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WashingTECH Tech Policy Podcast with Joe Miller

The WashingTECH Tech Policy Podcast is your resource for tech law and policy news and interviews. Each week, the WashingTECH Policy Podcast presents the latest developments across the tech policy landscape plus interviews with a diverse array of tech policy influencers.
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WashingTECH Tech Policy Podcast with Joe Miller
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Jun 27, 2017

America's History of Recalcitrance

George Wallace's resistance to desegregation was similar to hate speakers' resistance to efforts to curb racism online.

De jure discrimination

Racism online is evolving in a way that is consistent with the way racism has always evolved--from explicit to subtle.

Plaintiff-side civil rights lawyers have found it easiest to win -- if civil rights cases can ever said to be "easy"--  in cases in which they can convincingly demonstrate defendants' explicit discriminatory policies.

The Civil Rights Act of 1964, the United States Supreme Court's 1954 decision in Brown v. Board of Educationand their subsequent cases and amendments comprise the bulk of American civil rights law.  The Civil Rights Act prohibits discrimination on the basis of race, color, religion, sex or national origin. Brown held segregation in public schools to be unconstitutional.

In interpreting a statute, judges will consider Congressional intent, which includes the circumstances under which Congress enacted the law. Congress enacted the Civil Rights Act  in an era of widespread de jure segregation in the South. Every 6th grader knows that, prior to Brown, state and local authorities in the South required "colored" and "white" students to attend segregated schools. Black students usually attended inferior schools with old books and in dilapidated buildings.  Southern authorities also required colored and white citizens to use separate facilities such as water fountains, restrooms, waiting rooms, and buses. They also enabled most private establishments, such as restaurants and hotels, to segregate as they pleased.

Following  Brown, Southern racists remained undeterred. For example, on June 11, 1963, fully 9 years after Brown, Alabama Governor George Wallace famously "stood in the schoolhouse door" to prevent Vivian Malone and James Hood from entering and registering for classes at the University of Alabama. President Kennedy deployed the National Guard to remove Wallace, which they did.

Virginia's response to Brown is also illustrative of the Southern response to it. Virginia Senator Harry F. Byrd, Sr. and his brother-in-law, Virginia General Assembly leader James M. Thomson, together pursued a  "Massive Resistance" strategy to oppose desegregationUnder Massive Resistance, the Virginia Assembly passed laws to prevent and punish local school districts for integrating in accordance with Brown. Further, Virginia authorities continued to enforce Massive Resistance initiatives well into the 1960s, even after federal and state courts ordered them to end their recalcitrance.

The Civil Rights Act finally codified the nation's civil rights policy.

Given the context in which the Civil Rights Act was enacted, courts are most likely to strike down laws and policies that contain explicit "suspect" classifications; namely, those that refer to race, color, religion, sex or national origin. Indeed, courts subject such de jure discrimination statutes and policies to the Constitutional "strict scrutiny" standard--the highest standard of judicial review. Paradoxically, laws designed to help traditionally marginalized groups, and which mention those groups explicitly, are also subject to strict scrutiny and thus likely to be struck down. (The intricacies of the strict scrutiny standard go well beyond the scope of this post. However, if you are interested in learning more about strict scrutiny and the other levels of scrutiny courts are likely to apply in interpreting the Constitution's Equal Protection Clause, click here.)

De facto discrimination

After many years of resisting civil rights laws, racists in the North and South had an a-ha moment. If they could figure out a way to maintain their supremacy using things that looked like something else, but achieved the same ends, they were golden! And so de facto discrimination--laws and policies that are not discriminatory on their face, i.e. they are facially neutral, but have discriminatory effects, have been the order of the day ever since. Stop-and-frisk? Check. Insanely long prison sentences for minor offenses? Check. School segregation based on merit? Check. Proposed cuts to Medicaid? Check.  Voter re-districting? You get the point.

Welcome to the age of stealth racism.

"I thought this post was about racism online."

It is.

