Spyware

'Selling Surveillance' (Indiana Legal Studies Research Paper No. 495) by Asaf Lubin comments 

There is a vast and growing network of private companies selling spyware—tools and services that provide their clients with unprecedented access to smartphones, laptops, and other internet-connected devices. Investigative reporting and work by civil society have now repeatedly confirmed the systematic abuses of these technologies by government actors to target human rights activists, journalists, and dissidents around the world. 

A large group of UN human rights special rapporteurs, civil society organizations, and members of the European Parliament have recently called for an immediate and global moratorium on the sale, transfer, and use of spyware technologies. The paper argues that such calls are not only impractical, but they are also hypocritical and pose a danger to public safety and the future integrity of our information and telecommunication technologies. Ad hoc litigation and ex post blacklisting and sanctions are similarly inapt in generating sufficient deterrence. 

As an alternative to these flawed approaches, this paper makes the case for an international system to standardize the commercial spyware industry, which I call the “Commercial Spyware Accreditation System” (CSAS). The paper first explains the limits of existing domestic and international regulation—including international export control law, international human rights law, and corporate social responsibility—in constraining the negative externalities of the commercial spyware trade. The CSAS model responds to these limitations by proposing a multistakeholder forum with a set of binding controls, enforced through governmental licensing and contracting, that could mitigate the harms produced by these technologies. The control spans the five stages of the spyware lifecycle: (1) development and investment; (2) marketing and sale; (3) client management; (4) spyware diplomacy; and (5) client and product/service termination. 

Policy makers both in the United States and across the Atlantic are engaging in an ongoing dialogue to develop new international instruments that effectively respond to threat of spyware. This paper aims to provide these regulators with a set of innovative tools that have not been considered before in the literature.

Scofflaws and Litigation Terrorists

In Royal Bank of Canada v Anderson, 2022 ABQB 525 Rooke ACJ states 

 [1] This Decision responds to an unusual, but not unique, litigation scenario. Sandra Ann Anderson [Ms. Anderson] owns a condominium in Calgary [the Condo] that she financed with a 2019 mortgage, with a principle of $160,000, loaned from the Royal Bank of Canada [RBC]. Ms. Anderson calls herself many things and by many names, as indicated in the style of cause, above. Ms. Anderson has ceased making payments on the mortgage. RBC, on June 16, 2021, filed a Statement of Claim to foreclose on the Condo, and recover its debt, which had by then had increased to $160,954.94. Ms. Anderson also had secured a personal Visa credit card against this property, and accumulated $3,930.58 in further debts. 

[2] None of this is particularly unusual. Foreclosures such as this occur all the time at this Court. However, Ms. Anderson is an unusual litigant because she believes she is not subject to Canadian law - but rather only to a different and special law, that she seems to claim means that she can get a condo for free, and that she does not need to pay her credit card debt. Ms. Anderson says she is not subject to Canadian “law, statutes, ordinances, codes”. Ms. Anderson says there are no debts, at least any that she owes. Instead, she says it is RBC who owes her money. Ms. Anderson has many explanations for these claims. She points to secret (and imaginary) bank accounts operated by the US government that are linked to her birth certificate. She says that a bank in the UK, the “WeRe Bank” and its proprietor, “Peter of England”, have provided a “Voucher” signed by Prime Minister Justin Trudeau, that discharges all her obligations. These are clearly irrational and unaccepted OPCA claims: see Meads v Meads, cited at para 12 infra. 

[3] Other times Ms. Anderson says that “i woman sandra-ann” does not owe anything. Rather, it is SANDRA ANN ANDERSON who is in a contract with RBC. That all capital names entity is someone, or something, else, but certainly not her, she claims. Ms. Anderson, at various points, says she is the “Executrix” of SANDRA ANN ANDERSON. And many, many more unusual claims, some of which I will later survey. 

[4] The net effect is that Ms. Anderson is doing all she can to frustrate RBC’s foreclosure. She has bombarded the Court and RBC with obviously legally worthless, abusive documents. When Ms. Anderson appears in court physically, or via teleconference, Ms. Anderson is disruptive, contemptuous, ignores court directions and orders, and acts, literally, as a law unto herself. That has led to Ms. Anderson being kicked out of courtrooms, and muted and expelled from teleconference appearances. 

[5] None of Ms. Anderson’s claims, arguments, or magical documents have any merit, whatsoever. Ms. Anderson has been wasting, and continues to waste, the Plaintiff’s and the Court’s time. 

[6] Ms. Anderson is a self-represented litigant, and, so, has the benefit of special privileges and status, as set by the Supreme Court of Canada in Pintea v Johns, 2017 SCC 23. However, Ms. Anderson has been involved in a range of litigation before this and in other courts that makes very clear that her activities are not those of some misinformed and confused person, stumbling through a complex, inscrutable, apparatus. Instead, Ms. Anderson is an intentional bad, vexatious, actor. She has been informed of the what, why, and how she is getting things wrong. Ms. Anderson has been cautioned that very negative consequences will follow from her misconduct - and that is, indeed, what has transpired. All that has made no difference to her continuing vexatious conduct. Instead, as I will subsequently discuss, Ms. Anderson’s bad conduct in the foreclosure action has now escalated to a new level: she is directly threatening the Court staff and judiciary, who will pay Ms. Anderson the fines that she purports to levy, in silver coin, a.k.a. “lawful money”. 

