Free Minds & Free Markets

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Court’s ‘Skim Milk’ Ruling a Win for Free Speech: New at Reason

Federal ruling allows true claims to supersede government regulation.

MilkOcheesee Creamery"The leftover product is skim milk: milk that has had the fat removed through skimming."

If those words—from a unanimous 11th Circuit Court of Appeals ruling earlier this week—sound like some sort of dicta—words in a court decision which represent a judge's ideas or observations but aren't part of the holding of the case and which, therefore, carry little legal weight—then it may surprise you to learn the question of whether all-natural skim milk is skim milk actually go to the heart of the case in question.

The case, Ocheesee Creamery v. Putnam, has its roots in 2012, when Florida's state agriculture department ordered Ocheesee, a small creamery in the state's panhandle, to stop selling its skim milk. The state claimed Ocheesee's skim milk ran afoul of Florida's standard of identity for skim milk, which requires creameries and dairies to add vitamin A to their skim milk.

In response, Ocheesee, which prides itself on its all-natural milks, proposed instead of introducing vitamin A additive to its milk to label its skim milk as "Pasteurized Skim Milk, No Vitamin A Added." The state rejected that label. Food policy writer Baylen Linnekin explains the important food freedom victory that resulted this week from the subsequent lawsuit.

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Las Vegas Taxi Union Demands State Crack Down on Competition from Ridesharing Apps

Wants rides hailed by apps at least 10 minutes in advance and a slew of new taxes and other regulations.

wuestenigel/flickrwuestenigel/flickrA Las Vegas taxi union is asking the state to step in and squash competition from ridesharing services like Uber and Lyft and "illegal" drivers who were "taking food out of the mouths of" taxi drivers, as Theatla Jones, a representative of Local 4873 of the Industrial Technical Professional Employees Union, wrote in a letter to legislators obtained by The Nevada Independent.

"Working in the Las Vegas taxi industry was traditionally a solid job where a driver could support his family and enjoy benefits such as health insurance, dental/vision care, retirement benefits, vacation pay, and safety bonuses, but those days are gone unless we secure your help," Jones wrote to legislators. Taxi drivers "desperately need your help to survive due to unfair competition from and lack of regulation

Jones offered sixteen proposals and The Independent reports that one Democratic state senator says he's planning to introduce legislation Monday that incorporates some of them. Jones' proposals include "public safety" measures like FBI background checks, drug testing, and 24-7 commercial insurance, some of which most ridesharing services already do. "Taxi drivers have reported that they recognize [ride-share] drivers who have been terminated from taxi companies due to drug and or alcohol issues," Jones adds.

She claims that ride-share app drivers perform "cash runs" on the Vegas Strip and that taxi drivers said there was "a huge problem with vehicles that are not even 'real' Uber and Lyft" drivers. "All a driver needs," Jones continued, "is a small U or Lyft sticker in their window and they can start transporting passengers for cash." So-called "gypsy cabs" are not a new phenomenon and it's hard to imagine confusing a ride arranged on a smartphone app and one arranged on the street for cash.

Jones also wants rideshare drivers to be "trained to deal with 'Strip road conditions'" and to let the Taxi Authority enforce rules she claims the Nevada Transportation Authority doesn't have the resources to. She also offers proposals for taxes, including that the state demand state-issued decals with "full permitting and registration with tax authorities," enforcing fines for "off-APP trips," and forcing "Uber and Lyft to keep drivers off platform unless taxes paid."

Jones further offered proposals under the guise of "consumer/labor protection" to constrict the use of ridesharing apps, including that all trips be hailed "a minimum of 10 minutes in advance" and no surge pricing as well as "no excessively low or predatory pricing permitted from the" ride-sharing service.

Jones complains that ride-share drivers don't go to residential areas and "will often only come to your house if he/she can surge price you for several times the normal fare," a total misunderstanding of how surge pricing works. "The free market will not solve this problem," she says, of a problem of lack of access to taxis in residential urban areas that services like Uber have helped solve in recent years by connecting would-be drivers to underserved residents.

"You and the Democratic Party are in a position to help my members this session," Jones closed, "and I respectfully request your help to support my member's full time jobs." The Independent notes taxi companies gave 50 state legislators $476,200 in the 2016 election cycle. Jones is doing what cartels all over do, looking to government to maintain crumbling monopolies. Taxi drivers and companies would be better off competing for customers and drivers than looking toward more of the kind of needless and constricting regulations even the union admits the state doesn't have resources to effectively enforce.

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First Amendment Victory Over Ban on Political Contributions from Medical Marijuana Businesses in Illinois

The state of Illinois enacted in 2013 a pretty blatantly unconstitutional law forbidding businesses engaged in (legal) medical marijuana sales or growing from contributing to political campaigns, in effect either directly or via a PAC (though only the latter was literally codified). But since candidates were also barred from accepting such contributions, the real legal effect was on direct contributions as well.

Thomas Hawk/FoterThomas Hawk/Foter

Two Libertarian Party candidates, Claire Ball and Scott Schluter, sued over this, with the help of the Pillar of Law Institute and the Liberty Justice Center. I reported on the suit in the case of Ball v. Madigan back in June.

