Being on top of your data consent.
Mark Ailsworth: The temptation to use data in a very quick and relatively flip manner, that's got to be avoided at all costs.
Dave Bittner: Hello, everyone, and welcome to "Caveat," the CyberWire's privacy, surveillance, law and policy podcast. I'm Dave Bittner, and joining me is my cohost, Ben Yelin, from the University of Maryland Center for Health and Homeland Security. Hey, Ben.
Ben Yelin: Hello, Dave.
Dave Bittner: Today Ben has the story of litigants arguing in court that real videos are deep fakes. I look to Ben for better understanding of what the heck is going on with the Supreme Court. And later in the show we're joined by Mark Ailsworth from "Opaque Systems". We're discussing data consent and privacy mechanisms. While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. All right, Ben, let's jump in here. You've got an interesting story this week. What do you got for us?
Ben Yelin: Yes, this one really is fascinating. It's from National Public Radio. I actually heard it putting away my dishes while listening to NPR News [laughter] on my Alexa device.
Dave Bittner: Right.
Ben Yelin: But the headline of this is that people are trying to claim real videos are deep fakes, and the courts are not amused.
Dave Bittner: Hmm.
Ben Yelin: And of course the hook for the story is somebody who just cannot stay out of the news, and that's Elon Musk.
Dave Bittner: Oh.
Ben Yelin: So in 2016 he was in a tech conference, and he made a statement about the self-driving capability of Tesla cars. He said that, "A Model S and a Model X at this point can drive autonomously with greater safety than a person right now."
Dave Bittner: Hmm.
Ben Yelin: Of course now Musk and Tesla are being sued because somebody, unfortunately, died when they were using the self-driving car feature. So clearly that statement in 2016 was false at the time --
Dave Bittner: Yes.
Ben Yelin: Or at least one could argue that it was certainly false.
Dave Bittner: Right.
Ben Yelin: Elon would be pretty screwed in court, because this would be evidence that he was particularly negligent or unaware of the risks of the self-driving capabilities of Tesla.
Dave Bittner: Hmm.
Ben Yelin: And he's in the middle of this litigation. One of the strategies that his team- his team of lawyers is using is to suggest that this video might be a deep fake. [Laughter] So Musk's lawyers --
Dave Bittner: I'm- I'm sorry.
Ben Yelin: Say- I know. [Laughter] It's literally like- this makes, "The dog ate my homework" look like a very reasonable well-nuanced excuse.
Dave Bittner: Okay.
Ben Yelin: So Musk's lawyers say, "Musk, like many public figures is the subject of many deep fake videos and audio recordings that purport to show him saying and doing things he never actually said or did."
Dave Bittner: Hmm.
Ben Yelin: And they go on to describe a bunch of fake- deep fake videos that include Elon Musk. Due to this age we're living in where we have artificial intelligence and deep fakes, it's not that hard to make deep fakes, and it's not that hard to find them.
Dave Bittner: Right.
Ben Yelin: I have enjoyed deep fake videos of politicians that I know are deep fakes; you know, Joe Biden talking about the Kentucky Derby, or you know --
Dave Bittner: [Laughs] Right; right.
Ben Yelin: All of these very silly things that come from deep fakes. But what Elon is doing here is casting doubt on whether this video, which potentially would be incriminating in court, is a deep fake. And this is something that experts in this field, both legal researchers and others who follow this closely, have been concerned about for a long time.
Dave Bittner: Yes.
Ben Yelin: That in this age of deep fakes, anybody can deny a reality. Even if you have airtight evidence, you can introduce some- you can introduce some element of doubt by simply claiming that it's a deep fake.
Dave Bittner: Mmm.
Ben Yelin: That's what some digital forensics expert at the University of California Berkeley called, "The classic liars dividend." I'll note that that was a term coined by a professor who used to work at my university, Danielle Citron --
Dave Bittner: Hmm.
Ben Yelin: And her coauthor, Bobby Chesney. Basically the idea is that people are getting more aware of how easy it is to make deep fake videos, so there's more skepticism among members of the public. And you can use that skepticism in court to your advantage. So far it has not been an effective strategy. The judge in this case was pretty dismissive. This is a federal judge, Evette Pennypacker --
Dave Bittner: Hmm.
Ben Yelin: Incredible name for a judge --
Dave Bittner: Yes.
Ben Yelin: Who said, "What Tesla is contending is deeply troubling to the court. The- their position is that because Mr. Musk is famous and might be more of a target for deep fakes, his public statements are immune. The court is unwilling to set such a precedent by condoning Tesla's approach here."
Dave Bittner: Hmm.
Ben Yelin: And this is not the first time this strategy has been used. In a couple of the January 6th cases- and those were criminal trials, a couple of the defendants alleged that videos of them involved in the protest could have been manipulated or created by artificial intelligence.
Dave Bittner: Hmm.
Ben Yelin: And that was not an effective strategy in those cases as well. Old friend of the show, Stanford researcher, Riana Pfefferkorn, said that, quote, "So far these seem to have been Hail Mary passes that have not succeeded."
Dave Bittner: Hmm.
Ben Yelin: And I think one of the reasons it has not succeeded, as she points out, is that courts have had a pretty good BS detector for hundreds of years, going back to colonial, pre-colonial times, our English legal ancestors. We've had a lot of experience in our court system dealing with allegedly fake evidence --
Dave Bittner: Yes.
Ben Yelin: Whether it's deep fakes or whether it's, you know, the allegation that somebody purporting to have signed a piece of paper didn't actually sign it; a mimeographed document, Photoshopped evidence, and- and digital photography.
Dave Bittner: Right.