[7] This Decision has several functions. One is to address Ms. Anderson’s abuse of the Alberta Court of Queen’s Bench, its employees and decision makers, and wastage of the Court’s resources. A second objective of this Decision is to end the RBC foreclosure proceeding in a manner that is fair and efficient to those involved parties who have engaged this Court in good faith. That means that Ms. Anderson may not find the result of this Decision is what she prefers, but Ms. Anderson has forfeited her interests being front and center in this matter. Ms. Anderson is a litigation terrorist (Lee v Canada (Attorney General), 2018 ABQB 464 at para 155; Unrau v National Dental Examining Board, 2019 ABQB 283 at paras 227, 238 [Unrau #2]), a person who uses courts and law to harm others, because she likes it, and for her personal advantage. The time for that to end is now – and this Decision will do that. 

[8] I also note, as an initial point in this matter, that Ms. Anderson recently was involved in a testamentary manner where I was one of the Case Management Justices. Suffice to say that Ms. Anderson received a multimillion-dollar inheritance from her father. That fact is relevant in several ways. First, Ms. Anderson is well able to pay her mortgage payments, and the outstanding Condo debt as a whole. Second, Ms. Anderson can easily afford to hire a lawyer. She formerly did so, but that cramped her litigation style. Ms. Anderson is thus not a destitute, desperate person, but, instead, a greedy scofflaw, who seeks a condo for free, with no legitimate legal basis. [9] Third, those significant resources mean that Ms. Anderson is well positioned to misuse legal processes, and harass and abuse others, and she has done exactly that. That capacity, intent, and activity also warrants certain steps. 

[10] As will become apparent, Ms. Anderson’s bad conduct in the Condo foreclosure is simply one facet of Ms. Anderson’s overall, and consistent, approach to her social and legal obligations. Simply put, Ms. Anderson seeks to do only what Ms. Anderson wants to do. 

II. Sandra Ann Anderson 

[11] Prior to reviewing the status of the Condo foreclosure, and taking steps to achieve the two goals identified above, some further background on Ms. Anderson and her activities is helpful to put this Court’s admittedly unusual and stringent responses into context. What follows is an overview with illustrative examples, rather than a comprehensive record of how Ms. Anderson has flouted Canadian law, and abused Canadian courts. Compiling a complete record would be excessive, repetitive, and a waste of judicial resources. 

[12] Ms. Anderson is a pseudolaw adherent and guru, an individual who claims that the laws created by Parliament and the legislatures, and inherited via the common law, are all a fraud, that are unjustly imposed without valid authority. In Canada, pseudolaw is usually grouped as “Organized Pseudolegal Commercial Arguments” [OPCA], a term coined in the first court decision to comprehensively review that subject: Meads v Meads, 2012 ABQB 571. OPCA schemes are pseudolaw, rules that sound like law, and use legal language, but are false, “not- law”. 

[13] Functionally, OPCA strategies are a kind of cheat code, a sort of “get out of jail free card”, that pseudolaw adherents engage to purportedly get free money (and condos), not pay taxes, drive without insurance or a driver’s licences, engage in criminal offences without state sanction, and so on. In Meads v Meads, I observed, at para 4, that beyond using a highly stereotypic and conserved set of not-law concepts: Page: 4 ... This category of litigant shares one other critical characteristic: they will only honour state, regulatory, contract, family, fiduciary, equitable, and criminal obligations if they feel like it. And typically, they don’t. That exactly describes Ms. Anderson, and, in many ways, is all one needs to know about her. 

[14] No court in any jurisdiction has accepted the stereotypic conspiratorial not-law concepts that make up pseudolaw. Employing pseudolaw is always an abuse of court processes, and warrants immediate court response: Unrau #2 at paras 180, 670-671. 

[15] Ms. Anderson has a dismal legal record. What follows are a sampling of illustrative examples. 

A. Sandra Anderson, Horse Smuggler, and Vigilante Judge of Her Own Do-It- Yourself Court 

[16] Ms. Anderson is an international horse smuggler: Anderson v Ossowski, 2021 ABQB 382, action struck out 2021 ABQB 428, costs ordered 2021 ABQB 456. Ms. Anderson has repeatedly purchased horses in the US, and then, when transporting those horses into Canada, she has claimed the horses were her property that she had taken first into and then back out of the US, thus evading customs duties. Ms. Anderson was caught, and that led to horse seizures and fines. I note that one of Anderson’s smuggled horses, “Gaesbekers Gabbertje”, was purchased by Ms. Anderson for about $120,000 Canadian - in the range of her outstanding condo debt. 