This week, Ball and Schluter won a victory in U.S. District Court for the Northern District of Illinois, eastern division, in a request for summary judgment for them and against Illinois. ("Madigan" is Illinois Attorney General Lisa Madigan.)

Quoting from the decision from Judge John Z. Lee, which considers the notion whether this law must face "strict scrutiny" as a possible First Amendment violation based on content, or the looser "intermediate scrutiny" applying to most campaign finance law:

By singling out medical cannabis organizations, § 9-45 [the law being challenged] appears to reflect precisely...a content or viewpoint preference. Although Buckley and its progeny permit the government to regulate campaign contributions to some extent, surely the First Amendment does not give the government free rein to selectively impose contribution restrictions in a manner that discriminates based on content or viewpoint.....

§ 9-45 fails to pass constitutional muster even under Buckley's less rigorous intermediate standard. The Court therefore need not decide whether the statute would survive the more demanding standard of strict scrutiny, if that standard were to apply.....

Since the only reasonable government purpose Judge Lee would accept, based on precedent, for these restrictions is "preventing quid pro quo corruption or its appearance," he finds Illinois failed to:

point to any legislative findings raising concerns about corruption or the appearance of corruption in the medical cannabis industry. Nor do they point to any instances of actual corruption involving any medical cannabis cultivation center or dispensary. Rather, they rely solely upon Illinois's general history of political corruption scandals....

Still, the Judge is lenient on Illinois so far, writing that that thin evidence:

nevertheless substantiate[s] Defendants' claim that the media and the public have perceived a risk of corruption relating to the medical cannabis pilot program. This is all the more true given that cannabis distribution and use were legally banned in Illinois until the passage of the Medical Cannabis Act. Although thin, such evidence is sufficient under governing law to establish an important government interest for purpose of this analysis.

But that's not enough for Illinois to win:

they must further demonstrate that § 9-45 is "closely drawn" to this important government interest. For the reasons that follow, they fall short of doing so.....

Several features of § 9-45 render it plainly disproportional to the government's interest in preventing quid pro quo corruption or its appearance. First, § 9-45 is a disproportionate measure in that it imposes an outright ban on contributions, rather than a mere dollar limit on contribution amounts....

Defendants in this case have failed to explain why a flat prohibition is proportionate to the government's interest in avoiding the risk of actual or perceived corruption that arises when donors from the medical cannabis industry make monetary contributions to political campaigns. They assert that a wholesale ban is appropriate on the ground that medical cannabis cultivation centers and dispensaries "reap profits from the industry and require State licensure to operate" and therefore "pose the greatest risk of corruption."

But this bald assertion is little more than conjecture; Defendants offer no support for their claim that medical cannabis cultivation centers and dispensaries in fact pose a greater risk of corruption than other potential donors....

In addition, it bears noting that, without § 9-45, contributions from medical cannabis cultivation centers and dispensaries would still be subject to generally applicable contribution limits that the Illinois General Assembly approved in 2009.... Under these limits, a candidate political committee may not accept contributions over $5,000 from any individual or over $10,000 from any corporation, labor organization, or association, with adjustments for inflation....

Defendants have not explained why these broadly applicable contribution limits are insufficient to prevent the risk of corruption in the medical cannabis industry...

Moreover, § 9-45 is a poorly tailored means of promoting the government's interest in preventing quid pro quo corruption or its appearance because Defendants have offered no legitimate basis for singling out medical cannabis cultivation centers and dispensaries from other potential donors who also "reap profits" and "require State licensure to operate."

Judge Lee points out that past precedent Illinois tried to rely on regarding contribution restrictions on the gambling industry were distinct since in those cases actual real records of gambling-financed corruption existed.

For all those reasons, Judge Lee "concludes that § 9-45 places a significant and unjustifiable burden on the rights to freedom of speech and freedom of association. Section 9-45 is therefore invalid under the First Amendment."

A nice victory for free speech and expression in the growing tangled nexus between rights regarding marijuana and existing constitutional rights.

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6 Cool Innovations That Are Making the World a Better Place, Vol. 2

Reason's choice of SXSW's 2017 innovator awards

Reason readers already know that smart people + free markets = innovations that can change the world. But just in case you needed a reminder (or a proof of the pudding for your more skeptical friends), below are six products we found at South by Southwest Interactive (SXSWi), the big technology and entrepreneurship confab that happened in Austin, Texas, this month, that are working hard to make life a little better. Each was a finalist for one of the conference's Interactive Innovation Awards, and a couple of them took home first-place prizes, too.

