What can happen to your electronics at the US border?

The politics and policies tied to U.S. borders have perhaps never been so fraught and new data released last week by the U.S. Customs and Border Protection showed that turmoil has reached the electronic devices we all increasingly carry in our pockets and suitcases. Searches of electronic devices by Customs officials at borders and airports have nearly doubled in the past six months, according to the latest information released by the agency. In a press release the agency stressed that the 14,993 searches–up from 8,383 in the same period tin 2016 and 8,503 in 2015still only represented 0.008 percent of the approximately 189.6 million travelers arriving to the United States. Nonetheless, the report confirmed the fears of civil liberty and privacy groups who say they have seen a steady uptick in the number of searches being reported.

INTERNATIONAL ARRIVALS PROCESSED
FY2016 FY2017
OCTOBER 31,239,053 32,248,121
NOVEMBER 30,350,596 30,430,424
DECEMBER 32,717,813 33,009,690
JANUARY 31,215,009 31,593,522
FEBRUARY 28,209,735* 28,209,602
MARCH 32,643,912 34,103,063**
TOTAL 186,376,118 189,594,422
INTERNATIONAL ARRIVALS PROCESSED WITH ELECTRONIC DEVICE SEARCH
FY2016 FY2017
OCTOBER 857 2,560
NOVEMBER 1,208 2,379
DECEMBER 1,486 2,404
JANUARY 1,653 2,756
FEBRUARY 1,470 2,299
MARCH 1,709 2,595
TOTAL 8,383 14,993
*February 2016 was a leap year.
**March international arrivals are approximate.walk through new study and make some graph of the data

Source and images CBP

Also this week, the prominent documentary filmmaker Laura Poitras finally received the results of a Freedom of Information Act request she had made in 2015 regarding the approximately 40 border searches and interrogations she underwent between 2006 and 2012. This was before she became internationally famous for her role in the Edward Snowden leaks and revelations, which she chronicled for her Academy Award-winning documentary CITIZENFOUR. “When it first started happening, I was naive and thought as soon as they realize I am a journalist and filmmaker I’ll stop being detained at the border,” Poitras told me in a 2014 interview. “And then it didn’t end.”

According to the information she received this week, Poitras had been singled out for extra attention and caution because of allegations regarding her involvement with an ambush of U.S. soldiers in Iraq in 2004. (Some soldiers alleged they had seen her on a roof filming the ambush and suggested she had prior notice of the attack. Poitras has vehemently denied the allegations and the army said in 2006 that it did not have sufficient evidence to bring any charges). While Poitras’s example is a unique one, it does shed light on the increasing likelihood that one’s electronic devices may be searched while in transit and the very limited recourse one has to fight back.

So what gives?

Why are Customs officials allowed to search your belongings without a warrant? Doesn’t that violate the Fourth Amendment’s prohibition against “unreasonable searches and seizures”? 

Depends who you ask. The Supreme Court has repeatedly upheld the rights of border officials to conduct warrantless searches of people and their belongings as part of upholding immigration and customs law (thinks searches of luggage for contraband). Civil liberty groups and privacy experts argue these rulings are anachronistic and that the breadth of information available on electronic devices in the 21st century vastly exceeds whatever kind of material was previously available. The CBP last updated its procedures in 2009 in which they give agents wide leeway to conduct searches.

Multiple lawsuits have been filed but the results so far have not provided an overwhelming precedent to change the existing procedures. Nonetheless, privacy groups have been heartened by recent decisions such as a 2013 federal court ruling by the Ninth District of the west coast that extensive forensic searches of laptops at borders can’t be totally indiscriminate and require “reasonable suspicion.” A  2014 decision by the Supreme Court to extend greater protection against the search of electronic devices during arrests was also heralded as important progress that could be used as a basis for future border cases.

How long has this been going on?

Electronic searches at borders unsurprisingly became an issue as both electronic devices and terrorism concerns became more prevalent under the George W. Bush administration, but they really revved up in the last years of Obama’s presidency. At that time, journalists in particular sounded the alarm that they feared they were being targeted by officials eager for information about their reporting and sources; information they otherwise were unlikely to get without a subpoena and long legal fight.

Why is it getting worse?

As shown above, most of the laws and guidelines to govern these searches are outdated and without any clear legal precedent to change the border search exemptions from the Fourth Amendment, agents have vast discretion to apply the regulations as they see fit. The political rhetoric around border protection and general confusion and chaos sowed by the executive order travels bans have created a kind of “anything goes” atmosphere that often comes down to the decision making of individual agents. “The shackles are off,” an ACLU lawyer told NBC news. Despite a number of highly publicized electronic search incidents, the tone of last week’s CBP press release doesn’t suggest the practice will be reined in anytime soon. Even worse, some fear that requiring searches of social media accounts now may become routine.

Crucially, non U.S. citizens have very little legal protection from interrogations and searches at the border, something that is likely to get even worse.

Well this is pretty grim. Is there any way forward?  

Legal challenges are ongoing and unlikely to end anytime soon. There are rumblings in Washington to revise or at least review existing procedures. On April 4, a bipartisan, bicameral group lead by Senator Ron Wyden introduced the Protecting Data at the Border Act to “ensure Americans are not forced to endure indiscriminate and suspicionless searches of their phones, laptops and other digital devices just to cross the border.”

U.S. citizens may not be legally required to unlock their devices (again, it’s murky), but border agents have wide powers to try to compel them to do so (holding passengers until they miss their flight, copying data from devices or seizing them for up to five days). Requiring access to social media accounts has also been contested, though if they are able to open your phone and you are signed in to your social media accounts it’s a moot point.

To that end, most privacy experts require taking measures to protect your devices before travelling. The simplest option is leaving them at home and bringing temporary devices, but numerous organizations and media outlets have published guides to encryption and digital security practices to protect them should that not be possible.

The ACLU also has a general guide to knowing your rights at airports here.

 

War games – what you need to know about current North Korea’s nuclear politics

By Dijana Milenov and Mika Kanaya

What is a timeline of five nuclear tests?

1) October 9, 2006

North Korea initiated its first nuclear testing, becoming the eighth country in history.