Ben Yelin: So I think at this point the court system is reasonably well-positioned to deal with this threat. But as more videos- as more deep fake videos are created, it's just going to- there are going to keep being more accusations from litigants that videos are deep fakes, even though the accusations themselves in a particular case can sometimes seem silly. I mean, this is a video that's been up on YouTube in Elon Musk's case, since 2016.
Dave Bittner: Right. There were hundreds of people in the audience.
Ben Yelin: Right.
Dave Bittner: Right? [Laughs]
Ben Yelin: It happened. There were people --
Dave Bittner: Yes.
Ben Yelin: There. I mean --
Dave Bittner: Right; right.
Ben Yelin: That's what's so crazy about this.
Dave Bittner: Right --
Ben Yelin: Now --
Dave Bittner: The legitimate journalists were the ones asking the questions, so you know, it's- this was not a monologue that Elon Musk made in front of a single video camera or something like that.
Ben Yelin: Yes; I mean that's why this argument is so silly in this case --
Dave Bittner: Yes.
Ben Yelin: And why the judge I think was right to dismiss it. There are going to be other cases where it's not quite as obvious, and maybe it is a speech that somebody gave and- by themselves and just recorded themselves in their own home and there's some question about whether that's a deep fake.
Dave Bittner: Yes.
Ben Yelin: And deep fakes are getting really good. I mean they're pretty compelling.
Dave Bittner: Oh, yes.
Ben Yelin: And you know, it might be- if you can fake out a good portion of the public, you can fake out a jury, and potentially a judge. So --
Dave Bittner: Right.
Ben Yelin: The threat is certainly out there. I think this was just a ridiculous case to try to invoke that argument. I will say, I think it's a particular problem in criminal cases, because the standard in criminal cases is that you have to prove guilt beyond a reasonable doubt.
Dave Bittner: Yes.
Ben Yelin: So as we all learned by watching the OJ trial, you don't have to establish that your client is innocent. You just have to cast reasonable doubt in the mind of the jurors. And invoking deep fakes could be an effective strategy to cast that reasonable doubt. Even if people aren't sure that it's a deep fake, because of that legal standard, if there is a reasonable doubt that a crime was actually committed because of some deep fake evidence, then that could have an impact on trials going forward.
Dave Bittner: I can imagine the police procedurals being all over this. And I suspect they probably already have been, right? [Laughs]
Ben Yelin: I think they have been. Yes, I mean , I'm sure they're- I haven't kept up on "Law & Order" recently --
Dave Bittner: Right; right.
Ben Yelin: But I'm sure there's been a --
Dave Bittner: Right.
Ben Yelin: Deep fakes episode.
Dave Bittner: "Roll the videotape for the jury."
Ben Yelin: Yes, [laughter] "Ripped from the headlines."
Dave Bittner: Right.
Ben Yelin: Yes.
Dave Bittner: So I have a couple of questions here. First of all, not to get too much in the weeds, but in the Elon Musk case, to what degree is he at all protected by the notion of CEO hyperbole; right, "I was just making marketing claims," "I was bragging," you know, "I was exaggerating." Is that a thing at all, or not?
Ben Yelin: It is a thing.
Dave Bittner: Okay.
Ben Yelin: I mean, that has been his main defense strategy.
Dave Bittner: Okay.
Ben Yelin: He's certainly not the first CEO to employ this strategy.
Dave Bittner: Yes.
Ben Yelin: It's basically that, "You shouldn't take everything I say seriously," court argument.
Dave Bittner: Right; right.
Ben Yelin: Notably we've seen that many times in recent litigation, including Fox- the Fox/Dominion case where --
Dave Bittner: Right.
Ben Yelin: They explicitly told the court like you shouldn't take what Tucker Carlson is saying literally. It's --
Dave Bittner: Yes. No reasonable person would take him seriously.
Ben Yelin: Would take him seriously.
Dave Bittner: Right, right.
Ben Yelin: And I think there is sort of that expectation that CEOs are going to embellish, that they're going to make statements. You know, false advertising is not constitutionally protected speech.
Dave Bittner: Yes.
Ben Yelin: So you certainly can be punished in a court of law for false advertising, but the standard is that you have to have knowingly lied.
Dave Bittner: Yes.
Ben Yelin: And I think with this type of hyperbole, somebody like Musk could say, "Well, you know, I wasn't making a definitive statement, I was just, you know, trying to extol the virtues of my product."
Dave Bittner: Yes.
Ben Yelin: And so I think there is a little bit of leeway given there.
Dave Bittner: Yes. I saw someone recently state that we had this brief period of time during which, you know, a hundred years of so, 75 years or so, where we could trust photographic evidence, right, photographic, and video, and audio evidence.
Ben Yelin: Right, like, "That's one thing that can't be manipulated. There's a photo --
Dave Bittner: Right.
Ben Yelin: Of this person at the crime scene," yes.
Dave Bittner: Right; and then we had Photoshop.
Ben Yelin: Yes.
Dave Bittner: So photographic evidence became more suspect. And then we were able to manipulate video. And now to be able to synthesize these things from whole cloth I think is a whole other thing. Do you think there's something to that? I mean, you made- sort of made the point about this earlier that there's always- I guess from this point on there's always going to be a certain amount of skepticism with this sort of evidence.
Ben Yelin: Yes. And I think one element of that skepticism is that it's going to play out very differently depending on who's on trial.
Dave Bittner: Hmm.
Ben Yelin: So people like Elon Musk can hire expert witnesses and they can take the stand and say, "This looks like a deep fake to me."
Dave Bittner: Yes.
Ben Yelin: Elon Musk can pay anybody, you know, a zillion dollars and have them go up and give testimony along those lines. It's going to be much more difficult for indigent defendants, maybe they're victims of police violence, things like violations of human rights. And in those circumstances, these indigent defendants or victims of crime, for that matter, might not be able to afford expert witnesses who can persuade the jury that something is or is not a deep fake.
