The Supreme Court heard argument last week in two cases seeking to overturn the Chevron doctrine, which requires courts to defer to administrative agencies in interpreting the statutes that the agencies administer. The cases have nothing to do with cybersecurity, but Adam Hickey thinks they're almost certain to have a big impact on cybersecurity policy.  That's because, based on the argument, Chevron is going to take a beating from the Court, if it survives at all. With Chevron weakened, it will be much tougher to repurpose existing law to deal with new regulatory problems. Given how little serious cybersecurity legislation has been passed in recent years, any new regulation is bound to require some stretching of existing law – and thus to be easier to challenge.

Case in point: Even without a new look at Chevron, the EPA was balked in court when it tried to stretch its authorities to justify cybersecurity rules for water companies. Now, Kurt Sanger tells us, EPA, FBI, and CISA have combined to release cybersecurity guidance for the water sector.  The guidance may be all that can be done under current law, but it's pretty generic; and there's no reason to think that underfunded water companies will actually take it to heart. Given Iran's demonstrated interest in causing aggravation and maybe worse in that sector, Congress is almost certainly going to feel pressure to act on the problem.

CISA's emergency cybersecurity directives to federal agencies are coming fast and furious. That's a bad sign, since they are a library of flaws that are already being exploited. As Adam points out, they also reveal just how quickly patches are being turned into attacks and deployed. I wonder how sustainable the current patch system will prove to be. (In fact, it's already unsustainable; we just don't have anything to replace it.)

Here's some good news. The Russians have been surprisingly bad at turning cybersecurity flaws into serious infrastructure problems even for a wartime enemy like Ukraine. Additional information about Russia's attack on Ukraine's largest telecom provider suggests that the cost to get infrastructure back was lower than expected and mostly consisted of spending to win the victim telco's customers back.

Companies are starting to report breaches under the new, tougher SEC rule, Adam tells us, and Microsoft is out of the gate early.  Russian hackers stole the company's corporate emails, Microsoft says, but it insists the breach wasn't material. I predict we'll see a lot of such hair splitting as companies adjust to the rule. If so, Adam predicts, we're going to be drowning in 8ks.

Kurt notes recent FBI and CISA warnings about the national security threat posed by Chinese drones. The hard question is what's new in those warnings. A question about whether antitrust authorities might want to investigate DJI's enormous market share leads to another about the FTC's utter lack of interest in getting guidance from the executive branch when its jurisdiction overlaps with a national security concern. Case in point:  After listing a boatload of "sensitive location data" that should not be sold, the FTC had nothing to say about the personal data of people serving on US military bases.  Nothing "sensitive" there, the FTC seems to think, at least not compared to homeless shelters and migrant camps. I'm gobsmacked, which naturally leads to a new Cybertoon.

Michael Ellis takes us through Apple's embarrassing failure to protect users of its Airdrop feature. It comes on top of Apple's decision to live down to the worst Big Tech caricature in handling the complaints of app developers about its app store. Michael explains how Apple managed to beat 9 out of 10 claims in Epic's lawsuit and still end up looking like the sorest of losers.

Adam is encouraged by a sign of maturity on the part of OpenAI, which has trimmed its overbroad rules on not assisting military projects.

Michael takes us inside a new US surveillance court just for Europeans, and we end up worrying about the risk that the Obama administration will come back to impose new law on the Biden team.

Adam explains yet another European Court of Justice decision on GDPR.  This time it's a European government in the dock.  The result is the same, though: national security is pushed into a corner, and the data protection bureaucracy takes center stage.

Finally, we end with a sad disclosure. While bad cyber news will continue, cyber-enabled day drinking will not. Uber has announced the end of Drizly, its liquor delivery app.

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The FTC has begun a new campaign against data brokers who are collecting and selling "sensitive" location information. Cybertoonz asks the obvious question.

Just a quick post to note some upcoming talks and presentations, some of which may be of interest to readers.