[17] Ms. Anderson then took the unconventional step of filing pseudolaw paperwork in the Alberta Court of Queen’s Bench that purported to seize control of the Court’s physical infrastructure. Ms. Anderson’ pseudolaw documents stated she would then conduct a vigilante legal proceeding against Canadian Border Service officers and administrators, federal government officials, and a Public Prosecution Service of Canada Crown Prosecutor. Ms. Anderson, “i.woman.Sandra of the Anderson family”, would be the prosecutor and judge, who would determine the guilt and penalties of these “trespassers”. All this follows a well-established and never successful US Sovereign Citizen pseudolaw scheme promoted by Carl (Karl) Lentz: Anderson v Ossowski, 2021 ABQB 382 at paras 19-32. [ 

18] Needless to say, this attempt to conduct at a vigilante “do it yourself court” was rejected by this Court, Ms. Anderson’s materials were struck out, and Ms. Anderson was ordered to pay costs. Ms. Anderson sent the Court printed copies of the Decisions that rejected her horse smuggling vigilante judge process, with each page marked, in red sharpie, at 45 degrees to the lower right: this seventh day of June two thousand and twenty one. No Trespass Contract declined All rights reserved Sandra-ann [ink fingerprint] [See Anderson v Ossowski, 2021 ABQB 456, Appendix “A”.]  

[19] Naturally, that was meaningless and had no legal effect. 

B. Sandra Anderson, Criminal Proceedings 

[20] Ms. Anderson is the accused in numerous Provincial Court of Alberta criminal proceedings:  Docket 190768739P1 - charges include driving while impaired, failure to produce a driver’s licence, and operating a motor vehicle while having a prohibited blood alcohol concentration.  Docket 210776647P1 - uttering a forged document (forged COVID-19 test results), and transporting fireworks on an aircraft.  Dockets 210335584P1, 201295763P1, 210335584P1 - customs and fraud offenses resulting from Ms. Anderson’s international horse smuggling.  Docket 211079462P101 - failure to attend court.  Docket 211071105P1 - failure to comply with release conditions. 

[21] Ms. Anderson has illegally attempted to disrupt and sabotage those criminal proceedings by submitting forged subpoenas (Anderson (Re), 2022 ABQB 35 at paras 8-11), repeatedly submitting pseudolaw documents that purport to unilaterally terminate the prosecutions against her, in some instances by “payments” from an imaginary bank account (Canada (Attorney General) v Anderson, 2022 ABQB 310 at paras 8-11, 14). When Ms. Anderson appeared in Court, she was disruptive and was ejected by the Sheriffs. 

[22] Ms. Anderson also took the unconventional step of retaining a Calgary-based pseudolaw lawyer, Daniel Terry Lozinik, “private sovran attorney general”. Lozinik operates the “Angelic Law” OPCA website: http://www.angeliclaw.com. Lozinik’s in-court misconduct has led to him being ejected from Alberta courtrooms: Anderson (Re) at para 17. Lozinik has been prohibited from engaging in unlicenced legal services: Law Society of British Columbia v Daniel Lozinik (26 January 2021), Vancouver S-211132 (BCSC). Lozinik is also facing multiple criminal charges, including firearms offenses: Canada (Attorney General) v Anderson at para 17. 

[23] Ms. Anderson currently has outstanding arrest warrants in five criminal matters, dating from June 2019, onward. Ms. Anderson has informed my office that she is no longer in Canada, and, instead, has relocated to California. I find on a balance of probabilities that Ms. Anderson has absconded from Canada to evade arrest and detention in her criminal proceedings. 

C. Straw(wo)man Theory Strategies 

[24] Ms. Anderson’s wealth of pseudolaw activity includes her persistent use of “Strawman Theory”, the idea that individuals have two aspects, a “flesh and blood” human being, and an immaterial legal doppelganger, the “Strawman”: see Meads v Meads at paras 417-446; Pomerleau v Canada (Revenue Agency), 2017 ABQB 123 at paras 67-88; Potvin (Re), 2018 ABQB 652 at paras 83-92; Donald J Netolitzky, “Organized Pseudolegal Commercial Arguments and Magic and Ceremony” (2018) 55:4 Alta L Rev 1045 at 1069-1078. The two halves use names with different letter case and, often, punctuation, e.g. “Sandra-Ann: Anderson” vs “SANDRA ANN ANDERSON”. The core reason for Ms. Anderson’s use of Strawman Theory is it that SANDRA ANN ANDERSON is purportedly responsible for everything bad, and thus is the only half that is subject to debts, legislation, criminal liability, and court authority. 

So Sandra-Ann: Anderson says she owns the Condo, and if someone has to pay, that’s SANDRA ANN ANDERSON. [25] Ms. Anderson has over and over used Strawman Theory, and, Ms. Anderson has been told, over and over, that Strawman Theory is false and does not work. Her Straw(wo)man is a fanciful imaginary thing: Anderson (Re) at para 12. Strawman Theory is so notoriously false that anyone who employs Strawman Theory is presumed to do so in bad faith, and for abusive, ulterior purposes: Fiander v Mills, 2015 NLCA 31 at paras 37-40; Rothweiler v Payette, 2018 ABQB 288 at paras 6-21; Unrau #2 at para 180. That presumption applies to Ms. Anderson, who consistently and persistently uses Strawman Theory schemes, periodically switching to new variations, but always maintaining her SANDRA ANN ANDERSON sock-puppet to take all the debts and blame. 