2)  May 25, 2009

The North Korean official news agency announced that it “successfully conducted one more underground nuclear test…. as part of the measures to bolster up its nuclear deterrent for self-defense in every way.”

3)  February 12, 2013

UN approves fresh sanctions after North Korea stages its third nuclear test, said to be more powerful than the 2009 test.

4)  January 6, 2016

An anchorwoman in the state TV said, “The republic’s first hydrogen bomb test has been successfully performed.” Before the test, North Korean state media said the country “deserved to hold nuclear weapons… to counter nuclear threats by the U.S.”

5)  September 9, 2016

South Korea believes it is the North’s biggest-ever test, raising fears it has made significant nuclear advances. This was the first time North Korea conducted two nuclear tests within the same year.

What is the real issue this time?

Global political situation changed. There is a new president in the U.S., and Pyongyang is trying to reframe their relationship and the power dynamics by pushing the new administration. Despite the international strategies to pressure denuclearization, there is a worry that intercepting missiles could escalate tensions and risk war.

The Japan Times summarized the move as follows:

“Though tensions had been rising dangerously between Washington and Pyongyang in the lead-up to the April 15 anniversary, the biggest holiday of the year in North Korea, the heightened rhetoric and saber-rattling on both sides could begin to cool down — a pattern that has been common in recent years, especially in the spring, when the U.S. and South Korea stage their huge annual war games.

But this year, there is a new issue. In an interview with The Associated Press on Friday, a senior North Korean official said that Pyongyang has determined that Trump is “more vicious and aggressive” than his predecessor, Barack Obama. And Pyongyang is vowing it won’t back down.”[1]

What was a missile which exploded seconds after the launch on Sunday? 

The latest North Korean missile launch may have been of a new and hitherto unknown systems being developed by the leader Kim Jong Un’s regime, a weapons expert said Monday.

The Pentagon has not discussed which missile blew up “almost immediately” after launch early Sunday from near Sinpo on the North’s east coast, and the White House has said only that it was a medium-range device. John Schilling, a weapons expert with the 38 North monitoring group, said the launch failure was indicative of a new systems test.

What type of missiles North Korea owns and what is the real threat? 

North Korea’s big day, the anniversary of the birth of its founding leader, Kim Il Sung, was April 15 and the latest missiles were on display in a military parade. Experts believe the arsenal displayed in Saturday’s parade included a new kind of short-range cruise missile, probably for coastal defenses. North Korea also unveiled its latest submarine-launched ballistic missile and a version of the same missile that can be launched from land-based launchers — both of which use solid fuel and present a far greater challenge to find and destroy before they’re fired off. And it showed off canisters that seemed in line with what would be required for an intercontinental ballistic missile, which is Washington’s major concern.

However, the large and small missiles at the parade was meant to send out a strong message that North Korea is able to “project its power well beyond its own borders”. At the very least, to the U.S. military bases in Japan. At the most, to the U.S. mainland itself.


How does China, a long-term ally of North Korea, handle the situation?
 

China’s bottom line is that it does not want the collapse of the regime in Pyongyang if that leads to a chaotic power vacuum, possibly filled by the U.S. and its allies. China is also concerned about South Korea’s deployment of an anti-missile defense system (known as THAAD), and by the allies’ annual joint military exercises. So, there is a strong pressure from Beijing on North Korea. They have implemented economic sanctions such as refusing coal shipments and they are talking about cutting off oil shipments. Flights between Beijing and Pyongyang operated by Air China were also suspended on April 17. However, NPR points out tighter implementation of economic sanctions could be challenging.

“Most of China’s giant state-owned enterprises have scant involvement with North Korea; they have too many interests elsewhere to risk getting sanctioned in pursuit of limited profits. Smaller firms more often find smuggling worth the risk, and Beijing often cannot control them, because local authorities protect them.”[2]

President Donald Trump also tweeted on Sunday that Beijing was “working with us on the North Korean problem”. He had stated last week that the U.S. and its allies may “deal with” Pyongyang if China did not.

What was the U.S. response this time?

1) Mike Pence visit to South Korea

U.S. Vice President, Mike Pence on Monday warned North Korea not to test the determination of the U.S. “or the strength of our military forces”. “We will defeat any attack and we will meet any use of conventional or nuclear weapons with an overwhelming and effective response,” Pence said, adding that when it came to North Korea “all options are on the table.”[3]

2) An aircraft carrier group

Last week, President Donald Trump said that an aircraft carrier USS Carl Vinson was sent to Korean Peninsula as a warning to Kim Jong-Un’s government. However, a Navy photograph over the weekend showed the Carl Vinson in the Sunda Strait near the Indonesian islands, 3,000 miles from Korean Peninsula.

3) Radiation sniffer plane

The U.S. Air Force WC-135C Constant Phoenix Nuclear explosion “sniffer” has arrived in Japan. There are only two aircrafts of this type and one of them is in Japan since April 12.

Future actions? 

Han Song-Ryol, North Korea’s deputy foreign minister told the BBC that Pyongyang would continue to test missiles “on a weekly, monthly and yearly basis”[4]. “All-out war would ensue if the U.S. took military action, he said.”[5]

The Korea Herald reports that the Carl Vinson Strike Group is due to arrive in the region by April 25, the day that North Korea is due to commemorate the 85th anniversary of the founding of its army. Some experts believe that Pyongyang may choose to conduct its sixth nuclear test, or another missile launch, around that date. The U.S. Vice President Mike Pence will be in Hawaii on April 24-25, concluding his 10-day trip to Asia.

Sources:

[1] http://www.japantimes.co.jp/news/2017/04/17/world/north-koreas-big-parade-whats-next/#.WPaMQBF1tbY

[2] http://www.npr.org/sections/parallels/2017/04/18/524341304/on-china-and-north-korea-the-strength-of-weakness-and-the-limits-of-power

[3] http://www.cnn.com/2017/04/16/politics/us-north-korea-dmz-vice-president-pence/

[4] http://www.bbc.com/news/world-asia-39623882

[5] https://www.theguardian.com/world/2017/apr/18/us-military-shoot-down-north-korea-missile-tests

Taiwan: When a phone call becomes an issue.

