New APPS: Art, Politics, Philosophy, Science

ToS and the Subject Position of Website Users

By Gordon Hull

As one knows, online privacy policies (and access to the Internet in general) are generally conditioned on a user’s acceptance of some sort of boilerplate terms of service.  Lots of people (myself included) have complained about this state of affairs as attempting to get users to consent to all sorts of practices by way of reams of unintelligible legalese.  In addition to allowing unlimited data collections, these contracts often include mandatory arbitration provisions, which means that they compel users to take disputes with the sites to arbitrators selected by the company, rather than taking them to courts.

In other words, the idea is that using the product or service constitutes consent to a series of wildly one-sided terms that the user probably could not understand if she tried.  There is certainly no chance of negotiation or bargaining involved.  As Julie Cohen put it, “the conception of consent emerging from that default condition is unprecedented in the law of contracts or any other body of law,” and more closely resembles older status contracts than the contracts of modern liberalism (58-9).  The result is “a form of Kabuki theater that distracts both users and regulators from what is really going on” (59).

In a recent paper, Woodrow Hartzog and Neil Richards detail this state of affairs in terms of contract theory and its imaginary of two autonomous individuals negotiating and agreeing to terms.  They argue that:

“Consent is most valid when we are asked to choose infrequently, when the potential harms that result from the consent are easy to imagine, and when we have the correct incentives to consent consciously and seriously. The further we fall from this gold standard, the more a particular consent is pathological and thus suspect” (1465).

The design of notice-and-consent privacy regimes is deeply pathological from this point of view.  Consent is often unwitting – consumers don’t understand either the terms or the technology behind them.  They also don’t understand the consequences and risks (which is entirely expected, given that they are futural and difficult to visualize).   If not fully coerced, consent can be induced by both the fact that it is difficult now not to use the internet (so no opt-out) and both ISPs and networks are de facto monopolies (so no market competition).  Various website design techniques make opting out difficult: pop-ups that cover up the screen, browser tabs with no ‘back’ button, and various techniques of shaming (“Yes! I want this product.  No, I choose to die a lonely death”).  And of course there is the question of children: COPPA only protects children up to age 13, even though contractual consent typically starts at age 18.  And kids can easily get around age checks anyway.

If we step back from the normative arguments about why this situation is abusive or otherwise bad, I think there’s an interesting point to be made about subjectivity here.  Basically, the sites are trying to construct a legally cognizable subject position that users then occupy.  Both steps are important.  The contractual language presented in the ToS defines the subject position, and it seems to me that it’s important to distinguish this subject position from a few alternatives. First, this is not the traditional subject of law.  That position is foreclosed by the lack of availability of the courts.  Disputes are to be settled by a privatized procedure.  Second, it’s not the subject of administrative procedure either, such as recently upheld by SCOTUS in patent arbitration.  That procedure also allows an appeal to courts.  Third, it’s not the position of the disciplinary (?) subject that consumes mass media: there is no pretext to contract when you open a book, as Hartzog notes in an earlier paper on these contracts.  In short, I think this is a quite specific subject position constructed by the technology companies for their own advantage.

There is also a split between the structural subject position and the phenomenological experience of users.  Users are encouraged by the sites in question to view themselves as free and emancipated by the technology, and as empowered by its affordances.  They are (for obvious reasons) not encouraged to view themselves as signing away their rights.

The gap between user experience and described subject position leads to the second question: whether users can be said to occupy this subject position, i.e., whether these contracts are enforceable.  Can technology companies rely on the coercive power of the state to define the subjectivity of users on their terms?

It is the position of the technology companies that use of their products constitutes acceptance of the terms of service; sometimes this requires clicking a button.  Courts have been generally unwilling to say that the contracts are objectively unenforceable as unconscionable or otherwise inconsentable (though Hartzog and Evan Selinger more recently make the case that facial recognition ought to be the sort of thing that someone cannot consent to – the harms are potentially too great and difficult to understand).  This means that the question legally has come down to whether the notice and consent procedures are adequate.  Hartzog’s earlier paper suggested that, as of roughly 2010, courts had been most likely to refuse to enforce ToS on casual users – those who just read a website but do not otherwise particularly interact with it.  Still, the law was inconsistent and this emerging de facto carve-out was far from either settled or explicit.

Here, a recent survey of the case law by Nancy Kim is encouraging.  She reports that the case law is still very inconsistent, and users often lose.  But: there’s a movement toward demanding more of websites:

“The standards of “notice” and “manifestation of assent” remain the same, but how those standards are applied varies depending upon the facts of the case and the jurisdiction. Berkson v. Gogo LLC and Nguyen v. Barnes & Noble, Inc. have been particularly influential in helping inform the application of the standards. Reflecting the influence of these two cases, courts have started to assess the reasonableness of notice by evaluating the website experience from the perspective of the offeree and by considering how the drafter chose to present terms. Thus, instead of asking why the offeree failed to read visible terms, more and more courts are asking why the offeror failed to draft terms in a more conspicuous manner. As the court in Rushing v. Viacom Inc. emphasized, the burden is on website owners to “put users on notice of the terms to which they wish to bind consumers.” Accordingly, courts are increasingly asking for two types of evidence from drafters. The first is in the form of screenshots or webflows that demonstrate how the terms were presented to plaintiffs. The second is in the form of the drafter’s internal records that document that the plaintiff actually accessed the website at the time the notice was allegedly presented.” (1693)

There’s a lot to be done here, of course, but it’s nice to see some legal pushback, and to see how courts understand evidence and other traditional legal concepts in this context.  Kim cites several cases where courts determined that reasonably prudent users would not realize that they were entering into a contractual relation – for example, there was a hyperlinked “terms of service” but it was buried several pages into a website and well below the prominent “click here for the next step of your purchase.”  Nearly all of the cases Kim cites are about the enforceability of mandatory arbitration clauses, which suggests both the specificity of the subject position the websites are constructing, and the extent to which its enforceability is an artifact of their power over not just users but the state.

