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PaperclipPerfector  1yr ago (text post)   27128 thread views

Culture War Roundup for the week of June 3, 2024

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How NOT to Regulate the Tech Industry

Hot on the heels of my comment describing the UK's effort to finally rid the IoT market of extremely basic vulnerabilities like "has a default password", Colorado jumps in like Leroy Jenkins to show us how, exactly, tech regulation shouldn't be done. SB 205 is very concerned with "algorithmic discrimination", which it defines as, "any condition in which the use of an artificial intelligence system results in an unlawful differential treatment or impact that disfavors an individual or group of individuals on the basis of their actual or perceived age, color, disability, ethnicity, genetic information, limited proficiency in the English language, national origin, race, religion, reproductive health, sex, veteran status, or other classification protected under the laws of this state or federal law."

Right off the bat, it seems to be embracing the absolute morass of "differential treatment or impact", with the latter being most concerning, given how incomprehensible the similar "disparate impact" test is in the rest of the world. This law makes all use of algorithms in decision-making subject to this utterly incomprehensible test. There are rules for developers, telling them how they must properly document all the things to show that they've apparently done whatever magic must be done to ensure that there is no such discrimination. There are rules for deployers of those algorithms, too, because the job is never done when you need to root out any risk of impacting any group of people differently (nevermind that it's likely mathematically impossible to do so).

Their definitions for what types of algorithms this law will hit are so broad that they already know they captured far too much, so they go on a spree of exempting all sorts of already-existing things that they know about, including:

(A) ANTI-FRAUD TECHNOLOGY THAT DOES NOT USE FACIAL RECOGNITION TECHNOLOGY;

(B) ANTI-MALWARE;

(C) ANTI-VIRUS;

(D) ARTIFICIAL INTELLIGENCE-ENABLED VIDEO GAMES;

(E) CALCULATORS;

(F) CYBERSECURITY;

(G) DATABASES;

(H) DATA STORAGE;

(I) FIREWALL;

(J) INTERNET DOMAIN REGISTRATION;

(K) INTERNET WEBSITE LOADING;

(L) NETWORKING;

(M) SPAM- AND ROBOCALL-FILTERING;

(N) SPELL-CHECKING;

(O) SPREADSHEETS;

(P) WEB CACHING;

(Q) WEB HOSTING OR ANY SIMILAR TECHNOLOGY; OR

(R) TECHNOLOGY THAT COMMUNICATES WITH CONSUMERS IN NATURAL LANGUAGE FOR THE PURPOSE OF PROVIDING USERS WITH INFORMATION, MAKING REFERRALS OR RECOMMENDATIONS, AND ANSWERING QUESTIONS AND IS SUBJECT TO AN ACCEPTED USE POLICY THAT PROHIBITS GENERATING CONTENT THAT IS DISCRIMINATORY OR HARMFUL.

If your idea for a mundane utility-generating algorithm didn't make the cut two weeks ago, sucks to be you. Worse, they say that these things aren't even exempted if they "are a substantial factor in making a consequential decision". I guess they also exempt things that "perform a narrow procedural task". What does that mean? What counts; what doesn't? Nobody's gonna know until they've taken a bunch of people to court and gotten a slew of rulings, again, akin to the mess of other disparate impact law.

Don't despair, though (/s). So long as you make a bunch of reports that are extremely technologically ill-specified, they will pinky swear that they won't go after you. Forget that they can probably just say, "We don't like the look of this one TPS report in particular," and still take you to court, many of the requirements are basically, "Tell us that you made sure that you won't discriminate against any group that we're interested in protecting." The gestalt requirement can probably be summed up by, "Make sure that you find some way to impose quotas (at least, quotas for whichever handful of groups we feel like protecting) on the ultimate output of your algorithm; otherwise, we will blow your business into oblivion."

This is the type of vague, awful, impossible regulation that is focused on writing politically correct reports and which actually kills innovation. The UK's IoT rules might have had some edge cases that still needed to be worked out, but they were by and large technically-focused on real, serious security problems that had real, practical, technical solutions. Colorado, on the other hand, well, I honestly can't come up with words to describe how violently they've screwed the pooch.

Disparate Impact is going to be struck down. The GOP pressing the inclusion political party registration, veteran status and religion (Christian etc) in disparate impact laws is one of the smartest things they’ve done recently (not, admittedly, a long list) since it will accelerate their demise.