Dave Bittner: Yes.
Ben Yelin: So it's going to have an uneven effect in our legal system, so it's also a concern about legal equity beyond just whether this argument has any merit at all.
Dave Bittner: What about just sort of popular opinion here? I'm thinking about, you know, with former President Trump when he was running and the Access Hollywood tape came out and, you know, the famous, you know, "Grab him by the genitals" statement. I would imagine if that came out today, the- with an audience already primed to be receptive to the notion of, quote, air quotes, "fake news," to simply dismiss something like that and say, "Oh, well, audio can be manipulated. Obviously I didn't say that."
Ben Yelin: I kind of think- didn't he once make that argument? Maybe I'm misremembering.
Dave Bittner: Yes.
Ben Yelin: I think at one point he did say, "I'm not sure I actually said that."
Dave Bittner: Yes.
Ben Yelin: But yes --
Dave Bittner: Things can be edited, things can be- sure, which is true.
Ben Yelin: It is true. And I think certainly he would make that argument now. And if people are primed to believe or disbelieve certain things --
Dave Bittner: Yes.
Ben Yelin: Then that type of argument is going to be something you can hold onto.
Dave Bittner: Yes.
Ben Yelin: I mean, all of us have our own biases. We are- and any, you know, litigation we can catch ourselves rooting for somebody --
Dave Bittner: Right.
Ben Yelin: And that can persuade us to buy arguments that if we were being completely unbiased we wouldn't buy.
Dave Bittner: Yes.
Ben Yelin: So for people who are Elon Musk superfans, and want to believe that self-driving Teslas are the future, they might just glom onto this argument as a- some type of fig leaf that they can use to maintain what I would call their "delusions". [Laughter] But --
Dave Bittner: Right.
Ben Yelin: That's certainly my own biases speaking.
Dave Bittner: Yes.
Ben Yelin: But yes, I mean, it's just something for fans to hang onto, and it kind of cuts against this shared objective reality. And I think that could have a big effect on litigation generally. Like if there's just no actual truth, and we can't really make sense of the world, it's going to be much harder to come up with acceptable legal decisions.
Dave Bittner: Well --
Ben Yelin: So that's certainly something I- I worry about going forward.
Dave Bittner: If you're the judge, and you're sending your jury off to the jury room to talk about these things and make their decisions, how are you educating them? How are- you know, how are you informing them to- to, "This is how you need to consider these things; these claims." I mean, in this case the judge said, "Yes, knock it off, we're not-" you know, "Let's stay in the real world here, folks." But going forward, what is a judge to do?
Ben Yelin: Yes; I mean, I think going forward it's really going to depend on the case, but there could be some type of some type of precedent setting jury instruction relating to deep fakes that we see published in a major judicial case.
Dave Bittner: Yes.
Ben Yelin: And that's usually how jury instructions develop is there's some case where there's a novel issue of law or fact, and the judge makes a statement to the jury on how they should consider that evidence. And other judges say, "Yes, that's a good way of conceptualizing it."
Dave Bittner: Hmm.
Ben Yelin: So I think we might see over the next couple of years some type of standard develop where the jury instructions are clear like, "These are the things you need to establish in your own mind to assume that something is a deep fake."
Dave Bittner: Okay.
Ben Yelin: And maybe it's like three or four factors that they need to establish in their own mind. I think we could see something like that going forward. But again, those jury instructions are never going to keep up with the changes in technology. As deep fakes get more sophisticated, it's possible that whatever jury instructions are created, become obsolete rather- rather quickly, as we frequently see in our legal system.
Dave Bittner: Interesting. All right, well we will have a link to that story in the show notes. For my part of the show this week, I want to take us to a bit of a higher level here. Not that your level is low. [Laughs]
Ben Yelin: I know. I was going to say, was that a- was that a secret insult; yes.
Dave Bittner: No, it's not; no it's not. It was not. [Laughs] But you know, one of the things that I enjoy about co-hosting a show like this with a cohost like you is your level of expertise on the things that I have a minimal amount of knowledge on with all the legal stuff. And so I was thinking to myself, you know, "I really want to check in with Ben about what's going on with the allegations of corruption at the Supreme Court." And I thought our listeners would probably like to hear your take on that as well. Your knowledge is certainly above average with all this stuff, with the history and how it affects things going on today. So I hope our listeners will forgive us, this is straying a little bit outside of our lane of the cyber stuff.
Ben Yelin: I can already hear the complaints. [Laughs] I'm going to see them in our reviews, "These guys need to stay in their lanes."
Dave Bittner: Right, right.
Ben Yelin: Yes.
Dave Bittner: And that's- you know, "Okay, fine, fair --
Ben Yelin: Fair enough.
Dave Bittner: Point." And if you're already agitated by that, skip ahead to the interview, which is quite good. So can we start off here- can you just give me your take here? I mean, we've seen allegations of corruption with several members of the Supreme Court. And I think most of it is focusing on Justice Thomas, some of the gifts that he's gotten, vacations that he's taken with a billionaire who is also a major donor to Republican candidates, and all that sort of thing. I'm trying to keep this out of the realm of being a right or a left thing, and just looking at the general state of the Supreme Court and the standards we hold them to. I'm not completely sure that's possible, but let's do our best. What do you think here- is going on here, Ben? How do you- when news of this sort of thing broke, what was your reaction?
Ben Yelin: My initial reaction is to shrug and sigh and say, "Nothing's going to happen."
Dave Bittner: Hmm.
Ben Yelin: And that's I realize a very jaded reaction, but I think that's the reality here.
Dave Bittner: Hmm.
Ben Yelin: So just backing up a bit, I mean the specific allegations with Clarence Thomas things have been kind of dripping out over the past several weeks.