Encouraging case on Qualified Immunity

Given the role of qualified immunity in absolving police officers of murdering unarmed black men (and doing all sorts of other nefarious things), it’s encouraging to see that the Supreme Court said in a per curiam opinion today that there is an outer limit to how far that doctrine can be extended.  Recall the problem: courts will rule that yes, some behavior or another would be unconstitutional, but the law on the subject is not “clearly established,” so the officer is shielded from liability.  The trick is that “clearly established” morphs into “an officer in an identical situation has already been found liable for doing exactly what is alleged here.”  Then of course liability becomes almost impossible to establish.

Consider now the case of Trent Taylor:

“Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in “massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “packed inside the water faucet.” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage”

Like clockwork, the extra-conservative 5^th Circuit concluded that the treatment was unconstitutional, but that there was no liability (I’m quoting SCOTUS) because “based on its [the 5^th Circuit’s] assessment that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in  cells teeming with human waste” “for only six days,” the court concluded that the prison officials responsible for Taylor’s confinement did not have “ ‘fair warning’ that their specific acts were unconstitutional.” SCOTUS points out the obvious: “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”  They add: “Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”  So back to litigation – no summary judgment in favor of the officers.

We still have a long way to go before qualified immunity is reined in adequately, but this shows there is at least a floor.  In the meantime, Justice Alito writes a concurrence in which he first says that the SCOTUS shouldn’t have reviewed the case, but given that it has, he concurs in the judgment.  Oh, and Justice Thomas dissented.  But you could have guessed that.  More importantly, at least seven justices realized that there could be limits to qualified immunity.  These days, it’s important to recognize even small first steps.

Foucault on Public Opinion

If you’re like me, you spend too much time – way too much time – these days looking at polling data.  I ran across some interesting remarks by Foucault on opinion yesterday, which I’ll share here as a technique of distraction.  He makes them in the context of a 1976 conversation with J. P. Barou and Michelle Perrot (whose work on resistance to disciplinary power he favorably cites near the end of the conversation) that was published as the preface to an edition of Bentham’s Panopticon writings.  It appears as “L’oeil du pouvoir” (D&E #195, pp. 190-207 in my 2 volume edition) and is translated in Foucault Live (=FL).   For context, then, the conversation appears in the year after Discipline and Punish.  It covers a range of topics, including Foucault’s own path to discovering the panopticon (initially via hospital architecture, which had the dual need to see patients and keep them physically separated to avoid the spread of disease).

Foucault suggests that Bentham’s original work enjoyed considerable uptake in revolutionary France.  Barou sets Foucault up: “isn’t it surprising to realize that the French Revolution, in the persons of people such as Lafayette, favorably received the project of the panopticon?” (D&E 195).  Foucault answers that Bentham “is the complement of Rousseau” because the “Rousseauian dream” that “animated the revolutionaries” was of a “transparent society, both visible and legible in each of its parts, which had no more obscure zones, no zones established by the privileges of royal power or by the prerogatives of such and such body, or indeed by disorder; that each, from the point that he occupies, is able to see the entirety of society; that their hearts communicate with one another, that the gazes encounter no more obstacles, that opinion rules, that of each on each [celle de chacun sur chacun]” (D&E 195/FL 230).  Opinion thus functions similar to what Foucault will later identify as a function of pastoral power (omnes et singulatim), simultaneously totalizing and individuating.  “Opinion” is an object of “police” power in Discipline and Punish (213), that power that is concerned with understanding and managing the minutiae of daily life.

In the interview, Foucault suggests that Bentham is “both this [Rousseauian dream] and its complete opposite” because he understands the problem of visibility “while thinking of a visibility organized entirely around a dominant and surveillant gaze” (D&E 195/FL 230).  Thus you have joined the “lyricism of Rousseau and the obsession of Bentham.”  Foucault then suggests:

“A fear haunted the second half of the 18^th century: there is a dark space, a screen of obscurity which provides an obstacle to the complete visibility of things, of people, of truths. [One needs] to dissolve the fragments of night which were opposed to the light, to make it so that there is no more dark space in society; to demolish the black rooms where arbitrary political power, the caprices of the monarch, religious superstitions, conspiracies of tyrants and priests, illusions of ignorance and epidemics [all] fomented” (D&E 196/FL 231).

In this context, the then proposes that “the rule of ‘opinion’ that we invoke so often in our age is a mode of functioning where power will be able to be exercised on the sole condition that things are known and that people are seen by a type of immediate gaze [par une sorte de regard immédiat] that is collective and anonymous” (D&E 197/FL 232).

Hold on to the word "immediate" – it will be important in a moment.  But for now, notice the extent to which this is a pretty good description of nights spent gazing at opinion polls, both the obsession with knowing, and the fear that there are (say) hidden Trump voters like there were last time.  More light!  This sort of epistemology is driven by a fundamentally paranoid logic, as Wendy Chun emphasized a while ago: once I use some sort of optical device to see beyond what my naked eye tells me, that opens the fundamental possibility that a better device would see more.  See a molecule with the microscope?  Is that really the smallest particle?  After all, there were molecules lurking below the surface that you hadn’t seen before.  Here the paranoia is inevitable given a sampling process.  The poll represents underlying opinions, and the process of sampling invariably “sees” only part of the data, even when it’s done exactly right.  And that’s before you factor in questions about whether people who don’t have landlines are proportionally represented, or whether young people who say they will vote will actually do so, and so on.  That’s also before you get to issue polling, which I complained about before the last election, arguing that it worked to create populations and truths about them that were fully the product of the polling questions, making it (for example) impossible to express views that didn’t fit the categories the polling firm wanted to hear.

In any case, as anybody who works in data will tell you, our access to data is fundamentally mediated by the process of its collection and description, which means that the immediacy we want – to just see clearly whether Trump has enough hidden voters somewhere in Pennsylvania to pull off the upset.  We have to content ourselves with something like the fivethirtyeight statistical runs: crunch all the polling data (including weighting it by quality of poll), simulate the election 40,000 times (there’s a vision of hell: 40,000 occurrences of this election!) and see what happens (as of this minute, Biden wins 88% of the time).  But the human brain just doesn’t like that: a pair of papers, one in Philosophy and Public Affairs,  and one in the Stanford Law Review, by David Enoch, Levi Spectre and Talia Fisher make the case that we prefer juridical reasoning in the sense that we can explain why somebody is wrong, rather than living with the statistical truth (in this case, that Trump could win and there’s nothing wrong with the model at all.  Enoch Spectre and Fisher use the example of liability for a bus accident).