But in the long term they’re just not viable. They are pushed because explicit quotes were ruled illegal by SCOTUS, but the more they contradict each other (eg disparate impact against hiring Republicans Va disparate impact against hiring minorities) the more the courts are going to be overloaded with an endless series of these cases and SCOTUS is going to have to act. Even though companies may have legally sound defenses to why their new hires are 70% registered diverse Dems but retirees are, say, largely Christian Republicans (age and politics, changing racial demographics, whatever) the sheer onslaught of cases will become unmanageable.

Nybbler will undoubtedly have some kind of blackpilled spiel about why even this is doomed, but it seems to me that, uh, heightening the contradictions of disparate impact is the surest route to tearing it down.

The contradictions really are ridiculous.

  1. You can be sued if the employees you hire don't match the demographics of your applicant pool

  2. You are forbidden from using race-based quotas to achieve this

So it's essentially impossible for a large corporation to follow employment law.

the demographics of your applicant pool

I think even this is unclear and contradictory: is "your applicant pool" the demographics of the nation, the local area, or even the set of applications you received? If you have a bona fide requirement of, say, a college degree, can you restrict the previous demographics to the qualified subset of those populations? It's unclear, and as far as I can tell, the more caveats and conditions you apply probably make it harder to explain to a jury at trial.

If you have a bona fide requirement of, say, a college degree, can you restrict the previous demographics to the qualified subset of those populations?

I am not an employment lawyer, but I think yes. This probably kept things sane for a long time, but university degrees have ever less IQ signalling value over time.

One solution might be to physically locate your company in a place with favorable demographics.

John Roberts's court is not going to strike down disparate impact.

  1. Aside from Roe/Casey, he's not willing to strike down anything for real. The court will issue a decision, make it super-narrow or leave massive loopholes, and then consider the issue solved and refuse future cases, allowing the lower courts free reign.

  2. Congress put disparate impact in statutes, the 14th amendment specifies that Congress can enforce it by appropriate legislation, the conservative court will defer to Congress on the point that forbidding disparate impact is OK.

  1. The Republican College Professors’ Association sues on disparate impact grounds after political party affiliation is added to more such laws. They say that the college’s DEI recruitment policy explicitly favors classes of people among whom Republicans are extremely underrepresented (female academics, minorities), which is especially egregious when only 10% of faculty are Republicans and 70% are registered Democrats, a trend the new policies will only exacerbate. They claim the college’s internal DEI materials advocating for a ‘less white, male’ faculty show explicit and direct animus or hostility toward the Republican affiliation because of the above.

  2. The college counters that white men are overrepresented on the faculty, that women and people of color are underrepresented, and that because both the vast majority of academics are Democrats and almost all Republican academics are white men, attempting to correct the balance in the party affiliation protected characteristic category would have an extreme negative disparate impact on minority and women applicants.

  3. The Republican Professors’ Association responds that black people and women are also highly underrepresented among professors, particularly in STEM, and yet this makes no difference to the university’s extensive efforts to recruit and advance those applicants and candidates, and suggests that a special effort for Republicans would be no different.

  4. The university is located in a blue enclave in a red state in a circuit that leans red. The court rules that disparate impact rules mean the college must make every effort to hire and promote Republicans in its diversity programs aimed at increasing the representation of underrepresented faculty. This is a legally questionable ruling, but it is made.

  5. The college appeals to SCOTUS, arguing that the same rules would destroy all diversity programs everywhere if they went nationwide, at least in those entities subject to laws that allow disparate impact claims based on the political affiliation/registration category. How does Roberts rule?

"Political party affiliation is added to more such laws" is doing a lot of work here. There is not, to my knowledge, any serious push to do this on the Federal level. In states that have prohibitions on political party discrimination and disparate impact (i.e. California), I'm not aware of any attempt to challenge the doctrine.

I think Roberts gladly swallows that poison pill and strikes dowm all use of disparate impact analysis as a violation of the 14th Amendment. Maybe he goes through the Casey stare decisis factors, acknowledging the importance of aggressive civil rights legislation in the 60s and 70s, but explaining that the world is different now, and what potentially could have been justified back then is clearly now both unnecessary and unworkable. I think the decision would look a lot like Shelby County, to be honest.