Shortly after Donald Trump won the 2016 presidential election, he took a call from Taiwanese President, Tsai Ing-wen. In doing this he appeared to be ignoring or possibly discarding established US policy on Taiwan, which is that the United States does not have diplomatic ties to the island, which China considers to be its sovereign territory. The phone call sparked much media debate but little explanation about US-Taiwan relations and China-Taiwan relations, yet Taiwan plays a prominent role in a number of issues of vital global importance.

The following is a brief overview of important facts about Taiwan and its importance as well as key initiatives of mainland China that of international significance.

  • Where is Taiwan located?
  • Is Taiwan a democracy?
  • How are Taiwan and China connected?
  • How are the Chinese and Taiwanese governments different?
  • If Taiwan is functionally an independent country, why is there this “one China” policy?
  • Where is the US in this?
  • What happened to Taiwan when the US established formal relations with China (PRC)?
  • What effect does not having official diplomatic status as a nation state have on Taiwan?
  • Taiwan is a small island. How important is it in international affairs?
  • What are some of China’s key interests and initiatives?
  • What is the Belt and Road Initiative?
  • What is the AIIB?

Where is Taiwan located?

Taiwan is an island off the coast of mainland China bordering the South China Sea (SCS). When the Chinese Nationalists (国民党, KMT, Kuomingtang), led by Chiang Kai-shek, fled the Communist Chinese (共产党, CCP, Chinese Communist Party) in the mid-twentieth century, the bulk of the Nationalist army retreated to Taiwan. Other names for Taiwan include Republic of China and Formosa. Taiwan has conflicting claims with China to islands in the SCS.

Is Taiwan a democracy?

Yes. Taiwan has a free press, rule of law-based system of governance, independent judiciary, and democratic elections. It also maintains its own military. Taiwan was governed under martial law by the KMT (the party of Chiang Kai-shek) until July 14, 1987 but then successfully transitioned to a democratic system of governance.

How are Taiwan and China connected?

The governments of both China and Taiwan have their roots on the Chinese mainland. Chiang Kai-shek inherited the leadership of the KMT from Sun Yat-sen, who is regarded by both the KMT and CCP as the father of the Republic of China (1918-1937).

A civil war (the 1949 Communist Revolution) between the Chinese Nationalists and Chinese Communists ended in the defeat of the Nationalists. Chiang Kai-shek and the Nationalist (KMT) army retreated to Taiwan.  Chiang Kai-shek did not acknowledge the Chinese Communists as the legitimate government of the China. Over time the two countries established separate systems of governance, but the PRC has not given up its claims to Taiwan, which it refers to as a “rogue province,” and Taiwan still officially refers to itself as the “Republic of China.”

How are the Chinese and Taiwanese governments different?

China is a single party state under the control of the Chinese Communist Party. Taiwan has developed a two party political system and holds democratic elections. Taiwan has two main political parties–the independence leaning DPP (Democratic Progressive Party) and the KMT.

If Taiwan is functionally an independent country, why is there this “one China” Policy?

In pragmatic terms, the “one China” policy preserves a status quo where China and Taiwan avoid armed conflict and issues related to Taiwanese independence. Countries must choose to have diplomatic relations with either Taiwan or the People’s Republic of China. Taiwan’s official name is still the “Republic of China.” China-Taiwan relations are also referred to as “Cross-Strait Relations.” China has stated that it will invade Taiwan if the island declares independence.

Where is the US in this?

The short answer is that the United States supported Chiang Kai-shek and the KMT over competing warlords in the early twentieth century and later over the Chinese Communists. China was invaded by Japan in 1937 and joined the Allied Powers when the United States entered World War II. The dynamics of armed conflict in China during the twentieth century are complex. The United States maintained diplomatic ties with the “Republic of China” under the KMT until 1976.

What happened to Taiwan when the US established formal relations with China (PRC)?

The United States switched its official diplomatic ties to the PRC in 1979 following then President Richard Nixon’s landmark 1972 visit to the Chinese mainland. The PRC replaced Taiwan in the United Nations and on the UN Security Council in 1971. The United States continues to maintain strong economic ties with Taiwan, its fourth largest trading partner, and also sells defensive armaments to the island per the 1979 Taiwan Relations Act.

What effect does not having official diplomatic status as a nation state have on Taiwan?

Lack of official status puts Taiwan in a difficult position internationally. It operates independently of mainland China, but cannot claim the rights and privileges of an independent nation state. As the PRC grows in power, it has taken steps intended to bring the island under the control of Beijing.

It is difficult for Taiwanese representatives to participate in international organizations and decision making bodies, including academic conferences, model UN meetings, and the Olympics. Recently, China has pressured a number of countries to deport Taiwanese passport holders to the PRC, claiming them as “Chinese citizens,” and arrested a pro-democracy activist who is a Taiwanese national.

Taiwan is a small island. How important is it in international affairs?

As China gains international strength and prominence, it also grows in international influence. Taiwan is one of many areas in Asia that maintain democratic systems of governance, and its political system is affected by Chinese influence. In some senses, Taiwan is a bellwether for how democracy and democratic institutions in Asia are responding to China’s growing influence.

Hong Kong is another such case. As a former British colony that returned to mainland China in 1997, the city is supposed to operate under an autonomous and democratic system of government for the next 30 years; however, there are signs that Hong Kong’s democratic institutions are being eroded. Other Asian democracies–Japan, South Korea, Singapore, and India among them–must negotiate their own strategic interests with an increasingly powerful Chinese state.

What are some of China’s key interests and initiatives?

China has initiated economic initiatives, including the “Belt and Road” and established the AIIB as a competitor and possibly alternative to the World Bank. It has acted to assert claims to the South China Sea, which is an area of importance in terms of commerce and natural resources.

What is the Belt and Road Initiative?

The Belt and Road initiative is also known as One Belt, One Road (OBOR) (一带一路). The Belt and Road initiative is the PRC’s strategic economic initiative to develop a southern “maritime Silk Road” and land-based Silk Road or “belt” through Central Asia and extending into Europe.

What is the AIIB?

The AIIB (Asian Infrastructure Investment Bank) is an organization spearheaded by mainland China as an effective alternative to the World Bank, which it views as an institution dominated by the United States and other western countries. The United States, while invited to join the AIIB, has not done so. China has attracted the participation of AIIB countries by offering incentives, such as investment in the infrastructure of participating countries. AIIB strategically advances China’s economic interests and complements its Belt and Road (一带一路) initiative.

