The Volokh Conspiracy

In this episode, we dive into some of the AI safety reports that have been issued in recent weeks. Jeffery Atik first takes us through the basics of attention-based AI, and then into reports on AI safety from OpenAI and Stanford. Exactly what AI safety covers remains opaque (and toxic, in my view, after the ideological purges committed in the name of "trust and safety" by Silicon Valley's content suppression bureaucracies). But there's no doubt that a potential existential issue lurks below the surface of the most ambitious AI projects.

Whether or not ChatGPT's stochastic parroting will ever pose a threat to humanity, Nick Weaver reports, it clearly poses a threat to a lot of people's reputations.

I confess that there's surprisingly little cyberlaw in the biggest intel leak of the last decade. It turns out that leakers can do as much damage as cyberspies, just by folding, carrying, and photographing classified documents. While there's some evidence that the Russian government may have piggybacked on the leak to sow disinformation, Nick says, the real puzzle is the leaker's motivation. That leads us to the question whether being a griefer is grounds for losing your clearance.

Paul Rosenzweig educates us about the Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act, which would empower the administration to limit or ban TikTok. He highlights the most prominent argument against the bill, which is, no surprise, the discretion the act would confer on the executive branch. The bill's authors, Sen. Mark Warner (D-VA) and Sen. John Thune (R-SD), have responded to this criticism, but it looks as though they'll be offering substantive limits on executive discretion only in the heat of Congressional action.

Nick is impressed by the law enforcement operation that shuttered Genesis Market, where credentials were widely sold to hackers. The data seized by the FBI in the operation will pay dividends for years.

I give a warning to anyone who has left a sensitive intelligence job to work in the private sector: If your new employer has ties to a foreign government, the Director of National Intelligence has issued a new directive that (sort of) puts you on notice that you could be violating federal law. The directive has detailed provisions for how the intelligence community will tell its current employees about the new post-employment restrictions, but it offers very little guidance to intelligence community alumni who have already moved to the private sector.

Nick is enthusiastic about the tough tone taken by the Treasury in its report on the illicit finance risk in decentralized finance.

Paul and I cover Utah's bill requiring teens to get parental approval to join social media sites. After twenty years of mocking red states and their Congressional delegations for trying to control the internet's impact on kids, it looks to me as though Knowledge Class parents are getting worried about their own children. When the idea of age-checking internet users gets endorsed by the UK, Utah, and The New Yorker, I suggest, those arguing against the proposal may have a tougher time than they did in the 90s.

And in quick hits:

• Nick comments on the massive 3CX supply-chain hack, which seems to have been a fishing-with-dynamite effort to steal a few people's cryptocurrency.
• I raise doubts about a much-cited claim that a Florida city's water system was the victim of a cyber attack.
• Nick unloads on Elon Musk for drawing a German investigation over Twitter's failure to promptly remove hate speech.
• Paul and I note the UK's most recent paper on how to exercise cyber power responsibly.
• Nick and I puzzle over the conflict between the Biden administration and the New York Times about a government contract that supposedly undermined the administration's stance on spyware.
• And for those who listen to the podcast for news about the Canadian Ski Marathon, I have released a low-fi video that should appeal to both of you.

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As a general rule, essays on "wokeness" and law school free speech debates shed more heat than light.  But I found this essay from Harvard Law professor Ben Eidelson, "The Etiquette of Equality," to be a particularly interesting read.  Eidelson offers a middle ground that probably won't make advocates on either side happy, but I think he makes some illuminating points along the way.

The paper begins with this hypothetical:

Imagine a classroom discussion of Lawrence v. Texas, the U.S. Supreme Court's landmark decision holding sodomy laws unconstitutional. One student argues that the Court's ruling was correct because a state may not base its criminal laws on bare moral disapproval. Another student picks up on Justice Scalia's dissenting opinion and responds that, if that principle were sound, polygamy and bestiality would also be immune from punishment.A third student chimes in to observe that those comparisons are offensive, even harmful, and urges or intimates that the second should apologize. What should happen next?

One natural thought is that it depends on whether the offense that the third student took (or supposed others would take) is justified. That is evidently what Justice Scalia himself thought: faced with an openly gay student's similar request for an apology, Scalia rebuked the questioner for failing to grasp the reductio argument that he had actually made. Insofar as Scalia had "compared" same-sex intercourse and bestiality, after all, he claimed only that bans on these practices are alike by the lights of the principle that the Court invoked to invalidate sodomy laws. As Scalia correctly observed, that claim really has nothing to do with whether same-sex intercourse is morally tantamount to bestiality at all.