D. OPCA Guru 

[26] Ms. Anderson has now gone past simply acting as user of pseudolaw, to actively propagating misinformation of that kind, she is an “OPCA guru”: Meads v Meads at paras 85- 158. Ms. Anderson is now teaching others via the Internet that they (incorrectly) do not have to pay income tax. Ms. Anderson claims to have the secrets for that. As I noted in Meads v Meads at paras 669-674, pseudolaw promoters are predatory conmen/women who profit from exploiting the naïve and vulnerable. In Canada (Attorney General) v Anderson at para 18, I observed: ... The fact Ms. Anderson has escalated and deepened her pseudolaw activities from “student” to “teacher” is not a prerequisite for her to be subject to prospective court access restrictions. What this development demonstrates is the degree to which Ms. Anderson is dedicated to, and has oriented her life around, these toxic non-law concepts. She is a committed pseudolaw adherent and proselytizer. 

[27] Tilleman J in Fearn v Canada Customs, 2014 ABQB 114 at paras 215-256 concluded that OPCA guru activities are prima facie criminal contempt, given their rejection and public denial of Canadian legislation and court authority. That is Ms. Anderson’s legal character, rather than a “good faith, fair dealing” litigant. 

E. Vexatious Litigant Status and Court Access Restrictions 

[28] These factors, and other litigation misconduct by Ms. Anderson, led this Court to on April 26, 2022 to impose Judicature Act, RSA 2000, c J-2, ss 23-23.1 court access restrictions to mitigate Ms. Anderson’s abusive litigation conduct: Canada (Attorney General) v Anderson. The chief effect of these court access restrictions is that Ms. Anderson cannot initiate litigation or litigation steps at the Alberta Court of Queen’s Bench, except with the permission – “leave” – of the Court. 

[29] Court access restrictions are a useful tool to minimize the harm cause by abusive litigants, but they are far from a universal panacea. One problem is that court access restrictions do not meaningfully affect “defensive” steps taken by abusive litigants to frustrate litigation where the abusive litigant is a responding party. This limitation on court access restrictions will become very apparent when I subsequently review the progression of Ms. Anderson’s foreclosure proceeding. 

[30] Court processes are based on the underlying assumption that litigants at least will try to cooperate with the Court and its procedures. Pseudolaw litigants rarely engage in anything that could be described as “cooperation”. Ms. Anderson is an illustrative, even dramatic, example. F. 

Conclusion 

[31] Ms. Anderson is an unrepentant, disruptive, greedy, uncooperative, abusive scofflaw. That has now been her uniform approach to legal rights and obligations, and the Courts, for years. Her misconduct is expanding into multiple subjects and disputes. Ms. Anderson cannot be trusted. When she is pointed to the actual law, she reliably rejects that, and claims to unilaterally impose something else. 

[32] Unlike many pseudolaw litigants, Ms. Anderson has significant and substantial resources. She has already demonstrated that she will use unorthodox vigilante processes against those who simply are engaged in their legal duties. All these factors, and Ms. Anderson’s dismal record of pseudolaw misconduct, mean that Ms. Anderson is an appropriate target for unusual and intrusive litigation and litigant management steps by this Court. Doing otherwise simply guarantees more trouble ahead.

Emotions

'Physiognomic Artificial Intelligence' by Luke Stark and Jevan Hutson  in (2022) 32  Fordham Intellectual Property, Media & Entertainment Law Journal 922   comments

The reanimation of the pseudosciences of physiognomy and phrenology at scale through computer vision and machine learning is a matter of urgent concern. This Article, which contributes to critical data studies, consumer protection law, biometric privacy law, and anti-discrimination law, endeavors to conceptualize and problematize physiognomic artificial intelligence (AI) and offer policy recommendations for state and federal lawmakers to forestall its proliferation. 

Physiognomic AI, we contend, is the practice of using computer software and related systems to infer or create hierarchies of an individual’s body composition, protected class status, perceived character, capabilities, and future social outcomes based on their physical or behavioral characteristics. Physiognomic and phrenological logics are intrinsic to the technical mechanism of computer vision applied to humans. In this Article, we observe how computer vision is a central vector for physiognomic AI technologies, unpacking how computer vision reanimates physiognomy in conception, form, and practice and the dangers this trend presents for civil liberties. 