Violence on Social Media

It’s now a familiar trope in Hollywood–a politician is blackmailed by terrorists who claim they will post a video of a decapitation or some other type of violence against a victim on social media, usually YouTube.

Violence captured and shared on social media: this content tends to become quickly viral, and is difficult to contain for social media platforms that host user generated content. Today, Facebook is increasingly feeling the heat, most recently when Steve Stephens, a Cleveland native, posted a video of him randomly shooting and killing an innocent victim, Robert Goodwin, that was viewed over 1.6 million times before the video was pulled by Facebook more than two hours later.  

Last month, it was a gang rape in Chicago that was streamed on Facebook Live. In January, another similar incident in Sweden was streamed on Facebook Live. Torture of a man with disabilities, child abuse, and suicides have all been streamed on Facebook as well as its subsidiary, Instagram.

Facebook’s typical response to these events involve: taking down content as quickly as possible, an emphasis that the company doesn’t condone this type of content, and a promise to do better.

It seems that the bulk of Facebook’s responses have focused on improving its internal operations and technology, in order to reduce the time from when the content is uploaded to when it is reported, to when it is taken down. Facebook has started exploring using artificial intelligence to prevent questionable content from being shared.

Yet, the challenge of dealing with violent content on social media is not new news. YouTube similarly has had disturbing violent incidents or videos posted, where suspects discuss their intentions for mass shootings. The Syrian Civil War has also led to the uploading of mass violence on YouTube. 

Here is a look at some key events that have happened on social media in the past decade:

While there is almost no way to capture a complete picture of all violent events on social media, it’s clear that with the launch of Facebook Live, the violence has become more real-time, and perhaps more varied. In the era before Facebook Live launches, most videos of violence are related to international crises, where different interest groups are using YouTube as a communication channel for propaganda. The videos of police violence against African Americans in 2015 also showcase how video sharing has changed between then and now: most videos are released significantly after an event occurrence, and their dissemination is still controlled by news media, police, etc. Perhaps because of this, most of the criticism launched at YouTube has been around the difficulty of implementing an effective policy that filters out inflammatory content yet protects the freedom of speech.

In contrast, today’s violent content is easily controlled and disseminated by the perpetrators themselves. This shift is seen as largely thought to be driven by the fact that “The attention from online peers, combined with immediate feedback in the form of comments, reactions and shares, can be intoxicating. The fact that the footage is self-incriminating doesn’t matter to some offenders,” the Guardian claims.

Yet, it’s important to consider whether all violence on social media should be banned. The timeline above shows some key video content that have been critical in spreading public awareness about issues such as police brutality, or mass violence in the Syrian Civil War. The societal importance from public access to such violent content cannot be understated.

Where does that leave users? Unless social media companies develop more automated solutions to identify violence that is purely criminal, and does not have any societal benefit, there will likely be more violent events covered on Facebook Live or otherwise. Understandably, defining what has “societal benefit” is a tricky line to define–and one that will involve a strong hand of company-driven curation, which historically companies such as Facebook and Google have been reluctant to pursue.

 

What is happening in Arkansas? 

 

Arkansas is everywhere in the media these days. After more than a decade without having carried out any execution (the last person to be put to death was Eric Randall in 2005, 12 years after he had committed murder), the governor of the state, Asa Hutchinson, scheduled the execution of seven inmates. The executions are supposed to be carried out within a 11 days span, starting Monday, April 17. This tight schedule is due to one of the drugs used in lethal injections in Arkansas: midazolam. Arkansas’s supply of midazolam expires at the end of April. Arkansas has never carried out any execution using this drug, a powerful sedative administered to the prisoner to make sure the inmate does not feel pain during the process and is not conscious. However, midazolam is highly controversial, as inmates who have been given the drug during their execution seem to have clearly felt something, voicing it and agonizing for as long as 34 minutes in the case of Ronald Bert Smith, who was put to death in Alabama last December.

On Monday 17th, at 7pm, it appeared that « Arkansas ha[d] asked the U.S. Supreme Court to overrule the state’s high court and allow two executions to continue as scheduled Monday night», according to the Arkansas Democrat Gazette.

Over the past few days in fact, the issue has become harder to follow. Appeals are made on various grounds, some executions are stayed, others are not, courts block and others do not. So, what is happening in Arkansas? 

First of all, who is scheduled to be executed and for how long have these people been on death rows?

Seven convicts are scheduled to be executed between April 17 and April 27. They are seven males, and each was found guilty of murder. Bruce Earl Ward, scheduled to die on Monday 17, was sentenced to death in 1997. On Monday 17 was also scheduled the death of Don William Davis, who has been on death rows since 1991. Stacey Eugene Johnson, is scheduled to die on April 20 and was sentenced to death in 1997. On the same day is scheduled Ledelle Lee, sentenced in 1995. On April 24, Jack Harold Jones and Marcel W Williams are scheduled to be executed and they have been on death rows since 1996 and 1997 respectively. Lastly, Kenneth D Williams is scheduled for April 27, and was sentenced to death in 2000.

The seven convicts, with year of sentencing.

Originally, eight death sentenced were scheduled to be carried out. One of the inmates, Jason McGehee, was granted a stay of his April 27 execution earlier this month.

Wait. How did that work?

McGehee filled an appeal for clemency. In fact he is not the only one to have done so: five of the other convicts did the same. Clemency is the ability of the governor of a state to come back on the decision of a trial. A clemency application is reviewed by a parole board, and in Arkansas the board is composed of seven members, appointed by the Governor and confirmed by the Senate. The parole board formulates a recommendation to the Governor, about whether or not he should grant clemency to the convict, and the governor usually follows the recommendation – even if technically it is a non-binding advice.

Process of an application for clemency

In McGehee’s case, the parole board recommended Asa Hutchinson, to grant the prisoner clemency. Following the recommendation of the board, the federal Judge D. Price Marshall Jr, granted McGehee a stay of execution while waiting for the decision of the Governor, as the timeline is particularly tight in this precise case. Hutchinson should follow the parole board’s recommendation in the upcoming days, and McGehee’s sentence is likely to transform into life in prison without parole.