Yet I suspect many will share my instinct that this point of logic is not all that matters, from a moral point of view, in the kind of encounter that I have described. For if many people confronted with Scalia's analogical argument will foreseeably take its expression as implying a moral equivalence between same-sex intercourse and bestiality—or, more simply, as an anti-gay insult—that fact alone seems to bear on whether, or at least how, one should voice the argument. And insofar as Scalia or the second student in our imagined dialogue predictably caused gay audience members to think they were being insulted (even, in a sense, mistakenly), and did so without good reason, taking offense at that behavior—under that revised description—could well be warranted after all. In a sense, the listener's interpretation, which starts off foreseeable but mistaken, seems to bounce off of the speaker and return to the listener vindicated in the end.

This line of thought might suggest that the second student did act wrongly and should indeed apologize. But that is not a comfortable result either. Treating the student's mere invocation of the analogical argument as an insult will tend to ratify the misunderstanding of what they actually said, to discourage the expression of other ideas that could also be misunderstood, and to raise the overall "symbolic temperature" within the community. Indeed, a general practice of validating reactions such as the third student's here could well result in gay students facing more, rather than fewer, comments that they rightly take as offensive—at least in a belief- or evidence-relative sense of rightness—and thus leave them only worse off. So, again, what should the characters in this story do? I am tempted to say that, if you think the answer is obvious, one of us is missing something important.

Read the whole thing here.

Adam Unikowsky is a biglaw partner, and a former law clerk to Justice Scalia, who has an active Supreme Court practice.  In his free time, he has started up an excellent Substack on legal issues (mentioned here before by Jonathan Adler).  I've enjoyed each post; they each combine serious legal analysis with really strong writing.  Unikowsky's latest is a takedown of Judge Kacsmaryk's Mifepristone decision.  Unikowsky's overview: "The decision is indefensible. In this post, I will walk through the decision and explain just how bad it is."

The post is thorough and quite a read, going through what Unikowsky presents as error after error after error after error.  Here's just a taste:

The court then claims that "Plaintiff medical associations have associational standing via their members' third-party standing to sue on behalf of their patients." (p. 9). This section reveals that the court does not understand what "third-party standing" means.

"Third-party standing" is something that plaintiffs sometimes have to show in addition to—not instead of—Article III standing. Plaintiffs always, 100% of the time, have to show what the Supreme Court has called the "irreducible constitutional minimum" of standing under Article III—(1) a concrete and particularized injury, that is (2) caused by the defendant's action, and (3) redressable by the requested relief. In some cases, a plaintiff that has standing asserts that some action harming them is illegal because it violates someone else's rights—in which case they bear the additional burden of showing they are entitled to assert the rights of that third party, i.e., third party standing.

Lawsuits by abortion providers challenging abortion restrictions are a classic illustration of the third-party standing doctrine in action. In most cases, especially pre-Dobbs, abortion restrictions target abortion providers rather than women seeking abortions: if a provider performs an abortion in violation of state law, the provider is punished. Abortion providers who sue states seeking to enjoin abortion restrictions have obvious Article III standing. They face a concrete and particularized injury (the state if going to shut them down and incarcerate their doctors if they perform illegal abortions); it's caused by the state, which enforces the law; and an order enjoining the state from enforcing the law would redress the injury.

In challenging those laws pre-Dobbs, the providers would claim that the laws are unconstitutional because they violate their patients' constitutional right to an abortion. Thus, although the providers were the direct targets of the law, the providers' legal theory was that the laws were unconstitutional because they violated the constitutional rights of third parties—i.e., their patients. In this context, courts would consider whether the providers were permitted to assert the legal interests of their patients under a doctrine known as "third-party standing," or whether instead the plaintiffs had to be women seeking abortions. So, for plaintiffs who already had Article III standing, courts would consider whether the plaintiffs also had third-party standing.

The district judge doesn't understand this. He says: "The injuries suffered by patients of the Plaintiff medical associations' members are sufficient to confer associational standing" (p. 10). In other words, he thinks that if hypothetical patients have Article III standing, this means that the doctor-members of the plaintiff organizations can also assert "third-party standing" without a showing that the doctor-members themselves were injured. Standing does not work this way, this is completely wrong.