This Article thus argues for legislative action to forestall and roll back the proliferation of physiognomic AI. To that end, we consider a potential menu of safeguards and limitations to significantly limit the deployment of physiognomic AI systems, which we hope can be used to strengthen local, state, and federal legislation. We foreground our policy discussion by proposing the abolition of physiognomic AI. From there, we posit regimes of U.S. consumer protection law, biometric privacy law, and civil rights law as vehicles for rejecting physiognomy’s digital renaissance in artificial intelligence. Specifically, we argue that physiognomic AI should be categorically rejected as oppressive and unjust. Second, we argue that lawmakers should declare physiognomic AI to be unfair and deceptive per se. Third, we argue that lawmakers should enact or expand biometric privacy laws to prohibit physiognomic AI. Fourth, we argue that lawmakers should prohibit physiognomic AI in places of public accommodation. We also observe the paucity of procedural and managerial regimes of fairness, accountability, and transparency in addressing physiognomic AI and attend to potential counterarguments in support of physiognomic AI.

Stark's 'The emotive politics of digital mood tracking' in (2020) 22(11) New Media and Society 2039-2057 comments 

A decade ago, deploying digital tools to track human emotion and mood was something of a novelty. In 2013, the Pew Research Center’s Internet & American Life Project released a report on the subject of “Tracking for Health,” exploring the growing contingent of Americans keeping count of themselves and their activities through technologies ranging from paper and pencil to digital smart phone apps (Fox and Duggan, 2013). These systems generate what Natasha Dow Schüll terms more broadly “data for life” (Schüll, 2016), traces of our everyday doings as recorded in bits and bytes. Mood tracking, about which the survey queried, received so few affirmative responses that it did not rate at even 1% of positive answers. 

Yet in the interim, emotion in the world of computational media has become big business (McStay, 2016, 2018; Stark, 2016, 2018b; Stark and Crawford, 2015). Using artificial intelligence (AI) techniques, social networks such as Twitter and Facebook have joined dedicated health-tracking applications in pioneering methods for the analysis of emotive and affective “data for life.” These mood-monitoring and affect-tracking technologies involve both active self-reporting by users (Korosec, 2014; Sundström et al., 2007) and the automated collection of behavioral data (Isomursu et al., 2007)—methods often collectively known as digital phenotyping (Jain et al., 2015), or the practice of measuring human behavior via smart phone sensors, keyboard interactions, and various other features of voice and speech (Insel, 2017). This continuum of technologies allows an analyst to extrapolate a range of information about the physiology, activity, behaviors, habits, and social interactions from everyday digital emanations (Kerr and McGill, 2007). 

The past few years have also seen policymakers and the public becoming increasingly attuned to the political impacts of digital media technologies, including AI and machine learning (ML) systems (Barocas and Selbst, 2016; Crawford and Schultz, 2013; Diakopoulos, 2016). Citizens, activists, and elected politicians are eager to address the ways in which technical particularities of such systems influence social and political outcomes via design and deployment (Buolamwini and Gebru, 2018; Dourish, 2016; Johnson, 2018). Yet critical analyses and responses to these tools of what Zuboff (2019) terms “surveillance capitalism” must account for the role of human affect, emotion, and mood in surveillance capitalism’s extraction and contestation. As Raymond Williams observed, working toward an understanding of the barriers to economic and social justice means being first and foremost “concerned with meanings and values as they are actively lived and felt” (Williams, 1977: 132). 

Here, I perform a close reading and comparative values in design (VID) analysis (Flanagan and Nissenbaum, 2014; Friedman et al., 2006) of MoodPanda and Moodscope, two popular consumer applications for tracking mood. Human emotions themselves arise from a tangled nexus of biological, cultural, and contextual factors (Boehner et al., 2005; Sengers et al., 2008). As such, I argue that the design choices in each service shape the particular dynamics of political economy, sociality, and self-fashioning available to their users, and that these design decisions are exemplary of the ties between the computational politics of surveillance capitalism (Tufekci, 2014; Zuboff, 2019), and the quantification and classification of human emotion via digital mechanisms (Stark, 2018a). 

Drawing on Tufekci (2014, 2017), Papacharissi (2014), and others (Ahmed, 2004; Martin, 2007), I articulate how the affordances of mood-tracking services such as Moodscope and MoodPanda are indexical to a broader emerging emotive politics mediated and amplified by digital systems. The dynamics of emotive politics underpin many contemporary digitally mediated sociotechnical controversies, ranging from media manipulation by extremist actors, negative polarization, and “fake news,” to collective action problems around pressing global crises such as climate change. Human passions have always been understood as an element of political life, but the particular technical and social affordances of digital systems configure these responses in particular ways: emotive politics foreground contestations regarding how we as social actors should interact together in what Papacharissi (2014) terms as “affective publics,” and the weights and ways in which we as designers, participants, and citizens should treat human feeling as dispositive features of civic discourse. Mood tracking’s explicit engagement with human emotion as a mediated, embodied state points toward how emotive politics emerge out of designer expertise, technical features, and the social contexts and practices of everyday digital mediation (Dourish, 2004; Kuutti and Bannon, 2014). 