How come the convicts have been incarcerated for so long?

Each case is different. In fact, it is not unusual for a convict to spend several years, and even decades on death rows. In 2012, the average time between a death sentence and the execution of the sentence was of 190 months. The trend is clearly positive, as this average was only of 74 months in 1984.

Average time on death rows, in months (deathpenaltyinfo.org)

Why do prisoners spend so much time on death rows?

Once the final appeal is reached, the execution is scheduled and carried out rather fast. However, there is a gigantic amount of procedures between the sentencing, and the final appeal because multiple appeals can be made, under different names, following different procedures and filled at various courts.

To get a better understanding of the process, let’s see what happens when an inmate is sentenced to death in California by highlighting the main steps of the procedure.

Death penalty in California… and how long it takes for execution to be carried out (law.stackexchange.com)

The whole judicial development involves four different courts at different levels. One is the state Supreme Court. When the sentence is pronounced, the legal representation (that is to say the lawyer) of the condemned can fill for direct appeal in one of the state’s appeal court (and this already takes from 9 to 18 months). An appeal must be filled only on the grounds of what was recorded during the trial, that is to say either challenging some of the information, or arguing that judges made a « harmful error », getting in the way of a fair trial.

If the appeal is rejected, the state Supreme Court can be asked for review but does not have to consider the case. Only one direct appeal can be made.
Of course, the procedures do not end with direct appeal being rejected. There is an arsenal of legal instruments that the prisoner and his legal representation can use. One of these instruments is called a writ. A writ is supposed to be processed faster than an appeal, and is technically a document issued by a court granting a lower court the right to pursue legal actions in its name. Now in fact, it turns out that it is much more complicated than this in practice, but also clearer than this plain definition that comes straight out of a law dictionary.

In our case, the petitioner, that is to say the prisoner condemned to death, usually fills a writ to ask the right to appear in front of a court for his trial to be reviewed. The most well known writ is the writ of habeas corpus. This writ of habeas corpus challenges the legality of an incarceration, using as a ground the 14th amendment to the US Constitution, and pointing at what went wrong during the trial, or possible missing pieces of the case (the writ does not have to be filed on grounds explicitly present in the record of the trial, contrary to direct appeal). In other words, a writ of habeas corpus can be filled when it is likely that a prisoner has been denied constitutional right to a fair trial. As a reminder, section 1 of the 14th amendment states that: «  No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law ».

There is also the possibility to apply for writ of certiorari when the appeal has been denied, which means asking the Supreme Court to consider the case. However, the Supreme Court does not have to do so ( and it turns out that it considers less than 2% of the cases for which such a writ is filled every year).

How does a case get to the Circuit Court step on the California explanatory graph, and what is a Circuit Court? 

When an appeal has failed at the state level Court, one can apply to the next higher level court. So in our California case, this means turning to courts of the 9th circuit, one of the 13 Circuit Courts of the United States. A Circuit Court handles appeals at the federal level, and the courts are divided between geographical zones because the judges are mobile between the several courts of a same circuit. These courts are specifically made for appeal, that is to say that no trial happens at this level, and the Circuit Courts do not pronounce sentences. Usually, a Circuit Court takes a very long time to review a trial and issue a ruling.

The whole process of appeals can stop at this point, but appeals for clemency can be filled, as in McGehee’s case.

Summary of different levels of courts

What makes the cases in Arkansas so specific? 

In Arkansas, the pace of the scheduled executions is unprecedented since the reinstitution of the death penalty in the US in 1977. It has caused international uproar and indignation.

What makes the cases in Arkansas different is that there are many matters being discussed at various court levels at the moment. One of the issues that was argued at the Supreme Court of Arkansas this past few weeks had to do with the legality of the use of midazlolam, and whether or not it qualified as a « cruel and unusual punishment ». The Swiss firm Hoffman La Roche, that invented and produces the drug, was not even aware of the fact that its product was going to be used in capital executions, and decided to stop selling the drug to states altogether, although some states did try to curb the interdiction. However, challenges on the grounds of the legality of the drug fell short after the Supreme Court of Arkansas ruled that it was legal to use midazolam in executions.

Moreover, dozens of judges have sent a petition to Asa Hutchinson to request a stay of the executions. A Kickstarter was launched to fund the visits of the families to the inmates. Of course, the convicts are filling applications for clemency. The media and independent initiatives such as the Fair Punishment Project, funded by the Harvard Law School, are challenging the very validity of the trials.

Because there was something wrong with the trials?

In fact, it turns out that all the men scheduled to be executed in Arkansas have an IQ falling below 70, which qualifies for mental illness and impairment. Bruce Ward is a paranoid schizophrenic (he does not believe that he is going to die, but that he is leaving soon to go on a « special mission as an evangelist ». He also sees dogs all over his cell.

No independent party has ever assessed Don Davis’s mental health. It is all the same for Ledelle Lee. Stacey Johnson’s lawyer has never taken a closer look at his client’s personal background. All of the convicts suffered from constant neglect during their childhood. Their families beat them and they grew up in crushing poverty. Some of the men were raped multiple times, and Marcel William’s mother pimped him on a regular basis in exchange for food stamps and a place to stay. All of them have suffered from bad and inconstant representation during the course of their trial. The Fair Punishment Project argues:

« Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness—one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. »

The Project suggest that the governor issues a moratorium while further investigation is conducted.

What happens next?

The Supreme Court is likely to review the cases and last minute appeals because of the uproar the affair is causing. So far, no execution has been carried out. Yesterday, the Supreme Court of Arkansas stopped the executions of Don Davis and Bruce Ward. However, the attorney general of Arkansas challenged the decision of this court and asked for the US Supreme Court to overrule the decision for Don Davis (remember, no background research of his mental health has been conducted, so he is not considered as mentally impaired contrary to Bruce Ward who is acknowledged as being, according to the Fair Punishment Project, « insane »). The Supreme Court did not overrule the decision: it suspended the execution of Don Davis. We are now waiting to see what will happen to the other inmates, and what the Supreme Court will rule when reviewing the inmates mental health condition. Much more is to come in the following days. Remember that no stay of execution has been issued for the other 5 convicts… yet.