All of which leads to the following remarkable paragraph.  In response to Perrot’s suggestion that Bentham seems to overstate the power of his panopticon, Foucault says:

“This is the illusion of almost all of the reformers of the 18^th century who lent to opinion a considerable power.  Opinion is only able to be good when it is the immediate consciousness of the complete social body; they believed that people would become virtuous by the fact that they were observed [regardés].  For them, opinion was a spontaneous reactualization of the social contract.  They misunderstood the real conditions of opinion, of the media, a materiality which is caught in the mechanisms of the economy and power” (D&E 204/FL 238).

And:

“They also failed to understand that the media would necessarily be controlled by economic and political interests. They did not perceive the material and economic components of public opinion. They thought that public opinion would be just by its very nature, that it would spread on its own accord, and provide a kind of democratic surveillance. It was essentially journalism—a crucial innovation of the 19th century—that manifested the utopian characteristics of this entire politics of the gaze” (D&E 204/FL 238)

Of course as Foucault notes, journalism comes with its own politics, and different forms of it come with different politics.  I’ll close with two tidbits.  First, one large study found that false news traveled further, faster and deeper on Twitter than true news, almost no matter how one measured diffusion.  It’s the materiality of the news infrastructure and the business models of the platforms through which opinion is constituted.  Second, there appears to be a horrible nexus of Instagram, Facebook, QAnon and multi-level marketing schemes that’s contributing to the diffusion of that conspiracy: it turns out that QAnon and multi-level marketing share a lot in common, and social media tends to facilitate that.  I can’t describe it better, but the article is worth a read.  The paranoid logic is baked in!

Trump's Corruption of the CDC

Among the indefinitely many evil things the Trump administration has done that will take years and years to fix (and in this case has undoubtedly cost many lives already).  Propublica has the story.

Hardin vs. Demsetz, or The Tragedy of the Commons versus the Economists

By Gordon Hull

I’m going to be teaching Harold Demsetz’s “Toward a Theory of Property Rights” (1967) tomorrow, and noticed a couple of things that I hadn’t before. I suspect they’re related, and say something about the moment the article appeared.  At least, that’s what I want to propose here.  To set it up: Demsetz is known for the theory that property rights emerge when it is efficient to internalize externalities.  His example is land rights among Native Americans; he says that property in land increases with the arrival of the fur trade.  Absent land rights, there was always a risk in overly intensive hunting occurring: without private property, it is in nobody’s interest to invest in the growth and maintenance of hunting stock.  Before the arrival of Europeans, this was fine because there was no particular incentive to hunt too intensively.  When the European fur trade arrived however, the incentives to intensive hunting grew, and property rights emerged as a management strategy.  If I have to live with the consequences of depletion of the hunting stock on my land, I’ll have the incentive to manage it correctly.  That, at least, is the story.  It’s quasi descriptive in the sense that Demsetz thinks this is an explanation for why we have property regimes, and somewhat normative in that it’s clear between the lines that he thinks private property is a good way to go.  Here’s the observations: first, the piece is heavily reliant on Ronald Coase, and second, although the narrative sounds like a tragedy of the commons narrative, it actually flies in the face of what Hardin was trying to do in that article.

If this is true, it is horrific, even for an agency that locks children in cages

UPDATE: Dahlia Lithwick has some helpful context, including litigation from the 1970s involving forced sterilizations of poor Latina women in California.  Lithwick also recounts some of the more familiar history about the early 20c legal history of forced sterilization (endorsed by SCOTUS in Buck v. Bell and Justice Holmes' declaration that "three generations of imbeciles is enough" and supposedly ending in another case in 1942), but I didn't know about the California cases.

Mass hysterectomies at an ICE detention center:

Several legal advocacy groups on Monday filed a whistleblower complaint on behalf of a nurse at an Immigration and Customs Enforcement (ICE) detention center documenting “jarring medical neglect” within the facility, including a refusal to test detainees for the novel coronavirus and an exorbitant rate of hysterectomies being performed on immigrant women .... Multiple women came forward to tell Project South about what they perceived to be the inordinate rate at which women in ICDC were subjected to hysterectomies – a surgical operation in which all or part of the uterus is removed. Additionally, many of the immigrant women who underwent the procedure were reportedly “confused” when asked to explain why they had the surgery, with one detainee likening their treatment to prisoners in concentration camps.

A little more:

The complaint details several accounts from detainees, including one woman who was not properly anesthetized during the procedure and heard the aforementioned doctor tell the nurse he had mistakenly removed the wrong ovary, resulting in her losing all reproductive ability. Another said she was scheduled for the procedure but when she questioned why it was necessary, she was given at least three completely different answers.

“She was originally told by the doctor that she had an ovarian cyst and was going to have a small twenty-minute procedure done drilling three small holes in her stomach to drain the cyst,” according to the complaint. “The officer who was transporting her to the hospital told her that she was receiving a hysterectomy to have her womb removed. When the hospital refused to operate on her because her COVID-19 test came back positive for antibodies, she was transferred back to ICDC where the ICDC nurse said that the procedure she was going to have done entailed dilating her vagina and scraping tissue off. “

Another nurse then told her the procedure was to mitigate her heavy menstrual bleeding, which the woman had never experienced. When she explained that, the nurse “responded by getting angry and agitated and began yelling at her.”

Here's a refresher on how ICE has been treating children.