6. Molekule: Fighting Indoor Airpollution at a Molecular Level

I am one of those poor souls who are allergic to anything and everything in the air. Dust. Dander. Smoke. Pollen. Carbon. Oxygen. I become a weezing, sniffling mess at the first sign of any of them. In desperation a few years ago I got myself an air purifier, but it didn't make much of a difference. Eventually the HEPA filter needed to be replaced, and I wasn't sure where to go to get a new one. Soon, rather than reducing the floating particle content in my apartment, it became just another object (ironically) collecting dust. And then I threw it in a dumpster. Enter Molekule, whose creators claim to have cracked the code on using nanotechnology, free radicals, and solar energy science (stick with me, I swear I'm not just blurting out buzzwords) in a process called Photo Electrochemical Oxidation (PECO) to actually break down indoor air pollutants at a molecular level. And the device—a finalist among Health, Med & Biotech products—knows when it needs a new filter and will automatically order one for home delivery, at a flat annual subscription rate. Although I can't testify that it works as promised, I very much hope I'll have a chance to find out in the near future.

Molekule / FacebookMolekule / Facebook

5. Pavegen V3: Human-Powered, Er, Power

Pavegen has created a flooring system that absorbs the shock of pedestrians walking across it and, using tiny generators on the undersides of the triangular tiles, transforms that movement into electricity. In addition to being a true renewable source of energy, it would seem to hold a lot of promise for letting there be light (among other things) in remote locations without access to traditional power hookups. According to the Pavegen website, the "rotary motion" caused by a footfall "creates 2 to 4 joules of energy via electro-magnetic induction." The company's first permanent outdoor installation came to Washington, D.C.'s Dupont Circle neighborhood (also, coincidentally, home to Reason's D.C. office) last fall, showing that the system can stand up to relatively harsh winter conditions. V3 was the Innovation Award winner in the Smart Cities category.

4. The ODIN: Do-It-Yourself Gene Editing

Self-described "biohacker" Josiah Zayner wasn't content to get a Ph.D. in biophysics from the University of Chicago and do research for NASA. In 2016, he launched a crowdfunding effort to found The ODIN, which for $150 will sell you a DIY bacterial gene editing kit. That product, a nominee for the Health, Med & Biotech award, comes with all necessary components "to make precision genome edits in bacteria at home including Cas9, tracrRNA, crRNAm," plus a template so you can experiment on your own. "I believe that the only way that this works is if Science is democratized so everyone has access," Zayner wrote on Indiegogo. "Until now, no one has taken the time to develop protocols and methods and then be willing to provide all of this for a reasonable price that can be afforded without large institutional grants."

Josiah ZaynerS. Slade

3. TunnelBear: Routing Around Internet Censorship

One of the ways oppressive governments manage to keep a stranglehold on their citizens is by controlling the flow of information via spying, censorship, and propaganda dispersal. Fortunately, Virtual Private Network (VPN) services can shield a user's online activities from her internet provider and, by creating a "tunnel" to a server in another country and connecting her to the internet from there, open up access to websites that would otherwise be blocked. TunnelBear is, of course, not the only such service. But it's making a bid to be the one that the masses turn to first to keep their communications safe. Unlike a lot of information security products, the website is slick and straightforward, the software is easy to install, and the interface is comprehensible. Because how much good can a service like this do if non-experts are too intimidated to give it a try? At $50 a year, TunnelBear—a finalist in the Privacy & Security category—is one of the most affordable VPN providers out there. Oh yeah, and they take Bitcoin.

2. The PRIME Needle-Free Injector: Because We All Hate Getting Shots

Portal Instruments set out to invent a better means of injecting medications—one that avoids the pain and anxiety many people experience from handling needles. The result is the PRIME injector, a handheld device that lets chronic disease sufferers self-administer a full dose of a drug in half a second (vs. the 10 to 20 seconds it takes now) and to do it without a needle or syringe. If that sounds like magic, well, you won't be surprised to hear the medical device startup (which is privately funded, Portal goes out of the way to point out on its website) took home the Innovation Award for Health, Med & Biotech. The technology works with a variety of biologics. Now all it needs is Food and Drug Adminstration approval.


1. Tokken: The Banking Solution for Cannabusiness

Due to labyrinthine federal regulations, marijuana growers, dispensaries, and other businesses—even in states where it's totally legal—can't get access to bank accounts and so must conduct all transactions in cash. Right? Not quite. A Denver-based startup called Tokken is here to change the game by offering companies and customers in the state a solution to this tricky problem. Founded by a former bank regulator, CEO Lamine Zarrad, the blockchain-based platform promises "to comply with every relevant regulatory requirement" on behalf of banks so they can rest easy knowing they won't get in trouble with the feds for extending their services to a cannabusiness. Consumers can then use the Tokken app to make purchases via a credit card stored in their own personal mobile wallet. Easy peasy. Tokken, which plans to expand beyond Colorado in the near future, was a finalist for the SXSW New Economy prize.


BONUS! What Reason TV found at SXSW: People using tech to take on tyrants. Check it out!

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Obamacare Repeal Bill Dies in the House, Free Speech Threatened at DePaul: P.M. Links

  • TrumpcareJIM LO SCALZO/EPA/NewscomHouse Speaker Paul Ryan's health care repeal-and-replace bill will not be voted on.
  • Peter Suderman explains why the bill died.
  • Is DePaul University the worst campus for free speech in the country? Check out this Foundation for Individual Rights in Education interactive report.
  • "You do not have some human right, some abstract thing given to you by God or by the world or something like that. You're part of a community and that's where you gain your meaning or your rights." Guess who said it.
  • Maybe this boy should file a Title IX complaint.
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Kentucky Becomes Second State to Add Police to Hate Crimes Law

Louisiana already illustrating potential for abuse.