Power play during a state of emergency

On April 16th, Turkey voted for a referendum that gave additional powers to the President under the new constitutional changes. Under the new changes, Turkey will now have executive powers for the President, like appointing important Judicial positions and removing the post of Prime Minster, by abolishing the current parliamentary system.

In July 2016, President Erdogan established a state of emergency in the country after a failed military coup that tried to remove him as President. Since then the state of emergency has been extended multiple times for 3 months at a time. It was first extended to stabilize the country and also in January after the New Year’s attack. Following image shows the other countries with a state of emergency in 2016

Source: https://qz.com/738249/the-worlds-depressing-state-of-emergency-in-2016-mapped/

The referendum impacts the people of Turkey and following is an attempt to map the power and interests of the impacted parties:

Source: Built Mindmap using MindMeister

President Erdogan’s winning the referendum vote by a slight majority has given him immense power in the upcoming years. This helps provide stability to the country because the President can control any coup attempts in the future by bringing in an authoritarian regime, but this will suppress the freedom of Turkey’s people. But the immense power in the hands of one individual will make it difficult to predict the future state of the country and will create confusion on how to build diplomatic ties with the country.

It’s the French presidential election this weekend. Expect the unexpected.

A lot of people went to bed on the night of November 8, 2016, confident that they would wake up to news of President-elect Hillary Clinton’s election victory. This is not, of course, what happened. Donald Trump’s stunning win confounded pollsters and pundits alike, much as had the UK’s decision to Brexit months earlier.

Political unpredictability has continued apace in 2017, and France’s presidential election represents an early test of whether the nationalistic tremors of 2016 will continue to haunt liberal democracy in its heartlands. One thing’s for sure: no-one can confidently predict the results of this contest. But to borrow a phrase, there are some known unknowns to brush up on ahead of time.

How does France elect a president?

Presidential elections in France are a two-step process, with the top two candidates from this Sunday’s first round progressing to a head-to-head run-off a fortnight later – which means that, whatever happens, we won’t know who’ll become France’s next president on Sunday, but we know who won’t. The two-stage system aside, the process is quite straightforward – the candidates with the largest vote totals progress.

So who’s in the running?

In recent years, two main parties have dominated French politics: the left-wing Socialists, and the center-right Republicans. The current president is Socialist François Hollande, who announced last year that he would not seek re-election, in large part due to staggeringly low approval ratings, which hit an eye-popping low of 4% (not a typo!) late last year.

As in any election without the incumbent running, the field is wide open this year – albeit to an extent unprecedented in French politics, for several reasons. First, with or without Hollande, France’s Socialist party is in disarray: similar to Democrats in the US and the UK’s Labour Party, it is riven by in-fighting between left wing forces and more centrist impulses.

This has served to fragment the electorate. The official Socialist candidate, Benoît Hamon, is struggling under the weight of his predecessor’s unpopularity. Meanwhile, two former Socialist ministers, Jean-Luc Mélenchon and Emmanuel Macron, have each seized chunks of the party’s traditional vote from the left and the right with their own new movements, Unsubmissive France and En Marche!, respectively.

The right wing has also splintered. The National Front, led by Marine Le Pen – the daughter of Jean-Marie Le Pen, who scored a place in the run-off election in 2002 – has seized on antipathy towards Muslim immigrants to lead many first-round polls this year. Meanwhile François Fillon, the Republican candidate, is riven by allegations of financial impropriety relating to salaries given to members of his family, which have threatened to upend his candidacy.

OK, so it’s a broad field. But who’s going to win?

It’s very hard to predict who will make it through to the run-off – let alone win – but right now there are four viable candidates who, polls suggest, each clustered at between 18% and 23% of the vote. Mélenchon, with a radically leftist agenda, has been gaining recently at the expense of Hamon, and is running at around 18%, for what would be a close-fought fourth. Fillon has resisted calls – even from among his own party – to drop out, and his support seems to have stabilized, as he is currently running in a close third. Macron and Le Pen, meanwhile, have been trading the lead for the last few weeks, with each averaging around 23% of the vote.

The state of the French presidential polls at the time of writing. (Wikipedia)

The results of the run-off will depend, of course, on who makes it through. As things stand, one candidate – Macron – would win his head-to-head with each of the other three viable candidates, while another – Le Pen – would lose all of hers. (Mélenchon beats Fillon in the least-likely match-up.) But polling the run-off accurately is difficult while other candidates remain in the race, particularly when three out of the four leading candidates represent parties who have never won the presidency. In particular, if Fillon continues his comeback and makes it through to the run-off against Le Pen, the achingly familiar prospect of an experienced but scandal-plagued establishment candidate losing to a xenophobic outsider seems plausible.

How important is this election?

In a word, very. In constitutional terms, the French presidency represents something of a middle way between a mostly-symbolic head of state like the German presidency, and the powerful executive in the American system. Compared with America, periods of “cohabitation” – where one party controls parliament while another occupies the presidency – have been relatively rare, and in these instances, the president tends to take a back seat.

But one area in which French presidents have the most control is in foreign affairs, and France’s election this year represents, in a certain sense, another referendum on the European Union. Only the far-right Le Pen has vowed to leave the Euro currency, but both she and Mélenchon have adopted the fateful promise made by Britain’s David Cameron to renegotiate France’s relationship with the EU and put the resulting settlement to a formal referendum vote.

Meanwhile, Le Pen and Russian President Vladimir Putin have been open about their mutual respect, and Fillon is also notably more comfortable with Russia than other Republican figures – while Macron, the only avowedly pro-European candidate has been hit with a barrage of cyberattacks and fake news. Again all this sounds familiar, perhaps that’s because it is.

Both politically and geographically, France is much more central to the European project than Britain ever was, so a rebuke by voters would represent a much more existential threat to the Union – creating precisely the kind of instability that Russia’s Putin is said to want.

What else is there to know?

The polls are changing daily, and the election is now too close to call, according per multiple outlets. While this uncertainty creates volatility, in everything from markets to geopolitics, at least pundits and the public alike are more prepared for multiple outcomes than they were on the mornings of June 24 and November 9, 2016, when British and American voters created political earthquakes. It’s always useful to know what you don’t know.