In this analysis, I also seek to highlight the ways in which user interface and experience (UI/UX) design shape political outcomes alongside the structures of algorithms and databases (Dourish, 2016; Montfort and Bogost, 2009: 145)—though the groundbreaking work of scholars such as Johanna Drucker (2014) and Lisa Nakamura (2009) means this insight should be of surprise to no one. “The same quantitative modulations and numerical valuations required by the new information worker,” Alexander R. Galloway likewise observes, come “in a dazzling array of new cultural phenomena…to live today is to know how to use menus” (Galloway, 2006). Analyses taking interface design into account as an aspect of broader conversations around the fairness, ethics, and accountability of digital systems, which I seek to model here, will bolster the interdisciplinary work of interrogating the impact of these automated systems on our collective political future.

GPT

'GPT Takes the Bar Exam' by Michael James Bommarito and Daniel Martin Katz comments

 Nearly all jurisdictions in the United States require a professional license exam, commonly referred to as “the Bar Exam,” as a precondition for law practice. To even sit for the exam, most jurisdictions require that an applicant completes at least seven years of post-secondary education, including three years at an accredited law school. In addition, most test-takers also undergo weeks to months of further, exam-specific preparation. Despite this significant investment of time and capital, approximately one in five test-takers still score under the rate required to pass the exam on their first try. In the face of a complex task that requires such depth of knowledge, what, then, should we expect of the state of the art in “AI?” 

In this research, we document our experimental evaluation of the performance of OpenAI’s text-davinci-003 model, often-referred to as GPT-3.5, on the multistate multiple choice (MBE) section of the exam. While we find no benefit in fine-tuning over GPT-3.5’s zero-shot performance at the scale of our training data, we do find that hyperparameter optimization and prompt engineering positively impacted GPT-3.5’s zero-shot performance. For best prompt and parameters, GPT-3.5 achieves a headline correct rate of 50.3% on a complete NCBE MBE practice exam, significantly in excess of the 25% baseline guessing rate, and performs at a passing rate for both Evidence and Torts. GPT-3.5’s ranking of responses is also highly correlated with correctness; its top two and top three choices are correct 71% and 88% of the time, respectively, indicating very strong non-entailment performance. 

While our ability to interpret these results is limited by nascent scientific understanding of LLMs and the proprietary nature of GPT, we believe that these results strongly suggest that an LLM will pass the MBE component of the Bar Exam in the near future. 

Truthiness

With the US George Santos controversy in mind the 2018 Congressional Research Service Expulsion of Members of Congress: Legal Authority and Historical Practice report states

 The U.S. Constitution expressly grants each house of Congress the power to discipline its own Members for misconduct, including through expulsion, stating that: [e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. 

Expulsion is the process by which a house of Congress may remove one of its Members after the Member has been duly elected and seated. The Supreme Court has considered expulsion to be distinct from exclusion, the process by which the House and Senate refuse to seat Members-elect. In so concluding, the Supreme Court has held that exclusion cannot be used as a disciplinary tool, and Congress, accordingly, cannot undertake disciplinary measures on Members until after those Members have taken the oath of office. 

The constitutional limits on the power of expulsion are informed by the Expulsion Clause’s text, historical background, judicial precedent, and historical practice. Presently, the only explicit standards for expulsion are the requirement for approval of two-thirds majority of the body imposing the punishment and the requirement that the individual subject to the expulsion has been formally seated as a Member of that body. The history of the Expulsion Clause suggests that the expulsion power is broad and confers to each house of Congress significant discretion as to the proper grounds for which a Member may be expelled. Accordingly, courts generally have declined to adjudicate the standards by which expulsions might be considered in the House or Senate. To date, 20 Members of Congress have been expelled: 5 in the House and 15 in the Senate. A large majority of those expulsions were predicated on Members’ behavior deemed to be disloyal to the United States at the outset of the Civil War. Nonetheless, the two most recent expulsions followed Members’ convictions on public corruption charges. One significant area of debate is whether a Member can be expelled for behavior arising prior to his or her election. The historical practice in each house of Congress is limited and mixed as to whether such expulsions are appropriate. The extent to which these historical practices could be said to bind Congress as precedent is unclear, as is Congress’s authority to discipline Members for conduct that occurred prior to their election or reelection to office. These debates are centered on two general concerns that may be in tension with each other: maintaining the ability of each house of Congress to preserve the integrity of the institution and overriding the will and right of constitutents to choose their representatives. 

This report discusses the nature of the power of Congress to remove a Member, including the historical background of the Clause, the implications of the limited judicial interpretations of the Clause’s meaning, and other potential constitutional limitations in the exercise of the expulsion power. The report then analyzes the potential grounds upon which a Member might be expelled, including an overview of past cases resulting in expulsion and a discussion of the potential exercise of the expulsion power for conduct occurring prior to the Member’s election or reelection to Congress.

Extremism

Last year's Victorian Legislative Council Inquiry into Extremism in Victoria report states 

1 Introduction 

F 1: The language used to describe any form of extremism is important and should be considered carefully. 

F 2: The present threat of violence from far-left extremism is not equivalent to the present threat of violence from far-right extremism, but the domestic violent extremism threat landscape is continually evolving and changing. 

