Hi, everyone and welcome to our third and final series on meaningful technical oversight of generative AI. So just as a reminder, our first conversation was around what are the new harms that generative AI is introducing, if any, or are we just seeing old harms and new outfits. And that was with Viva Shorts of NIST. Our second fireside was with Bruce Schneier about balancing transparency and security. And today we have our third conversation with two guests, Julia Anglin and Brandon Silverman. Hi, Julia Anglin has a very long and amazing resume and we could not go through it all, but I suppose your most recent, you know, thing that you're working on is, you know, you are New York Times opinion writer and you're working on a new book. So Julia, thanks for joining. Happy to be here. And Brandon Silverman, so formerly CEO of CrowdTangle and now a transparency policy expert. So Brandon, you've been really advocating for increased access to data for journalists and for other folks. So, you know, a good way to lead into what we're talking about today is this concept of meaningful technical oversight. So, before we hop in, just a reminder to folks who are joined and joining that you please put your questions in the Q&A panel on the bottom of your Zoom screen. We won't be taking questions at the end of this because 45 minutes is going to go immensely fast, especially with this illustrious group. So I will do my best to take questions that are relevant in real time. So please feel free to hop in, you know, put your questions in and then I'll raise them during the discussion. So today's conversation is on meaningful technical oversight and I'm really excited for this one because the policy world is exploding right now. So last week we had Sam Altman and other folks in front of Congress, and there were some, you know, big things kind of dropped this idea of licensing, this idea of some sort of a regulatory body for AI in the United States and everyone, all I seem to be talking about policy. So the Digital Services Act, the UAI Act, etc. And, you know, I want to talk about governance in other forms. I think there is this knee-jerk reaction, we say governance or oversight to immediately think about the law. But the people I have here today are not policymakers, right? You're not people who write laws and are regulators, etc., even if you may advise or work with regulators, but you operate in a different kind of technical accountability oversight. So Julia, I'll start with you. So you were basically responsible for in part creating the field of data journalism. So, you know, this is kind of, I know, reaching back into your career a bit. But I kind of wanted to start from that end because I find, you know, data journalism to be really fascinating because here we are with a profession that one would not think would be technical in nature and you created for public a markup like these institutions that are known for deep diving into the data and reporting on it. So, you know, kind of what inspired that and why do you think journalists were the people to do this? Well, it's great to be here. Thank you. And I really can't take credit for all of data journalism, but I think what I can take credit for is really bringing developers and engineers into the investigative reporting process. Basically, as somebody who grew up in Silicon Valley and was programming since elementary school, I grew up in the early days of the computer revolution and my parents were sort of in the software business. And so I just always saw it as really natural. I rebelled against it, went into journalism, but then what I realized was that journalists were so outgunned. We have, there's like I think six PR people for every journalist in America. And so we don't, and also as you may have heard, the revenues of the industry are collapsing. So I basically thought, okay, I know computation automation can sort of superpower your work. And so essentially I felt like, especially when you're confronted with these opaque algorithmic systems that the only way to try to sort of understand them from a journalistic perspective was to try to do some sort of reverse engineering. And so I brought in journal engineers to help me do that developers and that's sort of what I've been doing for the past decade or so. And I would say that it is really important work because what we're seeing, especially with generative AI is that these types of systems are really hard to monitor, especially when they have different outputs every time you encounter them, right? So the dynamic nature of them means that any story that you write as a journalist, like that's a one anecdote story, like it happened this one time, the companies can dismiss it. They can say, oh, that was just one off. Right. And so you kind of need a bigger data set in order to prove systemic harm. And so I believe that data journalism and building these types of data sets is going to be the only way we're going to hold these types of systems accountable in the future. And Brandon, you know, what I love about this talk and I was messaging you both about this, I feel like you're like mirror images of each other, right? So Brandon, you were the CEO of CrowdTangle. And again, this is like digging back a bit and you know, related to what you're doing today but not what you're doing today. Can you talk a bit about for people who may be unfamiliar with CrowdTangle, what CrowdTangle did and, you know, how it relates to journalists and journalism. Yeah, we were, first of all, it's great to be here. So thank you for having me. So yeah, I was the CEO and co-founder of CrowdTangle. So when we got started, we were essentially kind of like a social analytics tool that focused on in the beginning Facebook. Over the years, we sucked in data from other social media platforms, but what we did essentially was make it really easy for newsrooms, in the beginning was mostly newsrooms, to be able to just have a better sense of what was happening on social media. And starting around 2012, 2013, newsrooms began getting so much traffic from social platforms that suddenly this data was not only becoming really important to just understanding their own business and their audiences. They were flooding in at levels they'd never seen before, but also increasingly a lot of political and civic discourse was happening on these platforms. So even if they just wanted to do their jobs, it was really helpful to have a way to make it easy to see inside these systems that otherwise were kind of functional black boxes. So we got started with just a tool that made it easy to look inside social media. We