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Culture War Roundup for the week of May 27, 2024

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Presidential Ballot Access: Ohio Edition

As of today, a state is currently set to only have one of the two major parties candidates for President on the ballot, but it's not the one you might expect.

Ohio law requires that presidential candidates be certified – that is, the state must be notified that presidential candidates have been officially nominated – 90 days before the general election in order to get on the ballot. That is the earliest deadline of any state.

But the Democratic National Convention that will formally nominate Biden won’t open until nearly two weeks after Ohio’s Aug. 7 deadline. The Republican National Convention will wrap up nearly three weeks before the deadline, so Donald Trump won’t have a problem getting on the ballot...

Ohio laws generally take effect 90 days after passage. So a change to the deadline had to pass by May 9, but the Legislature wound up doing nothing.

To be fair, this law has existed since 2010, albeit with a couple past temporary exceptions (probably a compromise number downstream of a 2006 court case over a third-party candidate 120-day deadline; see references to Blackwell and progeny here). and the Ohio legislature (majority Republican) has done nothing less out of explicit desire to screw over democracy and more because the Ohio GOP's House and Senate are fighting each other, and a GOP interest in getting some sort of Red Tribe value out of it (the closest bill, HB114, also bans some foreign contributions to ballot initiatives, for about the reasons you'd expect). DeWine, the (Republican) governor, is pressing pretty hard to find some sort of solution, whether that ends up an emergency legislative fix, hoping the courts can and will step in, or a more dubious executive branch intervention. And it's not like there's any plausible situation where Ohio would be the turning point for the 2024 election.

((There's some theories that Ohio Dems are trying to bolster Sherrod Brown's chances, though I don't think that's very likely or even particularly coherent.))

To be less charitable, nice motive, still excluding a major political party from the ballot. It's not going to be doing any wonders for society, and as we get closer to the election, the available options, whether taken or merely proposed, will only make the mess clearer. The current planned resolution looks to be a 'virtual Democratic National Convention call', officially nominating Biden before the actual Chicago disaster convention. Hopefully, that's enough of an excuse for the Ohio legislative special session to also clean things up, but more likely the virtual call gets counted as close enough for Ohio law (less optimistically, it leaves no one able to challenge it). But the whole thing has just been a parade of one group after another absolutely certain that someone else will fix the problem that they're rolling directly into, and 'it wasn't my fault' is an awful epitaph.

Fauci et All Foiling FOIA

One email refers to a “private gmail” supposedly used by Fauci. Morens also referred others to a “secret back channel” for communicating about certain issues. He also frequently directed others to message him on his personal Gmail account to avoid FOIA requests. Morens also noted he had “learned from our foia lady here how to make emails disappear after I am foia’d.” That individual, who he identified as Marg Moore, “also hates FOIAs.”

The emails also reveal Morens made a series of crude comments about women, female coworkers and his drinking habits which indicate he “is not qualified to hold a position of public trust,” the committee wrote. Morens testified to the subcommittee Wednesday that he didn't remember if he used a personal email to conduct government business, but conceded it was "wrong" if he did so.

None of this is particularly surprising, from a cynic's perspective -- government employees fucking with FOIA requirements is a day ending in Y. There's a steelman where certain scientists involved in climate change research were getting spammed with so many duplicative FOIA requests that it edged on harassment, though given neither Morens nor Fauci every worked in environmental stuff that that's leafspring-grade steel.

There's no serious chance of serious punishment, here: Morens was already investigated and found not guilty of anything that the NIH cared about, and if anyone has problems with him lying to Congress, well, there's some fun legal realism questions about whether the law is the statute or the enforcement, but the enforcement still comes from one place.

On the other hand, it does seem enough to have pissed off no small number of partisans aligned to that One Place, if, cynically, more in the sense that Morens et all got caught. HHS is at least moving against EcoHealth Alliance. If you were to ask what one would consider a good sign, well, there's certainly end results that could point to people taking this seriously.