F 3: Extremist movements have been identified as a significant issue in Australia. Findings from any future Commonwealth inquiry into these matters would be beneficial in increasing understanding of the issue at a national level. 

2 Extremism is a global issue 

F 4: The relationship between global, national and state economic policies can contribute to an environment where anti-immigration and anti-government sentiments grow, increasing the appeal of far-right extremist groups which claim to address these issues. 

F 5: Global and domestic populist movements, particularly the mainstreaming of anti-immigration and anti-democratic ideas, are risk factors for legitimising the rhetoric of extremist movements. 

F 6: The disruption from ongoing environmental deterioration and climate change should be considered a risk factor for increasing the threat of both far-left and far-right extremist groups. 

F 7: The transnational elements of extremist movements must be considered alongside their domestic manifestations because of the borderless and leaderless nature of some violent extremist movements. 

F 8: The impacts of and responses to violent extremism can be experienced globally, not just locally, with information about both extremist events, and government and community approaches in response to them, being accessible by a global audience. 

3 Risk factors for far‑right extremism in Victoria 

F 9: Far-right extremism is not new in Australia or Victoria, but there has been a re-emergence of far-right extremism, most notably from 2015 and 2016 onwards. 

F 10: Social isolation, economic insecurity and inequality are risk factors that may play a part in increasing susceptibility to extremist narratives. Addressing these issues is important for wellbeing and social cohesion and may reduce the appeal of extremist narratives. 

F 11: Evidence from stakeholders to the Inquiry and recent investigations suggest that trust in government and politicians has declined in Victoria, and in other jurisdictions globally, and this has been further exacerbated by the global COVID-19 pandemic. 

R 1: That the Victorian Government and Members of Parliament seek ways to build public trust in the Parliament, including developing measures to improve transparency. This should include investigating the potential benefits of introducing an integrity charter. 

F 12: Mainstream media has a critical role to play in the dissemination of accurate information during crises, as well as in reporting responsibly on the activities of far-right extremist groups and individuals, and not creating negative stereotypes of specific communities. 

F 13: Reporting of extremist activities, groups and individuals should be subject to strong media guidelines to minimise amplification of extremist propaganda that benefits or platforms extremist movements. 

F 14: An increasing focus on young people as a target of radicalisation and recruitment by the extreme far-right is of significant concern. 

F 15: The Committee is concerned that the Australian Security Intelligence Organisation (ASIO) reported that in 2021 minors made up 15% of new counter-terrorism investigations (up from 2–3% in recent years) and, on average, comprised more than half of ASIO’s highest priority investigations per week. Young people who experience feelings of social isolation, disengagement and alienation may be more vulnerable to radicalisation, and are among key targets of extremist propaganda and recruitment. 

F 16: In formulating intervention and prevention measures aimed at countering youth radicalisation to extremism, it is imperative that alienating, criminalising or discriminating against young people is avoided as far as possible. 

4 The threat of far‑right extremism in Victoria 

F 17: Both groups and individuals are capable of carrying out ideologically motivated terrorism, however, the risk from an individual acting alone is currently considered by authorities to be the more likely scenario. 

F 18: Far-right extremism poses a threat to democracy. Strengthening democratic processes and increasing transparency by providing information to the public about political processes and practices is an important part of mitigating this threat. 

F 19: Responses to extremism need to avoid measures that curtail civil liberties in a disproportionate manner. 

F 20: Violent extremism poses a risk to politicians and public figures in Victoria, who may be targeted by groups or individuals motivated by ideological, religious or single-issue grievances. 

F 21: Left-wing aligned (or perceived to be left-wing aligned) politicians and public figures have been targeted by far-right extremist groups and individuals. 

F 22: Racism and racist scapegoating, Islamophobia and antisemitism are common elements of far-right extremist ideologies, messaging and activities. 

F 23: When public and elected figures accept racist rhetoric and action this blurs the lines between what is acceptable and what is not in the community and leads to risks that multicultural communities will be targeted. 

F 24: Evidence from stakeholders suggests that far-right extremism can be gendered, and that misogyny and anti-feminist sentiment are common but not necessarily well understood features of far-right extremist movements. 

R 2: That the Government consider funding research investigating the links between extremism and family violence, anti-women or anti-feminist sentiment, and masculinity to identify further opportunities for counter-extremism measures. 

F 25: Both real and perceived threats from far-right extremist groups cause harm to the LGBTQIA+ community in Victoria. Government measures to support these communities are important. 

F 26: Improved collection and analysis of hate incident data is needed to inform prevention of hate crimes, and responses to hate, as well as to better understand the extent of far-right and other forms of extremism in Victoria. 

R 3: That the Victorian Government continue to implement the recommendations from the Legislative Assembly Legal and Social Issues Committee’s report on the Inquiry into anti-vilification protections, in particular recommendations 33 and 34. 

5 Extremist recruitment and communication 

F 27: Public trust in mainstream media has declined, while social media as a primary source of information has increased. 

F 28: The increasing use of social media and other online platforms by the wider public has enabled the increased ability of extremists to disseminate their ideology and attract people to their cause. 