A Deleuzian Undercurrent to “What is an Author” (part 6: Instaurateur as Event)

By Gordon Hull

I want here to tie together the preceding several posts (one, two, three, four, five) and finish the case for a Deleuzian undercurrent (perhaps better to say, Deleuzian and Althusserian undercurrents) to Foucault’s 1969 “What is an Author” seminar.  Recall the specific point of interest: in a somewhat odd moment near the end of the lecture, Foucault distinguishes between authors and “instaurateurs.”  The first move is to distinguish Marx and Freud from Ann Radcliff, the founder of Gothic novels.  Radcliff “opened the way for a certain number of resemblances and analogies which have their model or princiuple in her work” (114).  Marx and Freud, on the other hand, “have created a possibility for something other than their discourse, yet something belonging to what they founded” (115).  He then disginguishes Marx/Freud from science as established by Galileo; for Marx/Freud, “the initiation of a discursive practice is heterogenous to its subsequent transformations” (115) rather than a development of it.

The most direct Deleuzian way to express this distinction is to say that instaurateurs are repetitions (as I explored earlier) or “events.”  Before doing that, though, it’s worth noting that Foucault did not have to mention Marx in this context.  Indeed, given his dismissals of Marxism and his hostility to the PCF, it is perhaps striking that he does so.  After all, while it is certainly the case that Foucault sees himself as offering a different critical approach from that in Marxism, he could achieve that simply by distinguishing his approach from Marxism.  Why the reference to Marx?  As I have suggested, the Foucault-Marx relation is one that’s under-explored in the literature; here, it’s only necessary to note that Foucault takes appreciative notice of Althusser’s circle and its efforts at rereading Marx.  In a decisive passage (that I noted last time), Althusser  writes:

Epistemology of Covid: Testing Technologies

By Gordon Hull

Early on in the Covid-19 pandemic, I dedicated a post (and a short follow-up) to the idea that our knowledge of Covid-19 is mediated by the indicators we have to represent it, and that those indicators are themselves epistemically tricky.  In particular, there’s a difficulty in understanding “Covid incidence,” because of difficulties in translating from “positive Covid tests” to how many Covid cases are actually present in a given population.  The standard shorthand way of addressing this has been to look at percentage of positive tests, with the guideline that unless this percentage is low enough, the number of positive tests likely significantly under-represents the number of cases. The situation reminded me of the ambiguity of “malaria cases” in parts of Africa, where the dashboard tally of number of cases does not transparently communicate the number of people who actually have malaria.

The last couple of weeks have indicated the extent to which there’s a further STS point lurking.  The standard test for Covid-19 is a PCR, which has the advantage of being highly sensitive.  It has the disadvantage of requiring complicated reagents and a lab, and so one reason (and the only even faintly forgivable reason) for the lack of testing in the U.S. is bottlenecks at the lab and supply level.  A number of folks have been arguing that there isn’t enough capacity in the system, even if it were done well, to test as many people as need testing.  Certainly in the status quo, where lots of people have to wait a week to get their test results, the test is useless for a lot of purposes, since they’ll probably no longer be contagious by the time they get the test result.  The test, in other words, doesn’t produce any actionable information.

Testing idiocy, redux

UPDATE (8/26): This should surprise exactly no one, but apparently upper levels of the Mafia Donald regime pushed for the change.  This is after all the same regime that scuttled an earlier testing plan in order to score political points against blue states.

 

The CDC now recommends against testing asymptomatic people who have a known exposure:

"If you have been in close contact (within 6 feet) of a person with a COVID-19 infection for at least 15 minutes but do not have symptoms:

• You do not necessarily need a test unless you are a vulnerable individual or your health care provider or State or local public health officials recommend you take one.
  • A negative test does not mean you will not develop an infection from the close contact or contract an infection at a later time.
• You should monitor yourself for symptoms. If you develop symptoms, you should evaluate yourself under the considerations set forth above.
• You should strictly adhere to CDC mitigation protocols, especially if you are interacting with a vulnerable individual. You should adhere to CDC guidelines to protect vulnerable individuals with whom you live."

Phew!  Because that would be really problematic advice if we were to find out, several months ago, that this is a really contagious disease, and that like a third of cases are asymptomatic!

A Deleuzian Undercurrent to “What is an Author” (part 5: Althusser’s Marx as instaurateur)

By Gordon Hull

The last couple of times (first, second), I have been setting up Althusser’s Marx as the background to Focuault’s invocation of Marx as an “instaurateur” in his “What is an Author.”  Today, I want to finish that project by noting three additional moments in Althusser’s reading that indicate that he is not treating Marx as an “Author,” at least not straightforwardly.   (a) Marx’s self-consciousness is irrelevant to the reading (“it is essential to avoid any concession tot the impression made on us by the Young Marx’s writings and any acceptance of his own consciousness of himself” (For Marx [=FM] 74).  (b) In accounting for Marx’s emergence in the context of German idealism, Althusser defers to Marx’s own account of why “this prodigious layer of ideology” existed at that time and place.  The reason – Germany was unable “either to realize national unity or bourgeois revolution” (FM 75) was basically exogenous to philosophy, but it made the subject position of German philosophers possible and intelligible.  (c) Althusser rejects any implication of a Romantic author thesis; even an author like Marx who invents new worlds “must have absolute necessity have prepared his intelligence in the old forms themselves” (FM 85).

A Deleuzian Undercurrent to “What is an Author” (part 4: Althusserian ‘reading’ and ‘emergence’)

By Gordon Hull

Last time, I set up the context for reading Foucault’s remarks on Marx in “Author” in the context of Althusser, as well as some of the basic contours of the Althusserian anti-humanist Marx.  Here, I want to pursue that line further.  Althusser writes against the growing popularity of a humanist Marx, which is derived from Marx’s early writings.  Althusser (and his circle) want to read an anti-humanist Marx, which requires that the early writings be successfully contained.  At stake in this project is thus both a question of the content of Marx, but, perhaps even more importantly, a strategy for reading Marx.

According to the Althusserian reading, Marx had a humanist phase that he abandoned as he reached theoretical maturity, a moment that Althusser calls – explicitly following Bachelard (For Marx, 32) – an “epistemological rupture.”  The turning point, on this argument, is found in the “Theses on Feuerbach” or German Ideology.  For a sense of how the argument works, consider Rancière’s contribution to Reading Capital, in which Rancière says he will be tracking “the passage from the ideological discourse of the young Marx to the scientific discourse of Capital.” (1973 Maspero edition, p. 8).