Title VII Religious Freedom in California

Another day, another VanDyke dissent:

In its stubborn insistence on ruling against Chief Hittle, the panel has twisted the record into knots and badly misstated Title VII law. Its decision (1) abdicates its responsibility to read the record in the light most favorable to Hittle at the summary judgment stage; (2) allows employers to escape liability for repeating discriminatory remarks simply by hiding behind those who say them first; and (3) mangles Title VII’s “motivating factor” analysis.

Perhaps most glaringly, its original opinion also incorrectly heightened the showing a plaintiff is required to make to demonstrate disparate treatment. In the panel’s view, Hittle bore the burden of showing that the City’s discriminatory conduct was “motivated by religious hostility,” notwithstanding the Supreme Court’s admonition that such a plaintiff need only show he was “intentionally treat[ed] … worse because of” a protected characteristic, Bostock v. Clayton County.

Recognizing at least this last mistake, the panel’s amended opinion retires its former use of the word “hostility,” replacing it with the more accurate (but less specific) “discriminatory animus.” Not only do those changes not fully fix the original opinion’s legal errors, but they also put the panel, which apparently remains as determined as ever to rule against Hittle, in a pickle.

Notwithstanding its many other errors, the original opinion correctly acknowledged that the “gravamen” of the “notice terminating Hittle was the religious nature of the leadership event.” But if attendance at a religious event was the “gravamen” of the firing and Hittle need only show that he was “intentionally treat[ed] … worse because of” religion, Bostock, 590 U.S. at 658, it would seem the panel would have no choice but to reverse its previous decision in favor of the City.

But it won’t.

We've had discussions here about a more expansive framework for discrimination, but this seems the punchline. Title VII has prohibited religious discrimination in hiring and firing of employees for sixty years, and while the exact borders of the doctrine have ebbed and flowed from one jurisdiction to the next, or as courts have pushed at the very edges, trying to bring them to these style of cases has been an expensive shitshow, where even the lucky winners spend decades for minimal defenses. Even defining this class of cases is a mess: I want to say discrimination against the 'majority' (but anti-woman discrimination is clearly covered!), or 'non-subaltern' (but trite agnosticism is protected, he says as a trite agnostic), rather than just Groups Progressives Want To Discriminate Against, and that's kinda the problem.

However, that punchline's also a bit of a repeat: not just that VanDyke is writing his dissent at an en banc appeal that had no chance of victory, or that the original opinion had to be edited to not be hilariously wrong, but that Kennedy went to and was decided by SCOTUS almost a year before the original appeal decision came from the 9th Circuit. The facts in Hittle are different, sure -- Stockton alleges, not very credibly, that they 'really' fired Hittle for endorsing a consulting business and for not disclosing closeness to a union president -- but the courts were (supposedly) not yet deciding facts, but merely the motion for summary judgement.

Instead of motions for summary judgement focusing on questions of law, various balancing tests and excuses can fall into play where judges don't like the plaintiff's perspective. Instead of protecting Hittle against employers that were outraged by his place in a complaint-named 'Christian coalition', the law in California now holds that there is a "legitimate concern that the City could violate constitutional prohibitions and face liability if it is seen to engage in favoritism with certain employees because they happen to be members of a particular religion." Sure, that anti-endorsement test had been explicitly rejected contemporaneously to and previously by SCOTUS, but SCOTUS "can't catch 'em all", and increasingly doesn't seem interested in trying.

That failure mode isn't and wasn't inevitable: despite my expectations, Fulton hasn't come back to the courts (yet). But it's a problem that haunts any attempt at legislative or executive branch 'fixes'.

((At a more concrete level, Hittle was fired in October 2011, at a time where he was nearing age 50. The unusual length of the court case here reflects Stockton's bankruptcy rather than overt malfeasance specific to him, but it still means he's in his mid-60s today. Even should, SCOTUS hear this case, overturn it, remand with direct instructions, no further interlocutory appeals or weirdness occur, and the trial occur speedily, he might see a court room on the facts before he self-moots by old age, but probably not before he sees his 70th birthday.))