F 29: Regulatory frameworks that govern the use of encrypted online communication platforms should be formulated to be able to effectively respond to and keep pace with developments in technology and behaviour. 

6 The impact of COVID‑19 on extremism in Victoria 

F 30: The factors that increase susceptibility and engagement with far-right extremism were heightened by the social and economic disruption of the COVID-19 pandemic. This included the public health restrictions enacted by the Victorian Government in response to the pandemic alongside those of other states and the Commonwealth Government. The Committee notes that these restrictions were enacted to protect public health. 

F 31: Conspiracy theories and disinformation were attractive to some who felt disenfranchised by public health measures enacted in response to the COVID-19 pandemic. Far-right extremist groups and individuals capitalised on this by promoting conspiracy theories and disinformation to generate support for their ideologies. 

R 4: That in future public health emergencies, the Victorian Government build on its outreach and communication efforts during the COVID-19 pandemic to ensure that there is an emphasis on public information that is in plain language, timely, accessible and easy to interpret. 

F 32: Vile threats and abuse were made during the pandemic against public office holders, government officials and minorities. This kind of discourse has no place in an open, plural and multicultural democracy such as Victoria and should be condemned in the strongest terms. 

F 33: A small number of far-right extremist groups and individuals attended protests against the Victorian Government’s COVID-19 restrictions and vaccine mandates in 2021, however, extremist ideology was not the primary motivating factor for the majority of those attending. Rather, a range of personal grievances relating to the impacts of the Victorian Government’s COVID-19 restrictions and vaccine mandates were the primary motivators, despite the restrictions being implemented to protect public health. 

F 34: There has been a growth in exposure to far-right extremist ideology in Victoria since the onset of the COVID-19 pandemic. However, the extent to which this exposure has translated to significant long-term growth in the far-right extremist movement remains unknown. The Committee found that personal grievances relating to COVID-19 restrictions and vaccine mandates were the primary motivation for protests seen in Melbourne in late 2021. Nevertheless, it is important for the Victorian Government to remain vigilant against the threat of far-right radicalisation in this context. 

7 Countering extremism 

F 35: Countering extremism is a whole-of-society issue. Governments and law enforcement can and should play a proactive role in the process of countering extremism, however, communities need to be supported with resources to ensure they have the capacity to effectively participate. 

F 36: Individual, needs-based interventions that look at a person holistically and work with them over a long period of time to build their strengths will be more effective for countering extremism in people already engaged in extremist behaviours. 

R 5: That the Victorian Government ensure all of Victoria’s countering violent extremism programs, including but not limited to the community integration support program (CISP), continue to be reviewed externally on a regular basis to ensure that they are effective and adapting to the evolving extremism landscape. 

F 37: Community-led and grassroots initiatives to promote social cohesion and community building are an important measure for countering extremism and have been demonstrated as effective in Victoria. 

R 6: That the Victorian Government develop a strategy to support community-driven social cohesion initiatives aimed at building connections and trust amongst community members and between community members and civic institutions. 

F 38: Anti-racism public education campaigns and education programs that teach respect and appreciation for multiculturalism are important for improving social cohesion in Victoria. 

F 39: Education about the Holocaust is particularly important for understanding some of the consequences of racism and vilification throughout history and should have ongoing inclusion in the Victorian school curriculum. 

R 7: That the Victorian Government support the ongoing provision of existing anti-racism education programs and actively seek to improve and increase the provision of such programs in the community. 

FINDING 40: Digital and critical literacy are essential skills for young people to navigate the internet safely, to develop resistance to the influence of extremist messaging and to analyse the quality of information they are exposed to. 

RECOMMENDATION 8: The Victorian Government should review the digital and critical literacy skills taught via the primary and secondary school curriculum to identify opportunities for improvement and expansion. 

F 41: Youth workers play a critical role in the delivery of effective support measures that work to both increase social cohesion and mitigate the risks of radicalisation to extremism. 

R 9: That the Victorian Government ensure youth workers are adequately and appropriately resourced to provide effective service delivery of youth supports and programs aimed at strengthening trust and social connectedness and mitigating the risks of radicalisation. Further, that youth workers are proactively engaged and consulted in the development and implementation of the Government’s youth policies and strategies. 

F 42: While online content regulation sits beyond the purview of state governments, the Committee reiterates the value of the Christchurch Call and the measures it outlines with regard to violent extremist and terrorist content. 

F 43: Multidisciplinary and cross-jurisdictional research into extremism offers valuable insights into emerging problems and prevention strategies. Norway’s Center for Research on Extremism would be a good model on which to base an Australian body working on developing empirical and theoretical knowledge on extremism in Australia and collaborating with domestic and international stakeholders to further information and understanding in this area. 

F 44: Access to firearms obtained legally or illegally by members of far-right extremist groups poses potential risks to the community and is of significant concern. 

F 45: Acquisition and use of firearms by far-right extremists, not all of whom may be easily identifiable, leads to a critical gap in counter-terrorism strategy that could be assisted by a coherent, national framework on firearm regulation.