Dave Bittner: Yes.
Ben Yelin: There is this guy, Harlan Crow, who has been paying- off the books has been paying for a series of vacations for Justice Thomas. The allegations got worse. Apparently this billionaire also paid for Justice Thomas's great nephew to go to a private school.
Dave Bittner: Yes.
Ben Yelin: And that person was a dependent for Justice Thomas. And the rules, the ethics rules say that that has to be disclosed. If somebody is giving a gift to a dependent, at least for tax purposes that has to be disclosed. And then the most recent allegation concerns the head of the Federalist Society, which is a conservative judicial organization. And the head of that organization, kind of the godfather of the conservative legal movement, Leonard Leo, had made arrangements to pay Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. And included in some of these leaked messages, which weirdly involves Kellyanne Conway --
Dave Bittner: Hmm.
Ben Yelin: It was bizarre that her name pops up here.
Dave Bittner: Hmm.
Ben Yelin: But in those discussions, there was actually a quote of, "Let's pay Ginni, but let's not report that part," basically.
Dave Bittner: Yes.
Ben Yelin: I'm not quoting that exactly.
Dave Bittner: Right.
Ben Yelin: But they- they were clearly aware that they were violating some type of ethics rules. The Supreme Court is technically bound by a code of ethics. All nine justices recently signed onto a letter to the Senate Judiciary Committee saying, "We adhere to this code of judicial ethics. It is binding on not just Supreme Court justices, but all federal judges."
Dave Bittner: Hmm.
Ben Yelin: But the question is if you have reason to believe that somebody has violated those rules of ethics, what are you to do about it?
Dave Bittner: Yes.
Ben Yelin: The justices have to police themselves. And so far they have been completely unwilling to do so. And that is understandable. If you become a Supreme Court justice, you have a lot of power. You- let's face it, get to make a policy on this country.
Dave Bittner: Right.
Ben Yelin: Once you're on a court, you're on it for life, unless you retire. So there really isn't any political consequence to your inaction. I don't think you could shame somebody like Clarence Thomas into resigning. There's a political reality here. If he was forced to resign, Joe Biden would pick his replacement and a Democratic Senate would confirm that replacement, and that would change the ideological balance of power of the court. And that is never going to happen.
Dave Bittner: Has that ever happened in the past where a Supreme Court justice has resigned because of some sort of embarrassment or, you know, allegation of corruption or some scandal?
Ben Yelin: Yes, it has happened in the past. I'll take you all the way back to 1968, I believe. It was Justice Abe Fortas, who faced similar corruption allegations. He was a very liberal appointee of- of Lyndon Baines Johnson.
Dave Bittner: Hmm.
Ben Yelin: He was forced to resign due to these ethics concerns. And Johnson was unable to name his replacement. Ultimately it was Richard Nixon who named his replacement. And that did change the ideological balance of the court.
Dave Bittner: Hmm. When you say, "Forced to resign," do you mean compelled through that quaint thing we call "shame"? [Laughs]
Ben Yelin: That's exactly what happened.
Dave Bittner: Okay.
Ben Yelin: And I think we've lost that sense of shame.
Dave Bittner: Right. [Laughs]
Ben Yelin: I mean, at that point, Walter Cronkite could get on TV and say, you know, "This is violating the judicial code of ethics. This is, frankly, illegal behavior --"
Dave Bittner: Yes.
Ben Yelin: And the American public, and thus their elected leaders, would believe that, you know, this nonbiased guy who reads the news and who we trust, the most trusted man in America, has told us this is corruption, and therefore this person is compelled by political pressure to resign.
Dave Bittner: Hmm.
Ben Yelin: That's just not the way the world works these days.
Dave Bittner: Yes.
Ben Yelin: Most people are in a closed media ecosystem. If you are a fan of Justice Thomas, you are probably not going to be reading the New York Times editorials calling for investigations or calling on him to resign.
Dave Bittner: Right.
Ben Yelin: You're probably not tuning in to "Meet the Press" and listening to the musings of Democratic Senator Dick Durbin. You're probably watching Fox News, where they are defending Clarence Thomas --
Dave Bittner: Yes.
Ben Yelin: Or one of the- those other media sources. So there's not going to be that same type of groundswell of political pressure. I think it largely has to do with the change in the media environment and the fact that not only the- are the political parties so vastly polarized, but that has filtered down to judges. And the difference between a conservative judge and a liberal judge in terms of outcomes these days is so vast that it would just be catastrophic for the conservative movement to give up one of the most conservative justices and risk having a liberal justice nominated. It's a completely unacceptable outcome to them. And frankly, Clarence Thomas could be caught carrying bags of somebody else's money on the step of the Supreme Court, and that reality would stay the same. There's just no political incentive for Clarence Thomas or anybody in that political movement to do anything about it. Now, the one constitutional avenue that one would have would be impeachment.
Dave Bittner: Right.
Ben Yelin: You can impeach Supreme Court justices. First you would have to have a majority in the House to vote to impeach the justice, which opponents of Clarence Thomas do not have at the current time.
Dave Bittner: Yes.
Ben Yelin: So cross that off the list. And even if they get a majority of the House, you would need 67 senators to convict and remove from office. So currently there are 51 Democratic or Democratic leaning senators. You're about 16 short. You could find all of the reasonable moderate Republicans in the world, that's not going to get you to 67.
Dave Bittner: Yes.
Ben Yelin: There are certainly without question at least 34 ideologically committed Republican senators from very, very conservative states whose constituents would never let them impeach Clarence Thomas.
Dave Bittner: Yes.
Ben Yelin: So it's just- that's the political reality. And it means that justices are largely immune from consequences for- for these types of actions.
Dave Bittner: What about the other members of the Supreme Court, do they have any influence here?
