State of the world on drug decriminalization

Personal possession of any drug decriminalized: Spain, Portugal, Italy, Czech Republic, Baltic states, some German states and Swiss cantons, Mexico.

Partial decriminalization/minimal criminal prosecution: England, Denmark, Slovakia, Latvia, Croatia, Poland, Austria, Germany, France, Netherlands (see chart in the Economist story linked below--it's interesting that the Netherlands has the highest percentage of prison outcomes on this list)

Unconstitutional to prosecute people for drug possession (any drug) per Supreme Court ruling: Argentina, Colombia

Marijuana decriminalized: 14 U.S. states (Alaska, California, Colorado, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, Oregon)

States with some localities that have decriminalized marijuana: Arkansas, Illinois, Kansas, Michigan, Missouri, Montana, Washington, Wisconsin

Considering marijuana legalization: California, Massachusetts, possibly Oregon

Considering decriminalization (any drug): Brazil, Ecuador

Source: The Economist, "Virtually legal," November 14, 2009; state decriminalization details from Wikipedia.

William Dembski would like to use copyright to quash criticism

Although when it comes to other people's works, William Dembski hasn't seen a problem with taking copyrighted material and using it wholesale, dubbing over a computer animated video from Harvard and XVIVO of the inner workings of a cell with his own intelligent design-based commentary, when it comes to his own work he has a different standard.

Mark Chu-Carroll points out at his Good Math, Bad Math blog that Dembski is talking about using threats of claimed copyright infringement to shut down criticism of a recent paper he published with Robert Marks. That criticism includes pointing out that sources cited by Dembski don't say what he says they do, and providing counterexamples to Dembski's mathematical claims. Rather than respond to the criticism, Dembski would rather shut it down.

There are just a few problems with that--first, the criticism may well be fair use. Although it does quote a great deal of the paper by Dembski and Marks, it does so for the purpose of putting commentary and criticism side-by-side with quotations from the paper. Second, papers published by the IEEE require that copyright be transferred to the IEEE, so Dembski lacks standing even if there were infringement.

Check out the RationalWiki critique of the Dembski and Marks paper.

Robert B. Laughlin on "The Crime of Reason"

The 2009 Hogan and Hartson Jurimetrics Lecture in honor of Lee Loevinger was given on the afternoon of November 5 at Arizona State University's Sandra Day O'Connor School of Law by Robert B. Laughlin. Laughlin, the Ann T. and Robert M. Bass Professor of Physics at Stanford University and winner of the 1998 Nobel Prize in Physics (along with Horst L. Stormer and Daniel C. Tsui), spoke about his recent book, The Crime of Reason.

He began with a one-sentence summary of his talk: "A consequence of entering the information age is probably that we're going to lose a human right that we all thought we had but never did ..." The sentence went on but I couldn't keep up with him in my notes to get it verbatim, and I am not sure I could identify precisely what his thesis was after hearing the entire talk and Q&A session. The main gist, though, was that he thinks that a consequence of allowing manufacturing to go away and being a society based on information is that "Knowledge is dear, therefore there has to be less of it--we must prevent others from knowing what we know, or you can't make a living from it." And, he said, "People who learn on their own are terrorists and thieves," which I think was intentional hyperbole. I think his talk was loaded with overgeneralizations, some of which he retracted or qualified during the Q&A.

It certainly doesn't follow from knowledge being valuable that there must be less of it. Unlike currency, knowledge isn't a fungible commodity, so different bits of knowledge have different value to different people. There are also different kinds of knowledge--know-how vs. knowledge that, and making the latter freely available doesn't necessarily degrade the value of the former, which is why it's possible to have a business model that gives away software for free but makes money from consulting services. Further, the more knowledge there is, the more valuable it is to know where to find the particular bits of knowledge that are useful for a given purpose, and the less it is possible for a single person to be an expert across many domains. An increasing amount of knowledge means there's increasing value in various kinds of specializations, and more opportunities for individuals to develop forms of expertise in niches that aren't already full of experts.

Laughlin said that he is talking about "the human rights issue of the 21st century," that "learnign some things on your own is stealing from people. What we think of as our rights are in conflict with the law, just as slavery is in conflict with human rights." He said that Jefferson was conflicted on this very issue, sayng on the one hand that "knowledge is like fire--divinely designed to be copyable like a lit taper--I can light yours with mine, which in no way diminishes my own." This is the non-rival quality of information, that one person copying information from another doesn't deprive the other of their use of it, though that certainly may have an impact on the commercial market for the first person to sell their information.

"On the other hand," said Laughlin, "economics involves gambling. [Jefferson] favored legalized gambling. Making a living involves bluff and not sharing knowledge." He said that our intellectual property laws derive from English laws that people on the continent "thought ... were outrageous--charging people to know things."

He put up a photo of a fortune from a fortune cookie, that said "The only good is knowledge, and the only evil ignorance." He said this is what you might tell kids in school to get them to study, but there's something not right about it. He then put up a drawing of Dr. Frankenstein and his monster (Laughlin drew most of the slides himself). He said, we're all familiar with the Frankenstein myth. "The problem with open knowledge is that some of it is dangerous. In the U.S. some of it is off-limits, you can't use it in business or even talk about it. It's not what you do with it that's exclusive, but that you have it at all."

His example was atomic bomb secrets and the Atomic Energy Act of 1954, which makes it a federal felony to reveal "nuclear data" to the public, which has been defined very broadly in the courts. It includes numbers and principles of physics.

Laughlin returned to his fortune cookie example, and said there's another problem. He put up a drawing of a poker game. "If I peeked at one guy's cards and told everyone else, the poker game would stop. It involves bluffing, and open access to knowledge stops the game." He suggested that this is what happened last year with the world financial sector--that the "poker game in Wall Street stopped, everyone got afraid to bet, and the government handled it by giving out more chips and saying keep playing, which succeeded." I agree that this was a case where knowledge--specifically knowledge of the growing amounts of "toxic waste" in major world banks--caused things to freeze up, it wasn't the knowledge that was the ultimate cause, it was the fact that banks engaged in incredibly risky behavior that they shouldn't have. More knowledge earlier--and better oversight and regulation--could have prevented the problem.

Laughlin said "Economics is about bluff and secrecy, and open knowledge breaks it." I don't think I agree--what makes markets function is that price serves as a public signal about knowledge. There's always going to be local knowledge that isn't shared, not necessarily because of bluff and secrecy, but simply due to the limits of human capacities and the dynamics of social transactions. While trading on private knowledge can result in huge profits, trading the private knowledge itself can be classified as insider trading and is illegal. (Though perhaps it shouldn't be, since insider trading has the potential for making price signals more accurate more quickly to the public.)

Laughlin showed a painting of the death of Socrates (by Jacques-Louis David, not Laughlin this time), and said that in high school, you study Plato, Aristotle, and Descartes, and learn that knowledge is good. But, "as you get older, you learn there's a class system in knowledge." Plato etc. is classified as good, but working class technical knowledge, like how to build a motor, is not, he claimed. He went on to say, "If you think about it, that's exactly backwards." I'm not sure anyone is ever taught that technical knowledge is not valuable, especially these days, where computer skills seem to be nearly ubiquitous--and I disagree with both extremes. From my personal experience, I think some of my abstract thinking skills that I learned from studying philosophy have been among the most valuable skills I've used in both industry and academia, relevant to both theoretical and practical applications.

Laughlin said that "engines are complicated, and those who would teach you about it don't want to be clear about it. It's sequestered by those who own it, because it's valuable. The stuff we give away in schools isn't valuable, that's why we give it away." In the Q&A, a questioner observed that he can easily obtain all sorts of detailed information about how engines work, and that what makes it difficult to understand is the quantity and detail. Laughlin responded that sometimes the best way to hide things is to put them in plain sight (the Poe "purloined letter" point), as needles in a haystack. But I think that's a rather pat answer to something that is contradictory to his claim--the information really is freely available and easy to find, but the limiting factor is that it takes time to learn the relevant parts to have a full understanding. The limit isn't the availability of the knowledge or that some of it is somehow hidden. I'd also challenge his claim that the knowledge provided in schools is "given away." It's still being paid for, even if it's free to the student, and much of what's being paid for is the know-how of the educator, not just the knowledge-that of the specific facts, as well as special kinds of knowledge-that--the broader frameworks into which individual facts fit.