Gov. Matt BevinJeff Malet Photography/NewscomThis week Republican Kentucky Gov. Matt Bevin signed into law House Bill 14, which adds law enforcement and emergency responders to the state's hate crimes law.

Technically, this is supposed to mean that if somebody intentionally targets a person for a crime because they're police officers, he or she may face enhanced sentences for a conviction. That's how hate crime laws are used in cases when a criminal targets somebody on the basis of race, sexual orientation, religion, and other protected categories.

But Louisiana has already passed a law just like this one, part of a whole "Blue Lives Matter" movement, and what we've seen so far is a push by law enforcement to classify any attempt to resist them as a hate crime. It's not being used to add punishment for those who target the police, because to the extent that police get targeted for attacks or ambushes, these are extreme, high-profile outliers.

What really happens when police have attempted to apply the law in Louisiana, it's because people say nasty things to police while resisting arrest. As C.J. Ciaramella previously noted, one police chief in Louisiana has said this is how he believes this law is supposed to function. He flat out said that people who resist arrest could face enhanced charges under the state's hate crime laws.

Here's what I wrote about police attempting to use hate crime laws to punish resistance or insults against them in New Orleans:

As somebody who has read many, many, many reports of anti-gay assaults and violence over the years, I just want to point out that while it probably looks clear to everybody outside the police that this wasn't a hate crime (again, regardless of a position on hate crime laws), what do people consider when evaluating the credibility of hate crime claims against other minorities? Things like whether the person assaulting a gay person or other minority shouted bigoted slurs, just like Delatoba did here. That is one of the factors used to decide that a crime is motivated by hate, and many supporters of hate crime laws get very, very upset when police don't immediately accept that hate speech as evidence that a hate crime occurred. But since we don't have the ability to read minds, what hate crime enhancements often actually do is add additional punishment based on what people say or express while committing a crime.

But this paranoia-fueled backlash to the "Black Lives Matter" movement seems likely to spread. President Donald Trump has put out an executive order calling for research into the possibility of new laws that could possibly add additional federal penalties against those who target police. Or those who get accused of targeting the police, anyway.

Should we be wondering which state will be the first to add law enforcement to their public accommodation laws, making it a crime for a business to refuse them service?

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The GOP’s Obamacare Repeal Bill Is Dead Because Trump Doesn’t Understand How Health Policy Works

It's hard to make a deal on a policy deal when you don't care about the policy.

Nobody knew health care could be so complicated! Molly Reilly/SIPA/NewscomThe House bill to partially repeal and replace Obamacare is officially dead.

The American Health Care Act (AHCA), which was scheduled for a vote this afternoon, has been pulled from consideration. The move means that GOP's years-long quest to repeal and replace the health care law has failed. For the foreseeable future, at least, Obamacare will stay on the books.

President Trump stumped for the bill aggressively over the last several weeks, and White House Press Secretary Sean Spicer said today that the president "left everything on the field when it comes to this bill." But in the end Trump couldn't make it happen.

The GOP legislation was ill conceived from the start. Partly as a result of the need to follow a special process that would allow the bill to pass with a simple majority in the Senate, it left much of Obamacare's essential structure in place—including insurance regulations, subsidies paid through the tax system for individuals purchasing coverage on the individual market, and a mandatory penalty, assessed by insurers, for those who go without coverage and seek to regain coverage.

The bill would have transformed Medicaid into a per-capita block grant system, but not until the next decade, and in its initial form would have created incentives for states to expand the health program. It also would have resulted in individual insurance premiums rising 15 to 20 percent in the short term, and some 14 million people losing their insurance as of next year, according to the Congressional Budget Office. A final amendment to the bill, released late last night, might have sent the individual market into a complete and immediate meltdown.

The bill failed in part because it could not establish a balance between the concerns of moderate Republicans, particularly with regard to the way it treated the Medicaid expansion, and more conservative members of the House Freedom Caucus, who argued that the bill was too much like Obamacare, retaining its core scheme of subsidies and regulations.

But it also failed because Trump proved himself an ineffective negotiator and dealmaker—one whose preference for shallow political victories over substantive policy wins ultimately proved insufficient in a complex policy negotiation.

Throughout his life, Trump has portrayed himself as a master dealmaker. As far back as 1984, for example, he argued that the U.S. government should let him manage the nuclear arms negotiations with Russia. "It would take an hour-and-a-half to learn everything there is to learn about missiles," Trump, who on the campaign trail did not know what the nuclear triad was, told The Washington Post at the time. Trump has never been focused on details. The deal itself was always more important than what was in it.

As House Republicans moved towards a vote on the health care bill, GOP lawmakers characterized his role similarly. This week, in advance of meetings with Republicans who opposed the bill, Rep. Patrick McHenry (R-North Carolina) called Trump "the closer." Final support for the bill would be won by Trump, who would use his skills as a dealmaker to push it over the finish line.

