Aereo is Toast

Tim Lee has a great rundown on today's Supreme Court ruling on the internet-television company Aereo:

In the process of ruling against Aereo, the Supreme Court has created a mess that will take lower courts years to clean up. Online services that are similar to Aereo in some respects and different in others are more likely to face lawsuits, and the lower courts will have to sort out which services are similar enough to Aereo to face copyright liability.

His point about future political chaos and uncertainty in the cloud storage industry isn't even a comprehensive picture of the damage this ruling will cause. The sections of spectrum currently claimed by broadcast television are extremely potent (signals are long-range and can pass through concrete etc.), and are almost certainly not allocated to their highest and best use (that would be wireless internet). Siding with Aereo would have set the US on the slow path towards reallocating this valuable spectrum, and eliminating the ridiculous subsidy to broadcast television.

On another note, I can't help think that even though Aereo's specific legal strategy didn't work (a warehouse full of tiny antennas), the basic idea of streaming television over the internet is inevitable. Aereo was probably over-ambitious by placing the antennas in a remote warehouse. This encouraged a psychological framing of their service as one totally disconnected from the typical TV-viewing experience. But image if instead you placed a unique antenna in your house, on your TV, which then connected to the internet and let you watch it anywhere. Having the antenna 'based' in your home, instead of in an impersonal warehouse would certainly make the broadcasters' case harder to stomach. After all, you can already do this with an old laptop...

Judge Pushes Back Against Nuclear Waste Regulatory Kludge

The question of what to do with nuclear waste has long bedeviled policymakers and industry participants. The stuff has been stored on-site in temporary pools since the 1980s, but power companies have been steadily paying into a government fund to develop a long-term solution. Most of the money has been spent researching and building a proposed geologic repository at Yucca Mountain in Nevada, which was cancelled by President Obama (a move undoubtedly driven by Harry Reid's clout and Nevada's early place in the presidential nomination process). It's an excellent example of kludgeocracy in action: no political majority exists to stake a risky position on changing the status quo, so we're left with an increasingly outdated and dangerous waste storage policy.

But in a rare move of governmental sanity, a federal judge ordered a halt to the collection of the storage tax:

"A federal appeals court ruled Tuesday that the Energy Department must stop collecting fees of about $750 million a year that are paid by consumers and intended to fund a program for the disposal of nuclear waste. The reason, the court said, is that there is no such program."

An interesting question now is whether this development will help or hurt nuclear energy's competitive prospects. On the one hand electricity generated by nuclear fission becomes cheaper, albeit marginally. On the other hand, the industry finally loses all pretense of on-site storage pools as "temporary".

Nuclear energy exists within an insane regulatory thicket of competing and contradictory subsidies and hindrances. Action to combat climate change and institutional links to military research helps the industry. Conversely, the ban on waste reprocessing (established after India detonated a bomb built from reprocessed spent fuel) severely limits the creation of a safe nuclear energy industrial ecosystem.

Halting the storage tax is a small step towards simplifying everything, but it seems that until cheaply available space flight opens up a safe alternative to geologic storage and reprocessing (shooting waste into the vastness or sun), we're stuck with a situation that's becoming increasingly dangerous and unsustainable.

What Is Hacking?

It seems pretty cut-and-dry, but on the margin the laws regarding how we define hacking and computer-mediated consent become tricky--and fascinating. James Grimmelmann has a must-read article evaluating the legal theory of the Computer Fraud and Abuse Act (CFAA; the government's big anti-hacking law), and some possibilities for improvement. The comments section also contains further excellent analysis.

The politicization of this issue has played out in a strange way, with many conservatives pushing for a more expansive definition of hacking and liberals criticizing what they see as an unacceptable government capacity for prosecutorial capriciousness. I tend to think the particular history and culture associated with hacking and computers explains these battle lines (i.e. young idealistic liberal nerds vs. The Man), but I'm not convinced stronger hacking rules would actually be worse for the little guy.

The popular conception of hacking still emphasizes the exploitation of big institutions by small groups. But as technology continues to democratize and spread, the exposure of average households to hacking risks will surely increase. Information asymmetries mean large organizations have huge opportunities for exploiting small gaps in uninformed individuals' increasingly computer-mediated lives.

Science and Law

Governments worldwide are not doing enough to prevent the occurrence of low-probability, high-impact events, also known as catastrophic risks. This is the primary message in the book Catastrophe: Risk and Response by Richard Posner, a federal judge and University of Chicago professor. But aside from the horrors of asteroid collisions and bioterrorism, Posner sketches a fascinating critique of our current legal system.

Among the many deficiencies in our catastrophic risk management system, the law stands out as an institution particularly ill-suited towards dealing with issues of science and risk. As the wealth of human scientific and technological knowledge has grown, so too has its complexity. Understanding many scientific topics requires more and more specialization, something anathema to the law in its current structure.  Although some lawyers specialize in scientifically rigorous fields, judges and juries by design do not. This can result in tragically misinformed legal outcomes, such as the 1980 Diamond v. Chakrabarty which established that living organisms can be patented just like new chemicals.