were acquired by Metta in 2016. And for four years, we kind of continued to do that work from inside Facebook, but instead of just focusing on newsrooms, we took on a broader mandate of helping Facebook be transparent with actually a really wide swath of civil society with kind of the same set of solutions and products. Yeah, so let's, let's talk about this, this expanded universe of people right so again when people talk about technical oversight, you think about like data scientists and people have this formal training. I find it really interesting because last week this idea of licensing came up right so Sam Altman brought it up in the context of licensing for companies, but also we have seen this idea of licensing for data scientists or people who are going to be doing these models, you know sort of open question for for either of you. First, how do you feel about the idea of licensing whether for companies or for individuals. And then second is, how do you think that would impact your the communities that you work with civil society journalists that are people who are not your traditional tech people going through technical degree programs. Julianne can start with you. Sure, you know this is a question that something that comes up a lot is this idea of okay journalists should get access to the platforms through some sort of license or an API and generally a lot of times the requirements that are set for the type of access are not things that journalists can comply with so, you know, oftentimes they might want to know exactly what type of stories are going to do or vet your methodologies, or you have to agree to not use it for certain things or for keep the results confidential. So almost every kind of scheme like that really doesn't work for journalists which is why I've been a real advocate for what I call adversarial testing which is basically just looking at these systems from the outside. And that is risky because we don't have a legal regime in the US that really supports that the that type of work that's in the public interest and we need some amendments a lot to really make that less risky for journalists but you know honestly most of a lot of journalists are still doing it with like strong like lawyers behind them. And but I just I personally believe that when there's, it's great to have all those types of schemes but ultimately journalists are sort of that last backstop where we're just on behalf of the public. We need to be incredibly independent and so our testing needs to be outside of most of those regimes. And Julia then how do you feel about this idea of even like almost like a harsher license and that like something like akin to a medical license or like a like a license to practice laws so do you think, or how would you feel about even more formalizing the practice of even being able to handle data or work with machine learning and AI models. I mean I think that's an interesting idea for the people in the industry right I've always wondered why there wasn't sort of a, you know, a code of ethics that programmers and developers signed on to and I know there's been some movements here and there to install those, you know just the way that other professionals have some commitments outside of their actual job where they're like you know what I can't go do this thing because it's outside of my ethics and I think that as these systems that are being built the AI systems the social media systems control so much of our world I do think it's incumbent upon the people who work on them to maybe start thinking about what are their ethics and what are the higher principles that they need to be called to and so I think that's an important thing I think journalists already have that kind of ethics amongst our community. And we do ascribe to them although you know we don't have a licensing regime because we, we don't believe in sort of getting government handing out licenses to journalists but I do think that there are some really clear standards about what constitutes journalism and like, in most that at least in the US and other places that have been trying to codify to like the trust initiative and stuff like that. I'm going to put a pin in that last part of what you said and then go over to Brandon first because I think it's a really interesting point that you say you know the government handing out licenses I'm going to put a pin in that and then go over to Brandon so you know, let's say if these licenses existed when you were forming crowd tangle, everybody at crowd tangle including you would have to go get some sort of a license or you'd have to pay every year to have your license to have crowd tangle renewed. And one of the critiques has been oh this is just these companies trying to build a mode because famously was it two weeks ago I don't know time moves so fast it seems like it's been six months but two days. I think it was two weeks ago the now infamous Google memo that there is no mode memo dropped. And one of the critiques of this idea of licensing is oh it's it's the people who are already in power, trying to build this mode around them. So my one of, I think my first principles at this point when it comes to transparency and data sharing different things is, is I like a yes and to essentially like all different mechanisms that I think there are real there are genuine and really important privacy, and in some cases like trade secret risks and other things, or which some sort of like vetted licensing thing could play a role and be helpful and important, but it shouldn't be at the expense of other types there's no single solution to the stuff where we should not put all of our eggs in a single basket. Every one of these sort of slightly different stakeholders has slightly different outcomes has slightly different risks and benefits etc. And so I very much always have like a yes and sure licensing great but like let's get into the weeds on what that looks like because there are real ways in which it can be done poorly, including just with like the wrong incentives of the private companies are the ones deciding gets etc. And also, in that entire yes and spectrum, you need some mechanisms to also allow and enable. Yeah, adversarial transparency where people who are not in any conflicting conflict of interest or incentives also have the ability to go in because the systems are so powerful and they become so like our body poly to body politic that they need to be scrutinized and they need to be scrutinized very aggressively, and we need to make sure those methods are also available. So, so yeah I, I believe in a yes and all this stuff, but