Even if standing did work this way, the court's application of the doctrine would still be wrong…..

You can read and sign up for Unikowsky's Substack free here.

I am now teaching the Takings unit of Property Law. In this somewhat incoherent body of caselaw, the Supreme Court often grapples with a recurring theme: what is the relevant denominator. In other words, when the government regulates a person's property, should the court consider (i) only the part of the property that is being regulated or (ii) the "parcel as a whole," including the parts of the property that are not being regulated. If you follow the first path, then ~100% of the person's relevant property interest is being regulated, and there is almost certainly a taking. If you follow the second path, then a smaller percentage of the person's property interest is being regulated, and there is likely no taking.

In 2018, as many will recall, I was protested at the CUNY Law School in New York. Depending how you count, my speech was disrupted for the first eight minutes or so. During that chaotic period, I was not able to speak. At around the eight-minute mark, the protestors departed. After that point, I was no longer heckled. I decided not to give my prepared speech, but rather sought to do Q&A. Even after the incident, I remained conflicted on whether my speech was disrupted. Indeed, I turned to (of all things) takings law to help address that issue. What was the relevant denominator? Was it the eight-minute segment that was entirely disrupted? Or was it the planned hour-long speech, of which about eight minutes was disrupted? I discussed this issue at some length in the First Amendment Law Review, starting at Page 46. Specifically, I explain that the "parcel as a whole" framework may work for a concrete property interest, but is a poor fit for a dynamic protest in which the outcome is uncertain:

But the "parcel as a whole" test is a very poor fit for free speech jurisprudence. This property-centric approach presumes stability while campus protests are volatile. In Penn Coal, the parties understood exactly how much land could not be mined. And in Penn Central, the parties knew exactly how much of the train station could still be utilized. That model works for metes and bounds. It doesn't work for a real-time discourse. Hindsight is always 20/20. When the event began, I had no idea how long the disruption would last. For all I knew, the students could have made noise nonstop. Why did the students at CUNY not protest me for the full hour? I take some credit. Rather than trying to deliver my lecture as planned, or shout over the students, I tried to engage them. I asked them questions to try to forge a common ground. That strategy defused the situation. But it could have backfired. The students could have shouted at me for the entire hour—or worse, continuously clanked a cowbell! The event also could have turned violent. Even after the students exited, I had a concern they would return at some point.

I think a similar dynamic was at play at Stanford Law School. The students heckled Judge Duncan during the first portion of the event. Dean Steinbach came to the podium and proceeded to criticize Judge Duncan. After Steinbach gave her spiel, many of the protestors left. Judge Duncan tried to answer questions for some time, but was unable to deliver his original speech. How do we measure whether there is a disruption? The New York Times interviewed Nadine Strossen about this issue:

Holding vulgar signs or asking pointed questions or even making gagging noises — as many students did when Judge Duncan was introduced — does not necessarily violate the university's policy.

In her memo, Dean Martinez said she would not take action against individual students, citing the difficulty of distinguishing between protected speech and unprotected speech.

"Are 10 minutes of shouting out of an hour-and-a-half-long event too much?" said Ms. Strossen, the free-speech crusader. "That is a matter of judgment and degree."

If you get the balance wrong, Ms. Strossen said, then you risk chilling speech on the other side.

I don't know that it is fair to use the 10-minute mark with the benefit of hindsight. In an ideal world, shortly after Duncan started, an administrator not named Steinbach should have issued a firm warning. If anyone continued to heckle after that warning, the student should be deemed to have violated the policy. The "denominator" cannot be that the planned event that was never allowed to transpire.

The Times also offers some new information that puts Dean Steinbach in a somewhat more favorable light. In particular, Tim Rosenberger, the FedSoc chapter President offers some praise of Steinbach.

To begin with, Ms. Steinbach had a cordial, productive relationship with the leader of the student-run Federalist Society, Tim Rosenberger Jr. Ms. Steinbach, who started at Stanford in 2021, said she wanted to expand the role of D.E.I. to include groups like veterans, older students and conservatives. She viewed herself as a bridge builder. Mr. Rosenberger, for his part, said he wanted a Federalist Society chapter that was better integrated into the university and had found that she was willing to engage in ways that many students, professors and administrators, to Mr. Rosenberger's disappointment, would not.

