The Cloud Under The Sea

There are 800,000 miles of cables the size of a garden hose that carry the world’s international communications. Josh Dzieza writes a delightful long form piece at The Verge about these cables and the ships that repair them: The Cloud Under The Sea

If, hypothetically, all these cables were to simultaneously break, modern civilization would cease to function. The financial system would immediately freeze. Currency trading would stop; stock exchanges would close. Banks and governments would be unable to move funds between countries because the Swift and US interbank systems both rely on submarine cables to settle over $10 trillion in transactions each day. In large swaths of the world, people would discover their credit cards no longer worked and ATMs would dispense no cash. As US Federal Reserve staff director Steve Malphrus said at a 2009 cable security conference, “When communications networks go down, the financial services sector does not grind to a halt. It snaps to a halt.”

Corporations would lose the ability to coordinate overseas manufacturing and logistics. Seemingly local institutions would be paralyzed as outsourced accounting, personnel, and customer service departments went dark. Governments, which rely on the same cables as everyone else for the vast majority of their communications, would be largely cut off from their overseas outposts and each other. Satellites would not be able to pick up even half a percent of the traffic.

The Legal Foundation of American Bureaucracy Is At Risk

Over the last 40 years, the Chevron doctrine has been cited as the legal justification for a wide range of government agency regulation and rulemaking. This precedent was created by a 1984 ruling of the Supreme Court in the Chevron v. National Resources Defence Council case. The Court ruled that courts should defer to a government agency’s interpretation of the law as long as the interpretation is reasonable. If Congress has been ambiguous or silent, the agency’s reasonable reading should govern. Of crucial importantance, agencies can do more than interpret overly broad Congressional lawmaking; they can create new regulations never debated and approved by Congress as long as they are “reasonable”. There are some limits to the deference courts must give, but they are narrow in scope and too complex to enumerate here. Chevron has become a pillar of administrative law and has been cited in more than 15,000 court cases.

This ruling has allowed for the broad expansion and proliferation of regulations, rules, policies, and guidance that go far beyond what Congress has authorized. For example, the Food and Drug Administration went from a formal rule-making approach, to an informal rule-making approach which skips the cumbersome public hearings, to issuing non-binding guidelines1 which are very difficult or impossible to challenge in court and are therefore effectivly legally binding:

After courts decided that the residual rulemaking authority in the statute empowered the FDA to issue binding regulations on matters not specifically covered by the formal rulemaking provision, the agency began to utilize “notice-and-comment” procedures for the promulgation of rules. The courts also, however, allowed interested parties to bring pre-enforcement challenges to such rules. Although “informal” rulemaking avoided the cumbersome hearings required with formal rulemaking, searching judicial review on the merits and increasing procedural demands added by all three branches of government have made it increasingly difficult. As a result, the FDA and other agencies have experimented with further shortcuts for issuing regulations.

As informal rulemaking became more difficult, the FDA shifted from promulgating binding rules to issuing nonbinding guidelines. For instance, rather than go to the trouble of amending its then 25-year-old regulations delineating “current” good manufacturing practices (cGMPs) for drugs, the FDA decided to issue guidance for the adoption of innovative quality control technologies by the pharmaceutical industry. Similarly, even as prescription drug advertising has become increasingly sophisticated, reflecting greater ingenuity and the emergence of brand new media such as the Internet, the FDA has not revised regulations that it issued during the 1960s, relying instead on various types of guidelines.

I am in favor of some of the regulations now in place because of Chevron. Most of the developed world models their regulation of pharmaceuticals after the United States Food and Drug Administration, and the FDA is undeniably the world-wide gold standard in safety and efficacy.

However, I am vigorously opposed to the relentless sprawl of administrative bureaucracy in government over the last 40 years, much of which has been justified and enabled by Chevron. It gives agencies wide-ranging latitude to interpret, expand, and elaborate on laws passed by Congress. It improperly shifts the balance of power from the judicial and legislative branches to the executive branch. It consolidates rule-making and rule-enforcement into an unaccountable government agency. You can vote your Congressional representative out of office. What can you do about those who work in the Office of Training and Communications, Division of Communications Management, Drug Information Branch, Center for Drug Evaluation and Research at the Food and Drug Administration? Yes, that’s one of the official names for the people who issue guidelines on drug advertising. There are at least two other offices and/or centers within the FDA which may be part of issuing these guidelines. After a couple hours of digging, I couldn’t be sure whether or how all these offices worked together, or didn’t, to produce the advertising guidelines drug manufacturers must abide by.

Yesterday, the justices on the United States Supreme Court heard arguments in two cases which challege this long-standing principle of legal deference to government agencies. Each case involves a fishing company challenging a National Marine Fisheries Service requirement that herring boats cover the cost (approx $700 per day) of government-approved observers aboard their vessels.

The court could chose to rule only on the specific fishing-related question in these cases, but most court observers expect them to rule more broadly, and limit or even possibly strike down Chevron deference.