Excess Mortality due to Covid

An important part of the human cost of the Covid-19 pandemic is the loss of life and health not due directly to Covid cases, but to the disruptions it causes.  American hospitals have long worried about the decline in ER visits from cardiac patients, and drops in cancer diagnoses.  Presumably, those health problems haven't suddenly gotten better.  It's just that people aren't seeking (or are seeking but not getting) care for them.  So too, childhood vaccination rates are in decline globally, especially in developing countries, though evidence from Michigan suggests that is happening here in the U.S. too.

And then there's the situation for places dealing with TB, HIV/AIDS and malaria.  Per the New York Times:

"According to one estimate, a three-month lockdown across different parts of the world and a gradual return to normal over 10 months could result in an additional 6.3 million cases of tuberculosis and 1.4 million deaths from it. A six-month disruption of antiretroviral therapy may lead to more than 500,000 additional deaths from illnesses related to H.I.V., according to the W.H.O. Another model by the W.H.O. predicted that in the worst-case scenario, deaths from malaria could double to 770,000 per year.  Several public health experts, some close to tears, warned that if the current trends continue, the coronavirus is likely to set back years, perhaps decades, of painstaking progress against TB, H.I.V. and malaria."

In the meantime, as of now, nearly 700,000 people have officially died of Covid.

 

A Deleuzian Undercurrent to Foucault’s “What is an Author?” (part 3: Excursus into Althusser)

By Gordon Hull

Back in Before Times, I wrote a couple of posts beginning to make the case for a Deleuzian influence behind Foucault’s “What is an Author” (part 1, part 2).  This post resumes that series… Recall that Foucault’s narrative in “Author” distinguishes between those who found a science, like Galileo, and those who are an “initiator [instaurateur]” of discourses.  Examples of the latter are Marx and Freud.  So let’s consider how the Foucault of the late 1960s reads Marx, given that he pretty much despises Marxism.  For example, in Order of Things, he worked hard to say that Marxism was not genuinely revolutionary:

“At the deepest level of Western knowledge, Marxism introduced no real discontinuity; it found its place without difficulty, as a full, quiet, comfortable and, goodness knows, satisfying form for a time (its own), within an epistemological arrangement that welcomed it gladly (since it was this arrangement that was in fact making room for it) and that it, in return, had no intention of  disturbing and, above all, no power to modify, even one jot, since it rested entirely upon it. Marxism exists in nineteenth-century thought like a fish in water: that is, it is unable to breathe anywhere else. Though it is in opposition to the ‘bourgeois’ theories of economics, and though this opposition leads it to use the project of a radical reversal of History as a weapon against them, that conflict and that project nevertheless have as their condition of possibility, not the reworking of all History, but an event that any archaeology can situate with precision, and that prescribed simultaneously, and according to the same mode, both nineteenth-century bourgeois economics and nineteenth-century revolutionary economics. Their controversies may have stirred up a few waves and caused a few surface ripples; but they are no more than storms in a children’s paddling pool” (OT 285).

On this reading, the 19^th-century project is to merge humanism and history into one larger, utopian project: “History will cause man’s anthropological truth to spring forth in its stony immobility; calendar time will be able to continue; but it will be, as it were, void, for historicity will have been superimposed exactly upon the human essence” (OT 286).  It wasn’t until Nietzsche that this conceptual apparatus declined, as he “made it glow into brightness again for the last time by setting fire to it” (OT 286).

No, Really: Justice Roberts cares about law

UPDATE: With a note on the Roberts concurrence at the end

Justice Roberts sided with the Court's liberals today in a (somewhat surprising, and really important) 5-4 decision by Justice Breyer striking down a Texas abortion law nearly identical to one the Court struck down in 2016.  Justice Roberts is not a fan of abortion.  But he is a fan of the law!  Today, he basically joined in a smackdown of the ultra-conservative 5^th Circuit, which forgot that it was an appellate court, and not a trial court.  Justice Breyer writes:

“The Court of Appeals agreed with the District Court’s interpretation of the standards we have said apply to regulations  on  abortion.    It  thought,  however,  that  the  District  Court  was  mistaken  on  the  facts.    We  disagree.   We  have  examined the extensive record carefully and conclude that it supports the District Court’s findings of fact.  Those findings mirror those made in Whole Woman’s Health [the 2016 case] in every relevant  respect  and  require  the  same  result.  We  consequently hold that the Louisiana statute is unconstitutional.” (op. slip, 3)

Yes, but before we get there, let’s remember that the job of the Court of Appeals is not actually to disagree about facts when it doesn’t like a precedent.  Breyer begins with a review session on what Court is supposed to do what:

Title VII Protects LGBTQ Individuals!

UPDATE: First, I'm being loose with terminology here - "originalism" specifically refers to a theory of Constitutional interpretation; what Gorsuch et al are advocating is "textualism" (for statutory construction).  The distinction between public meaning and expected application is important in the originalism debate - but I think it's clearly at work in the debate here.  Second, Andrew Koppelman's commentary here is worth reading on the different ways of understanding the plain meaning of a text.

Up until today, if your boss wanted to fire you for begin gay or trans, you had no recourse in federal law – so unless your state happened to protect you, you had no recourse at all.  Today, the Supreme Court issued a landmark ruling in Bostock v. Clayton County that not only hands the LBGTQ community a huge, huge set of legal protections, it does so in a straightforward way.  And the opinion was authored by Justice Gorsuch and joined by Roberts.

Gorsuch delivers a seminar on originalism.  Does Title VII prohibit discrimination against trans and homosexual individuals? Well, let’s see what it says.  It says that it prohibits discrimination because of sex.  What does “sex” mean here?  Well, according to the public meaning (more on this in a sec.) of the term when the law was enacted, it means “status as either male or female [as] determined by reproductive biology” (op. slip, 5).  Ok.  You can’t discriminate “because of sex.”  What does “because of” mean?  It establishes a but-for causality.  Gorsuch goes on to explain that an event can have multiple but-for causes, which means that sex need only be a necessary part of the decision.  As he puts it, “when it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” (6).  Gorsuch notes that this is sweeping, and “Congress could have taken a more parsimonious approach” (6).  But they didn’t.  He proceeds to similarly characterize discrimination.