Laughlin went on to say, "You're going to have to pay to know the valuable information. Technical knowledge will disappear and become unavailable. The stuff you need to make a living is going away." He gave as examples defense-related technologies, computers, and genetics. He said that "people in the university sector are facing more and more intense moral criticism" for sharing information. "How life works--would we want that information to get out? We might want to burn those books. The 20th century was the age of physics, [some of which was] so dangerous we burned the books. It's not in the public domain. The 21st century is the age of biology. We're in the end game of the same thing. In genetics--e.g., how disease organisms work. The genetic structure of Ebola or polio." Here, Laughlin seems to be just wrong. The gene sequences of Ebola and polio have apparently been published (Sanchez, A., et al. (1993) "Sequence analysis of the Ebola virus genome: organization, genetic elements and comparison with the genome of Marburg virus," Virus Research 29, 215-240 and Stanway, G., et al. (1983) "The nucleotide sequence of poliovirus type 3 leon 12 a1b: comparison with poliovirus type 1," Nucleic Acids Res. 11(16), 5629-5643). (I don't claim to be knowledgeable about viruses, in the former case I am relying on the statement that "Sanchez et al (1993) has published the sequence of the complete genome of Ebola virus" from John Crowley and Ted Crusberg, "Ebola and Marburg Virus: Genomic Structure, Comparative and Molecular Biology."; in the latter case it may not be publication of the complete genome but is at least part.)

Laughlin talked about the famous issue of The Progressive magazine which featured an article by Howard Moreland titled "How H-Bombs Work." He showed the cover of the magazine, which read, "The H-Bomb Secret--How we got it--why we're telling it." Laughlin said that the DoJ enjoined the journal from publishing the article and took the issue into secret hearings. The argument was that it was a threat to national security and a violation of the Atomic Energy Act. The judge said that the rule against prior restraint doesn't apply because this is so dangerous that "no jurist in their right mind would put free speech above safety." Laughlin said, "Most people think the Bill of Rights protects you, but this case shows that it doesn't." After the judge forbid publication, it was leaked to a couple of "newspapers on the west coast," after which the DoJ dropped the case and the article was published. According to Laughlin, this was strategy, that he suspects they didn't prosecute the case because the outcome would have been to find the AEA unconstitutional. By dropping the case it kept the AEA as a potential weapon in future cases. He said there have only been two cases of the criminal provisions of the AEA prosecuted in the last 50 years, but it is "inconceivable that it was only violated twice. The country handles its unconstitutionality by not prosecuting." The U.S., he said, is like a weird hybrid of Athens and Sparta, favoring both being open and being war-like and secretive. These two positions have never been reconciled, so we live in an unstable situation that favors both.

He also discussed the case of Wen Ho Lee, a scientist from Taiwan who worked at Los Alamos National Laboratory, who took home items that were classified as "PARD" (protect as restricted data), even though everyone is trained repeatedly that you "Don't take PARD home." When he was caught, Laughlin said, he said "I didn't know it was wrong" and "I thought they were going to fire me, so I took something home to sell." The latter sounds like an admission of guilt. He was put into solitary confinement for a year (actually 9 months) and then the case of 50 counts of AEA violations was dropped. Laughlin characterized this as "extralegal punishment," and said "we abolish due process with respect to nuclear data." (Wen Ho Lee won a $1.5 million settlement from the U.S. government in 2006 before the Supreme Court could hear his case. Somehow, this doesn't seem to me to be a very effective deterrent.)

Laughlin said that we see a tradeoff between risk and benefit, not an absolute danger. The risk of buildings being blown up is low enough to allow diesel fuel and fertilizer to be legal. Bombs from ammonium nitrate and diesel fuel are very easy to make, and our protection isn't hiding technical knowledge, but that people just don't do it. But nuclear weapons are so much more dangerous that the technical details are counted as absolutely dangerous, no amount of benefit could possibly be enough. He said that he's writing a book about energy and "the possible nuclear renaissance unfolding" (as a result of need for non-carbon-emitting energy sources). He says the U.S. and Germany are both struggling with this legal morass around nuclear information. (Is the unavailability of nuclear knowledge really the main or even a significant issue about nuclear plant construction in the United States? General Electric (GE Energy) builds nuclear plants in other countries.)

Laughlin said that long pointy knives could be dangerous, and there's a movement in England to ban them. Everybody deals with technical issue of knowledge and where to draw lines. (Is it really feasible to ban knives, and does such a ban constitute a ban on knowledge? How hard is it to make a knife?)

At this point he moved on to biology, and showed a photograph of a fruit fly with legs for antennae. He said, "so maybe antennae are related to legs, and a switch in development determines which you get. The control machinery is way too complicated to understand right now." (Really?) "What if this was done with a dog, with legs instead of ears. Would the person who did that go to Stockholm? No, they'd probably lose their lab and be vilified. In the life sciences there are boundaries like we see in nuclear--things we shouldn't know." (I doubt that there is a switch that turns dog ears into legs, and this doesn't strike me as plausibly being described as a boundary on knowledge, but rather an ethical boundary on action.) He said, "There are so many things researchers would like to try, but can't, because funders are afraid." Again, I suspect that most of these cases are ethical boundaries about actions rather than knowledge, though of course there are cases where unethical actions might be required to gain certain sorts of knowledge.

He turned to stem cells. He said that the federal government effectively put a 10-year moratorium on stem cell research for ethical reasons. Again, these were putatively ethical reasons regarding treatment of embryos, but the ban was on federally funded research rather than any research at all. It certainly stifled research, but didn't eliminate it.

Next he discussed the "Millennium Digital Copyright Act" (sic). He said that "people who know computers laugh at the absurdity" of claiming that computer programs aren't formulas and are patentable. He said that if he writes a program that "has functionality or purpose similar to someone else's my writing it is a violation of the law." Perhaps in a very narrow case where there's patent protection, yes, but certainly not in general. If he was arguing that computer software patents are a bad idea, I'd agree. He said "Imagine if I reverse-engineered the latest Windows and then published the source code. It would be a violation of law." Yes, in that particular example, but there are lots of cases of legitimate reverse engineering, especially in the information security field. The people who come up with the signatures for anti-virus and intrusion detection and prevention do this routinely, and in some cases have actually released their own patches to Microsoft vulnerabilities because Microsoft was taking too long to do it themselves.

He said of Microsoft Word and PDF formats that they "are constantly morphing" because "if you can understand it you can steal it." But there are legal open source and competing proprietary software solutions that understand both of the formats in question--Open Office, Apple's Pages and Preview, Foxit Reader, etc. Laughlin said, "Intentional bypassing of encryption is a violation of the DMCA." Only if that encryption is circumvention of "a technological measure that effectively controls access to" copyrighted material and the circumvention is not done for the purposes of security research, which has a big exception carved out in the law. Arguably, breakable encryption doesn't "effectively control access," though the law has certainly been used to prosecute people who broke really poor excuses for encryption.

Laughlin put up a slide of the iconic smiley face, and said it has been patented by Unisys. "If you use it a lot, you'll be sued by Unisys." I'm not sure how you could patent an image, and while there are smiley face trademarks that have been used as a revenue source, it's by a company called SmileyWorld, not Unisys.

He returned to biology again, to talk briefly about gene patenting, which he says "galls biologists" but has been upheld by the courts. (Though perhaps not for many years longer, depending on how the Myriad Genetics case turns out.) Natural laws and discoveries aren't supposed to be patentable, so it's an implication of these court decisions that genes "aren't natural laws, but something else." The argument is that isolating them makes them into something different than what they are when they're part of an organism, which somehow constitutes an invention. I think that's a bad argument that could only justify patenting the isolation process, not the sequence.

Laughlin showed a slide of two photos, the cloned dog Snuppy and its mother on the left, and a Microsoft Word Professional box on the right. He said that Snuppy was cloned when he was in Korea, and that most Americans are "unhappy about puppy clones" because they fear the possibility of human clones. I thought he was going to say that he had purchased the Microsoft Word Professional box pictured in Korea at the same time, and that it was counterfeit, copied software (which was prevalent in Korea in past decades, if not still), but he had an entirely different point to make. He said, about the software, "The thing that's illegal is not cloning it. If I give you an altered version, I've tampered with something I'm not supposed to. There's a dichotomy between digital knowledge in living things and what you make, and they're different [in how we treat them?]. But they're manifestly not different. Our legal system['s rules] about protecting these things are therefore confused and mixed up." I think his argument and distinction was rather confused, and he didn't go on to use it in anything he said subsequently. It seems to me that the rules are pretty much on a par between the two cases--copying Microsoft Word Professional and giving it to other people would itself be copyright infringement; transforming it might or might not be a crime depending on what you did. If you turned it into a piece of malware and distributed that, it could be a crime. But if you sufficiently transformed it into something useful that was no longer recognizable as Microsoft Word Professional, that might well be fair use of the copyrighted software. In any case in between, I suspect the only legally actionable offense would be copyright infringement, in which case the wrongdoing is the copying, not the tampering.