An Appeal to Heaven

Compare February and to May. Diff, context. Also see here, and here.

The Cloud is Someone Else's (Broken) Computer

Unisuper is an Australian superannuation fund, which is close enough to a psuedo-mandatory version of American retirement funds. AshLael might know the more specific differences. It has 600k members, about one in fifty Australians, with over 125 billion AUD (~88 billion USD) funds under management. It also fell off the internet on May 5th, only restoring full functionality May 20th, allegedly as a result of a 'one-in-a-million' bug in Google Cloud services dropping both the main Unisuper database and all Google Cloud backups.

UniSuper had duplication in two geographies as a protection against outages and loss. However, when the deletion of UniSuper’s Private Cloud subscription occurred, it caused deletion across both of these geographies.

Restoring UniSuper’s Private Cloud instance has called for an incredible amount of focus, effort, and partnership between our teams to enable an extensive recovery of all the core systems. The dedication and collaboration between UniSuper and Google Cloud has led to an extensive recovery of our Private Cloud which includes hundreds of virtual machines, databases and applications.

UniSuper had backups in place with an additional service provider. These backups have minimised data loss, and significantly improved the ability of UniSuper and Google Cloud to complete the restoration.

This is a little weird, and not just for having an actual benefit from multicloud. Google Cloud Platform doesn't have the best reputation, but 'keeping multiple copies of long-standing data' is one of those things cloud providers are supposed to excel at, and having first disclosure come through the client rather than the cloud provider is a decision that Google Cloud didn't have to make. There are even arguments, a la Patio11-style, that part of what a client Unisuper's size is buying from a cloud provider is to have a name to fall on a sword. This has lead to no small number of people reading tea leaves to conclude that the fault 'really' reflected an error by Unisuper (or a separate smaller contractor) making a configuration mistake. Unisuper was migrating from VMWare, which has its own mess, and is exactly the sort of situation you would see greater vulnerability to client developer error. That still wouldn't be great for Google, since most cloud providers at that scale claim a lot of safety checks and emergency backups, but I could understand if they just failed to idiot-proof every service.

Nope :

During the initial deployment of a Google Cloud VMware Engine (GCVE) Private Cloud for the customer using an internal tool, there was an inadvertent misconfiguration of the GCVE service by Google operators due to leaving a parameter blank. This had the unintended and then unknown consequence of defaulting the customer’s GCVE Private Cloud to a fixed term, with automatic deletion at the end of that period. The incident trigger and the downstream system behavior have both been corrected to ensure that this cannot happen again.

We probably won't get a full breakdown until the Aussie regulatory agency finishes an investigation (if then), so there may always be more to the story, and a lot of fun questions about what, if any, data was out-of-date or lost from the backup. But this is pretty damning for Google, as things stand.

On one hand, this probably is a one-in-a-million bug, and readily closed. On the other hand, as anyone with network engineering or statistics or X-Com background can tell you, one-in-a-million means a lot less than the naive expectation, and Google Cloud Platform has an estimated just under a half-million business customers, and this is an embarrassing bug.

Does that mean that they're got it out of their system for another million customers? Or that this is just the first time it happened and was big enough a deal to make the news?

((Okay, the real answer is I'm being pedantic and reading too much out of a turn of phrase.))

The bigger problem is that Cloud has long been sold as The Professionals Doing It Right. That was always a little more true at the margins than the center. As bad as rando small businesses trying to maintain a Gitlab instance can get (and it can get bad: even by web software standards, it's a masochist's tool), no small number of seemingly-legit smaller cloud providers have gone belly up, wildly revised their offerings, or just plain disappeared. It's quite possible that Unisuper moved to Google Cloud in part because the Broadcom buyout of VMWare (only finalized in December 2023, but after 18 months of regulatory review) raised concerns that they'd start lopping down product offerings.