On the intersection of masks and racist policing

Black men have to decide whether the risk of being harassed and profiled by police for wearing a mask is greater than the risk of contracting Covid for not wearing one.

Covid-19 Came to the U.S. later than we thought

Research into the spread of Covid-19 continues, with an important new preprint by Michael Woroby et al up today (tl;dr see the writeup in Stat News).  The standard narrative about the arrival of Covid-19 in the U.S. is that a patient arrived in Seattle, WA from Wuhan on January 15^th.  He felt ill, and aware of CDC messaging about a new virus circulating in Hubei, sought medical help.  On Jan. 19, he became the first confirmed case of Covid in the U.S. Then, a few weeks later on Feb. 24, another patient turned up with what appeared to be community spread.  Containment had failed.  Per Woroby:

“On February 29th, 2020, a SARS-CoV-2 genome was reported from a second Washington State patient, ‘WA2’, whose virus had been sampled on February 24th as part of a community surveillance study of respiratory viruses. The report’s authors calculated a high probability that WA2 was a direct descendent of WA1 [the first patient, from January], coming to the surprising conclusion that there had by that point already been six weeks of cryptic circulation of the virus in Washington State. The finding, described in a lengthy Twitter thread on February 29th, fundamentally altered the picture of the SARS-CoV-2 situation in the US, and seemed to show how the power of genomic epidemiology could be harnessed to uncover hidden epidemic dynamics and inform policy making in real time” (3, internal citations omitted). 

Then there was more genetic sequencing, and it turned up a strange anomaly: the cases that appeared to stem from WA2 had mutated from WA1 in two places, and there was neither evidence of a transitional virus strain between them or of other infections in Washington whose genetic sequencing matched WA1.  Woroby et al then ran a computer simulation – 1000 times! – of the epidemic, seeding it with WA1.  The result was a surprise: “when we seeded the Washington outbreak simulations with WA1 on January 15th, 2020, we failed to observe a single simulated epidemic that has the characteristics of the real phylogeny” (7).  In other words, the narrative about the early spread in Washington is almost certainly wrong.  Patient WA1 was not the source, and the virus was not spreading covertly for weeks before emerging again in WA2.  Rather, the spread around WA1 was contained, and WA2 represented a new infection, and was either the source of the actual epidemic, or near it.  Specifically, the virus arrived a second time from Hubei, around Feb. 13 (95% probability between 2/7 and 2/19) (9).

Testing Nonsense Redux

As most folks know by now, there's two kinds of Covid tests.  One of them tests for whether you have the disease now.  The other tests for the presence of antibodies in your blood, indicating that you have had the disease at some point.  You might think that an outfit like, say, the CDC, would distinguish between them in its count of Covid-19 testing.  Alas, you'd be wrong, as The Atlantic reported today.  Why would the CDC (and Georgia, Texas, and some other states) do this?  Well, it lets you (a) claim to be doing a lot more testing for current infections than you currently are (because the addition of antibody tests to the viral tests drives up the total number of "tests"), and (b) will drive down the percentage of positive test results (because a small number of people have the antibodies, generally a much smaller number than test positive in most places in the U.S., especially those that conduct relatively few viral tests).

And if you do massive numbers of tests with low percent positive, then those annoying scientists say you can reopen sooner!  It puts you on the good green side of charts like the one above (source), not the bad yellow one.

Trump has been in office too long not to assume that this is the work of Trumpian political operatives and not CDC scientists, at least until proven otherwise.  Trump himself is obviously too stupid and incurious to know the difference between the testing types, but like Henry II, he makes it clear enough what he would like to see happen.  And that's lots of tests, lots of opening, and lots of loyal servants who translate his impulses into "reality."

More on Covid Transmission

One of the widely-discussed metrics for understanding Covid-19 transmission is its R0 number - the average number of infections that a given person causes.  An R0 of 3, for example, means that each person infects an average of 3 others.  In order to stop the disease from eventually spiraling out of control you need to keep the R0 number at or below 1.  But of course R0 represents an average - and a recent write-up in Science elaborates on the emerging evidence that a relatively small number of cases account for most of the spread.  Understanding why that is could of course go a long way toward making it possible to restore some sense of normalcy, even if figuring this out is incredibly difficult.

One thing that does appear to be the case is that indoor transmission is more likely than outdoor, and that mixing large numbers of people together in small spaces is a bad idea.  That's why Michael Sorrell, president of Paul Quinn College, writes in the CHE that the desire to have in-person college in the fall is nonetheless a bad idea.

On the other hand, a group of German medical organizations just issued a statement advocating the immediate and full return of K-12 schools.  There is some nuance - older kids can do some social distancing, and there is an assumption of testing and contact-tracing - but they summarize quite a bit of research saying that there is little evidence that outbreaks occur in groups of kids, and some evidence that kids don't readily transmit the disease.  We are all about to owe France and Germany, which are both competent at testing and are gradually reopening schools, a debt for better understanding how Covid transmits among kids.

In the meantime, the dishes here keep piling up and the racist sociopath pretending to be President is deporting children who aren't sick cuz the #MexicanCaravanWuhanOBAMAChinaWTOFAKENEWS is obviously the reason 93,000+ Americans have died!  But that's ok, because we have done lots of tests, very good tests, and "per capita" is one of those phrases that libtards use to confuse you with their elitism.

On understanding what "Covid cases" means

With reference to malaria tracking, I've tried to suggest some of the reasons we don't really know what "Covid cases" means, either insofar as that is measured by positive tests (because we don't know how many more cases there are beyond the tested ones, so tested cases is at best an rough guide to Covid incidence) or symptoms (a task that gets harder by the day, as Covid continues to present in new and strange ways).  Here's a nice piece that starts with how they deal with malaria incidence, and works through a lot of the problems in translating from test results to meaningful information about Covid.