• This Thursday, January 25, I will be a panelist at the Pacific Legal Foundation conference, Doctrinal Crossroads: Major Questions, Nondelegation & Chevron Deference, at Harvard Law School. The program is co-sponsored by the Harvard Journal of Law & Public Policy which will be publishing the papers from the conference. Other speakers include Gary Lawson, Michael Rappaport, Jed Shugerman, Alison Somin, and Paul Ray. Former White House counsel Don McGahn is giving a lunchtime keynote, and panel moderators include Judges Neomi Rao, Greg Katsas, Michael Park, and Paul Matey. Registration info is here.
• Tuesday, January 30 I will be a panelist on the Solomon Center for Health Law and Policy program, Loper and Chevron in the Court: The Fate of Deference to Administrative and Scientific Expertise at Yale Law School. Other panelists are Blake Emerson, Andrew Pincus, and Reshma Ramachandran. The program is co-sponsored by American Constitution Society at Yale Law School and Yale Federalist Society.
• Monday, February 19, I'll be speaking on The Next Big Abortion Rights Case (FDA v. Alliance for Hippocratic Medicine) at a Zaremski Law Medicine Forum with my colleague Prof. Jessie Hill here at the CWRU School of Law.
• Friday, February 23, I will be presenting at the Ohio State Law Journal's 2024 Symposium, What Next? The Rise, Fall, and Future of American Environmental Law. I do not yet know who the other speakers are, but I'll update this post when I have that information.
• Saturday, April 13, I will be presenting at the Drake Constitutional Law Center's 2024 Constitutional Law Symposium, "Climate Change, the Environment, and Constitutions." Other speakers will include Jerry Anderson, Michael Gerrard, and Erin Daly.
• Friday, May 10, I will speak on a panel on marijuana legalization at the 2024 Eleventh Circuit Judicial Conference in Point Clear, Alabama. My co-panelists will be Jonathan Robbins and Jesse Panuccio.

I have not been deep in the weeds of the arguments about Section 3 of the Fourteenth Amendment, unlike my constitutional law casebook coauthors: Mike Paulsen, Michael McConnell, and Will Baude. But it is surprising to me that the former President of the United States seems to be putting most of his legal eggs in one basket—the argument that the President is not an "officer of the United States." This is the lead argument in the brief available here. And for reasons I cannot understand—as a matter of legal principle—this argument is now being advanced by various conservative legal luminaries.

Three observations:

1. The textual arguments advanced in the brief are weak, but the fundamental problem is a lack of sophistication about the interplay between semantics and context. Here is an example from pages 23-24: "every time this phrase appears in the Appointments Clause, the Commissions Clause, and the Impeachment Clause it excludes the President and refers only to appointed and commissioned officers rather than elected officials."

But it is not "this phrase" that excludes. In the Appointments Clause and the Commissions Clause, it is the context that makes clear that the President is not in view, because the President is not appointing or commissioning himself. It is not the semantic content of "officer of the United States."

By analogy, if I were to host a dinner for all of my colleagues at Notre Dame Law School, and I said "all law faculty are welcome, but none are obligated to be there," would I be saying that I, as the host, was not obligated to be there? Of course I would be obligated. Would I therefore be saying that I was not "law faculty"? No. My usage would not be advancing a narrow view of the semantic domain of "law faculty"; I would instead be using the phrase in a context that indicated that I was obviously excluded.

And in the Impeachment Clause it is not even the case that the phrase excludes the President, since it merely has an overlap with a very good reason for the additional specification. It is so important to make clear that the President and Vice President may be impeached—no small point against the background of royal prerogative power in England—that they are spelled out specifically. That does not mean they are not officers, and the brief's suggestion that "all other civil officers" would have to be used does not fit the legal drafting culture of the late eighteenth and nineteenth centuries. To give another example from that legal drafting culture, "necessary and proper" and "necessary or proper" and "necessary and appropriate" and so on all meant exactly the same thing (the sort of thing I explored here). This general point also weighs against any attempt to cut hyper-fine distinctions between an "officer of the United States" and an "office under the United States."

2. So is Section 3 such a context where the President is excluded? And here the argument in the former President's brief runs straight into the buzz-saw of what we could call the Andrew Johnson Problem. It is hard to imagine that the Reconstruction Congress that proposed Section 3 of the Fourteenth Amendment, and the state legislatures that ratified it—in the middle of an intense struggle with President Andrew Johnson, and focused on all the problems that could come from a President who was not on board with reconstruction—would say that the two people who should be allowed to be Confederates would be the President and Vice President. We can retrofit plausible explanations for why the President and Vice President might be different (e.g., the Lessig argument here). But the Reconstruction Congress was in the middle of fighting tooth and nail with Andrew Johnson. That Congress thought President Johnson was imperiling all that the Union soldiers fought for. Was that Congress creating an exception for President Johnson? The burden of proof for showing that they were in fact doing that is so massive that it could not be met except with the clearest possible evidence.

3. The argument on page 23 of the brief that a presidential oath to "preserve, protect, and defend the Constitution" is not an oath to "support" the Constitution is risible. Try explaining it to a child. It is an argument that should be treated with derisive scorn by everyone who encounters it. It is the kind of magic-words literalism that is the reason people think they hate lawyers. Justice Scalia once said that if he accepted a certain argument "I would hide my head in a bag." That is a fitting response to the argument that the presidential oath does not require the President to support the Constitution.