He put up a slide of Lady Justice dressed in a clown suit, and said that "When you talk to young people about legal constraints on what they can do, they get angry, like you're getting angry at this image of Lady Law in a clown suit. She's not a law but an image, a logos. ... [It's the] root of our way of relating to each other. When you say logos is a clown, you've besmirched something very fundamental about who you want to be. ... Legal constraints on knowledge is part of the price we've paid for not making things anymore." (Not sure what to say about this.)

He returned to his earlier allusion to slavery. He said that was "a conflict between Judeo-Christian ethics and what you had to do to make a living. It got shakier and shakier until violence erupted. War was the only solution. I don't think that will happen in this case. [The] bigger picture is the same kind of tension. ... Once you make Descartes a joke, then you ask, why stay?" He put up a slide of a drawing of an astronaut on the moon, with the earth in the distance. "Why not go to the moon? What would drive a person off this planet? You'd have to be a lunatic to leave." (I thought he was going to make a moon-luna joke, but he didn't, unless that was it.) "Maybe intellectual freedom might be that thing. It's happened before, when people came to America." He went on to say that some brought their own religious baggage with them to America. Finally, he said that when he presents that moon example to graduate students, he always has many who say "Send me, I want to go."

And that's how his talk ended. I was rather disappointed--it seemed rather disjointed and rambling, and made lots of tendentious claims--it wasn't at all what I expected from a Nobel prizewinner.

The first question in the Q&A was one very much like I would have asked, about how he explains the free and open source software movement. Laughlin's answer was that he was personally a Linux user and has been since 1997, but that students starting software companies are "paranoid about having stuff stolen," and "free things, even in software, are potentially pernicious," and that he pays a price for using open source in that it takes more work to maintain it and he's constantly having to upgrade to deal with things like format changes in PDF and Word. There is certainly such a tradeoff for some open source software, but some of it is just as easy to maintain as commercial software, and there are distributions of Linux that are coming closer to the ease of use of Windows. And of course Mac OS X, based on an open source, FreeBSD-derived operating system, is probably easier for most people to use than Windows.

I think there was a lot of potentially interesting and provocative material in his talk, but it just wasn't formulated into a coherent and persuasive argument. If anyone has read his book, is it more tightly argued?

Hitler orders DMCA notices for "Downfall" parody videos

Brad Templeton, chairman of the board of the Electronic Frontier Foundation, has produced his own "Downfall" parody video, making fun of the fact that Constantin Films has issued DMCA notices to remove all of the "Downfall" parody videos from YouTube:



UPDATE (April 20, 2010): This video has been taken down from YouTube after a complaint from Constantin Films, which Brad Templeton has protested. The video is now available at Vimeo.

Personalized medicine research forum

Yesterday afternoon I attended a Personalized Medicine research forum at ASU's Biodesign Institute, sponsored by ASU's Office of the Vice President for Research and Economic Affairs (OVPREA) and hosted by Dr. Joshua LaBaer of ASU's Virginia G. Piper Center for Personalized Diagnostics.

The forum's speakers covered both the promise and problems and issues raised by the developing field of personalized medicine, which involves the use of molecular and genetic information in medical diagnosis and treatment. A few highlights:

Introduction (Dr. LaBaer)
Dr. LaBaer pointed out that these new diagnostics cost a great deal of money to develop, but they have the potential for cost savings, for instance, if they can be used to identify forms of disease that will not benefit from very expensive treatments. He gave the example of Genomic Health, which has developed a test for early stage breast cancer to determine if women will or won't benefit from adjuvant therapy (chemotherapy to prevent recurrence). A test that costs even a few thousand dollars to perform is something insurers will be willing to pay for if it has the potential of saving tens of thousands of dollars of expense on chemotherapy that will not provide any benefits. On the other hand, the mere promise of early detection of susceptibility for disease has the potential for overtreatment and an increase in healthcare expenses. This problem was discussed by a number of speakers, with particular bad potential consequences in the legal realm.

Personalized Diagnostics (Dr. LaBaer)
Dr. LaBaer talked briefly about his own lab's work in biomarker discovery and cell-based studies. In biomarker discovery, his lab is working in functional proteomics, using cloned copies of genes to produce proteins and building tests that allow examination of thousands of proteins at a time. His lab, formerly at Harvard and now at ASU, has 10,000 copies of human genes and 50,000 copies of genes from other animals, which are made available to other researchers. (There's more information at the DNASU website.)

The goal of biomarker discovery is to greatly improve the ability to find markers of human health using the human immune system, by identifying antigens that are markers for disease. The immune system generates antibodies not just in response to infectious disease, but against other proteins when we have cancer. Tumor antigens get into the bloodstream, though they may only appear in 10-15% of those who have the disease. Rather than testing one protein at a time, as is done with ELISA assays, LaBaer's lab is building protein microarrays with thousands of proteins, tested at once with blood serum. Unlike old array technology that purifies proteins and puts them into spots on arrays, where the proteins may degrade and lose function, their method involves printing the DNA that encodes the gene on the arrays, then capturing proteins in situ on the array at the time the experimental test is performed.

LaBaer's lab's cell-based work involves tryng to identify how proteins behave in cells when they are altered, in order to find out which pathways contribute to consequences such as drug resistance in women with breast cancer, as occurs with Tamoxifen. If you can find the genes that make cancer cells resistant, you can then knock them out and cause those cells to die. They tested 500 human kinases (5/7 of the total) and found 30 enzymes that consistently make the cancer cells resistant. Women with a high level of those enzymes who take Tamoxifen have quicker relapses of cancer.

Complex Adaptive Systems Initiative (George Poste)
George Poste, former director of ASU's Biodesign Institute and former Chief Scientist and Technology Officer at SmithKline Beecham, talked about the need to replace thinking about costs in the healthcare debate with thinking about value. The value proposition of personalized medicine is early detection, rational therapeutics where treatment is made based on the right subtype of disease being treated, and integrative care management where there's better monitoring of the efficacy of treatments. He said that the first benefits will come from targeted therapy and this will then overlap with individualized therapy, as we learn how our genome affects such things as drug interactions. He was critical of companies like 23andme, which he called "celebrity spit" companies, which do little more than give people a needless sense of anxiety about predispositions to disease that they currently can do nothing about except eat right and exercise.

Poste also had criticisms for physicians, pointing out that it takes 15-20 years for new innovations to become routinely adopted, and many physicians don't use treatment algorithms at all. Oncologists, he said, make money from distributing treatments empirically (that is, figuring out whether it's effective by using the treatment on the entire population with the disease) rather than screening first, even where tests exist to determine who the treatment is likely to work on. He said that $604 million/year in health care costs could be saved by the use of a single colon cancer screening test, and not proceeding with treatment where it isn't going to work. Today, where 12-40% of people are aided by treatments that cost tens of thousands of dollars, 60-88% of that spending is being wasted. With the aging population, he said that Humana will in the next several years see all profits disappear, spent on expensive treatments of people who don't respond to them.

Pharmaceutical companies are beginning to do diagnostic test development alongside drug development now, and insurers will push for these tests to be done. Poste suggested that we will see the emergence of "no cure, no pay" systems, and noted that Johnson & Johnson has a drug that has been introduced for use in the UK under the condition that the company will reimburse the national health care system for every case in which it is used but doesn't work. Merck's Januvia drug for type II diabetes similarly offers some kind of discount based on performance.

Poste pointed out another area for potential cost savings, related to drug safety. With some 3.1 billion prescriptions made per year, there are 1.5-3 million people hospitalized from drug interactions, 100,000 deaths, and $30 billion in healthcare costs, though he noted this latter figure includes caregiver error and patient noncompliance.