Reporting for Bloomberg, Jennifer A Dlouhy and Greg Stohr articulate both sides of the issue clearly:

“The idea of deference is a fundamental mechanism for all of the agencies to do their jobs,” Green said during a discussion organized by the Center for American Progress and Democracy Forward. “Agencies have more expertise, they are more specialized and they are more flexible – so they can address new problems and crises that inevitably arise over time that Congress can’t foresee.”


Philip Hamburger, founder of the conservative New Civil Liberties Union, said the Supreme Court should sweep away a fundamentally flawed doctrine that unfairly tilts legal proceedings. Chevron compels “a systematic favoring of the most powerful party” in regulatory disputes – the very agencies that wrote the rules – said Hamburger, whose group represents fishing industry clients in one of the high court cases.

Also true.

I expect that the current court will do more than narrowly resolve the two fishing cases that were heard today. If they do, it could be one of the most impactful rulings of the John Roberts era.

  1. Lars Noah, The Little Agency That Could (Act with Indifference to Constitutional and Statutory Strictures), 93 Cornell L. Rev. 901 (2008) 

Utah Supreme Court Rules Cell Phone Passcodes Are Protected By The 5th Amendment

The United States Supreme Court has yet to issue a ruling on whether someone accused of a crime can be compelled to provide the passcode to their cell phone.

I believe the 5th Amendment protects cell phone passcodes, and defendents can refuse to provide the passcode to their phone, even if law enforcement has a warrent for the contents of the cell phone.

The Utah Supreme Court has ruled that not providing a passcode should not be held against a criminal defendant, or used against them at trial.

More of this please.

The Most Important Copyright Battle of Our Lives

In the last 12 months, what the lay person would call artificial intelligence has taken a major jump forward. OpenAI launched ChatGPT on November 30, 2022 and probably has the fastest growing user base of any product in history. I say probably, because OpenAI hasn’t disclosed any usage data. But it went from a thing that didn’t exist to the thing that everyone was using in just a few months.

ChapGPT is more properly categorized as a large language model, and there are many new implementations of these models which can generate images, video, and music. All these models had to be trained on something, and they were all trained on data from on the internet, which creates a legal dilemma under current US law.

Just because this blog post is available on the web doesn’t mean that I have relenquished the copyright. Neither the statue nor the case law are clear on whether using a copyrighted work to train a large language model is fair use. In the short few months since these models became wildly popular, this has been mostly a thought exercise. Getty Images brought the first notable cases in this area of the law by suing Stability AI in both the US and the UK. Getty alleges:

Stability AI has copied more than 12 million photographs from Getty Images’ collection, along with the associated captions and metadata, without permission from or compensation to Getty Images, as part of its efforts to build a competing business.

Court cases take a long time. DCMA takedown notices get processed much faster. Nilay Patel explains:

The AI Drake track that mysteriously went viral over the weekend is the start of a problem that will upend Google in one way or another — and it’s really not clear which way it will go.

Here’s the basics: there’s a new track called “Heart on My Sleeve” by a TikTok user called @ghostwriter877 with AI-generated vocals that sound like Drake and The Weeknd.

This track was posted to YouTube, and then Google got a DMCA takedown notice from Universal Music Group:

But then TikTok and YouTube also pulled the track. And YouTube, in particular, pulled it with a statement that it was removed due to a copyright notice from UMG. And this is where it gets fascinatingly weedsy and probably existentially difficult for Google: to issue a copyright takedown to YouTube, you need to have… a copyright on something. Since “Heart on my Sleeve” is an original song, UMG doesn’t own it — it’s not a copy of any song in the label’s catalog.

So what did UMG claim? I have been told that the label considers the Metro Boomin producer tag at the start of the song to be an unauthorized sample, and that the DMCA takedown notice was issued specifically about that sample and that sample alone.

Nilay explains Google’s predicament with “Heart on My Sleeve”, but it’s merely another skirmish in the broader war. We have large language models that can pass the bar exam. But only when trained on a corpus of data with legally disputed provenance. The lawyers are gonna make a lot of money over the next decade as we sort this all out.

The Gambler Who Beat Roulette

I’m a sucker for a good heist story, and this is a good heist story.

“It is practically impossible to predict the number that will come up,” Stephen Hawking once wrote about roulette. “Otherwise physicists would make a fortune at casinos.” The game was designed to be random; chaos, elegantly rendered in circular motion.

… The green 0 pocket (with an additional 00 pocket on American wheels) means even the highest-odds bets, on red or black for example, have a slightly less than half chance of success. Everyone loses eventually.

Except for Niko Tosa and his friends. When the Croatian left the casino in the early hours of March 16, he’d turned £30,000 worth of chips into a £310,000 check. His Serbian partner did even better, making £684,000 from his initial £60,000. He asked for a half-million in two checks and the rest in cash. That brought the group’s take, including from earlier sessions, to about £1.3 million.