Ben Yelin: Sort of; I mean, I think they have a certain level of influence, but they also try to be team players. I mean, I think all of the members of the team --
Dave Bittner: For the court- team corruption, woo. [Laughs]
Ben Yelin: Right, yes woo-hoo; which is sort of what they did by all signing that letter.
Dave Bittner: Right. [Laughs]
Ben Yelin: You know, the person who could play a prominent role would be Chief Justice Roberts.
Dave Bittner: Yes.
Ben Yelin: I think he's a little bit more widely respected on both sides of the ideological fence.
Dave Bittner: Yes.
Ben Yelin: The chairman of the Senate Judiciary Committee, Dick Durbin, invited Chief Justice Roberts to testify in front of his committee about this issue. And Roberts responded with a letter saying, "No, that's not going to happen." Basically outside of the appropriations process Supreme Court justices just do not testify in front of Congress. And that would be a violation of the separation of powers and go pound sand.
Dave Bittner: Hmm.
Ben Yelin: And there's nothing that Dick Durbin can do about it. You know, the Supreme Court in order for it to actually do something, you need a majority of the members and an actual active case that would change precedent, add some teeth to these ethics violations. And until there's a majority on the court to do that and the proper venue in which to take that action, that's just something I don't think we're going to see happen. Meanwhile, I think even the liberal justices they realize they're in a deep minority. They want to keep collegiality with all of their conservation colleagues --
Dave Bittner: Yes.
Ben Yelin: So if they went around in public calling out Justice Thomas, you know, that decreases the likelihood that he's going to side with them on some decision that he otherwise might side with them. I mean, he does have a quixotic streak to him. So you don't want to completely alienate him if you're one of the other justices on the court.
Dave Bittner: Yes. I've seen arguments that some of the things that they're alleging Justice Thomas has done here are indeed illegal, that there are some government regulations for- for reporting and so on that- that he could run afoul of; does that matter?
Ben Yelin: No. I mean, to use a baseball term, we don't live in an era of robot umpires where the law is just automatically enforced --
Dave Bittner: Hmm.
Ben Yelin: And like who enforces the law? Ultimately, it's law enforcement checked by our court system.
Dave Bittner: Yes.
Ben Yelin: So I mean, if the Justice Department believed that Clarence Thomas had broken the law, they could try and bring charges against him. That would cause a political firestorm. It would be- there would be all these allegations of political corruption violating separation of powers. And ultimately, the Supreme Court would get to decide the legality of that prosecution. And if there are five votes against that prosecution, then with the system that we've set up for ourselves, that would be the end of the story there. Because the one other option I think it's- is worth mentioning- and I think this has gotten a little bit of play in the discourse, is that basically you can use the power of the purse to defund the court until they enforce their ethics obligations.
Dave Bittner: Hmm.
Ben Yelin: That's never going to happen, either. [Laughter] I mean, you would need the cooperation of the House of Representatives, which you would not have at this point --
Dave Bittner: Right.
Ben Yelin: Sixty votes in the Senate, which do not exist, and a president who would sign that legislation, which, you know, even if it somehow passed Congress, would Joe Biden- he's kind of an institutionalist; like I don't see him --
Dave Bittner: Yes.
Ben Yelin: Literally zeroing out funding for the Supreme Court. I mean, can you imagine the political blowback to --
Dave Bittner: Yes.
Ben Yelin: Eliminating the salaries and other expenses for Supreme Court justices so that we couldn't have final litigation on important cases? I mean --
Dave Bittner: Right; because the separation of powers would --
Ben Yelin: Yes, like that would be a political bombshell. So that's
Dave Bittner: Right. [Laughs]
Ben Yelin: Certainly not good --
Dave Bittner: Would end up in front of the Supreme Court. [Laughs]
Ben Yelin: Yes, exactly. We're working for free now that their salaries have been --
Dave Bittner: Yes; boy, and they're pissed. [Laughs]
Ben Yelin: Yes. So that's another thing that's just not going to happen.
Dave Bittner: Right. Let me ask you this.
Ben Yelin: Yes.
Dave Bittner: Would it make any difference if Justice Thomas were not in the majority here? In other words, we have, you know, the conservative- we have a conservative-leaning Supreme Court, right? And Justice Thomas is in- is within the majority.
Ben Yelin: Right.
Dave Bittner: If it were one of the liberal justices who were facing all these allegations, would we be in a different situation them being in the minority?
Ben Yelin: I'm not entirely sure that we would.
Dave Bittner: Yes.
Ben Yelin: Part of it is about that collegiality and wanting to maintain good relationships on the court.
Dave Bittner: Yes.
Ben Yelin: I mean, through this, another allegation came up that Sotomayor- and the- the niche of these allegations are completely different but they have been thrown out there --
Dave Bittner: Right.
Ben Yelin: That Justice Sotomayor took a book advance from HarperCollins Publishing, and then did not recuse herself from a case in which HarperCollins was part of the litigation.
Dave Bittner: Yes.
Ben Yelin: And she probably should have recused herself --
Dave Bittner: Right.
Ben Yelin: Even though, you know, this is not the same at what- as what Justice Thomas has been alleged to do. So yes, I mean I don't necessarily think that if the shoe was on the other foot and this was a liberal justice, they would be run out of there. I mean, there's no mechanism to vote out a co-member of the Supreme Court.
Dave Bittner: Yes.
Ben Yelin: It would come in the form of upholding some type of criminal charge. And we've talked about the reasons why pursuing criminal charges against justices would be- it's beyond a heavy lift. I mean, it would be like lifting, you know, the largest boulder in the world. It's just-
Dave Bittner: Yes.
Ben Yelin: It's something that's very difficult to do.