Suppose that Nikki Haley loses to Donald Trump by 15% in New Hampshire and also loses her home state of South Carolina by a big margin.  Will she necessarily drop out of the race?  It seems unlikely.

A number of states that will vote on Super Tuesday offer Haley much friendlier territory then do New Hampshire or South Carolina.  California, Colorado, Massachusetts, Minnesota, Vermont, and Virginia all vote on Tuesday, March 5th.  Haley could very well beat Trump in some or even in all of these states.

Trump, who is 77, might have a sudden health problem or be convicted of one of the 91 felonies he has been charged with.  This could totally upend the race.

In the 1980, Republican primaries George H.W. Bush stayed in the race until May 26, 1980 hoping for a lucky break.  Haley has every incentive to do the same thing.  She has quite rightly promised to pardon Trump of any of the Fake Crimes he has been charged with.  Maybe voters will give her the chance to do that.

I've never been to a Chick-fil-A. But people love the place. In fact, according to surveys, Chick-fil-A is the most popular fast-food restaurant in America, and has been for a long time. But the company has irritated progressives over the years because of its owners' Baptist convictions, including their once vocal opposition to same-sex marriage. New York Mayor Bill DeBlasio at one point urged city residents to boycott the chain. The controversies have died down–mostly, I think, because Chick-fil-A has backed off some of its less popular public policy stands.

A bill currently under consideration in the NYS Legislature makes clear that progressive irritation with Chick-fil-A hasn't gone away entirely. Chick-fil-A restaurants close on Sundays for religious reasons, including seven Chick-fil-A franchises at rest stops on the NYS Thruway. The bill, sponsored by progressive Assembly Member Tony Simone, would put an end to Chick-fil-A on the Thruway, at least with respect to future concessions. Going forward, contracts for rest-stop concessions would require vendors to open seven days a week.

Simone argues that hungry drivers are on the Thruway every day of the week and need places to stop and eat. That makes sense. On the surface, the bill would seem to be a classic, "neutral and generally applicable" law that wouldn't cause problems under the Free Exercise Clause. Any effect on businesses like Chick-fil-A that close one day a week for religious reasons would be incidental and constitutionally unobjectionable.

But the bill is less neutral than first appears. The text of the bill targets Chick-fil-A's Sunday closing policy specifically, by name. The evil the bill seeks to remedy seems not the fact that some restaurants on the Thruway operate fewer than seven days a week to the inconvenience of motorists, but that one restaurant, in particular, does so, in order to observe the Christian sabbath. Chick-fil-A could argue plausibly that the bill doesn't qualify as neutral, but singles out religious observance–theirs–for disfavored treatment.

If that's the case, the bill would have to survive strict scrutiny, and it's not clear it could. Every rest stop on the Thruway has several fast food concessions, some of which have reduced hours on weekends. And at every rest stop, at least one concession is open 24/7. Hungry drivers thus have an option every day of the week. What would be the compelling state interest in requiring every other concession to be open every day of the week as well?

These are judgment calls and courts could go either way. But I suspect this bill will go nowhere. The state no doubt gets a lot of tax revenue from Chick-fil-As at rest stops, even if they're only open six days a week–and besides, most drivers would probably prefer having the option of Chick-fil-A six days a week to not having it at all. But, like I say, I've never been to Chick-fil-A.

I'm writing up a longish blog post about some controversies related to the "weeding" of books in public libraries and in public school libraries—which is to say, removal of books from library collections—and I'd love to talk to librarians who actually have some experience with this process.

I've reviewed Rebecca Vnuk's The Weeding Handbook and various online resources, such as CREW: A Weeding Manual for Modern Libraries. and the California Department of Education's Weeding the School Library: The Counterpart to Selection. I've also reached out to the American Library Association and some other groups that have expressed views on the subject.

But I'd also like to talk to people who actually do weeding themselves, or have seen it done, and ask them some questions about the process. If you or a friend of yours would be willing to chat by Zoom, phone, or e-mail, please e-mail me at volokh at law.ucla.edu.

Also, if you have some comments about how the weeding process actually operates—based on your personal knowledge or reliable second-hand knowledge—or recommendations for other publications I can review or groups I can ask, please post them in the comments. But please focus on such information, rather than debating what the process ought to be or criticizing particular kinds of weeding decisions or policies. You'll have plenty of opportunity to debate these matters when I put up my post, likely within the next week or two. At this point, I'm just trying to gather information that will help make my post as accurate, informative, and balanced as possible. Thanks!