Preventive Detention in American Theory and Practice

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from this norm, an institutionalization of the aberration that the detention practices of the Bush and Obama years have represented. The more careful commentators acknowledge that the rule has exceptions – sometimes even many of them. But they describe these exceptions as narrow and limited, deviations from a generally strong rule that the American system tolerates to accommodate exceptional circumstances. The trouble with such civic mythology is that it is, ultimately, an inaccurate description of past practice, and thus a misleading indicator of the theory on which such practice rested. Our purpose in this paper is to describe just how mythological this particular civic myth is – indeed, to show that nearly every aspect of it is false: Preventive detention is not prohibited by U.S. law or especially frowned upon in tradition or practice. The circumstances in which it arises are not isolated exceptions to a strong rule against it; rather, they are relatively frequent. The federal government and all 50 states together possess a wide range of statutory preventive detention regimes that are frequently used, many of which provoke little social or legal controversy

The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity

What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to immunize from liability platforms dedicated to abuse and or those that deliberately tolerate illegality. In contrast to a strike-oriented view of the CDA’s safe harbor, its modest revision will not break the “Internet.” Whether this would have been true at the time of its passage two decades ago, it would not be true today. Conditioning immunity from liability on reasonable efforts to address unlawful activity would not end innovation or free expression as we know it. The current environment of perfect impunity for platforms deliberately facilitating online abuse is not a win for free speech because harassers speak unhindered while the harassed withdraw from online interactions. With modest adjustments to section 230, either through judicial interpretation or legislation, we can have a robust culture of free speech online without shielding from liability platforms designed to host illegality or who deliberately host illegal content

Dawinder S. Sidhu on Hate Crimes, Terrorism, and Sikhs

Dawinder S. Sidhu of the University of New Mexico School of Law writes in with the following comments on the fallout from the shooting at the Sikh Temple at Oak Creek, Wisconsin

The Problem Isn\u27t Just Backpage: Revising Section 230 Immunity

Backpage is a classifieds hub that hosts “80 percent of the online advertising for illegal commercial sex in the United States.” This is not by happenstance but rather by design. Evidence suggests that the advertising hub selectively removed postings discouraging sex trafficking. The site also tailored its rules to protect the practice from detection, including allowing anonymized email and photographs stripped of metadata. Under the prevailing interpretation of 47 U.S.C. § 230 (“Section 230”) of the CDA, however, Backpage would be immune from liability connected to sex trafficking even though it proactively helped sex traffickers from getting caught. No matter that Backpage knew about the illegal activity and designed the site to ensure that the activity could continue without detection, Section 230 has come to its rescue. As courts have interpreted Section 230, Backpage has enjoyed broad immunity from liability arising from user-generated content. Dirty.com is a site devoted to spreading gossip, often about college students. The site’s founder, Nik Richie, has encouraged readers to email him “dirt” on people they know. Richie pastes his favorite emails in blog posts, often alongside images showing ordinary people “scantily clad, inebriated, and unfaithful.” Posts have led to a torrent of abuse, with commenters accusing the subjects of “dirt” of having sexually transmitted infections, psychiatric disorders, and financial problems. Richie has admittedly “ruined people sometimes out of fun.” That admission is not against interest—he knows well that he cannot be sued for his role in the abuse because the onus of the abuse is on the users. Courts applying Section 230’s immunity provision have dismissed efforts to hold Richie responsible for defamatory posts that have damaged lives and careers. Now consider the relationship between social media companies and terrorist groups. Last year, one of us (Wittes) undertook a survey of overseas groups that were formally designated as foreign terrorist groups yet still had active social media accounts. Federal law allows civil and criminal penalties for providing material support—including anything of value—to designated foreign terrorist groups. Yet numerous designated terrorist groups, including Hamas, Hezbollah, the PKK, and Lakshar-e-Taiba, openly maintained an online presence on well-known social media services, including Facebook and Twitter; several of those accounts were suspended after publication of the corresponding article. Yet because of Section 230’s immunity provision, efforts to hold social media companies responsible under the civil provisions of the federal material support statute have consistently failed. We offer the modest proposition that Section 230 immunity is too sweeping

Statistical design of personalized medicine interventions: The Clarification of Optimal Anticoagulation through Genetics (COAG) trial

<p>Abstract</p> <p>Background</p> <p>There is currently much interest in pharmacogenetics: determining variation in genes that regulate drug effects, with a particular emphasis on improving drug safety and efficacy. The ability to determine such variation motivates the application of personalized drug therapies that utilize a patient's genetic makeup to determine a safe and effective drug at the correct dose. To ascertain whether a genotype-guided drug therapy improves patient care, a personalized medicine intervention may be evaluated within the framework of a randomized controlled trial. The statistical design of this type of personalized medicine intervention requires special considerations: the distribution of relevant allelic variants in the study population; and whether the pharmacogenetic intervention is equally effective across subpopulations defined by allelic variants.</p> <p>Methods</p> <p>The statistical design of the Clarification of Optimal Anticoagulation through Genetics (COAG) trial serves as an illustrative example of a personalized medicine intervention that uses each subject's genotype information. The COAG trial is a multicenter, double blind, randomized clinical trial that will compare two approaches to initiation of warfarin therapy: genotype-guided dosing, the initiation of warfarin therapy based on algorithms using clinical information and genotypes for polymorphisms in <it>CYP2C9 </it>and <it>VKORC1</it>; and clinical-guided dosing, the initiation of warfarin therapy based on algorithms using only clinical information.</p> <p>Results</p> <p>We determine an absolute minimum detectable difference of 5.49% based on an assumed 60% population prevalence of zero or multiple genetic variants in either <it>CYP2C9 </it>or <it>VKORC1 </it>and an assumed 15% relative effectiveness of genotype-guided warfarin initiation for those with zero or multiple genetic variants. Thus we calculate a sample size of 1238 to achieve a power level of 80% for the primary outcome. We show that reasonable departures from these assumptions may decrease statistical power to 65%.</p> <p>Conclusions</p> <p>In a personalized medicine intervention, the minimum detectable difference used in sample size calculations is not a known quantity, but rather an unknown quantity that depends on the genetic makeup of the subjects enrolled. Given the possible sensitivity of sample size and power calculations to these key assumptions, we recommend that they be monitored during the conduct of a personalized medicine intervention.</p> <p>Trial Registration</p> <p>clinicaltrials.gov: NCT00839657</p