Dave Bittner: I guess I'm wondering if- if you could have- you know, the opposite of that collegiality, if all of the Supreme Court justices decided amongst themselves, "We can no longer work with this member," would they have the ability to- again, calling up that quaint word, to "shame" another justice into a resignation?
Ben Yelin: Maybe. But if I'm Clarence Thomas, I mean, what's in it for me? Take a little bit of abuse from your colleagues --
Dave Bittner: Right.
Ben Yelin: Or actually, I shouldn't use the word "abuse"; take a little bit of criticism from your colleagues. You're still on the court for life. I mean, what are they going to do, TP your office; like --
Dave Bittner: [Laughs] Right.
Ben Yelin: You are a justice according to our system, and if you resign, Joe Biden is going to pick your replacement.
Dave Bittner: Yes.
Ben Yelin: And that is the worst possible outcome for Justice Thomas and all of his political allies.
Dave Bittner: Yes.
Ben Yelin: So there's just no reason- even if he did have some type of sense of shame, there's just no reason for that to ever happen.
Dave Bittner: Yes.
Ben Yelin: So it's just- it's unfortunate that these ethics rules are not self-executing. They are subject to the whims of our political system. And our political system is just ill-equipped to handle these types of alleged ethics violations.
Dave Bittner: Would you agree that ultimately this is corrosive to the whole system?
Ben Yelin: Absolutely it is. I mean, it could hurt the institutional reputation of the Supreme Court. And you hear whispers of that from the justices. I mean, Justice Alito just gave an interview- I believe it was to the Wall Street Journal where he complained about all of these attacks on the court as an institution. And you know, I think that would certainly affect the court. A lot of conservative scholars are arguing that that's all this is, it is a bunch of liberals because they don't like recent Supreme Court decisions are trying to attack the credibility of the Supreme Court for their own political purposes.
Dave Bittner: Hmm.
Ben Yelin: And there still is certainly some of that.
Dave Bittner: Yes.
Ben Yelin: The thing is he pretty clearly did do those things --
Dave Bittner: Right; right.
Ben Yelin: [Laughs] And so like even if there are political motivations, it doesn't change the fact that those actions were still taken, and those actions pretty clearly violate ethics, norms, if not laws.
Dave Bittner: Yes. And you see other- I mean I've seen comments from other like retired federal judges who said like, "I wouldn't let anyone buy me lunch, you know, much less fly me around on their private jet," [laughs] right?
Ben Yelin: Yes, I mean, I think there is this sense of invincibility when you're on the Supreme Court.
Dave Bittner: Yes.
Ben Yelin: Literally, what is somebody going to do about it? You can be concerned about the optics, you can be concerned about the reputation of the court, but the thing that you should most be concerned with is your ability to maintain power and your ability to maintain the ideological balance of the court.
Dave Bittner: Yes.
Ben Yelin: And I think that takes precedence over everything else in the mind of these justices. Now, I will say, nothing in the Constitution says that the Supreme Court is the final arbiter of what the law is. I mean, this concept of judicial review itself comes from a Supreme Court case, Marbury v. Madison, where the court granted itself the power to, quote, "Decide what the law is."
Dave Bittner: Hmm.
Ben Yelin: And the Supreme Court doesn't have an army. They don't have anybody that can physically enforce the decisions that they make. So in the long run, I mean, if the Supreme Court continues to take actions that cause people to view it skeptically and to lose trust, you could get a situation where the reputation is so damaged that a president or a congress might say and might get away with saying, "Why are we listening to these people? Let's not listen to them. No matter what they said in this decision, let's simply not abide by it.
Dave Bittner: Right.
Ben Yelin: They don't have an army. You know, what are they going to do about it?" I don't think we're in that position yet, certainly not with the current political leadership in this country. But that would be the one sort of accountability mechanism is --
Dave Bittner: That's a chilling notion.
Ben Yelin: It is a chilling notion. They don't have a bunch of guys with guns who are enforcing judicial decisions. I mean, it's the Executive Branch that controls the guys with the guns.
Dave Bittner: Right.
Ben Yelin: So I'm just throwing that out there. I mean, that would be a legitimate constitutional crisis. But I think that's foreseeable in the long run if we have actions from justices that sow this level of distrust.
Dave Bittner: Yes.
Ben Yelin: We're not there yet. We're not close to being there yet. We may not get there in our lifetimes. But I just think it's something to keep in mind.
Dave Bittner: Yes. Okay, well good discussion, and thank you for helping- certainly helping me understand it better. I hope our listeners have enjoyed that, too. I promise next show, we will get back on track. But I thought I didn't want to pass up this opportunity to maybe get some clarity and enjoy your expertise; so thank you for that.
Ben Yelin: Always happy to do it. Apologies to our listeners who don't like that particular cup of tea. We'll be back to our normal Earl Grey next week.
Dave Bittner: [Laughs] There you go.
Ben, I recently had the pleasure of speaking with Mark Ailsworth. He's from an organization called "Opaque Systems". And our conversation centers around the notion of data consent and privacy mechanisms. Here's my conversation with Mark Ailsworth.
