread OP was tempbanned for being a putz).
But the recent snafu is about more generally around the ethos that:
There's a code of conduct in place, people want it expanded significantly, and that people are allowed to question it are evidence that it should have been expanded years ago, if not evidence of governance failures or destructive to the reputation of the community; sprinkle in some mentions of sealioning and concern trolling, and you're done.
gattsuru
6d ago
Maybe a computer mouse or something like an NES controller for playing retro games?
Doable, though I'd need to step up on 3d printing for anything usable for the longer term. Retro gaming's a lot more hit or miss than I would have expected for a lot of the teenagers I get, though.
Alternatively some kind of optical scanner that can read barcodes/QR codes for data retrieval.
Barcodes is possible. QR codes are rough: either you're using a prebuilt module for the heavy lifting and just spits out a boring (usually UART) stream, putting a RaspPi in a box, or you're throwing camera focus and bulk memory management and illumination all in at once on a microcontroller project.
Displaying changing QR codes on ePaper or oled displays aren't too hard. Dunno if that's anything students would useful.
gattsuru
6d ago
Yeah, it'd not be the sort of thing you could just plug in and make magic happen, but I could see a good lesson plan talking about cycles of temperature or relative humidity.
gattsuru
7d ago
That’s a good one, especially since a lot of mainstream gear in that space depends on annoying IoT stuff.
gattsuru
7d ago
Any ideas for small electrical things that you use regularly that would make a good Project?
I've been running some students through designing a macropad variant, and someone in the tumblr rat-adj-adj sphere is building a small timer. But a lot of the field, including things I've run as student projects before, tend to be toys.
I like your basic two-wheel robot as much as the next person, but it's something that at best you make, put on the shelf, and never touch again. Same for infinity mirrors, and the best that can be said for epaper weather stations is that at least they'll change on the shelf. Or, alternatively, there's a ton of projects to build something that's really useful for somebody who wants to be an electrical engineer and needs something that'll work until they can buy a Real Tool.
Ideally, I'd have students long enough to see what they'd want, but I've gotten a lot of shrugs, or worse questions for stuff that seems deceptively easy (forget the ethics of DIY AppleTags, the TI MSP430 library for LoRA suuuuuuucks). And in more cases, I don't really have the timelines for it, as hilariously enough even if we're getting circuit boards done as students finish the CAD, I need to have the non-jellybean parts ordered months in advance or they'll get in slower than OSHPark or JLCPCB can turn something around.
gattsuru
8d ago
There's a few vendors that passed USDA clearance last year, though they've had production and funding problems that have kept its products from having too much of an impact on the store shelves, and it's not clear the tech is going to get there very soon.
On the other hand, when or if the tech does get there, there's not much trust that it's gonna be left for people to choose. Whether for environmental, animal suffering, or macroeconomic reasons, there's going to be a massive push to 'regulate the unpriced externalities' of conventional meat, and many routes for that, like restricting grazing permits, will be near-invisible to normal people.
gattsuru
9d ago
They will absolutely wreck you in Vintage Story, to the point where they're more feared than most of the not!zombie enemies. Only the Bells, as mob-summoners, are really worse; even the T3 and T4 drifters can do comparable damage, but they're much slower, where your best hope when being chased by a brown bear before getting iron or steel armor involves trying to pit trap or outswim them.
Thems Fighting Herds has Huggles, who acts as the final boss for each arcade mode run, and is frankly unfairly hard. There's a bonus mode version you can play as that's even more overpowered, though it's intended for the rest of a multiplayer fight to team up against whoever gets to play the bear.
The Elder Scrolls have pretty consistently had bears as some of the most dangerous enemies, to the point where they could out-match some lesser dragons in Skyrim.
I've had Tribal runs in Rimworld wrecked by an early-game bear manhunter, though I dunno if that was vanilla or a mod. The Long Dark has some dangerous bears, though once you've got a good rifle setup and prep they're kinda loot pinatas.
I guess maybe Five Nights at Freddies, for a loose enough definition?