Waymo, Otto, Uber, Google: A Lawsuit in Need of an Explanation

Amongst the many stories of Uber’s recent controversies, you may have heard of a lawsuit between Waymo and Uber. The case centers on intellectual property infringement, which is already a complicated, technical issue on its own when you break down how a judge or jury determines if the technology is infringing on a patent.

Let’s break down just what’s going on in this situation:

What is Waymo?

To understand what Waymo is, we need to go back to Google Co-Founder Larry Page’s open letter in which he announced that Google would become a subsidiary of Alphabet Inc., a holding company that will be the parent company for several of the company’s endeavors. This includes X, the company’s “moonshot factory” or investment lab, GV and CapitalG, the company’s two investment arms, and Waymo, the company’s self-driving car project that spun out of X.

Waymo began as a self-driving car research project at X (then called Google X) in 2009. The name Waymo, which Alphabet unveiled in 2016, is short for “a new way forward in mobility.”

Seems like a weird phrase to shorthand.

Yes, yes it does.

Let’s go back to this Alphabet company. Why was it created and did it replace Google?

Google still exists and includes everything you would associate with the brand: search, ads, YouTube, Maps, Chrome, and Android. But now it’s one of several entities under the Alphabet umbrella.

When it comes to the why, that’s a bit trickier to explain. There’s plenty of speculation that the creation of Alphabet is all about improving visibility into the company’s operations and revenue breakdown for investors. Each of these companies now operates independently, with separate budgets and revenue that are reported out in the quarterly earnings the company is required to file by the US Securities and Exchange Commission, the the governing body of the US financial markets.

So, back to Waymo. Why was it spun out of X?

Companies are spun out of X when they’ve moved past the research stage and are ready for commercialization. If Alphabet is confident the company has a sound business model and product that’s ready for the market, it’s moved out of X to become a stand-alone company. According to Waymo CEO John Krafcik, “what you’re feeling from the Waymo team is confidence that we can bring this [technology] to [people].”

How exactly does Uber fit into all of this?

Uber, like many other technology and automotive companies, is developing self-driving car technology of its own as part of its Advanced Technologies Group. CEO Travis Kalanik first began recruiting engineers for the project in Pittsburgh in late 2014.

Pittsburgh seems pretty random.

It’s not. It’s home to Carnegie Melon University (CMU), which has a well-respected robotics department where many of the top experts in the field spent time conducting research. Originally, Uber partnered with CMU’s National Robotics Engineering Center to develop the technology. Then, Uber poached about 50 people from CMU, which was about one third of the Center’s researchers.

Wait, Uber stole all of the workers away from its partner?

That’s a story on it’s own. Let’s just say it was not a popular move in the technology community.

Did Uber’s technology from the CMU partnership infringe on Waymo’s patents?

No. The patent infringement issue starts with Otto, a startup that was developing self-driving technology for trucks. The company was founded by former Google employees Anthony Levandowski, Lior Ron, Don Burnette, and Claire Delaunay. Levandowski formerly led Google’s self-driving car project and incorporated Otto two weeks after leaving the search giant. The team first announced the existence of the company in May 2016. Only three months later, Uber acquired Otto for $680 million.

Why did Uber acquire Otto? And when are we getting to the patent infringement?

We’re finally getting there. There are a number of reasons Uber bought Otto, including its relationship to car manufacturers, its talent, and its technology. That technology includes LiDAR, or light detection and ranging. LiDAR works by using lasers to detect objects, space, and anything else in an environment by tracking how long it takes for the laser to hit the object and bounce back to create a 3D map. It’s a mechanical form of echolocation. The technology is used for autonomous guided vehicles (aka self-driving cars) to detect everything on and around the road, from other vehicles to obstructions.

This is the technology that Waymo is suing Uber over.

So why does Waymo think Uber is infringing on the LiDAR technology? And when did they file the lawsuit?

The lawsuit began in February. According to Waymo, it all started with an email: “One of our suppliers specializing in LiDAR components sent us an attachment (apparently inadvertently) of machine drawings of what was purported to be Uber’s LiDAR circuit board — except its design bore a striking resemblance to Waymo’s unique LiDAR design,” the company announced in a Medium post.

That email sparked an investigation by Waymo, which eventually led the company to discover that a month and a half before he resigned, Levandowski downloaded more than 14,000 proprietary files, including the designs of the company’s LiDAR technology and circuit board. Waymo also claims that other former Google employees downloaded confidential information about suppliers and manufacturing. The full filing goes into details about just what these employees supposedly stole.

In the filing, Waymo asked the court for an injunction against Uber’s self-driving car program. Translation: Waymo wants to stop Uber from continuing to work on the technology.

How did Uber respond?

Uber released a statement to Business Insider on February 24th denying all allegations, claiming the lawsuit is “a baseless attempt to slow down a competitor.”

Levandowski also released a response of sorts. The Otto founder exercised his Fifth Amendment right to avoid self incrimination on March 30th. He also hired his own criminal counsel for the suit, though he is not formally named in Waymo’s filings.

Uber officially filed its formal response to the lawsuit on April 7th, which included details about the differences in the two company’s LiDAR technologies, the lack of evidence around the 14,000 files.

Did Waymo respond?

Waymo originally claimed that Uber failed to disclose the proper documents related to the lawsuit on April 3rd. Waymo asked Judge William Alsup to compel Uber to produce all of the documents or assume the company is hiding documents.

Waymo also reiterated its claims in its response, saying “Uber’s assertion that they’ve never touched the 14,000 stolen files is disingenuous at best, given their refusal to look in the most obvious place: the computers and devices owned by the head of their self-driving program.”

So where does the lawsuit stand now?

The last update with the lawsuit has to do with Levandowski’s Fifth Amendment claim. William Alsup, the judge presiding over the case, rejected Levandowski’s request and ordered Uber to disclose documents created by a third party when it conducted due diligence for the acquisition of Otto. The due diligence report must be included without any redactions related to Levandowski in a “privilege log,” which is a document a party in a lawsuit produces that they do not think should be opened in court because of the proprietary nature of the material.