Trump repeatedly promised to repeal and replace Obamacare with "something terrific." But he never described the policy mechanisms of the replacement he preferred. And the outcomes he described—coverage for everyone, lower premiums, no changes to Medicaid—had little or no connection to the bill that House Republicans eventually drew up.

That didn't seem to matter to the president. As has always been the case with Trump, making a deal—any deal—was all that mattered.

In the end, though, the bill died. Trump couldn't close the deal. And one of the biggest reasons that Trump couldn't close the deal is that he didn't understand or care about the details.

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Harlots Dramatizes the Historical Lives of British Prostitutes: New at Reason

It’s not very sexy, but it’s an engrossing watch.

'Harlots''Harlots,' HuluSomewhere in the vast terrain between the hooker-as-fairytale-princess fantasy of Julia Roberts in Pretty Woman and the prim, grim Victorian sociology of Stephen Crane's Maggie: A Woman of the Streets lies Harlots, Hulu's odd but engrossing new drama about life inside an 18th-century London brothel.

Screenwriter Moira Buffini, one of the five British women who produce, write, and direct Harlots, said in unveiling the project that the goal was "everything from the whore's-eye view." The result is that the women in Harlots are neither glamorous courtesans nor broken flowers, and their depiction is never erotic. There's plenty of nudity, of both sexes, but you've seen commercials for bladder medication that were sexier. Television critic Glenn Garvin tunes in.

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Detroit Argues Dogs Killed in Drug Raid Were ‘Contraband’ Because They Were Unlicensed

Sorry, Detroit says, no Fourth Amendment protections against police shooting your dog if it's not licensed.

Uli Deck/dpa/picture-alliance/NewscomUli Deck/dpa/picture-alliance/NewscomThe city of Detroit argued in a recently filed court motion that a woman can't sue police for shooting three of her dogs during a drug raid because the animals were unlicensed "contraband."

Nikita Smith filed a federal civil rights lawsuit last year against the Detroit Police Department after a narcotics raid left three of her dogs shot to death. The lawsuit characterized the police as a "dog death squad" and claimed officers shot one of her dogs through a closed bathroom door. Graphic photos from the raid on Smith's house showed one dog laying dead in the blood-soaked bathroom.

Her case is only one of several lawsuits that have been filed against the Detroit Police Department (DPD) for dog shootings over the past two years. A Reason investigation last year found the DPD's Major Violators Unit, which conducts drug raids in the city, has a track record of leaving dead dogs in its wake. One officer alone had shot 69 dogs over the course of his career, according to public records.

Pets are considered property under the Fourth Amendment, protecting them from unlawful seizure (read: killing) by law enforcement. However, lawyers for the city of Detroit argue in a March 15 motion for summary judgement in Smith's suit that her dogs were unlicensed, and therefore she does not have a legitimate property interest in the animals.

According to the Detroit Metro Times, Michigan law requires dogs to be licensed to prove they have been vaccinated against rabies. The city's motion compares Smith to a minor with an alcoholic beverage, or a person with a bag of pot without a medical marijuana card, neither of whom would have a legitimate property interest protecting them from police seizures.

"Without being licensed, an unlicensed dog is property which is unlawful to possess or contraband," the city argues. "As the courts have indicated, there is no legitimate property interest protected by the 4th Amendment in contraband."

Smith's lawyer, Chris Olson, says the city's argument doesn't hold water.

"There is no case that holds that there is no legitimate property interest in unlicensed dogs, period. None," Smith says. "Which is why they didn't cite any. Second, Michigan's Dog Law of 1919 does not support their argument, either, and then there's that thing we're all familiar with called the Supremacy Clause, which makes it impossible for a city or state law to trump the Constitution. The Fourth Amendment is the supreme law of land."

The city's motion also disputes Smith's narrative of events and says the dogs were charging officers when they were shot.

Police arrested Smith for possession of marijuana, but the charges were dropped when officers failed to appear at her court date.

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Why We Still Need Statutes of Limitations for Rape

Momentum is gaining to end criminal statutes of limitations for sex crimes. But this betrays both victims and those accused.

Livermore National Laboratory/ZUMA Press/NewscomLivermore National Laboratory/ZUMA Press/NewscomImagine for a moment that, quite out of nowhere, police showed up and accused of you raping someone last Tuesday evening. They even claim to have DNA evidence of your crimes against this person, whom you've never met. How might you go about showcasing your innocence?

Naturally, the first step would be to prove you weren't at the alleged crime scene. If others can vouch for your whereabouts on Tuesday evening, you would give them as alibis. You might offer up receipts from bars visited or taxis taken that night, turn over GPS data from your vehicle, or show evidence of cell phone use—texts, calls, photographs—from this time. Detectives could easily check your word against taxi, ridesharing-service, phone, or bank data, and they might ask around to wherever you drank, dined, waited in line, picked up your kids, or whatever to see if anyone remembers seeing you. Maybe they check surveillance video from your subway stop or a 7-11 you stopped in, or get your apartment building's security footage. Maybe they find a neighbor who saw you pull into your garage, go out back to star gaze, take out your recycling...