He rules that the Republican Professors' Association lacks standing to challenge the rule, and that the case would have to be brought by an applicant that was specifically affected by the rule.

The Republican Professors Association represents as in many of these cases a Republican professor not hired at the university after a final round interview and mandatory diversity statement submission.

Roberts overturns the Circuit Court decision, on the grounds that race, as a Federally protected class, trumps political affiliation (which is not), and therefore the college's interest in not having a disparate impact on protected class members trumps the college's requirement to not have disparate impact on Republicans.

Suppose that a new regulatory bill affecting universities passes in congress in which political affiliation is explicitly described as a protected class (as it has been in some federal bipartisan AI efforts). What then?

My first guess would be a ruling that, applying Strauder, the portions of the law that could negatively impact minorities based on "suspect classifications" would need to satisfy elevated or even strict scrutiny, and would fail to do so, but that the portions which allowed discrimination on other categories would satisfy rational basis and be permissible.

That's not going to happen. If it somehow did anyway, Roberts would uphold the circuit court decision for that case, but include language about how universities must balance the interests of the protected classes and rule that because they didn't make a good showing of doing so this time, they're getting slapped down. Universities would in the future do some lip service about how they did some balancing and really truly this helps more for race than it hurts for political affiliation, but otherwise change nothing.

I mean, I'd love to see TheNybbler's take, but I'll point to "Title VII Religious Freedom in California" here, or less recently, the Damore case under California law -- the very rules that prohibited the discrimination against these people instead were twisted to mandate it. It doesn't matter if there's explicit statutory protections, or SCOTUS caselaw: lower courts and the broader progressive branch will happily look at that obvious contradiction and massive onslaught of cases and happily invite them. The Reinhardt philosophy that SCOTUS can't catch them all is alive and well, and when the worst that happens to the rare losers is that they're temporarily embarrassed, why not roll the dice.

Cfe the recent ATC snafu. It's not just that there's no heads rolling at the top of the pyramid, or that the big civil case is look at "Reply to Motion for Summary Judgment due by 6/26/2025" and actual trial might happen in 2026 if we're lucky.

Shelton Snow's LinkedIn says he's still working as an FAA supervisor!

It doesn't matter if there's explicit statutory protections, or SCOTUS caselaw: lower courts and the broader progressive branch will happily look at that obvious contradiction and massive onslaught of cases and happily invite them.

It does matter for the same reason quota cases mattered in the run up to that decision, or the same reason it took decades for various pro-gun parties to get the wins they sought; every case increases pressure on SCOTUS to draw narrow, readable boundaries on disparate impact (eg making clear exactly what can be used to show it) or deal with it altogether.

It doesn't matter, for the same reason it didn't matter for the gun issue. The conservative court creeps in one direction, never actually changing the situation on the ground. This can go on for decades. Eventually a less conservative court reverses a bunch of conservative jurisprudence (as with Grutter) and if the conservatives get another shot, they start over from near the beginning (or even further back)

the Damore case under California law

Damore sued becuase of that very law and settled with (it is rumored) a pretty substantial sum from Google because of it, did he not?

He sued over a smorgasbord of different laws and regulations. Google had an agreement with him (and other employees in the lawsuit) to dismiss the case, which prohibited further comment, but it's not clear how much Damore got. His LinkedIn does not look like that of a man with FU-money; rumor is 10k USD, and given the costs of getting the case to that point, that's a pretty rough stretch of the term 'substantial'.

But before that, he submitted an NLRB complaint, and got an answer to that complaint:

An employer’s good-faith efforts to enforce its lawful anti-discrimination or anti-harassment policies must be afforded particular deference in light of the employer’s duty to comply with state and federal EEO laws. Additionally, employers have a strong interest in promoting diversity and encouraging employees across diverse demographic groups to thrive in their workplaces. In furtherance of these legitimate interests, employers must be permitted to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

rumor is 10k USD

Not even a month's salary post-tax. That's truly nothing. I'm wondering where these rumors come from.

Any lawyers care to comment on how true this is? I'm not very fluent in legalese but that official legal document seems to be saying ''companies should actively hurt 'problem people' for the good of diversity''?
I want to assume this is somehow out of context or I'm misunderstanding something because the alternative is pretty horrifying.

That seems a fair characterization.