He bemoaned the "delusion of zero risk propagated by lawyers, legislatures, and the media," and pointed out that the FDA is in a no-win situation. (This is a topic that's been recently covered in two of my classes, my core program seminar and my law, science, and technology class with Prof. Gary Marchant. If the FDA allows unsafe drugs to be sold, then it comes under fire for not requiring sufficient evidence of safety. If, on the other hand, it delays the sale of effective drugs, it comes under fire for causing preventable deaths. The latter occurred during the 1980s with AIDS activists protesting against being denied treatments, described in books such as Randy Shilts' And the Band Played On and Steven Epstein's Impure Science. This led to PDUFA, the Prescription Drug User Fee Act of 1992, under which drug companies started funding FDA drug reviewer positions through application fees to help speed approval. That has been blamed for cases of the former, with the weight-loss drugs Pondimin and Redux being approved despite evidence that they caused heart problems. That story is told in the PBS Frontline episode "Dangerous Prescription" from November 2003.)

Poste pointed out that there have been 450,000 papers published which have claimed to find disease biomarkers, of which the FDA has approved only five. But he didn't blame the FDA for delay in this case, because this consists of a mass of bad studies which he characterized as "wasteful small studies" with insufficient statistical power. In the Q&A session, he argued that NIH needs to start dictating clear and strong standards for disease research, and that it has abrogated its role in doing good science. He said that "not a single national cancer study with sufficient statistical power" has been done in the last 20 years; instead research is fragmented across academic silos. He called for "go[ing] beyond R01 grant mentality" and building the large, expensive studies with 2,500 cases and 2,500 controls that need to be done.

He also raised challenges about the "very complex statistical analysis required" in order to do "multiplex tests" of the sort Dr. LaBaer is trying to develop. And he pointed out the challenge that personalized medicine presents for clinicians, in that "only about six medical schools have embraced molecular medicine and engineering-based medicine." Those that don't use these new techniques as they become available, he said, "will open themselves up to malpractice suits."

Science and Policy (David Guston)
David Guston, co-director of ASU's Consortium for Science, Policy, and Outcomes (CSPO) and director of ASU's Center for Nanotechnology in Society (CNS) spoke about "cognate challenges in social science" and how CNS has been trying to develop a notion of "anticipatory governance of emerging technology" and devising ways to build such a capacity into university research labs as well as broader society, to allow making policy decisions in advance of the emergence of the technology in society at large. He described three capacities of anticipatory governance--foresight, public engagement, and integration, and described how these have been used at ASU.

Foresight: Rather than looking at future consequences as a linear extrapolation, CNS has used scenario development and a process of structured discussions based on those scenarios with scientists, potential users, and other potential stakeholders, about social and technical events that may be subsequent consequences of the scenarios. This method has been tested with Stephen Johnston's "Doc-in-a-Box" project at ASU's Center for Innovations in Medicine, which Guston said led to some changes in the conceptualization of the technology.

Public Engagement: The "scope and inclusion of public values is important for success," Guston said, and gave as an example the "national citizens technology forum" that CNS conducted in six locations to look at speculative scenarios about nanotechnology used for human enhancement. These were essentially very large focus groups whose participants engaged in "informed deliberation" over the course of a weekend, after having read a 61-page background document and spending the prior month engaging in Internet-based interaction.

Integration: Guston described the "embedding of social scientists in science and engineering labs," to develop productive relationships that help lab scientists identify broader implications of their work while it's still in the lab rather than after it's introduced to the general public.

Guston suggested that there might be other ways of implementing "anticipatory governance" in the form of legislative requirements or standards and priorities set by program officers at funding organizations, but that the lab setting is "the best point of leverage at a university" and can set an example for others to follow.

Clinical Perspective (Larry Miller)
Larry Miller, Research Director at the Mayo Clinic in Scottsdale, spoke about the healthcare provider's approach to personalized medicine. He said that Mayo is committed to individualized care, and that now that we are beginning to understand the power of human variation, these new developments have "to be transformational for providers or they won't survive." He suggested that the future of medicine will move from reactive and probabilistic to more deterministic selection of treatments based on diagnoses. He emphasized the need for education for doctors, and pointed out that "standards of care will become outmoded," which is "disruptive to law and [insurance] coverage." He said that Mayo sees a big challenge of complexity, where what was one disease (breast cancer) is now at least ten different subdiseases. Doctors need to make their treatment decisions on the detail, to predict how the disease will behave, and choose the best drugs possible based on safety, effectiveness, and cost-effectiveness.

Miller pointed out that this requires interdisciplinary work, and said that Mayo in Arizona has a huge advantage with its relationship with ASU, where so much of this work is going on. While Mayo has scientific expertise in a number of areas, these new technologies draw on expertise from beyond medicine, in particular informatics and computational resources needed to build an effective decision support system that will become essential for doctors to use in a clinical setting.

He talked about Mayo's program for individualized medicine, which involves not just incorporating new developments in diagnostics and therapeutics, but in regenerative medicine for repair, renewal, and regeneration of deficits.

Mayo has had electronic medical records for the last 15 years, on 6 million people, but these are kept in multiple incompatible systems and were not built with research in mind. They hope to improve their systems so that it can be used in an iterative process to learn more about the efficacy of therapies, and so therapies can be combined with "companion diagnostics for monitoring progression, recurrences, and response to therapy."

Like Poste, he raised objections to the companies that market gene sequencing directly to individuals, which just "scare people inappropriately," but identified learning about disease predispositions as an important part of these developing technologies. We need to develop methods of risk analysis that can help people correctly understand what these predispositions mean.

He sees the future as having three waves--the first wave will be the new diagnostics, the second wave improvements in clinical practice and therapy, and the third wave embedding the new technology into the healthcare system, with significant changes to policy and education.

Health Informatics (Diana Petitti)
Diana Petitti, former CDC epidemiologist and former director of research for Kaiser Permanente, where she built a 20-year longitudinal data repository for its 35 million members, spoke about the importance of health informatics. (She is now a professor in ASU's Department of Biomedical Informatics.) Dr. Petitti raised concerns about how in the United States we are "loathe to deny anyone anything" in terms of medical treatments, but in fact "we do deny lots of people lots of things." She worried that personalized medicine has the potential to lead to greater maldistributions of healthcare, with the "haves" getting more and better treatment and the "have nots" getting less and worse treatment, unless we plan carefully. She advocated evidence-based medicine and assessing value of treatments to be deployed to the general population.

Dr. Petitti brought up as an example the fact that oral contraceptives result in a 2x-10x increase in the likelihood of a venous thrombotic event, and that the Factor V Leiden gene is predictive of susceptibility to that consequence, but no screening is done for it. Why not? Because the test only predicts 5% of those who will have the event, it's a very expensive test, and we don't have good alternatives for oral contraceptives. These kinds of issues, she suggested, will recur with multiplex diagnostics.

She explicitly worried that "we have dramatically oversold preventive medicine" and doesn't think it's likely that savings from prevention will allow coverage for more extensive treatment. She advocated that everyone in the field see the film "Gattaca," and stated that ASU provides "unique opportunities to train people to think about these issues" using "quantitative reasoning and probabilistic thought." She concluded by saying that we need to "work towards rational delivery of healthcare that optimizes public health."

Law (Gary Marchant)
Prof. Gary Marchant of the Sandra Day O'Connor School of Law at ASU, who has a Ph.D. in genetics and is the executive director of ASU's Center for the Study of Law, Science, and Innovation (formerly Center for the Study of Law, Science, and Technology), spoke about legal issues. First he listed the many programs available at ASU in the area, beginning with the genetics and law program that has been here for 10 years and was the reason he first came to ASU. Others include a new personalized medicine and law program at the Center for Law, Science, and Innovation, a planned center on ethical and policy issues regarding personalized medicine in conjunction with the Biodesign Institute, CSPO, TGEN, Mayo, etc., and research clusters at the law school on breast cancer, warfarin, and personalized medicine. He also gave a plug for an upcoming conference March 8-9, 2010 at the Arizona Biltmore sponsored by AAAS and Mayo, which also has a great deal of corporate support.

Prof. Marchant indicated that liability is the biggest issue regarding personalized medicine, and he sees doctors as "sitting ducks," facing huge risks. If a doctor prescribes a treatment without doing a corresponding new diagnostic test, and that has complications, he can be sued. If he does the diagnostic test, it shows a very low likelihood of a disease recurrence, and advises against the treatment, and then the patient ends up being one of the rare people who has the recurrence, the doctor can be sued. The doctor is really in a damned-if-you-do, damned-if-you-don't situation. The insurers and pharmaceutical companies are at less risk, since they have already developed enormous resources for dealing with the lawsuits that are a regular part of their existence. In a short discussion after the forum, I asked Prof. Marchant if doctors would be liable if they performed a diagnostic test, found that it showed a low likelihood of recurrence or benefit for a treatment, and then recommended the treatment anyway, knowing the insurance company would refuse to pay for it--would that shift the liability to the insurance company? He thought it might, though it would be unethical for a doctor to recommend treatment that he didn't actually think was necessary, and there's still the potential for liability if the insurance company pays for the treatment and the treatment itself produces complications. It seems that this problem really needs a legislative or regulatory fix of some sort, so that doctors have some limitation of liability in cases where they have made a recommendation that everyone would agree was the right course of action but a low-probability negative consequence occurs anyway.