The point is that unless you live all alone in the forest, there's a good chance you could establish where you were last Tuesday night, and conjure up enough evidence of it to drive reasonable doubt.

That is, if you're innocent. If you're guilty, all of the above works in the reverse (regardless of whether DNA evidence exists). Everyone who saw you, everywhere you traveled, and everything you paid for could place you at or near the crime scene. And for sexual assault cases, where it often comes down to the word of the accuser against that of the accused, these sorts of details could provide the crucial context needed to get a conviction—especially in cases where an assailant admits to being with the victim but claims the sex was consensual. Catching the accused in a lie about other parts of the evening, finding someone who saw them acting or looking suspicious, checking footage from places visited before or after, etc., might lead to tidbits that could help establish guilt.

Of course, this only holds if the victim comes forward soon after the attack. The key with all these potential ledes is temporal proximity: People's memories from a few days ago are still relatively fresh, security footage is still available, you (the wrongly accused in this scenario) still might still have a relevant bodega or McDonald's receipt lying around. A dorm mate or neighbor may remember seeing the assailant.

But imagine instead that the victim waits three months to file a police report. Some of the above—the nosy neighbor, say, or the pocketed receipts—will likely have been lost (who remembers minute details of some random Tuesday night three months ago?). Give it a bit longer, and more potential clues will have disappeared. Now give it six years, or 16, or 20. By that point it's not just the corroborating or exculpating GPS data, bar comrades, and bank records that are lost. Key witnesses may have died or moved off to unknown places. The bar where staff could alibi you no longer exists. All of this makes it much less likely that a victim will see (long-awaited) justice, that a rapist will be held accountable, and that a person wrongly ensnared will be able to prove their innocence. It's a lose situation all around.

Then there's the question of DNA. Any chance police had of finding useful DNA evidence at the assault location is obviously long gone, but perhaps the victim saw a doctor after the assault and had a medical forensic exam (also known, somewhat unfortunately, as a "rape kit"). This evidence, which would include samples from any semen found plus DNA evidence found anywhere on the victim's body, was sent from the hospital to a state crime lab, where it has been stored in vacuum-sealed bag inside a cardboard box inside a storage freezer for several decades. While DNA evidence does degrade with time, it should still be good for a few centuries—if stored perfectly. Thus far, however, law-enforcement forensics units have been notoriously bad at collecting, storing, and analyzing forensic evidence without making mistakes, and the longer these labs are holding on to a rape kit, the more chance for errors human or environmental. Forensic evidence storage areas in a lot of places are hardly high-tech operations, and policies for handling and keeping such evidence often ad-hoc.

Plus, as Matther Shaer put it in an Atlantic feature last year, "science is only as reliable as the manner in which we use it." And research has shown that the way we interpret DNA is highly subjective. In one 2010 study, researchers obtained documents from a 2002 Georgia rape trial in which two forensic scientists said the defendant could not be excluded as a DNA match for the mixture of sperm found inside the victim (the defendant was found guilty). In the study, the same DNA sample was shown to 17 experienced lab technicians, without context, who were then asked whether the mixture included DNA from the defendant. Twelve concluded that it definitely did not, one concluded that it definitely did, and four said it was inconclusive. "In other words," Shaer writes, "had any one of those 16 scientists been responsible for the original DNA analysis, the rape trial could have played out in a radically different way."

A similar DNA sample, processed long after it was collected and long past the point when corroborating evidence in the case is available, could be a powerful weapon of injustice indeed.

In the past, this hasn't been a big problem. But a host of factors—advances in forensic testing, a culture that's more supportive of rape victims coming forward, states storing rape-kit evidence longer, and a loosening of state statutes of limitations on rape charges—mean we could wind up with a lot more cases where sex crimes that rely on DNA evidence are being prosecuted years or decades after they occur. And if this happens, the results could be bad for assault victims, bad for innocent people, and bad for the concepts of due process and criminal justice as a whole.

But the force is strong with this one at the moment. Since the start of 2017, legislatures in Minnesota, Oklahoma, Oregon, Washington state, and Washington, D.C. have considered bills that would drastically expand or outright end the statute of limitations for pressing charges in sexual assault cases. In late 2016, California Gov. Jerry Brown signed into law a measure removing the state's statute of limitations on rape and other sexual offenses entirely; prosecution was previously limited to 10 years.

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Nuclear Home Movies

Friday A/V Club: The Lawrence Livermore National Laboratory is posting declassified footage of atomic tests on YouTube.

Nuclear test films would be eerie and hypnotic even if they didn't have the extra resonance they reap by representing the power to inflict mass death. And now there's more of them around: The Lawrence Livermore National Laboratory is digitizing declassified atomic footage, and this month it started posting the clips online. Go to the lab's YouTube page, and you can watch the government nuking the water...

...the sky...

...and the space beneath the ground:

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California Cops and the FBI Want to Keep Their Facial Recognition Tech Secret

Legislators aren’t so sure that’s a good idea. The FBI has been using facial recognition software for years without filing mandatory disclosures.