Moreover, Steinbach helped to moderate a FedSoc event with that right-wing ideologue Nadine Strossen:

In January, when Mr. Rosenberger could not find a co-sponsor for an event with Nadine Strossen, a former head of the American Civil Liberties Union and a champion of free speech, he found a partner in Ms. Steinbach, who moderated the event. "That took some courage," he said. Ms. Strossen said she had spoken to many Federalist Society chapters in recent years and had noticed that, especially since the Jan. 6 attack on the Capitol, the group had become effectively "blacklisted" at many law schools. This backdrop, Ms. Strossen said, made Ms. Steinbach's enthusiastic participation in the event "extraordinary."

What the hell does it say about Stanford that no one would speak with the former head of the ACLU? Nadine is a national treasure. How sad. Props to Steinbach for behaving cordially with the "right" kind of FedSoc guest. Judge Duncan, however, would receive a very different treatment.

Next, the Times turns to Steinbach's role on the day of Judge Duncan's visit. First, we learn that Dean Martinez had approved the email Steinbach sent out:

On the morning of Judge Duncan's talk, Ms. Steinbach sent an email to the entire law school, approved by Dean Martinez. She summarized the concerns that students had with Judge Duncan but said that students who tried to stop speech "would only amplify it," and she linked to the free-speech policy. Ms. Steinbach's connection to students might have made her confident that she could be the broker between the two sides. But during a free-speech conflagration, who should play the role of enforcer? And how should that message be delivered?

I had long suspected that Steinbach at least thought she had the backing of the administration. This datapoint provides more support. Dean Martinez may have more blame than we know.

The university had made other preparations. Law school administrators had warned university officials that students could run afoul of the university's speaker policy that day, according to an email obtained by The Times. The university sent an official to join others representing the law school. But when the judge asked for an administrator, it was Ms. Steinbach who stepped up to the podium.

It was never clear to me why Steinbach, of all people, came to the podium when Judge Duncan asked for an administrator. Even worse, why did no one go to the podium earlier when there was relentless heckling? It was not Judge Duncan's job to signal for help.

Steinbach explains that she viewed her role as de-escalating the crisis. And, for the first time, Steinbach acknowledged that she erred--sort of. I think this statement is a cop-out. The university had a policy that she ignored. Instead, she took 6 minutes to attack an invited speaker on behalf of the administration.

"My role was to de-escalate," Ms. Steinbach said. She wanted to placate students who said they were upset with Judge Duncan — "and to, I hoped, give the judge space to speak his prepared remarks." In hindsight, she said, she did not get the balance right. She noted, however, that she had been speaking to students in the room, and did not realize that her words would be blasted out to the world.

Oh come on. The event was being recorded by the school, and countless phones. She spent time crafting her words carefully. She had to know her words would be broadcasted worldwide. I don't believe she is so naïve.

Rosenberger, the chapter President, faulted Steinbach to a degree:

Mr. Rosenberger said that he had been upset by Ms. Steinbach's remarks in the lecture hall but that she had been something of a "scapegoat" for the university's broader failure to protect speech.

He said that he wished an official had stepped to the podium and warned students that further disruption would be in violation of the university's free-speech policy — but that Ms. Steinbach, as D.E.I. dean, was not that messenger.

"If she was the administrator whose job was to enforce the no-disruption policy, then yeah, she totally failed, but that's not her job description," Mr. Rosenberger said. "People have called her stupid and incompetent. She's a smart and good person who was just put in a really bad spot."

Again, why did Steinbach go up there to deliver a prepared six-minute remark? She obviously had intended to speak to the room. This wasn't impromptu. Dean Martinez again throws Steinbach under the bus:

Dean Martinez, in an email to The Times, said that one of the problems that day was a "lack of clear communication" among administrators in the room. But she laid at least part of the blame with Ms. Steinbach.

"Regardless of what should have happened up to that point," she wrote, "when Judge Duncan asked for an administrator to help restore order, it was Ms. Steinbach who responded, introduced herself as an administrator, and then delivered remarks."

For whatever reason, Steinbach deemed it her role not to enforce university policy, but to engage in conflict resolution. Again, the DEI administrator misunderstood her role on campus.

I'll have much more to say about this topic in a future column.