especially making sure that we're engaging a diverse group of outsiders and civil society and for me especially journalists, I just fundamentally think in liberal societies and liberal democracies the role of journalism to hold power to hold powerful account is is especially important now when we see so many of these platforms, kind of being owned and managed by tiny handful of companies in very heavily consolidated markets, and touching so many different parts of, you know, the world we live in so yeah that's, that's how I when I first read about that was my first instinct. So let's let's let's pull that thread a little bit right this idea of licensing and even the yes and right so who would be this licensing body so Julia understandably like well, you know maybe this shouldn't be governments because if we expand this model around the world and not just us and maybe even the US under a different regime. So one of the things as a data scientist one of the things that attracted me to the field is actually the complete lack of centralization of authority right there is no one degree program there is no Harvard of data science really there is no. One place we get degrees from we learn online so like, you know, essentially like who would put the bell on the cat. Any thoughts who that might be, or who that shouldn't be, I suppose. I guess I'm not even sure if I'm a yes and so like, I think I might be a no. I mean, I just am not sure that that history provides any support for the idea that we will know in advance who is going to come up with the best uses of technology, right. So what licensing really suggests right like I mean I definitely want my doctors to be licensed because it's clear to me that there's a huge body of knowledge that they need to have before I want them anywhere near my body right, but like technology is actually a very different field where we don't yet know what lessons we've learned, we haven't codified them yet, and we also don't know where the great innovations are going to come from. So licensing would feels to me a little bit like trying to establish a priesthood really early on where only certain people get access to these powerful tools and those people are granted special privileges. I mean let's be real we already have such a priesthood right like there is actually already this power that AI of AI is totally in the hands of few corporate entities and in a sense they already have the ability to give it to whoever they want. So I don't know why we want to enable that further when in fact I think the question we should be asking is how can we make sure that this new technology is being used for public good. And what are the incentives we need to put to make sure that happens and how what are we doing to mitigate harm right and I would say I'm probably in the mitigate harm camp because that's what I view my role as a journalist and but I think there is a role for government for civil society to figure out the uses of good and I wouldn't want them to have to go back the billionaires for to prove in advance that they're going to find something good with it. These guys by the way did not prove in advance that they were going to do anything good with it, you know, that's that's fair I mean just going back up the chain like who has to prove value to what and whom. I find it very interesting that all of these companies are chasing this idea of building artificial and general intelligence when actually nobody has any idea of artificial intelligence, general intelligence is what it might look like and you know, literally billions of dollars are being poured into companies to chase something we can't even define. So to your point, I do find that part really interesting. We actually have a really good question. Thank you David, and it kind of is a good segue into the next thing I want to talk about which is this idea of the Brussels effect right so like absent. So let's take it up a level from the US into the global arena and kind of there is increasingly this conversation around global governance but global governance might look like it is that anything attempting that would be a geopolitical flag buyer right no country. And this isn't about like China or Russia or a quote malicious actor like no country in the US wants to give up sovereignty over regulating technology on their own. So, you know, the idea of doing this is tough, but there is a risk and so David asked in this question. Is there a risk that national regulatory regimes in a connected web just ends up leading to location of certain functions offshore so sometimes it's called regulatory innovation arbitrage. Another name for it's like came in a station the fact that a lot of companies will test their models in countries with weaker privacy security laws and protections, in order to then you know figure like work out the kings and then you know launch it to a public at large so I suppose it's sort of like let's think through this like what happens if and when countries do have like certain countries have stricter regimes and others, or maybe even bring it back to the US we're kind of already seeing this with privacy and increasingly with surveillance and ethics and we have different laws in different states so can we talk about that a bit you know what what does that look like. In the current, you know policy environment that we're in, whether nationally or globally. Yeah, please go ahead. Sure, Brandon you might go. I'll jump it out to you. I was just gonna say like, I think that there's absolutely no question that that is already happening right so if you think about how GDPR was enforced essentially Ireland was the communication like so everybody set up shop in Ireland knowing that the enforcer is not going to be incentivized to be strict against these companies and that's why in part right the EU had to step in and build their own regulatory regime and pass new laws to try to regulate the tech giant so we have seen that the US of course has chosen not to regulate them at all and that I guess keeping our Cayman option afloat. So, but I, I guess my feeling is that like, yes, that's going to happen but that's not an argument for not doing anything I would say that like one of the arguments that people I've heard in the tech industry say is like oh, you shouldn't do any regulation because you'll need to this like bad actors going over to bad places. And I think that that's just not true that's not how law enforcement works like we do extradite people from other countries like we have rules and I think we do still want to live in a world where we have rule of law and so if we