ALFRED PASIEKA/SCIENCE PHOTO LIBRARY/Alfred Pasieka/SPL/NewscomALFRED PASIEKA/SCIENCE PHOTO LIBRARY/Alfred Pasieka/SPL/NewscomA California proposal requiring law enforcement agencies to disclose all surveillance equipment to the public took the first steps towards becoming law this week, while a congressional committee gave the side-eye to FBI officials who declined to give specifics about some of the bureau's own surveillance tech.

First, California. A bill sponsored by State Sen. Jerry Hill (D-San Mateo) would require police and sheriff's departments to explain to local officials how they use surveillance technology like facial recognition programs and social media trackers. The disclosures would have to be made at a hearing that is open to the public.

Hill's proposal builds on two laws that took affect last year in California, the Los Angeles Times notes, requiring law enforcement to disclose when they use license plate scanners to track vehicles, and when they use so-called "Stingrays"—suitcase-sized devices that mimic cellphone towers and can be used to track or collect information from mobile phones.

"We want to be able to protect our civil liberties, defend and protect our Constitution and make sure law enforcement will have the tools available that will enable them to fight crime in our communities. We just have to find that [right] spot," Hill told the Senate Public Safety Committee during a hearing this week, according to the Times.

That committee voted 4-2 on Tuesday to approve the bill. It is now awaiting another vote in the Senate Judiciary Committee.

There's really no good reason to oppose this sort of transparency. The bill does not jeopardize ongoing investigations and does not limit what law enforcement agencies can do—provided that they first obtain permission from lawmakers. It's about transparency, yes, but also about restoring the proper order to the relationship between law enforcement and duly elected officials who are supposed to oversee and approve how law enforcement operates. Keeping surveillance tech secret prevents city councils and state legislatures from being able to preform that vital duty.

Keeping those secrets also jeopardizes the outcomes of investigations to a greater degree. We know that the FBI has ordered local prosecutors to drop cases rather than risk the public exposure of secret surveillance technology that helped track suspects. We have no idea how often this happens, but it's clear that potential criminals have gotten off scot-free because law enforcement inverted its priorities to value secrecy over keeping the public safe.

There's one key element missing from the bill: an outline of how law enforcement agencies would be punished for violating the mandatory disclosures.

That matters, as we saw this week in Washington, D.C., when officials from the FBI were in front of the House Oversight and Government Reform Committee to answer questions about how the bureau secretly uses facial recognition software and other surveillance technology.

The hearing was sparked by a Government Accountability Office report last year that revealed the FBI had been using facial recognition technology for years without first publishing a report on how it would impact Americans' privacy, as required by law.

The FBI has agreements with 18 states to share photos from state-level drivers' license databases, and that report from the GAO revealed that as many as 64 million Americans might be entered into the FBI's facial recognition database without knowing it. When you include similar databases maintained by the state and local law enforcement agencies around the country, one in every two American adults is included in a facial recognition network, the Center on Privacy and Technology at Georgetown Law concluded in a recent report.

"So here's the problem – you're required by law to put out a privacy statement and you didn't," said Rep. Jason Chaffetz (R-Utah). "And now we're supposed to trust you with hundreds of millions of people's faces in a system?"

Kimberly Del Greco, deputy assistant director for the FBI, told the committee that a privacy report was filed with the Department of Justice but never made public, for reasons that she seemed unwilling or unable to fully articulate at the hearing.

"Yeah, well, we don't believe you," Chaffetz said. "You're supposed to make that public."

Chaffetz argued that the facial recognition program was akin to collecting fingerprints and DNA from all Americans to build a database that could be abused for a wide range of reasons.

The entire exchange between Chaffetz and Del Greco is worth watching:

Often, we at Reason tend to point to California as an example of what other states ought not to do. There's no such derision here. Other states, and Congress, would do well to require similar transparency from local, state, and federal law enforcement agencies—and to hold those law enforcement agencies accountable for failing to make public disclosures when required by law.

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Are the 'Dishonest' Media Really Under-Reporting Terrorist Attacks? New at Reason

In the past five years, how many U.S. terrorist attacks were committed by jihadists?

DynamiteTerrorismNomadsoulNomadsoul/Dreamtime"It's gotten to a point where it's not even being reported. In many cases, the very, very dishonest press doesn't want to report it," asserted President Donald Trump a month ago. He was referring to a purported media reticence to report on terror attacks in Europe. "They have their reasons, and you understand that," he added. The implication, I think, is that the politically correct press is concealing terrorists' backgrounds.

To bolster the president's claims, the White House then released a list of 78 terror attacks from around the globe that Trump's minions think were underreported. All of the attackers on the list were Muslim—and all of the attacks had been reported by multiple news outlets.

Some researchers at Georgia State University have an alternate idea: Perhaps the media are overreporting some of the attacks.

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Employee Who Leaked NYPD Killer Cop’s Disciplinary Record Already Out of a Job

The city stopped releasing such records recently after deciding to interpret a state privacy law differently.

CCRBCCRBThe employee at the Civilian Complaint Review Board (CCRB) who leaked the disciplinary record of Daniel Pantaleo, the New York City officer who put Eric Garner in a fatal chokehold while trying to arrest him for allegedly selling loose, untaxed, cigarettes, is no longer employed at the CCRB, Politico reports. According to Politico the "low-level employee" was "pressured to quit."