But yeah, they're definitely often treated as far less threatening or dangerous than they should be, even in some survival-themed games.
gattsuru
10d ago
I'm not sure whether it's better to respond with a furry fandom joke, a Baldur's Gate joke, or with a Vintage Story joke.
Namely I thought it was a little weird how focused Hanania was on making sure workplaces be more conducive to finding sexual partners...
While I expect the answer for Hanania specifically is that he's reaching for whatever weapons are available, there are some very serious problems, here:
-
Full-time workers are spending about a third of their waking lives at their workplaces, a sizable portion of their Dunbar-sphere will be made of coworkers, and under current law employers can be liable even for after-hours and off-campus behavior by employees. In many career fields, it's common to spend months with little chance for a social life outside of the office at all. Maybe the 20% of couples just meet up right outside of work, but I'd expect that we're not so lucky, and at least some aren't getting BATNAs.
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Worse, the modern rule isn't just 'don't fuck your employees/coworkers', but against wide breadths of discussion and behavior adjacent to sex or gender stuff. Enforcement is hilariously inconsistent even in places where employers care (and the number of bullshit lawsuits are Known enough that normal people are often hesitant to bring genuine ones), so people can act as though a lot of this stuff is still allowed, but once you get above a certain size of company you start getting insurers/lawyers/politicians peering in and insisting that your workplace complies so that enforcement Won't Be Necessary. As a result, a lot of spaces for vertical transmission of knowledge about matters of sex and romance no longer exist, or have been thoroughly commandeered into a state-favored presentation.
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Avoiding the appearance -- or possibility -- of impropriety has serious and significant costs. I'm not sure how much I trust the specific numbers for 'MeToo made men afraid to mentor women', but the end result of that policy ends up meaning I've got a Fun Ethics Question when my workplace has me share a hotel room with a (afaik straight, not my type) guy. This isn't taking all the fun out of workplace socialization, but it's a big and vast set of constraints, often ones heavily dependent on local social norms.
The end result of a sexless public space for men... well, we have examples from other spheres that had to move sex to fully private spaces, and the alternatives that they've developed kinda work, but they come at tremendous cost. Online dating started out rough, and it's since vanished up its own backside in a mix of borderline fraud and unrealistic standards. Bars and mixers have come coincidentally along with a hefty incidence of alcoholism and other abuses.
For Scott:
When I think of wokeness, I think of the great cultural turn around 2010 - 2015... Hanania has no explanation for this. He talks about civil rights laws that have been in place since 1964 (he does say that maybe the new civil rights bill signed in 1991 inspired that decade’s interest in “political correctness”, but The Closing Of The American Mind, generally considered the opening shot in that debate, was published in 1987). Why would 1964 and 1991 laws turn wokeness into a huge deal in 2015? Hanania has no answer.
Again, Hanania might not have an answer because he doesn't care enough to think one necessary, but there's a pretty easy and obvious one.
The Civil Rights Act was intended as written under a hilariously narrow scope for all of its wide claims. That lead to hard cases, and even as late at the 1980s the courts were struggling with matters like whether it was discriminatory if an employer (allegedly) raped an employee, and into the late-90s if it would be discriminatory even if the victim was male. There weren't just hard cases in that they involved sympathetic victims and extremely bad behavior, or even whether they could be arguably within the intent or text of the Civil Rights Act, but because they were also near-universally around things that were separately violations of common state laws that had existed for quite some time, at a time where and when the public was unwilling to allow businesses to wash hands of bad acts by their employees. Government advocates and private lawyers had a pick of both clear violations of the text of this law, or arguable cases for this law that shocked the conscience.
((Scalia delivered Oncale, for example.))