Prof. Marchant observed that the liability issues are particularly problematic in states like Arizona, where each side in the suit is limited to a single expert witness. He said there is "no clear guidance or defense for doctors," and the use of clinical guidelines in a defense has not been effective in court, in part because doctors don't use them.

Q&A
A few additional points of interest from the Q&A sessions (some of which has already been combined into the above summaries):

Dr. LaBaer pointed out that most markers for diseases don't seem to have any role in the cause of the disease, such as CA25 and ovarian cancer. So his lab is looking not just for biomarkers, but for those that will affect clinical decisions. 4 out of 5 positive results in a mammography for breast cancer are actually cases where there is nothing wrong and the woman will not end up getting breast cancer, but some procedure ends up being undergone, with no value. So he wants to find a companion test that can tell which are the 4 that don't need further treatment.

George Poste pointed out that baby boomers are going to bankrupt the system as they reach the end of their lives, and about 70% of the $2.3 trillion in healthcare spending is spent in the last 2-3 years of life, with many treatments costing $60K-$100K per treatment cycle on drugs that add 2-3 weeks of life. The UK's National Institute of Clinical Excellence has been making what are, in effect, rationing decisions by turning down all of the new cancer drugs that have come along because they have such great cost and such minimal benefit. He asked, "how much money could you save with a 90% accurate test of who's going to die no matter what you do?"

Prof. Marchant said more about legal issues involving specimen repositories, including a case at ASU. The developer of the prostate-specific antigen (PSA) test, William Catalona, had a specimen repository with 30,000 tissue samples at Washington University, that he wished to take with him to Northwestern University when he took a new position there. He began asking patients for permission to move the samples, and 6,000 gave permission. But Washington University sued him, claiming that the samples were property of the university. Patients pointed out that their consent agreement gave them the right to withdraw their samples from future research and they had only consented to research on prostate cancer, but federal judge Stephen Limbaugh ruled in favor of the university and that patients had no property rights in their tissue. This ruling has reduced incentives for patients to consent to give specimens for research.

A current lawsuit against ASU by the Havasupai Indian tribe involves blood samples that were given for a study of diabetes by researchers who are no longer at ASU. They wanted to take the samples with them, and samples had also been given to other researchers for use in studies of schizophrenia and the historical origins of the tribe, even though informed consent was apparently only given for the diabetes research. Although this case was originally dismissed, it was recently reinstated.

Other cases involve patent protection of genetic information. About 25% of the human genome is patented, including Myriad Genetics' patent on the BRCA1 and BRCA2 genes which are predictive of breast cancer and can only legally be tested for by Myriad. This case is likely to go to the U.S. Supreme Court regarding the issue of whether human genes can be patented. The courts so far have ruled that a gene in isolation outside of the human body is patentable, even though (in my opinion) this seems at odds with the requirement that patents be limited to inventions, not discoveries. There has already been a legislative limitation of patent protection for surgical procedures for the clinical context, so that doctors can't be sued for patent infringement for performing a surgery that saves someone's life; it's possible that a similar limitation will be applied on gene patents in a clinical context, if they don't get overturned completely by the courts.

These gene patents create a further problem for the multiplex tests, since they inevitably include many patented genes. Prof. Marchant observed that someone from Affymetrix spoke at an ASU seminar and stood up and said they were building their GeneChip DNA microarrays for testing for the presence of thousands of genes, and were ignoring gene patents. They were subsequently sued. Dr. LaBaer stated that his lab is doing the same thing with cloned genes--they're cloning everything and giving them away, without regard to patents.

The session was videotaped and will be made available to the public online. I will add a link to this posting when it becomes available.

If you've read this far, you may also be interested in my summary of Dr. Fintan Steele's talk at this year's The Amazing Meeting 7, titled "Personalized Medicine or Personalized Mysticism?", in my summary of the Science-Based Medicine conference that took place just prior to TAM7, and in my short summary of Dr. Martin Pera's talk on regenerative medicine and embryonic stem cells at the Atheist Alliance International convention that took place earlier this month.

Mexico decriminalizes personal possession of drugs

After at least two prior attempts in 2006 and 2008, Mexico has decriminalized the personal possession of small amounts of marijuana, cocaine, heroin, LSD, and methamphetamine in order to unclog the courts and focus only on heavy trafficking. This will be an interesting experiment in decriminalization that will no doubt also provoke drug tourism to Mexico.

It appears that the new law is similar to the 2006 proposal, which was less radical than it may have originally appeared--it allowed local police as well as federal police to pursue drug crimes (a strengthening of the prosecution of drug crime) and allowed diversion to treatment for possession of small amounts of drugs rather than criminal prosecution. The new law doesn't allow criminal prosecution for personal possession, and mandates treatment diversion on a third offense. So it's not legalization, it's decriminalization.

New Markey/Eshoo net neutrality bill

Ed Markey (D-MA) and Anna Eshoo (D-CA) last week introduced HR 3458, The Internet Freedom Preservation Act of 2009 (PDF). This bill is much better than past bills in that it doesn't contain any prohibition on classes of service or preferential treatment of packets based on protocol or application, as opposed to based on source, destination, or owner. It still, however, gives the FCC new powers to regulate the Internet and puts the onus of developing specific regulations on the FCC. And it looks like the language will give the FCC the power to regulate Apple's iTunes store with respect to iPhone Internet-related applications, as well as to force the opening up of wireless walled gardens. The bill leaves open to the FCC the ability to treat "private transmission capacity services" as exempt from the requirements of the bill, so long as they don't impact Internet capacity for the end user. It also provides disclosure requirements for ISPs to report on any methods they use for network and capacity management that may impact Internet traffic.

Anthony Watts abuses DMCA to suppress criticism

Anthony Watts, a radio meteorologist who has collected evidence of badly sited weather stations to argue that climate change data is incorrect, was the subject of Peter Sinclair's latest Climate Change Crock of the Week video. Rather than attempt to refute the criticism (which would be difficult--both "good" and "bad" weather stations show the same long-term temperature trends), Watts resorted to the Digital Millennium Copyright Act to get Sinclair's video taken offline. Watts doesn't hold copyright on television footage he appears in on Glenn Beck's show, which has been used in fair use excerpts, anyway.

But the video is back, and you can see it for yourself here.



(Via Pharyngula.)

UPDATE: As Rich Trott points out, Watts has replied here. He says that the basis of his copyright complaint is that the video shows the cover of and photographs and graphs from his book, but doesn't say why he thinks the video exceeds fair use. He says that the NCDC's response to his data (a) used out-of-date data and (b) used a process guaranteed to have two similar graphs, by taking a weighted average of the good and bad station reports even in the line reported as just the good stations.

This is not exactly correct--there is a correction for urban heating that does use nearby station data, but even if you do not perform the urban heating adjustment step, you STILL get two graphs with essentially the same trend. (This was indirectly linked to in my previous post on this subject, through my link to the Daily Doubt blog of frequent commenter Hume's Ghost.)

UPDATE (August 10, 2009): Climate Progress points out the inanity of Watts' defense of his DMCA abuse, observing that he's suggesting copyright infringement on the basis of a few graphs and images shown from his book, which is given away for free in PDF form on the Internet. So not only was Sinclair well within fair use based on the amount and substantiality of material used, there's no chance that Sinclair's video could possibly have had any adverse effect on the commercial market for Watts' book, since there isn't one.

Arizona's homeopathic medical board

Dr. Kimball Atwood's presentation at the Science-based Medicine conference included some observations about the overwhelming evidence against homeopathy being a valid or even remotely plausible treatment for anything. During one of the Q&A sessions at that conference, someone made an observation that Arizona is a terrible state for all kinds of quackery, and even has a State Board of Homeopathic Medical Examiners.