Mark Ailsworth: For a little bit of context, I've been in advertising and marketing for about 20, 25 years. And most of that time I've spent consulting companies in the advertising technology space who want to talk to advertisers, generally that have, you know, large budgets that they want to use for advertising in multiple channels, you know, whether that's search, or video, or, you know, everything in between, the ad display marketplace and using their data appropriately, that kind of stuff. What I've seen over the last decade or so has been really a very interesting evolution about companies coming to grips with the reality that they just- they can't just do anything they want to with their customer data. And what this has sort of led to is really a pretty vibrant marketplace for companies that want to counsel them, that want to give them technology to kind of help them evolve from where they are. And also, it's been kind of pretty rich ground for companies that, frankly, are bad actors, you know, that want to take advantage of the fact that, you know, there's consumer data on every corner. And so I think that as companies evolve, particularly the larger companies- and I'm speaking mainly of brands, you know brands with deep pockets, large budgets, and so forth, you're seeing them finally, you know, take the consumer concerns that they're hearing and mix that with some of the technology that's available to them, and really evaluating whether it's time to take a leap forward. Most of the clients that I counsel today are interested in evaluating technology that is kind of out there right now, but that, you know, is something that they can build into over a two- to three-year plan. And, you know, I think it's a fine line, right, because most of these companies, these brands, particularly chief marketing officers, see companies like Sephora get tripped up in penalties that cause issues; you know, not just short-term issues but long-term since, you know, people now point to companies like Sephora and say, "Hey, you know, here's a company that ran afoul of some of these regulations."
Dave Bittner: You know, I remember there was that famous anecdote from kind of the madman days of advertising where, you know, one of the big brand people said, "You know, I know that half of my ad spend is wasted. The problem is I don't know which half." And it strikes me that, you know, targeted advertising and all of the data collection I think was kind of seen as a solution to that conundrum that, you know, now you could know, you could track, you could see which parts of your ad spend were being successful. And- and it seems to me that proved irresistible to a lot of companies. And it's taken a while for us to kind of contend with that. You know, I think- I see companies today saying that, "You know, we used to collect data on everything." Now they consider data to almost be radioactive. You know, you get too much of it in one place and maybe bad things could happen. I'm curious for your insights on that. As someone who's been in this space for as long as you have been, first of all is my perception of kind of the evolution of this at all accurate?
Mark Ailsworth: I think it is; and you know, I think if I were to go back in memory to when I first got my start as a media planner working at Ogilvy & Mather --
Dave Bittner: Hmm.
Mark Ailsworth: At the time, we were just kind of, you know, building magazine advertising media plans for the "Craftsman hand and power tools brand and, you know --
Dave Bittner: Right.
Mark Ailsworth: Great memories. But we were always sort of confounded with that- you know, "I know that half of my dollars are being wasted" challenge. You know, and our ad clients would say, "You know, how do we get a better handle on this? " And I think, you know, fast forward 20 years, we have been able to get a much better handle on it. Perhaps we've kind of created a monster that we're all sort of, you know, running from at the moment. But I see it as an evolution from, you know, better targeting, which is a really very sincere objective among media planners and buyers, you know, back in the '90s and early 2000s, and how do we leverage digital technologies to, you know, for example, improve the way we do targeting on a content basis, how do we improve, you know, creating experiences with impact and contextual targeting and opportunities there? And it's really come full circle from the- you know, better targeting has led to better measurement. But it's also created a feedback loop that is highly dependent on identifiable data. So whether it's --
Dave Bittner: Hmm.
Mark Ailsworth: Device IDs that can be, you know, tied back to actual person-level profiles, or it's something new, you know, technologies that are actually listening in and transcribing conversations to be able to pluck out contextual details to fuel ad targeting into the future. You know, we've kind of gotten a little bit crazy drunk on the capability of the technology. And I think it's time for, you know, more responsibility to catch up to that. You know, whether it's, you know, entities at the federal or state level that are going to ultimately enforce that kind of responsibility, or if it's going to be self-regulation, time will tell. But you know, I think that, you know, it's clearly time where we have to put a stop to some of the craziness that's going on.
Dave Bittner: Yes, I remember back in the '90s, I was one of those people who- I think I was pretty enthusiastic about the notion of targeted advertising, you know, that I would see the things I was interested in and I wouldn't have my time wasted by seeing ads for things I wasn't interested in. And this seemed like a good rational idea at the time. And then time passed and it felt like all of a sudden, ads were following me around, you know. [Laughter] I couldn't- there's no escaping. You know, I- I made the mistake of searching for one thing and wherever I looked, there that thing would be. It started to get a little creepy. And I think to- so you know, you- you- to your point that perhaps we've gone a little too far. Do you think we're going to be capable of clawing this back now that organizations have gotten so used to having as much information and power as they do? Have they grown too politically powerful to be able to claw this back?
Mark Ailsworth: Well, that's a great question. And I- I think there is irresponsibility that is borne from a lack of knowledge, and- which is, you know, really sort of classified legally as "negligence". [Laughs] And then there's --
Dave Bittner: Hmm. Hmm.
Mark Ailsworth: The- then there's the intentionality that comes from, you know, "What kinds of crazy things can we really do if we took the shackles off with this data?" And- and I think- I think really most of, you know, what's driving concern is the former, you know, just sort of, you know, very unintentional, almost accidental challenges with data today. And the- one of the reasons why I joined the company I presently work for is because- and "Opaque", by the way is, you know, kind of putting a stake in the ground in a section of computing called "confidential computing".
Dave Bittner: Hmm.
Mark Ailsworth: And there are broad applications of confidential computing principles that I believe will show up in ad-tech over the next couple of years. And you know, really to kind of sum that up is it's encryption technology that allows marketers, data providers, publishers to be able to share data back and forth for the benefit of better targeting, for the benefit of better measurement, and so forth, without actually allowing any of those negligent mistakes to actually happen. So if you encrypt all the data before you begin collaboration, there's absolutely zero risk that somebody could, you know, break in and steal the data, or that, you know, a file is going to show up on someone else's computer that wasn't intended to be there.
Dave Bittner: Can you blame folks for being a little cynical about this? I mean, what you described sounds great, but at the same time, there's a part of me that thinks to myself, you know, "Fool me once, shame on you. Fool me twice, shame on me?"