But to do so, the CRA1964 had to establish an industry around fighting racism. The EEOC isn't not five commissioners at a table; it had around 350 employees in the 1960s, which grew into the thousands by the late 1990s. Nor was it alone; other offices downstream of or expanded by the CRA include the Commission on Civil Rights, the (various) Office for Civil Rights, the Office for Fair Housing and Equal Opportunity, DOE Civil Rights Division, so on. And then around that, built up an industry around selecting and prosecuting private lawsuits, and training people to do this, and training people to train. Now, when the law and interpretation was constrained, and overt discrimination (or bad-for-other-reasons-argued-as-discrimination) cases had the pick of both plaintiff and employer, most cases kept close to the core.
That changed. Some legislation made it easier (eg, the 1991 revision allowed some vaguely-defined set of suits with a theory of discrimination that could not identify specifically discriminatory policies or actions, or to get attorney's fees and thus cases on contingency without proving damages), but the grander problem is that you now had thousands of people who's job was to find discriminatory actors, who were trained to notice the most subtle hints of it, and in no small part who believed in the mission. An increasing number, by the close of the 1990s, had literally never known a world without an EEOC and the norms it wanted to apply across the country; many had been trained by those who worked up through the EEOC's wishcasting of policies it wanted.
That's how you get a lawsuit with an appeal's court opinion released in 2010, about a complaint first pushed in 2006, revolving around the sort of "general civility code" that Oncale specifically disavowed. It's how you get related cases that similarly emphasis a general theory of Bad Person. And it matches the timeline far closer than the standard motions around college campuses or SomethingAwful refuges.
That doesn't make Hanania right -- there's a lot of other stuff in the history, if you poke at it, and that's not to mention that just for this there's a pile of executive orders and regulatory notices and all the social junk around the 2008/2006 elections -- but there's a lot more to this stuff than just looking at the dates laws were implemented.
gattsuru
11d ago
I would... not be so sure the administration can avoid it if Biden wanted. See the Kincaid v. Williams denial of cert (starts at page 39) from last year as an example of what's going to start coming down the pike in earnest: a very broad law with expansive reads of standing, on a matter extremely sympathetic to progressive-leaning and left-leaning judges, and where individual private actors can bring a private right of action with staggeringly high penalties, and a ton of opportunity to forum shop.
Philosophically, there's a fun question about the difference between sending in the troops and charging 150k for each violation, but there's a point where the practical difference gets pretty small, and it happens pretty quick when the target's main assets will also be the tools necessary to not comply.
gattsuru
11d ago
That letter and five bucks won't buy you a cup of coffee, these days.
I'm very far from sure what Abbott intends for the Texas Education Agency to do/not do, but one important thing to remember is that, for states and federales, the law saying "shall" means absolutely squat without a directly connected enforcement mechanism and someone who can actually press the button on it. This letter might trigger ESEA compliance review stuff, since ESEA state plans have to comply with federal law in general (though it might not trigger until the next review?), but that ends up with a bunch of meetings before the feds can refuse to provide state funding. Title IX proper is supposed to depend on complaints filed regarding specific acts of discrimination (within 180 days of the act, not adjudicated by other bodies, yada), after which the DoE meets with, which (excluding criminal cases not relevant here) if refused can result in "initiate proceedings to suspend, terminate, or refuse to grant or continue Federal financial assistance to the recipient".
I expect Abbott's more relying on unrelated stays slowing any enforcement -- which seems a mediocre bet, since on one hand you've got the Fifth Circuit, but on the other it's this has been the writing on the wall since Bostock -- but barring that he's playing chicken.
(no, blue states have not denied federal forces the ability to operate, their examples of arguable nullification are more noncooperation than open defiance and resistance)
The line gets murky: refusing to honor an ICE detainer is probably noncooperation from a non-commandeering sense, but literally sneaking an illegal immigrant out the back door to help evade an ICE officer... well, there's a lot of metaphors where the Little People doing unfavored things would be sitting in jail.
What's particularly funny is how even defense lawyers get into it. Cfe when themotte's own notice that an FBI agent perjured herself at length during a criminal trial; he was genuinely curious how the FBI agent would weasel out of it (spoiler: easily!), and even entertained the possibility "whether the prosecutors will bother" to bring perjury charges (spoiler: no).
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