Waymo filed the last update in the case, filing an opposition request over Uber’s motion to keep the dispute private by going into arbitration. Uber originally filed for arbitration because of Alphabet’s employee agreements state that any disputes with the company should be settled in arbitration. But Waymo believes this is not a valid claim, as Levandowski is not the defendant in the case, Uber is.

So what now?

Prepare for a long lawsuit filled with more filings and claims. Unless some settlement is reached, the case could be dragged out for months.

French presidential polls seem too consistent to be true

The French presidential election will be held in 10 days from now, and it seems like a nail-biter. The first round, which seeks to determine which two candidates will be qualified for the final runoff1, seems to have become essentially a four-way race. And we are not talking about a four separate, but similar politicians. We are talking about a pro-European centrist candidate (Emmanuel Macron), a neo-conservative who, after being charged for embezzlement of public funds, is now France’s most unpopular politician (François Fillon), a brash but eloquent candidate endorsed by the French Communist Party (Jean-Luc Mélenchon), and, of course, Marine Le Pen. According to the latest polls, all of them are, essentially, within 5 points of each other.

The French media is, understandably, covering the election relatively nervously. Even though every poll for the past few weeks has shown Macron and Le Pen with a somewhat comfortable lead over Fillon and Mélenchon, every one of the 6 potential match-ups is brought up by pundits. (This has a lot to do with a massive 15-year old election upset; I’ll come back to that a little later.) Most bonkers, however, is that this concern is actually probably underplayed. Just by taking a look at the general shape of election polls, it is pretty clear that something weird is going on, and that we may underestimate how truly unpredictable this first round is shaping to be.

The big red flag of these election polls is that they really, really don’t deviate from each other. It is a pretty easy thing to measure. Polls, because they take measurement on a sample, are inherently flawed; fortunately, that flaw is simple to estimate. For this post, I am assuming that the sampling error for one poll, for the first round, is around 2.7 points2. This is the sampling error that one would expect when trying to evaluate percentages around 20 points, and with samples of 1000 people. This what we are talking about here: the four candidates’ numbers are currently in the range of 17 to 25 points; and almost every poll has a 1000-ish sample.

If that standard error due to sampling is 2.7 points, that means that we should find results within that interval something like 68% of the time.3. This is what would happen if all the surveys were done with random sampling, and no tinkering on the back end. What happens if you line up the polls together and compare them?

The black dots here, represent the different polls. The black line is the moving average (computed with a local regression). The blue interval is this average +/- 1.35 points, which represents the sampling error. We should normally expect to see roughly a third of polls outside that interval. It is obviously not the case. Even more striking is the fact that polls get significantly closer 60 days before the election, after February 25th, at the moment where you can see a lot of movements in the numbers. For the past three months, basically, there has been virtually no outlier poll for any of the four major candidates. This should not happen in an ideal polling environment, and is quite concerning.

To get more dramatic, I used a chi-square test, which is used to determine if a dice is weighted. Here is what it yields:

  • The odds that the fact that Macron’s scores were this consistent is a coincidence is 0.001%.
  • The odds that the fact that Fillon’s scores were this consistent is a coincidence is 0.0003%.
  • The odds that the fact that Mélenchon’s scores were this consistent is a coincidence is 0.0006%.
  • The odds that the fact that Le Pen’s scores were this consistent is a coincidence is 0.00000000002%.

There are potential two explanations to this. Firstly, French pollsters almost uniformly use a method called quota sampling. In other words, they seek for a certain balance with regard to their samples to achieve certain ratios that would be, in their mind, representative of the electorate. The consistency of the quotas used by pollsters could be the cause of the consistency of the polls; and, of course, this is a controversial polling method. It was discredited in the US in 1948, after it failed to predict Truman’s re-election. And this is probably a very bad election cycle to promote quota sampling. The 2017 election cycle has been defined by its volatility, as well as an unusually high number of undecided and a big question mark with regard to turnout. (That, in short, never really happened before4.) In this disjunctive election cycle, it seems a little bit crazy to pretend that the quality of polls rely on a deep understanding of the electorate and its dynamics.

The second explanation, much less nice to pollsters, is what Americans would call herding. In other words, manipulating poll data, or hiding some results, to prevent outliers5. I don’t know to which extent this is the case, because it would require a little bit more of analysis, but it definitely does seem likely. That polls seem more and more consistent during periods at the end of the campaign that displayed a lot of poll movements looks very suspicious to me. I just don’t buy that pollsters have a better grasp of the electorate now that they had four months ago, especially provided that the campaign has been essentially upended a few times since then.

I am all the more suspicious of French pollsters that they actually screwed up big time before. In 2002, all of them showed Prime Minister Jospin and President Chirac as confortable front-runners in the first round; they were virtually assured of being qualified to the second round. What happened, in fact, is that National Front’s Jean-Marie Le Pen came in second, ousting Jospin. (And with an almost 1 point difference!). This was, and still is, a national trauma, as the public did not see it coming. And guess how were pre-election Le Pen’s poll numbers? (The red dot is his actual, eventual score)

It seems like history is repeating itself 15 years later. What does that mean for Election Day? Essentially, fasten your seat bells. The uncertainty around this election is much, much higher than polls might let us think. A lot of second-round possibilities, even between the far-right and the far-left, are to be considered. And, for once, the political TV circus is actually justifiably hysterical.

(1) The French election votes according to the runoff voting system. First round candidates need 50% of the votes to win, or else the two top candidates face off in the second round to get these 50%. And for those who think that this system is a French peculiarity, you might want to think again: it’s actually the voting system used in next Tuesday’s special election in Georgia.

(2) This is also somewhat less than the average error that French polls have historically displayed 30 days before the election. If I were to use that metric, though, it would only strengthen my claims that French polls may be pretty low-quality, and too close to each other.

(3) The standard error is basically half the margin of error. If a pollster say “20%” to you, it really means that it is 95% confident that it will fall between 17.3 and 22.7 points (+/- 2.7 points). And 68% that it will fall between 18.65 and 21.35 (the range is 2.7 points large.)

(4) Turnout for French presidential elections tends to be in the 80%’s, which is obviously much higher than elections in the U.S.. This tends to reduce uncertainty with regard to the effect of turnout on elections.

(5) Much more through explanation of herding is given in this article, which served as a partial inspiration for this post.