(But to move to Google?)

It's increasingly tenuous, here, though. Unisuper are not fresh college grads confused by the difference between a RAID and a backup, but a massive company that maintains many sites as a matter of course. Google is one of the Big Three when it comes to cloud provisioning. One can imagine counterfactuals where a self-run or classically-hosted Unisuper herped the derp, but the factual here makes them look like the competent ones. And that's not alone.

Which would be one thing if Unisuper were the only people pressed into cloud services.

How's everyone feel about OneDrive integration in Windows, or Google and Apple cloud in their phones?

How's everyone feel about OneDrive integration in Windows, or Google and Apple cloud in their phones?

Two is one, one is none, and three's a spare. I run multiple backup solutions on my data because I do not want to lose a bit if any one of them breaks.

For phones, I think you're pretty much stuck with Google or Apple owning your data. That's a large vulnerable surface of your Google or Apple account, so ensuring you set up 2FA (and not via phone number since those can be easily spoofed). I use a hardware key. I'll have to reassess if I ever decide I'd like to start committing felonies, because both of those companies share your data pretty freely when there's a legitimate request from law enforcement. That'll include GPS and location data, and "person who always brings their phone with them decided to leave it at home on the night in question" is very easy to tell from the records. Also important not to google incriminating things. The military uses cell phones a lot when targeting bad guys. Most of them had good OPSEC but their wives never did. My military career was mostly in intelligence, and being resistant to the techniques we used is just not practical for anyone who doesn't believe their life or freedom is in serious jeopardy from the US government (ala Snowden).

At home I'm using a ZFS array to protect against hard drive failure and bit rot. I have a TODO for exploring backblaze, AWS, and other places for offsite storage of large unchanging data sets since I want to keep my data in the event of a house fire. I keep my important stuff on Google Drive mirrored to my ZFS array. I have a VeraCrypt file that holds anything I want to backup but not let Google read. Examples of things that someone might not want Google to read include TOR accounts and bookmarks, "hacking" tools and scripts that have been used in violation of the CFAA, and cryptocurrency keys. Not that I have any of those.

Having seen how Google handles data privacy and security from the inside, I'm not at all worried about their cloud integration from a security perspective. I trust Apple and Microsoft similarly. The company is not going to blackmail you with your nudes or leak your social security number, and employees can't access those things on your account without getting caught. The company will cooperate with any and every government if they feel the request is legitimate, as I mentioned. I keep that in mind, but don't actually want to join up with the Proud Boys or kidnap the governor of Michigan, so I'm comfortable keeping my files with them. I am quite comfortable keeping my SSN and bank account information on my Google because I have the hardware 2FA key (and no other 2FA allowed) to protect against account takeover. The government and law enforcement can already get my SSN and bank account info if they want them. And if Google deletes my account, no biggie because I have a local copy of everything.

I moved my email off gmail and don't have a plan for email backups yet. Another TODO.

I appreciate the rundown on your file storage strategy, this sounds thorough and fair. I especially like your strategy of using cloud storage and your local storage pool as redundant backups of each other. That seems to me to be a judicious use of cloud storage, while maintaining personal autonomy and avoiding lock-in. I'm not anti-cloud, but I do think being smart with how you use it is the right call. This goes for autonomy as well as cost; I have tens of thousands of family photos stretching back decades, and it became pretty clear to me that any cloud photo provider would cost an insane amount of money to store all this uncompressed.

TheMotte, weirdly, is one place on the internet I go where people are strongly in favor of personal cloud vs. the build-your-own old-school hacker mentality. Then again, the only other places I go on the internet are open source forums, where that mentality is very strong. I'm guessing since the rationalist community drew so heavily from FAANG employees, and the motte drew so heavily from the rationalist community, we have a lot of people who place a great deal of trust in FAANG. It's not so much that I don't think they take security seriously, and more that I think their incentives are misaligned with people's data autonomy. Like when Google decided to make Google Photos not unlimited any more, with it also being somewhat difficult to do a mass-export of your original, full-quality photo data. And Google's usually not too bad with making takeout possible, so that made a lot of people pretty mad.