Commissioner James O'Neill said the leak was determined to be illegal, so there "had to be some consequences," although he said he hadn't talked to the CCRB chair about the incident yet. O'Neill has separately said he supports the city releasing disciplinary records. The city did so for decades upon request, until Mayor Bill de Blasio (D), who attached himself to the police reform protests that burgeoned early in his time in office, decided that such releases violated a state privacy law that's been stretched over the decades in large part due to union advocacy to cover all kinds of records it wasn't originally intended to cover.

The CCRB itself appeared to take the more hard-line stance on the leaker in its mist, even as O'Neill has been non-committal so far about criminal consequences. In a statement about the internal investigation, the board's secretary, Jerika Richardson, said the board "would work with the relevant law enforcement authorities" when appropriate and that criminal prosecution was possible because of the CCRB's "zero tolerance policy for unlawful, criminal behavior."

New York City Councilman Brad Lander (D-39) told Politico there was a "cruel irony" to the leak being "resolved in one day" when "Garner's family is waiting years for Officer Pantaleo to be held accountable in any way, while stressing it was "not acceptable" for city employees to leak confidential information. Yet the work of the CCRB, a "civilian" board, should not be considered confidential to begin with, particularly if it finds allegations substantiated, as it did on seven occasions with Pantaleo. And the "cruel irony" is entirely man-made. De Blasio decided to overturn decades of city practice by interpreting the state privacy law in the way that the police unions wanted. The extensive protections Pantaleo, and other officers involved in fatal incidents, enjoys also come from internal political decisions.

Politicians like Lerner and De Blasio attached themselves to calls for police reform, but engage the issue as if they were outsiders and not the leaders of political institutions that have to power to change policies and priorities. After the death of Garner, and a series of other publicized police brutality incidents in New York City, de Blasio resisted calls to pull back on broken windows policing and aggressive enforcement of the kinds of petty laws that ensnare victims like Garner. "The law is the law," de Blasio said at a press conference where the then-police police commissioner, Bill Bratton, said correcting your behavior for police was what democracy was all about. De Blasio's tautological belief that "the law is the law" hasn't stopped him from insisting New York was a "sanctuary city," even though in that case, too, he refuses to pull back on aggressive enforcement of petty laws in order to less expose New York City residents in the country illegally to the risk of deportation.

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Chicago Bleeds Population for Second Year in a Row

Time to call it a trend?

Deep dish pizzaShinyshot / Dreamstime.comFor a second year in a row, the metropolitan Chicago area lost more residents than it gained. Not only that, the losses are increasing.

Those are the latest figures released from the U.S. Census. The greater Chicago area (not just the city, to be clear) lost 19,570 in 2016. The area saw a net loss of 11,324 people the previous year. Chicago is the only metropolis among the top 10 cities in America to lose population.

Given the massive dysfunction of the operations of the City of Chicago, it's easy to find something to blame or explain the losses that fits your pre-existing political attitudes and be absolutely correct. It's got serious violent crime problems and serious police abuse issues. Chicago and the state of Illinois force massive tax burdens onto its citizens and then direct that money both to powerful union and private sector crony interests. All of these various reasons have been blamed by citizens heading elsewhere. The Chicago Tribune has been asking them:

By most estimates, the Chicago area's population will continue to decline in the coming years. Over the past year, the Tribune surveyed dozens of former residents who've packed up in recent years and they cited a variety of reasons: high taxes, the state budget stalemate, crime, the unemployment rate and weather. Census data released Thursday suggests the root of the problem is in the city of Chicago and Cook County: The county in 2016 had the largest loss of any county nationwide, losing 21,324 residents.

Experts say the pattern goes beyond just the Chicago region. For the third consecutive year, Illinois lost more residents than any other state in 2016, losing 37,508 people, according to U.S. census data released in December.

Last year, a specialized study on the migration habits of wealthy people worldwide noted that Chicago was a massive outlier among American cities in that it was losing rich people. The report predicted that a notable outward migration of millionaires is a canary-in-a-coal-mine warning that others will soon follow suit. That seems to be the case now. The new report indicates that close to half of the people who left Cook County last year—more than 9,000 of them—were African American. Of course, some of those African-American folks are probably wealthy, too, but it's also very clear that these are people looking for economic opportunities that they aren't able to find in Cook County.

Another interesting detail gleaned from the report: Immigration to America declined, even in major cities, over the last decade. But most of these cities continued to grow due to population increases among native residents. That didn't happen to Chicago.

Reason has written extensively about Chicago's many problems, from its inability to rein in police misconduct, its inability to manage its public employee pensions in an economically sound fashion, its inability to stand up to teachers' unions demands even as they bankrupt the school system, even its tendency to cheat its citizens with corrupt, crony-driven red-light camera systems and revenue-driven plastic bag taxes. We have a special tag for stories about Chicago's municipal operations, and it's not to highlight how great they are. Read more Chicago-based Reason writing here.


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