Getting a more nuanced understanding of Covid Transmission

It’s fairly clear that one of the keys to living with Covid-19 is understanding the dynamics of transmission: absent something more nuanced than what we have, “stay 6 feet away from everyone at all times!” becomes the only public health advice that can be given.  Getting past the initial maximin strategy requires better data on everything.  There’s an interesting Twitter thread by Dr. Muge Cevik (St. Andrews) that collates some of the recent studies about transmission within and through social groups.

 

A lot of discussion recently about transmission dynamics, most of which are extrapolated from viral loads & estimates. What does contact tracing/community testing data tell us about actual probability of #COVID19 transmission(infection rate), high risk environments/age?
[thread]

— Dr Muge Cevik (@mugecevik) May 4, 2020

It’s not a formal meta-analysis or anything like that but there’s emerging confirmation for the idea that most transmission depends on sustained, close contact, and that children do not appear to be a primary vector for the disease (this latter one is enormously important, because nobody knows for sure what should be done about schools).  She summarizes at the end (the paragraph breaks are mine):

“While the infectious inoculum required for infection is unknown, these studies indicate that close & prolonged contact is required for #COVID19 transmission. The risk is highest in enclosed environments; household, long-term care facilities and public transport. High infection rates seen in household, friend & family gatherings, transport suggest that closed contacts in congregation is likely the key driver of productive transmission. Casual, short interactions are not the main driver of the epidemic though keep social distancing! Increased rates of infection seen in enclosed & connected environments is in keeping with high infection rates seen in megacities, deprived areas, shelters. A recent preprint demonstrates that #COVID19 epidemic intensity is strongly shaped by crowding.

“Although limited, these studies so far indicate that susceptibility to infection increases with age (highest >60y) and growing evidence suggests children are less susceptible, are infrequently responsible for household transmission, are not the main drivers of this epidemic.”

“Finally, these studies indicate that most transmission is caused by close contact with a symptomatic case, highest risk within first 5d of symptoms. To note: this preprint suggests that most infections are not asymptomatic during infection.  In conclusion, contact tracing data is crucial to understand real transmission dynamics. Cautionary note: This data & interpretation is based on the available evidence as of May 4th. Our understanding might change based on community testing/lifting lockdown measures.”

Meat is Murder

As Daniele Lorenzini reminds us, the coronavirus pandemic exposes nothing if not the differential precarity of our biopolitics.  Sure, biopolitics is about promoting life, but it’s also about deciding that some people can die in order that others may live.  The most obvious candidates are “essential”  workers in various parts of the supply chain who form what Marx calls the "disposable industrial reserve army" of capitalism.

In case there was any doubt about this, Trump is apparently about to invoke the Defense Production Act to force meat packing and processing plants to stay open.  This is the same Donald Trump who has routinely failed to use the same DPA to get medical supplies to hospitals and caregivers. 

But what about when it’s a question of protecting a bunch of mostly Latinx folks with a median annual wage of under $28,000 and whose working conditions look like this:

“The demographics in the meatpacking industry may be multicultural in the 21st century, but workers share many of the same characteristics. They are uneducated and work in extremely unsafe work conditions. Nearly every worker in meatpacking plants has injuries. Cutting stations are located close to each other, automated lines move too quickly for workers to keep up, and workers must put in long shifts or fear losing their jobs. Men and women must wear goggles, hardhats, stainless steel mesh gloves, rubber aprons and chaps. Still, every worker from the line cutter to the cleaning crew is in danger of suffering amputations, body part crushing, burns, punctures and other traumatic injuries. Though the demographics have opened up to include all segments of society, poor safety conditions in the plants continue to plague workers. According to Human Rights Watch, the poor labor market has caused safety concerns to backslide in the United States. Collective bargaining eroded, and by 2005, the injury rate was twice as high in the meatpacking industry as any other industry in the country.”

Trump wants you to know: sustaining Americans’ egregious overconsumption of cheap meat, which involves the brutal exploitation of vulnerable workers in the best of times, is more important than PPE’s for healthcare workers!  Oh, wait, Trump says (per the Bloomberg piece) that “the government will provide additional protective gear for employees as well as guidance.”

I wonder if that will arrive before, or after, the additional protective gear for hospitals?  But let no one accuse Trump of inconsistency!  He’s using the DPA to ensure that vulnerable workers, many or even most non-white and/or female, are at high risk for Covid.

Who Owns the Law? SCOTUS Speaks

Recall that before Covid (so about 300 years ago), there was an interesting copyright case percolating through the federal courts.  The question concerned the Official Georgia Code Annotated (OGCA), which contains the text of the Georgia Code as well as various annotations.  There were two potentially conflicting principles at work.  On the one hand, the law is public domain.  On the other hand, annotations and supplemental materials by third parties are often copyrightable.  Georgia managed to produce a hybrid system: the legislature established a code commission, which outsourced most of the annotations work to Matthew Bender Corp, which was granted an exclusive license to sell it.  At the same time, the legislature every year officially adopted the GCA, and it was the authoritative source for the Georgia Code in everything from legislative proceedings to cases to public reference.  It was even published with the state seal attached.

The 11^th Circuit ruled that OGCA was not copyrightable because, even if it wasn’t quite the same thing as the statutory text, it nonetheless is “an exercise of sovereign power” (3) and “sufficiently law-like so as to be properly regarded as a sovereign work” (4).  Today, in an opinion by Justice Roberts, the Supreme Court agreed, though for somewhat different reasons.  The SCOTUS opinion basically argues that the relevant question is whether the “author” of something is a judge or legislator; answers that the OGCA is reasonably the work of a legislator, and thus uncopyrightable.

Discouraging News (probably) on Remdesivir

Remdesivir has been one of the most closely watched potential therapies for COVID-19, and a couple of early cohort and observational studies have been encouraging.  But apparently the first results from a randomized controlled trial in China indicate that it did not make a statistically significant difference.  At least, it looks that way: results were accidentally posted on the WHO website and then removed, with a promise of an official publication to come later.  It's all a bit murky, and there's a number of other trials ongoing, but this is not the sort of result you hope to see, even accidentally.

What does it mean to model “social distancing?”