We put a lot of our lives on our computers, I think having control over them and the ability to make our own choices with how we use and manipulate our thoughts and memories is important. It's not the government I'm worried about -- like you say, they can get whatever they want if they really want to -- but the profit motive, and the random account deletions for inscrutable reasons. Enshittification is real. That's why I really respect your balanced approach and my guess is your strategy is that of the majority among home server enthusiasts. Keep us informed on what you decide for your ZFS backups, I've been looking for a place to store compressed file backups.

It's not so much that I don't think they take security seriously, and more that I think their incentives are misaligned with people's data autonomy.

That's true, but I'm just not convinced that it's rational to swear off their services because of that alone. It's a mutually beneficial, slightly adversarial economic relationship, like everything in Capitalism. I do think the math is different for people who are breaking the law or actively working on cybersecurity stuff, but what I see most often (IRL) is "Google/FAANG bad!" grunting by people who have huge security vulnerabilities and data leakage through other methods. Maybe that's sampling bias, since my social circles don't include anyone who's been to DEF CON.

Like when Google decided to make Google Photos not unlimited any more, with it also being somewhat difficult to do a mass-export of your original, full-quality photo data. And Google's usually not too bad with making takeout possible, so that made a lot of people pretty mad.

My understanding of this change was that your photos now count against your Google account's storage limits, shared with Google Drive, gMail, and all other Google services. If you have a lot of full quality photos and run out of space, you can pay for more storage or compress them. That seems completely reasonable to me. I haven't heard about difficulties in using Google Takeout. I do so occasionally and it's always been straightforward. Are complaints about that change just some combination of "free stuff isn't free anymore" and "I hate Google", or is there something legitimate there?

We put a lot of our lives on our computers, I think having control over them and the ability to make our own choices with how we use and manipulate our thoughts and memories is important.

Hard agree. Time has shown that Stallman was right. I'm glad we can still compile our own OSs from source. In a lot of other areas, I think the battle is lost. I'm living and teaching my kids to deal with the world we're in, and I don't think abstinence-only can work if you want to have a healthy social life. I won't be the guy who refuses to open the menu from a QR code when out to dinner with friends.

If you have a lot of full quality photos and run out of space, you can pay for more storage or compress them. That seems completely reasonable to me. I haven't heard about difficulties in using Google Takeout.

The complaints about Takeout may have been overblown. I recall this hacker news thread about the problem, but people there are disagreeing with each other about the issue, and I've never personally used Google Photos so I don't know who to believe. Maybe there was something about EXIF data being stripped? And I recall there was also something about it being difficult to mass delete photos too, making it hard to get back under your storage limit without just wiping everything? That may also have been exaggerated, I don't know. Fair enough, I rescind that part of my description.

But while I understand why they did it, Google going from "you can upload unlimited photos!" to "your photos count against your limited storage quota" does illustrate that you're at the mercy of the provider when you use cloud services, and you need to have a plan for what to do if your prayers they do not alter the deal further ultimately fail.

That's true, but I'm just not convinced that it's rational to swear off their services because of that alone.

I don't think it's so much that people think they're bad for that sole reason, and more that I think there are a lot of little reasons why people don't trust them to act in their best interests in the long term. I wouldn't advise anyone to swear off all big tech services without exception, but moreso to be judicious in how they use them and have an exit plan. The corporate version of this is "multi-cloud" or "hybrid-cloud," and it's growing for the same reasons I think people ought to carefully consider their consumer cloud strategy. It certainly saved Unisuper's skin in the story from the OP!