Hanania makes the case in his Origins of Woke, which seemed reasonable enough, that everything is illegal because there are no disparity-free decision-making procedures, and so it just comes down to who they (an agency stocked by lefty bureaucrats) decide to go after, for not following best practices (doing what they want). And yes, it's not hard to get in extremely serious trouble—see where Tesla had to pay 137 million to an employee for creating a hostile work environment (other black people used the n-word, the horror).

Yes, this state of affairs is horrifying. I really hope the next Republican administration scraps as much of this as they can.

Would always be good to get a second opinion. In case you don't, the steelman/charitable version is something like:

  • It's tortuous tortious to fire, or refuse to hire, people because of their race/religion/gender/sex.
  • What happens if you don't fire them, just give them specific job requirements that would any reasonable person would refuse (and might even be illegal on its own), because of their r/r/g/s? Well, now that's illegal.
  • What happens if the employer doesn't give them all the worst jobs, just wink-and-nods to other employees to make that employee's life miserable? Well, now that's illegal.
  • What happens if the employer just happens to hire a whole bunch of people who treat certain people like crap, and not respond to it? Well, now that's illegal. (uh, is 'not sufficiently masculine a sex?' Well, it is now.)
  • Okay, what if it's a genuine coincidence, and the employer's actions to punish rude people is just insufficient? Well, now that's illegal. (wait, is 'being rude' the same thing as 'any reasonable person would refuse' to work with? Well, it is now.)
  • Okay, now you've got a different problem. Anything as small as a single person being slightly rude isn't individually tortuous tortious (uh, in theory). These aren't criminal-law illegal in the way that, say, sodomizing someone with a soap bar without their consent might be. Some of them are even (theoretically) protected the other way around: in Damore's case, federal labor law prohibits employers from acting against employees who doing a very broad definition of organizing or arguing over workplace conditions. It's only in summary that these acts can be become tortuous tortious. But the line between grains and a heap only shows up in retrospect. Well, now employers can (and to avoid liability, must) have a neutral anti-discrimination policy that covers wide breadths of conduct, and that will be preemptively legal if it's used to fire someone.

In practice, this means that Google just sent Damore a note that said:

I want to make clear that our decision is based solely on the part of your post that generalizes and advances stereotypes about women versus men. It is not based in any way on the portions of your post that discuss [the Employer’s] programs or trainings, or how [the Employer] can improve its inclusion of differing political views. Those are important points. I also want to be clear that this is not about you expressing yourself on political issues or having political views that are different than others at the company. Having a different political view is absolutely fine. Advancing gender stereotypes is not.

Is this note pretextual? Is there any overlap between the arguments about inclusion of differing views and 'generalizing stereotypes'? Are there any First Amendment considerations? The NLRB can look at all these questions if they want to, but why would they want to here?

But you could imagine a bizarro!Googler who fits Darwin2500's parody, who wrote at length about how women suck and can't think or correctly perform leadership roles, and nothing else, or perhaps only with pretextual mentions of any speech with meaningful content. And while one of those wouldn't be too rough to deal with, a workforce with nothing but that would have a lot of people looking for somewhere else to work. It's not what the 1964 CRA was meant to handle, but it's not like it's bad as a policy.

And that's genuinely a hard problem to solve without either much more honest actors throughout the enforcement schema, or problems like Damore.

It's tortuous to fire, or refuse to hire, people because of their race/religion/gender/sex.

…

Anything as small as a single person being slightly rude isn't individually tortuous (uh, in theory).

…

It's only in summary that these acts can be become tortuous.

"Tortuous" is a word meaning "full of twists and turns; excessively lengthy and complex." I believe the word you wanted in all these cases was tortious: "of the nature of or pertaining to a tort"

yep. That's embarrassing. Thanks, fixed.

employers must be permitted to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

I wish I could just... Send these rulings 20 years back in time and preemptively use them against their creators. How were people so stupid to let this happen?

Do you think this outcome was not predetermined 20 years ago? Everything was set up decades ago.

Because I think most people except the zealots sleepwalked into Current Year, and a great enough shock could have changed the course.

Everything that's happened was due to people falling for a constant creeping barrage of lies and gaslighting.

I'll refer to "most people except the zealots" as normies. What would normies have done, what could normies have done, what would normies have wanted to do if they had precognition twenty years ago? My answer to each question is nothing.

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