By now it should be apparent just how little we know about the coronavirus pandemic, from how to treat it to basic facts about what the “number of COVID cases” means. Even “deaths due to COVID” turns out to be difficult: both New York and UK have revised their numbers up to accommodate likely cases that hadn’t been counted, and there’s a brewing political battle over how to count them. This ignorance also affects pandemic modeling; the aspect I want to look at here is over what “social distancing” means.

COVID Models are for guiding action: we want to look at them and know when we can leave the house again (or, maybe more importantly, when the kids can leave the house again!). In that sense, models are inherently political, in several ways. First, the model doesn’t tell you what to do; the decision about what to do can be informed by the model, but it requires an entire apparatus of priorities, intuitions, and whatever else goes into a decision about what to do. Part of this is a second-order decision strategy about how to process uncertainty. I’ve suggested before that we’ve been operating on maximin; whether I’m right isn’t important here except to underline that the model is insufficient. Second, the construction of the model is going to embody a number of social judgments. I’m not being Latour here and arguing that whatever comes out of laboratories or complex instruments is broadly political (though he’s right). What I do want to say is that to use a model, you have to answer some antecedent questions what your use of the model is trying to achieve, and how society operates.

U.S. COVID Testing: Still Crap

President Nero wants you to know that the U.S. has conducted a bigly number of coronavirus tests, higher than he can count, and maybe even more tests than there were people at his inauguration!  Anyway, the U.S. is still terrible at COVID testing, as the following chart from Vox reminds us:

As the accompanying article points out, this is completely mediocre.  It is a little better than before, but it nonetheless underscores that we are not ready to go back to a new-normal.  All the actual plans I’ve seen begin with the presumption of widespread testing.  The U.S. is absolutely nowhere close to that.

Cellphone Tracking for COVID Surveillance

Cellphone tracking - whether through geolocation or something like detecting the proximity of bluetooth devices - has been getting a lot of attention for its potential to improve COVID surveillance.  Given that there are estimates that a workforce of upwards of 100,000 people would be necessary to get a good contact-tracing regime going in the U.S., any automated way to reduce this would be welcome.  Apple and Google have announced that they are developing an App for that.  It would enable a user to know if they had been within six feet or so of someone who tested positive for COVID.  Assume for the moment that enough people get tested that such a strategy would generate meaningful data, what are its limitations?  Here are 5 concerns.  Not surprisingly, they echo concerns about other uses of cellphone tracking: not just privacy invasion, but whether they actually generate a lot of false positives (the person in the apartment next to yours might well be within 6 feet of you), whether they promote discrimination (neighborhood hotspots, etc.), and so on.

The EFF has some useful principles here.

Modeling the Future under Coronavirus

UPDATE: Here's a nice piece that talks about the complexities of reducing restrictions, framing the overall need in terms of keeping R0 (the number of new infections a given case leads to) from rising much above 1.

A new article in Science models our future under the new Coronavirus regime.  It is not pretty.  A few takeaways, followed by a thought on social distancing (the whole study is worth a read, because I’m cherry-picking here, and I’m not indicating anything about the modeling process, only some of the implications):

• Social distancing works, BUT when you stop it, COVID will come back. The relation between the two is complex, because effective social-distancing reduces population immunity: “We evaluated the impact of one-time social distancing efforts of varying effectiveness and duration on the peak and timing of the epidemic with and without seasonal forcing. When transmission was not subject to seasonal forcing, one-time social distancing measures reduced the epidemic peak size. Under all scenarios, there was a resurgence of infection when the simulated social distancing measures were lifted. However, longer and more stringent temporary social distancing did not always correlate with greater reductions in epidemic peak size. In the case of a 20-week period of social distancing with 60% reduction in R0, for example, the resurgence peak size was nearly the same as the peak size of the uncontrolled epidemic: the social distancing was so effective that virtually no population immunity was built. The greatest reductions in peak size come from social distancing intensity and duration that divide cases approximately equally between peaks
• You’d better hope COVID is not seasonal: “For simulations with seasonal forcing, the post-intervention resurgent peak could exceed the size of the unconstrained epidemic, both in terms of peak prevalence and in terms of total number infected. Strong social distancing maintained a high proportion of susceptible individuals in the population, leading to an intense epidemic when R0 rises in the late autumn and winter. None of the one-time interventions was effective in maintaining the prevalence of critical cases below the critical care capacity.” And: “One-time social distancing efforts may push the SARS-CoV-2 epidemic peak into the autumn, potentially exacerbating the load on critical care resources if there is increased wintertime transmissibility”

 

Immunity Certificates reading

The latest trendy idea.  It sounds great in some limited contexts, especially as a way to protect healthcare workers.  It also sounds suspiciously like a way for Trump and Co. not to do the actual work of testing and contact tracing, or to guarantee a general social safety net.  It's like some funhouse mirror version of a Deleuzian control society, coupled with the neoliberal destruction of everything except the imperative to generate surplus value.  Now you need a certificate to join the industrial reserve army...

What could go wrong?  Hank Greely shows that the answer is quite a lot, while Sam Hull (no relation) outlines the problems from a legal point of view, focusing on discrimination, and concludes by suggesting that they only begin to make sense when paired with a jobs guarantee program.  Both Greely and Hull highlight that any immunity certificate program will generate not just black markets in certificates, testing and so on, but perverse incentives to deliberately get Covid and risk death in order to get the certificate.  Of course... these folks will just be investing in their human capital!

Republicans still hate voting

Why would you let a pandemic get in the way of voter suppression?  Much better to use it as a tactic of voter suppression.  At least, I can't see any other other coherent way to read the Wisconsin GOP and SCOTUS refusal to either delay Wisconsin's vote today, or allow absentee ballots to be delayed.  Wisconsin GOPs shenanigans to keep itself in power are well-known; we shouldn't forget that the Roberts Court is systematically hostile to voting rights.  The Onion has the right tweet, and reminds us that Wisconsin has 77 Covid deaths today.  Check that space in 2-3 weeks.

Unless it's that Republicans hate democracy so much they don't even care who wins, as long as fewer people vote.

Plus ça change...