The same racist ideologies that prevailed in 1964 prevail today. Since 1964, opponents of the Civil Rights Movement, many of whom are still alive today, and their descendants and allies, have persisted in their efforts to preserve their supremacy. They have taken racism online.

This is the story of some of the measures the tech sector has taken, such as Google's Conversation AI, to curtail racism online and how defiant hate speakers have evaded those measures by creating their own code language.

Hate speech is indeed protected speech and that's the problem.

Researchers at the Rochester Institute of Technology peeled back the top layer of the internet and found hate speech teeming underneath.

My guest today is Rijul Magu (@RijulMagu). Rijul co-authored, along with Shitij Joshi and Jiebo Luo at the Rochester Institute of Technology, a report entitled "Detecting the Hate Code on Social Media". He's the lead author. Rijul is currently a Masters Student at RIT and he earned his undergraduate degree at Jaypee Institute of Information Technology in Noida, India.

 

Resources

University of Rochester School of Engineering and Applied Sciences Department of Computer Science (homepage of Graduate Studies Faculty Advisor Jiebo Luo)

Detecting the Hate Code on Social Media by Rijul Magu, Kshitij Joshi, and Jiebo Luo

Zero to One: Notes on Startups, or How to Build the Future by Peter Thiel

News Roundup

The New York State Commission on Forensic Science has adopted a new controversial policy regarding the use of suspects' DNA evidence.  The Commission voted 9-2 to allow police to collect not just suspects' own DNA evidence, but also the DNA evidence of close relatives. While the measure has the support of prosecutors, opponents of the bill pointed out procedural flaws with some describing the new policy as a kind of genetic stop and frisk. Nathan Dempsey has the story at Gothamist.


A Department of Homeland Security official --Jeanette Manfra, acting deputy undersecretary of cybersecurity and communications for the agency’s National Protection and Programs Directorate --  told members of the Senate Intelligence Committee last week that Russia targeted election systems in 21 states during last year's presidential election. Ranking Member Mark Warner wrote Homeland Security Secretary John Kelly to make public the names of the states that were targeted. However, Secretary Kelly has thus far not released that information claiming that to do so would harm national security. Edward Graham covers this in Morning Consult.


Uber CEO Travis Kalanick has resigned following the fallout from former Attorney General Eric Holder's report on the company's frat boy culture. However, several employees have attempted to have Kalanick reinstated. Rebecca Savransky has the story in the Hill. The Congressional Black Caucus wrote a letter Monday to Uber leadership urging them to improve racial and ethnic diversity in hiring and promotions at the company.


A new Politico and Morning Consult report shows 60% of Americans either strongly or somewhat support the FCC's current net neutrality rules the new Trump-era FCC under Ajit Pai appears to be in the process of overturning. Two-thousand and fifty one registered voters were surveyed.


The FCC has recommended a $122 million fine on a suspected robocaller--the highest-ever FCC fine. Officials suspect the alleged robocaller, Adrian Abromovich, a Florida man, made some 100 million robocalls over three months. Harper Neidig has the story in The Hill.


The FCC also unanimously passed a rule change last week that will allow law enforcement to bypass blocker called IDs belonging to callers making imminent threats. Harper Neidig has this one in The Hill as well.


We may soon be able to access Internet via an internet connection made from space. Doing so would significantly speed up upload and download speeds. The FCC approved a plan of Greg Wyler who plans to link up 720 satellites to deliver high speed broadband from space as soon as 2019. Brian Fung has the full story in the Washington Post.


President Trump met with tech executives, including drone developers last week. The president said he'd work to give tech companies the "competitive advantage they need" and "create lots of jobs". David Shepardson covers the story in Reuters.


In a unanimous 8-0 decision, the Supreme Court ruled last week that a North Carolina law that prevents registered sex offenders from going on Facebook is unconstitutional under the First Amendment. Lydia Wheeler covers this in the Hill.


FCC Chaiman Ajit Pai testified at a Senate Appropriations Committee hearing last week about the agency's budget. Pai recommended a budget cut of over 5.2% since last year, or $322 million, which Chairman Pai conceded would come from the elimination of over 100 Commission jobs.

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