The homeopathy board was created in 1982 by a law written and lobbied for by Dr. Harvey Bigelson, a homeopath who was indicted in 1992 by a federal grand jury on 63 counts of Medicare fraud, 44 counts of mail fraud, and eight counts of obstruction of justice. He plea-bargained his way down to three counts and five years of probation, and lost both his medical and homeopathic licenses, making him one of only two homeopaths to lose their licenses by action of the board. He subsequently opened a cancer clinic in Mexico to continue his quackery.

There was an opportunity for Arizona to dispose of its Homeopathy Board in 2006, when the law that created it would have expired under its sunset provisions, but our legislature foolishly renewed it despite overwhelming evidence that it not only gives an unmerited credence to nonsense, but doesn't even do anything to keep criminals from practicing homeopathy. An October 9, 2005 story in the Arizona Republic pointed out several cases of convicted felons from other states permitted to obtain homeopathic licenses and practice in Arizona. It also pointed out that complaints brought against homeopathy board members for malpractice and sexual harassment were simply dismissed:

The homeopathic board has dismissed at least five complaints against its own members over the past five years, including one in which a patient suffered kidney failure after treatment, as well as an alleged incidence of sexual harassment.

The complaint involving kidney failure was lodged against board member Dr. Annemarie Welch in March 2003. The woman who lodged the complaint fell ill after seeking treatment from Welch for an infected blister on her toe. Welch treated the infection with "vitamin C therapy," according to board meeting minutes.

After the woman suffered "acute renal failure," she filed a complaint against Welch with the Arizona Medical Board, which also licenses Welch.

The homeopathic board argued for primary jurisdiction of the Arizona Medical Board complaint against Welch, arguing that she had primarily used homeopathic procedures. Once the homeopathic board had control of the case, it dismissed the complaint.

According to meeting minutes, board members did not believe there was a correlation between the vitamin C therapy and the patient's kidney failure. They also noted that the patient didn't comply with Welch's treatment recommendations. Welch pointed out the Medical Board also found no wrongdoing in its investigation.

That's crazy--the judgment shouldn't have been whether the vitamin C therapy caused the problem, but whether the LACK of a real treatment of the infection caused by the quack treating her with vitamin C caused the kidney failure. The story goes on:

A Phoenix woman lodged a sexual harassment complaint against board member [Dr. Gary] Gordon in May 2001. The woman said he had spontaneously kissed her on the mouth after she stopped to speak with him at his booth at a medical trade show.

The homeopathic board dismissed the woman's complaint because she did not show up to the May 2001 meeting at which her complaint was scheduled to be heard. She apparently had a family emergency and wrote to the board that she could not make it. Board members questioned Gordon about the allegation, which he denied. The woman did show up at the next board meeting and asked to refile her complaint, but board members voted 2-2 against it.

Nice way to uphold ethical standards, there, homeopathy board. And their permissive behavior with regard to conduct appears to extend beyond members of the board to the licensed homeopaths they're supposed to be regulating:

Troubled physicians licensed by the board include Dr. Charles Crosby, who obtained his Arizona homeopathic license in May 2004 despite revealing to the board that he had been ordered to have counseling for a "perceived loss of social inhibition" in his home state of Florida. It later became known that Crosby had been accused of fondling patients and of having a breast fetish. A report on the case in Florida said Crosby had developed "a special technique of manipulating women's breasts to treat pain in other areas of their body."

The suspension of Crosby's license in Florida triggered a inquiry before the Arizona homeopathic board in July. At the meeting, Schwengel, the board president, said he did not find any specific examples that showed Crosby had acted unprofessionally, according to meeting minutes.

Other members expressed concern about Crosby's behavior, but they did not suspend his license, instead giving him until November to undergo an independent mental evaluation to determine if he is competent to practice here.

Board member Gordon defended this action on the grounds that in the U.S. we assume that doctors in trouble who have "paid their debt to society" have been rehabilitated, and that taking away a license is a severe punishment:

"What we look at is, do we want to try and resurrect a troubled physician and keep them under control, or do we want to throw them away and let them dig ditches?" Gordon said. "Once you take a doctor's license away, they don't really have a particular skill that they're qualified to do."

And what are homeopaths qualified to do in Arizona, besides dispense bottles of overpriced water falsely claimed to be medicine? The board's website gives the answer:

The scope of the license includes the practice of acupuncture, chelation, homeopathy, minor surgery, neuromuscular integration, nutrition, orthomolecular therapy and pharmaceutical medicine (see A.R.S. § 32-2901(22)).

The one that jumps out at me the most is "minor surgery." Yikes!

Here's a list of approved continuing education courses for homeopaths in Arizona:

Learn Oxidative Therapy AHIMA/Westbrook 1/22/09 7 hours
Ethics & Boundaries Dr. Jodi Decker Flexible 3 hours
Professional Ethics Dr. Jodi Decker Flexible 4 hours
Lyme-Autism Connection LIA Foundation/CHOICE 6/25/ - 6/28/09 12 hours

The middle two courses on ethics would seem to me, if taught honestly and accurately, to completely undermine the enterprise. Homeopathy is a bogus practice, and I'd think using bogus practices as medical treatment should be near the top of the list of unethical things that health practitioners should avoid. The other two courses sound like the promotion of quackery; oxidative therapy has been a quack treatment for cancer, and the latter is about a link between two conditions, each of which is already surrounded by rampant nonsense, that is being promoted by the "Lyme-Induced Autism Foundation" in advance of supporting research or data. There was some research being done at Columbia University's Lyme and Tick-Borne Diseases Research Center a few years ago by Dr. Brian Fallon about a possible misdiagnosis of some cases of Lyme disease as autism, but that apparently has not demonstrated any connection and there is nothing about autism currently on their website. About.com compares Fallon's description of his research to a press release from the L.I.A. Foundation:

Fallon:

In our work with children who have developed Lyme disease, we have encountered a few children who had developed autistic-like disorders which were eventually also diagnosed as having Lyme Disease due to other concomitant symptoms; when the child received intensive antibiotic therapy, the autistic syndromes dramatically improved and, in some cases, resolved. We hypothesize: a) that a small subpopulation of children with autism in Lyme endemic areas may have an antibiotic responsive disorder due to a spirochete-induced autistic syndrome...

L.I.A. Foundation press release:

New reports indicate up to 90% of children with autism are infected with Lyme disease. With autism at a staggering 1 out of 166 children, parents are questioning this new finding.

Can you tell which organization is using scientific methodology? The L.I.A. Foundation's list of its own activities puts "awareness" and "education" ahead of "research," which is putting the cart before the horse. (Of course, if they did research as a priority, that could cause problems for their chosen acronym--the L.I.A.R. Foundation probably wouldn't get as many donations.)

It should be noted that Welch and Gordon are not on the state homeopathy board today. But next time we have the opportunity, I suggest we Arizonans get rid of this board completely.

UPDATE (February 9, 2011): I recently came across this April 10, 2008 New Times story that shows how Arizona's homeopathic board certification has effectively been an invitation to doctors who've lost their licenses in other states to come to Arizona and become M.D.h.'s.

NPR ombudsman on torture

About a week and a half ago, I heard NPR's ombudsman, Alicia Shepherd, defending NPR's policy on refusing to identify waterboarding as torture. Her argument was that NPR had a journalistic responsibility not to take sides on any issue, and that to identify waterboarding as torture was to take a side. She actually wrote that "I believe that it is not the role of journalists to take sides or to characterize things."

I think this is not only ridiculous, but an abdication of journalistic responsibility in favor of a bogus view of reporting "objectivity" by using only "he said, she said" descriptions, to an extreme.

Here's what I posted to the NPR blog on July 2:

There is no reasonable debate about whether waterboarding is torture. Waterboarding has been legally determined to be criminal torture by U.S. courts in 1947, when Yukio Asano was sentenced to fifteen years hard labor for it (among other war crimes). Other Japanese war criminals, such as Kenji Dohihara, Seishiro Itagaki, Heitaro Kimura, Akira Muto, and Hideki Tojo, were tried by the International Military Tribunal for the Far East for engaging in torture during WWII, including waterboarding, and several were executed for it.

U.S. soldiers who undergo waterboarding as part of SERE training receive that training in order to understand what torture is.

It is bad journalism to defend "there are two sides to every issue" as a form of phony objectivity. Sometimes there are more than two sides of merit, and sometimes there is only one (and there is *always* some nut who will take issue with any well-established claim). In this case, there is no reasonable argument by which waterboarding is not torture. It makes no more sense to call it "what some people refer to as torture" than it does to insert similar qualifications on the front of every noun used in a sentence on NPR.