A second problem concerns the culture of the law. With its emphasis on verbal logic, legal professions overwhelmingly attract students who are either bad at, or uninterested in, math and science disciplines. In fact, the absence of math and science in the law is a big factor that attracts many students from humanities disciplines. Science illiteracy is a big problem everywhere, but the law's unique importance in our policy process makes it especially damaging.

A third concern relates to the law's obsession with personal testimony and human cognitive bias. It's best explained here, go to 1:50 in.

Lastly, a more philosophical point. In all areas of science, but especially in quantum physics and biology, the idea of isolating simple cause-effect relationships is breaking down. It turns out that reality is a lot more complex that we thought. Instead of simple, linear, causal relationships we have interacting feedback loops of overlapping conditional and causal networks. Chaos theory and fractal geometry have shown us that randomness is a massively powerful and pervasive force that affects everything. In light of these new truths, the law's singular structure of "one party versus one party; who's to blame" seems almost quaint. Take environmental law, for example. Does this company's pollution make it guilty of contributing to this community's health problems? This type of question is terribly suited for the law's "guilty/innocent" decision structure. Maybe the low socioeconomic status of the community reduced its members' overall health and made them especially vulnerable to the effects of the pollution, and the same pollution had no effect on the richer, healthier, more resilient communities in the area. In this case, assigning blame on the basis of one direct causal relationship is naive in light of other causal factors. 

So how can the law improve its relationship with science? Increasing scientific specialization among lawyers, judges, and juries in the form of a "science court" could go a long way towards improving the quality of scientifically complex legal decisions. Massive investments in science and math education could also help, as well as mandating higher levels of science and math coursework in basic education guidelines. That many of today's students will never take an introductory statistics course in their lifetime is quite a chilling thought indeed.

Book Talk with SC Justice Stephen Breyer

Last week I attended an interesting Q&A event with Supreme Court Justice Stephen Breyer, moderated by NYTimes journalist Linda Greenhouse.  Justice Breyer is out with a new book, Making Our Democracy Work: A Judge's View, and the discussion loosely focused on the role courts play in facilitating a functioning democracy.  Justice Breyer is one of the court's more liberal judges, and his responses to questions both from Ms. Greenhouse and from the audience shed much light on his approach to law.

Much of the discussion focused on philosophies for interpreting legislation, because that's about 60% of a judge's job.  Justice Breyer's approach focuses on "purpose and consequences."  He believes in identifying the main purpose of a law, then applying it using today's standards, with much weight given to the practical consequences.  Values stay, but the way they are applied can change.  He contrasted this approach with a detail-obsessed, text-based historical analysis.  In his view a text-based historical approach limits too severely the ability of government to adapt to changing circumstances.  To illustrate his point, Justice Breyer used a great example of a law passed to protect specific endangered species.  If future information reveals that a species that wasn't on the original list is in fact endangered--and was the whole time--then the law should protect that species.  It's obvious the law was passed to protect endangered species, yet a detail-driven textual analysis would rule against protection.

Another reoccurring topic was the interaction between national security and the law.  According to Justice Breyer, the famous Korematsu case, where the Supreme Court sided 6-3 with the government over the constitutionality of Japanese internment during WWII, was one of the ugliest moments in U.S. legal history.  Although the courts must have a hands-off approach to security issues (they cannot run a war), their actions have massive implications: the president will either break the law too much (unnecessarily infringing on people's constitutional rights), or too little (unwisely endangering the security of the nation).  According to Justice Breyer, "The Constitution is not a suicide pact."  So what's the answer?  "Let them do it" Breyer states, "then punish them after."  But under no circumstances should the court rule the way it did in Korematsu, because that ruling "makes a precedent that lies there like a loaded gun."

Most interestingly, Justice Breyer refused to offer in-depth analyses of certain contemporary hot-button issues, such as the health care mandate and the Park51 mosque.  These issues may someday end up on his desk, and taking a strong opinion now, without proper research and information, is unwise.  "Beware of cocktail party conversation," Breyer quipped.

One issue that caused me to rethink an existing view was that of allowing television cameras inside the courtroom.  Previously I, along with many liberals, have advocated it as a way to help the public learn about the court and build its power.  "It is the weakest branch," Breyer admitted.  The problem with allowing cameras in is twofold.  First, some witnesses may be unwilling to testify for fear of retribution.  Secondly, oral arguments are only a tiny fraction of a supreme court case.  A case is mostly conducted in writing, and so to publicize the oral arguments so glamorously would terrible bias people's perception of the court.

Health Care Insanity Reaches Minnesota

A new states' rights constitutional amendment proposed in Minnesota is morbidly fascinating.  Read it here.

SCOTUS-Files

Supreme Court Justice John Paul Stevens seems to be headed for retirement soon, and in anticipation here's a lengthy rundown of potential replacements.

My ideal pick: Cass Sunstein.  Never gonna happen, but still.
My reality-based pick: Senator Amy Klobuchar.
Craziest pick: Obama nominates himself.