Google, in particular, I am just incredibly skeptical of because of their long history of killing off services people loved due to the management culture that disincentivizes maintaining existing products. I don't trust that anything Google does for consumers will exist in 10 years, except Search (though that one looks more concerning every day), GMail, YouTube, and Drive/Docs (because of its enterprise use). And hence those are the only Google services I use!

Further, I deactivated my Facebook account a long time ago not because of privacy concerns (though I have them) but because they enshittified the algorithm and force-fed me a bunch of toxoplasmosis-filled viral content that just made me angry, instead of the updates from friends and family I signed up to follow. They made the product worse to the point where the tradeoff in the data and attention I was giving them wasn't worth it, so I stopped using it.

Personally, of course, I love self-hosting things. But I certainly don't expect others to share in my self-hosting dreams, and I use third-party and cloud services to share data and communicate with other people.

I think there's an ideal balance to be struck with self-hosting, where you self-host services that are largely self-focused (personal notes, photo libraries, etc) and then judiciously use other services -- yes, even ones with terrible privacy practices! -- to mindfully share some of that data with others. The point is to be mindful, judicious, and self-aware of the choices you make, and weigh costs and benefits. Trying to get your friend to create a login for your nextcloud is decidedly not mindful, judicious, or self-aware, and when people talk about folks like that I make this face. Actually, publishing personal web services on the open internet just seems like an incredibly terrible idea to me, except in very specific circumstances.

The threat model for why people should consider self-hosting is decidedly not privacy from the government, which is a fool's errand. Nor is it, ultimately, privacy from data aggregation, which is almost certainly unavoidable, although I maintain it is a morally respectable stance to try to minimize your personal contribution to it, just as a vegetarian might choose to minimize their consumption of animal products because they oppose factory farming.

The point of self-hosting, for me, is not really about privacy but about control. The dream of the personal computer revolution was putting the power of computing in the hands of the everyday person, giving them autonomy over their own computing to use according to their wishes. I see self-hosting as an evolution of that dream.

Hard agree. Time has shown that Stallman was right. I'm glad we can still compile our own OSs from source. In a lot of other areas, I think the battle is lost. I'm living and teaching my kids to deal with the world we're in, and I don't think abstinence-only can work if you want to have a healthy social life. I won't be the guy who refuses to open the menu from a QR code when out to dinner with friends.

People refusing to open menus from QR codes is another confused Nick Young moment for me. That seems to be a clear area in which using companies' web services makes perfect sense; you're at their establishment already and want to find something to eat. You don't, like, plug in your hopes and dreams into the menu website, you're just looking for the filet mignon. Now, I hate online menus, but not for any techy reason: I just find it a lot harder to browse a menu on a phone screen than on a piece of paper in front of me. In a lot of ways I actuallly want less tech in my life!

Abstinence-only in regard to third-party web services just isn't possible, as you say. You need to access services to communicate with people, just as you probably need a LinkedIn to advance your career (as much as I hate it...). What I don't like is the attitude that you should just mindlessly use every random cloud service that advertises itself to you without thinking about their incentives, privacy policy, reputation, and quality. People should make wise choices with their computing just as they do with their automobiles or houses. If anything, my total computing footprint is more important to me than either my car or my house, and certainly more irreplaceable. I don't think you can get an insurance policy to restore your precious thoughts and memories. That can definitely be an argument to use cloud storage, but I also think it's a good argument to use multiple offerings and not to put all your eggs in one basket.

Computers have done a lot to empower governments and corporations in modern times. My goal is just that they should also empower families and individuals too, while they're at it. Of course, the dark fear is that things turn out much more somber, and the Digital Society and its Future looks very much like a tiny elite running machines that rule the world. Not that we live in such a world, of course.

I just find it a lot harder to browse a menu on a phone screen than on a piece of paper in front of me. In a lot of ways I actuallly want less tech in my life!

This seems like sufficient cause to refuse the QR code and ask for a paper version?