Another commenter replied to point out that waterboarding has been legally torture for longer than that in the U.S.

I was glad to hear Adam Savage of Mythbusters, at TAM7, answer the question "what has been the biggest media failure of skepticism lately" by saying that the biggest failure has been the NPR ombudsman's statement that calling waterboarding torture is taking sides and they have to be "balanced."

Prestons win in court

The judge has ruled in Preston v. Hallman, and again it goes in favor of the Prestons. As expected, he ruled that the city's decision to revoke their permit was "arbitrary and capricious" since it did not meet any existing standard for denial.

The judge ruled that Tempe must re-issue their permit and allow their business to open. The city has 30 days to file an appeal.

I haven't heard how the judge ruled on the other issue, which I predicted might go the city's way, but it doesn't matter for the overall outcome--it was enough for the Prestons to prevail on either of the two issues, and they won on the one that they had a very strong case for.

The Goldwater Institute has issued a press release about the victory, and the Arizona Republic has run a story on it.

(Previously.)

Arizona state senator Sylvia Allen thinks the earth is 6000 years old

Arizona State Senator Sylvia Allen (R-Snowflake), arguing in favor of a bill to allow uranium mining north of the Grand Canyon, casually says that the earth is 6,000 years old, and therefore a little uranium mining isn't going to hurt anything.

Snowflake, the home of the logging team that included claimed UFO abductee Travis Walton, also has a large Mormon population, and Mormons have power in the Arizona legislature far beyond their numbers.

The ignorant Senator Allen should step on over to the Talk.Origins Archive and read the Age of the Earth FAQ. (UPDATE: For a more readable introduction, how about Chris Turney's Bones, Rocks and Stars: The Science of When Things Happened, or G. Brent Dalrymple's The Age of the Earth.)



(Via the Bad Astronomy blog.)

Tempe tattoo parlor case

In late June 2007, Tom and Elizabeth Preston obtained a use permit from the City of Tempe to open a tattoo studio. The Prestons signed a five-year lease and invested $30,000 in the property, but then a local neighborhood group appealed to the city, arguing that this would have a negative impact on the neighborhood, lowering property values and increasing crime. (Other businesses in the same area include a liquor store, bail bondsman, lingerie shop, check cashing store, and an adult video store.)

Tempe Mayor Hallman and the City Council voted unanimously to override the zoning officials who had approved the permit on the basis that there was a "perception" that the business would contribute to neighborhood deterioriation.

The Goldwater Institute's Scharf-Norton Center for Constitutional Litigation has taken the case on behalf of the Prestons, with former Institute for Justice litigator Clint Bolick as the primary attorney for the plaintiffs.

In a previous hearing in May, the court ruled in favor of the Prestons and remanded the case back to the City Council for reconsideration. The city then asked for a new hearing on the grounds that it had found some new relevant case law, and that hearing occurred at 11 a.m. today before Maricopa County Superior Court Judge Robert Oberbillig.

The judge first stated, that the city's motion for reconsideration in today's hearing was appropriate and that the hearing would take place, setting aside the plaintiff's objections to that. He then focused most of the hearing on two issues. First, what was the appropriate level of burden of proof for the appeal to the city which revoked the permit? And second, did the city provide "credible evidence" that the Prestons' business would lead to neighborhood deterioration?

Burden of Proof
The burden of proof argument centered around two parts of the City of Tempe's Zoning and Development Code. These were Section 1-305 (D), which says:

Hearing Officer – Appeals. Any person aggrieved by a decision of the Hearing Officer under this Code may file an appeal to the Board of Adjustment, or the Redevelopment Review Commission as applicable, within fourteen (14) calendar days after the Hearing Officer has rendered its decision, in accordance with Part 6, Chapter 8, Appeals. Appeals of the decisions of the Hearing Officer shall be heard de novo by the Board of Adjustment, or the Redevelopment Review Commission as applicable.

and Section 6-802(C), which says:

In the event that a decision made under this Code is appealed, the appeal does not invalidate the approval. The holder of the approval may proceed with a use or development at their own risk.

The plaintiffs argued that this second section means that the permit was granted and created a vested right for the Prestons to use the property, and that in the event of an appeal the burden of proof was on the city to demonstrate a reason to revoke, rather than a completely new ("de novo") process that was as though they were applying for the permit for the first time. The city, by contrast, put emphasis on the first passage, arguing that the appeal hearing was "de novo" and had no burden of proof on the city. The city argued that the "at their own risk" phrase in the second section indicated that the permit was, in fact, conditional and did not give the Prestons any vested rights.

The plaintiffs were previously victorious on this issue on the grounds that the second section did entail a vested right for the plaintiffs. This time around, however, the city argued that case law from outside of Arizona demonstrated that there was no vested right. They agreed that the city made a botch of this case from a customer service perspective, in that the Prestons were not told that their permit was conditional and could be appealed, and they were in fact sent a letter by the city telling them to go ahead and start doing work on the property to meet other requirements of the city, such as the addition of windows.

The judge seemed amenable to the city's argument, and questioned Clint Bolick over this thoroughly. He noted that the Arizona cases presented by the plaintiffs on this issue were not in the context of a pending appeal, though Bolick disagreed with the judge, pointing to a 1939 case from Iowa City, Iowa, Crow vs. Board of Adjustment. The city responded by noting that a 1981 Iowa Supreme Court case, Grandview Baptist Church v. Davenport, argued the opposite--that a church couldn't apply a vested right during a pending appeal to keep a storage shed it had built.

The judge then pointed out that there were two arguments of equitable estoppel here--one is whether the city's actions in granting the permit shifted the burden of proof to the city and in favor of the plaintiffs for the subsequent appeal, and second regarding the potential for damages to be awarded to the plaintiff. He set the second issue aside, and then asked to continue the hearing to the question of the city's evidence of negative impact by the Prestons' business, which would become relevant if he ruled in favor of the city on this first issue.

The Credible Evidence Issue
On this issue, the city got a thorough grilling by the judge. The relevant context here was the city's use permit test criteria, part (c) of which supplies a ground for denying a use permit if a proposed use will cause:

Contribution to the deterioration of the neighborhood or to the downgrading of property values which is in conflict with the goals, objectives or policies for rehabilitation, redevelopment or conservation as set forth in the City's adopted plans, or General plan.

The hearing officer for the initial permit application ruled that this was not the case, but the City Council and Mayor overturned the permit on these grounds based on complaints from neighbors.

The judge made it clear that the city had the burden of providing not just evidence, but credible evidence that this would be the case. He noted that in the city's filings, it expressed concern that the tattoo studio is a "de facto adult business" which would contribute to a clustering of adult businesses (even though there is no clustering provision in statute) and thereby would cause a deleterious effect on the neighborhood.

The city's attorneys then noted that Tempe does now have an anti-clustering ordinance, which the judge seemed to suggest was not good for the city's case, but rather evidence that they didn't have the necessary ordinances in place at the time of their decision. He asked, "why even discuss a clustering effect" at this hearing?

The city responded that it was an issue raised by the neighbors, to which the judge responded that the city should have responded as the hearing officer already did on that issue--sorry, we don't have an ordinance on that, but we need another reason, such as contravention of the city's general plan or some other plan. But the hearing officer approved the use permit, and noted that it was in furtherance of, not in detriment to, the city's general plan.

The city's attorneys noted that the city didn't object to the business in general, and that Mayor Hallman had said that he hoped the Prestons would keep their business in Tempe.

At this point, the judge noted that the Prestons have had a successful tattoo business in Mesa for 15 years with no complaints, and asked, "So on what basis was this rejected?"

The city attorneys noted that nobody from the city has objected to tattoos, but it was complaints by third parties, neighbors of the business who "want some other type of business--a Starbuck's, or a drugstore," to stop the clustering. They made reference to a study from New York City (perhaps referenced by the complaining neighbors?) arguing that clusters of adult businesses contribute to neighborhood deterioriation and crime. They admitted that a tattoo parlor is not an adult business under city code, and again, that there was no anti-clustering ordinance at the time. (I find it interesting that both of the city's examples of preferred types of businesses are in the business of drug distribution. The space, in fact, remains vacant to this day, demonstrating that the real choice is between the Preston's business or no business at all.)