Mark Ailsworth: Absolutely. I mean, I get a- you know, I have that- that feeling myself at times when, you know, I'll be in conversation with somebody and I'm nearby, you know, say, a- you know, a living room device, you know, and I'm kind of curious how much information it's actually picking up; because I'll have a conversation about, you know, the Maldives, or some TV show that, you know, recently was on, and then all of a sudden, you know, you go back online, you go into your digital environments, and suddenly you realize like the ads are- have clearly leveraged that reality. And so the creep factor goes way, way up.
Dave Bittner: Yes.
Mark Ailsworth: But I- I definitely hear the cynicism with it. [Laughs] "Opaque" is about providing protection for that, you know, data; because companies are going to use it, they're going to leverage it in some way, and there is that fine line between providing a customer with- or a potential customer with relevance and relevant experiences, with irresponsible use of the data.
Dave Bittner: What would the ideal outcome look like to you? If- if we were able to come up with something where, you know, everybody could get at least part of what they are looking for here, is- is there something that you can envision where everybody could be happy?
Mark Ailsworth: Like an ad-tech utopia; [laughter] yes. You can dream, right? Yes, yes. Well, I think, you know, if I- if I really put my thinking cap on and, you know, thought into the future, is there a way for consumers to say, "I'd like to do some hand-raising that would allow me an experience where the stuff that I want to buy, the experiences that I want to have. Those are the things that sort of break through that- that- that sort of privacy membrane and end up at my desk. And would I be able-" as a consumer, I'm speaking as a consumer now, you know --
Dave Bittner: Hmm.
Mark Ailsworth: "Would I be able to trade a little bit more of the data that I create in my digital experiences in order to have them more tailored and more relevant?" I think that is, you know, certainly my vision of an ad-tech utopia where, you know, I can wake up on a Saturday morning and I can say, "I need a brand new suit, you know, for this upcoming conference." You know, I can issue my parameters in an interface somewhere, and then throughout the next week be, you know, passively exposed to all kinds of opportunities to buy that new suit.
Dave Bittner: What about the opportunity for folks to opt out? Is that even plausible these days?
Mark Ailsworth: You know, it's a legal requirement in many of the rules and regulations, particularly at a state level. "The right to be forgotten" is, you know, how it's referred to; but- but I think that's- that's a- a very important provision that a lot of companies don't get correct. And you know, we see it a lot in the data broker marketplace. You know, many of these companies get a bad rap because, you know, people want to say data brokers are the bogeyman. But at the end of the day, they're, you know, providing a- a very critical service. And if they are able to layer in consent, whether it's, you know, provided on a cookie basis, or a- kind of a universal personal basis like, "I don't want to be tracked at all," kind of consideration, I think, you know, they provide a- a huge opportunity for marketers to get smart- smarter about how they're targeting.
Dave Bittner: What's your advice for organizations then, in terms of, you know, how they approach the collection, and the storage, the use of the data that's available to them? Do you have any words of wisdom?
Mark Ailsworth: I think in terms of the- where to get started, it has a lot to do with, you know, your supplier ecosystem, beginning to understand what kinds of technologies form the stack that you're using to work on ad campaigns, to deliver ad campaigns, and so forth, certainly to measure ad campaigns. Secondly, it has a lot to do with managing consumer consent and being able to understand which of your current customers have, you know, requested either through a preference center or through some other means, you know, they would prefer not to be contacted; they would prefer, you know, not to have you deal with them as a- as a unit of data. And you've got to- those are two important building blocks. I think culturally as a company, you know, the- the marketer has to, you know, have very well-schooled, top-level legal folks that are able to keep apprised of, you know, what's going on from a- a state-level rules and regs perspective. And if they don't have that in-house, they should definitely get that, you know, externally, that's for sure. But you know, those are- those are sort of building blocks. And then the- the temptation to use data in a very quick and relatively flip manner, that's got to be avoided at all costs. And you know, kind of a short story; maybe five, six years ago dealing with a member of my sales team who let me know that, you know, someone at an ad agency had forwarded him a file which contained- curiously, the first column of that file contained 16-digit numbers that began with either a four or a five; the file size being about, you know, a million rows or so. And it's like the- you know, this data came from somewhere. You know, it wasn't manufactured at the ad agency. And you know, we- we know exactly what that was. And so the horror that we felt as, you know, the receiving company- you know, we're just trying to help these folks out, was pretty stark. And to the extent that that happens today- I mean, you've got- as a marketer, you've got to make sure that that, you know, kind of information- there's no opportunity for it to leave the building.
Dave Bittner: Ben, what do you think?
Ben Yelin: So I think it was a really interesting interview talking about the incentive for businesses to stay ahead of your competitors in terms of privacy protections, and that creates a positive incentive structure where part of a business's bottom line is dependent on their privacy mechanisms. And we're moving into an age where that sort of thing really matters. So I thought it was a really interesting interview.
Dave Bittner: Yes. All right, well again, our thanks to Mark Ailsworth from "Opaque Systems" for joining us. We do appreciate him taking the time.
That is our show. We want to thank all of you for listening. We'd love to know what you think of this podcast. You can email us at cyberwire@n2k. Your feedback helps us ensure we're delivering the information and insights that help keep you a step ahead in the rapidly changing world of cybersecurity. We're privileged that "N2K" and podcasts like "Caveat" are part of the daily intelligence routine of many of the most influential leaders and operators in the public and private sector, as well as the critical security teams supporting the "Fortune 500" and many of the world's preeminent intelligence and law enforcement agencies. N2K's Strategic Workforce Intelligence optimizes the value of your biggest investment: your people. We make you smarter about your team while making your team smarter. Learn more at n2k.com. Our senior producer is Jennifer Eiben. This show is edited by Elliot Peltzman. Our executive editor is Peter Kilpe, and I'm Dave Bittner.
Ben Yelin: I'm Ben Yelin.
Dave Bittner: Thanks for listening.