The judge then asked, "Where's the credible evidence? A New York study that's apples and oranges? A real estate person who steps up to the microphone [and offers objections]? If there's no credible evidence, [then] this [decision] could be arbitrary and capricious. If we have an anti-clustering statute, the permit process should incorporate that." He offered a few specific objections to the NYC study and its applicability here, and noted that in order to have substantive due process in the permitting procedure, the applicant needs to know up front that there are rules objecting to clustering. He stated that the city seemed, in effect, to have a secret unadopted city plan that requires third party intervention to enforce requirements that are not in the city's plans or ordinances. And he noted that the city had already overruled the arguments of the third parties in its initial granting of the permit.

At this point, the judge asked Bolick if he had anything to add, and he asked permission to give another argument on the previous point, arguing that it was the city's actions that caused the defendants to engage in detrimental reliance upon their representations. The judge told Bolick that "you're still missing the first step in the analysis--that it's a person who knows the law. It must be reasonable detrimental reliance." This exchange suggests to me that the judge will rule in favor of the city on the prior point. Bolick responded that there is a factual aspect to the meaning of the statute, and that the Prestons would never have made the investment if not specifically told to go ahead and do so by the city and by a hearing officer.

Bolick then made a few remarks on the credible evidence issue. He pointed out that the City Council and the City Attorney said in deposition that the city's standard must be satisfied, but the city also admitted that the business is in furtherance of the general plan. The judge said that the city is now focusing on a prior point, that the business is "detrimental to the public." Bolick said this is a post hoc change of the city's legal position and asked how a permit applicant would know. He stated that "there's not only no credible evidence for the city's position, there's no evidence." And he also noted that "there are constitutional dimensions to 'arbitrary and capricious'--there has to be a standard."

Immunity for Damages
At this point, the judge said there were a couple other issues to discuss. If the city didn't meet its standard and so has to issue the use permit, there's an immunity for damages issue. The city has argued for immunity to damages on two grounds. First, absolute immunity on the grounds that its action was a legislative action, as per an opinion from the city attorney. Second, immunity on the grounds that the "at your own risk" clause was sufficient warning to the plaintiffs. The city added a third argument, noting that while they want the case to be decided based on the current record, they have other documents that are relevant to a decision about damages. Specifically, they argued that there are emails between Preston and his contractors which appear to make the contracts conditional upon the granting of a permit and so neither Preston nor the city should be liable for that. Bolick agreed that there should be a separate factual review on damages, but that plaintiffs should win damages if they either win on the burden of proof issue or if they win on the "arbitrary and capricious" issue and it's an administrative act.

The judge observed that the City Council has a legislative function, a judicial function, and an administrative function, and that if this was an administrative function, this was not a matter of determining fundamental government policy. Bolick cited the Reynolds case (?) and another to the effect that issuing a building permit is an administrative act. The city attorneys objected that Reynolds didn't involve a de novo appeal process, and that the city was going forward on the assumption that it was a legislative process, as argued in a position from the city attorney on which the City Council relied. The judge asked, "is it clearly not judicial?" The city said that perhaps it might be, if the judge ruled that there couldn't be a de novo review in this case (i.e., if they lost on the burden of proof claim) and were thereby acting in an appellate capacity.

After a few more exchanges, the judge indicated that he would deliberate and be back shortly to issue a ruling from the bench. A few of us gathered outside the courtroom to talk, including Bolick, the plaintiffs, a few other supporters of the plaintiffs, and a reporter from the Arizona Republic. At around 1 p.m., the bailiff summoned us back into the courtroom, to inform us that we were all dismissed and the judge would be issuing a written ruling, which is apparently what he did at the May hearing as well.

My understanding is that the plaintiffs win the case if they win on either of the above two grounds, the burden of proof issue or the credible evidence/"arbitrary and capricious" issue, and the case will not go back to the City Council this time. Of course, it may be appealed by the losing side. My best guess is that the city will prevail on the first issue and the plaintiffs on the second.

CBS Channel 5 was also filming the hearing, but you heard the details here first.

I'll update this post with information about the decision after it happens.

The Goldwater Institute's website has more on the Preston case.

(The photo of the Maricopa County Court House in downtown Phoenix, above, is a Creative Commons licensed photo (attribution, noncommercial, no derivative works) from the flickr photostream of Steve Minor, user lumierefl. Click on the photo to get to that photo in his photostream.)

UPDATE (July 9, 2009): The Prestons won their case, again, on the grounds that the city's decision to revoke their permit was "arbitrary and capricious." I haven't heard how the judge ruled on the other issue. The city has 30 days to appeal the decision; otherwise they must issue the permit and allow the business to open.

Bad military botnet proposal still being pushed

I just came across an April 2009 BBC story which shows that USAF Col. Williamson is still promoting his idea of building a U.S. military botnet to engage in offensive denial of service attacks against foreign targets on the Internet.

But I haven't seen him respond to any of the criticisms of his bad idea, including in the online forum of the journal where he published it.

I think a more effective idea would be to adjust the computer crime statutes to provide immunity to prosecution (or at the very least an affirmative defense to criminal charges) for private responses to attacks that meet certain criteria, so that ISPs, security researchers, and competent individuals could engage in offensive actions against compromised machines to disable malicious software or take them off the network. Perhaps some kind of licensing or bonding would do the trick, and ISPs could put an exception into their acceptable use policies for entities that met the criteria.

That's also my partial response to this more recent BBC story about "what rules apply in cyber-wars" which led me to find the Williamson article.

Technology tidbits

From the Technology Quarterly report in the June 6-12, 2009 issue of The Economist, a few articles of interest:

• Gasoline/compressed-air hybrid vehicles may prove more cost-effective than gas-electric hybrids.
• Bigelow Aerospace wins challenge against export control regulations that would have required non-U.S. passengers on space flights to be treated as recipients of technology transfers, which would have required an onerous approval and monitoring process. (Not reported in the story is that Robert Bigelow is now funding MUFON to pay UFO researchers.)
• Delay-tolerant network protocol (DTN), developed with assistance from Vint Cerf, has been tested to transfer data between NASA's EPOXI probe and earth-based stations, which will lead to an interplanetary internet that includes the International Space Station.
• The heart of the cockroach has been used as the model for a new type of low-cost artificial heart for humans.
• Researchers are devising a laser-based defense mechanism to shoot down mosquitoes rather than missiles. Funded by the Gates Foundation, the prototype cost is only about $100. We'd like one.
  

Sen. Jon Kyl's flip-flop on judicial filibustering

On May 19, 2005, Sen. Jon Kyl (R-AZ) spoke out against filibustering judicial nominations of President George W. Bush, and said he was willing to give up the tool permanently, and not block future Democratic presidential nominees:

"Republicans seek to right a wrong that has undermined 214 years of tradition - wise, carefully thought-out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations but were never used to that end is an important indicator of what is right, and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore....

My friends argue that Republicans may want to filibuster a future Democratic President's nominees. To that I say, I don't think so, and even if true, I'm willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future. I know some insist that we will someday want to block Democrat judges by filibuster. But I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned."

But now he suggests he's willing to lead the filibustering against any Obama nominee who uses empathy:

The Senate's No. 2 Republican on Sunday refused to rule out an effort to block confirmation if President Barack Obama seeks a Supreme Court justice who decides cases based on "emotions or feelings or preconceived ideas."

Sen. Jon Kyl made clear he would use a filibuster, a procedural move to delay a final vote on a bill or nominee, if Obama follows through on his pledge to nominate someone who takes into account human suffering and employs empathy from the bench.

(Via Dispatches from the Culture Wars.)

UPDATE (May 28, 2009): Kyl continues to expand upon his hypocrisy on this issue:

Kyl, when Bush was in office, about the lack of necessity for long hearings on judicial nominees:

One might wonder why we would need more than just a couple of days of debate (the average of recent nominees is two to three days), especially since nothing new has been said for weeks. But, if the public has noticed anything during this process it is that senators value their right of unlimited debate.

Kyl on the need for long hearings on judicial nominees, now that Obama is in office:

"To that end, when John Roberts was first nominated on July 19, 2005, and subsequently re-nominated to be Chief Justice on September 6, 2005, Senate Republicans afforded the minority ample time to adequately examine his background and qualifications before he received a confirmation vote 73 days later.

"When Samuel Alito was first nominated on October 31, 2005, the minority was afforded 93 days before he received a confirmation vote on January 31, 2006.

"I would expect that Senate Democrats will afford the minority the same courtesy as we move forward with this process."

There's a bit of further irony here in that the delay for Alito's hearing, originally scheduled for December 2005 but moved to January 2006, was caused by Republican Senators Kyl and Mike DeWine (R-OH), because they needed the time for campaigning for re-election in their home districts.