want to live in that world, then we have to make laws that we all agree on and then if people leave the country to try to escape them, we have to decide whether it's worth our effort to go get them and so I guess I'm still a believer that like we have to believe in legal regimes even if they are flawed and inconsistent. You know, just to butt in for like Sam Bankman Friede comes to mind right. Yeah we did manage to get the guy out of the Bahamas or whatever right like now he's in his home in Palo Alto. Brandon any thoughts. Yeah, no I mean we're already seeing this play out I mean I think the other way I feel like I've been thinking about this recently is to what degree are some of these locally specific versions of regulations technically feasible. That make sense sometimes secondly they seem to skirt some of the jurisdictional issues around data rights, which I think is going to increasingly be coming up. And then third I'm you know I do worry about what I mean in the US we're seeing this where like the federal government is doing anything and so states are now starting to write their own laws and I think one of the really unfortunate things that happened with that is it completely screwed up the to like a political level to pass a federal privacy law and so like California jumped in and did it and now it's essentially there's a standoff between California legislators who believe that they've written the right version of this and a more, you know more politically than one because not like just because you had literally have compromised at the federal level that they won't sign on to and so now because we had because we're forced to pass them in California. I don't know where to stand so federal and I think that's that's a real cost to those of us who like believe in this stuff. And then I think you know I think when it comes to AI I have been very convinced I think Ramon in part on some of your writings but I think other people and also what I've been seeing personally through some data access on social media in Europe, about we have trying to get to a point where we can have some international transnational cooperation around some of these issues and so that we can try and head off some of the challenges potentially of like the Balkanization but also build kind of regimes that are more standardized across the whole world hopefully encourage countries maybe haven't passed some to get voluntary compliance and they're where they are as well etc so I think if we can think about international solution some of the space I think there's a lot of promise there. Yeah, and I appreciate your kind of weaving through and kind of navigating this like there are these laws and regulations that are you know sticks and then there's this aspect of law that could be hey let's open up. Access to this wider range of you know governance partners so more than just lawmakers regulators policymakers like how do we do this and of course there's the platform accountability and transparency act in the US and then the digital services act. So I want to open it to either of you, you know to. How do you feel about the digital services act, especially we know that's going to be the first one that comes into play, allowing for access there's been a lot of really interesting conversation. You know, and I appreciate both like positive views as well as cynical views. And in this closure I've been working with the cat team so I know a little bit about you know what they're trying to do and brands and I think you're, you know, you've talked to them a few times as well and Julia I don't know if you have but I would be surprised to you already. Because we're all kind of navigating this together right this. This is an unprecedented level of access and as more than one person put it in some of the workshops like companies will push back and sometimes rightfully so on protections of, you know, IP security and privacy. So first question is like how do you feel about that, you know about opening up this data. How might it be meaningful where and where might be some of the pitfalls you've seen, Julie I'll start with you. Well, it's funny. I was just writing my comment this morning to the EU Commission on data access advocating for them to consider journalists and journalists access. As they consider some of the fine print that they're writing up about how to implement these laws. But I would say that like it's an incredible I feel like generally the DSA is such an incredible. Moment right it just if you think about it these are these global platforms they have their I think up until this moment it felt like they were too big for any government to regulate right I mean and basically nations that tried to didn't succeed right and so the EU getting together and passing these laws really thoughtfully in a way that attempts to mitigate the risks without without with while trying to allow for flexibility for the fact that these systems are dynamic is really really exciting and I think it's really what I'm worried about is if it doesn't work people will say they're just too big to regulate right and so I feel like the stakes are really high because if if this doesn't work and like them hiring hundreds of technologists and you were mine I think to like help like organize how to do this auditing work if if it doesn't work then I think people might feel like oh well then there's just no hope and I would want there to be hope because if you have global platforms that regulate speech around the world and are not regulated by the government which is by the way in most cases a proxy for the people who live there. That's a really scary thing right they really can flip a switch and just say we want the whole world we want this person to win this election and that one and in and that is a terrifying idea and so I do think we want to see the dsa succeed. I think it's an open question right it's a hard task. And Brandon I know this has been your passion. Very, you know recently in this but what you've really been working on so platform accountability transparency act as well as dsa so any thoughts on how it can be successful. Yes, many many thoughts. I'll do quick dsa and then pivot to pad I said yeah I mean I agree with Julia I mean I think it has the opportunity the chance to be a generational improvements in the internet. But there's also still a lot of challenges and getting it right. There's so much this work is new. There's so many details that have to work out and figure out and still negotiate between civil society I think European Commission itself has there's not enough technical experts who are willing to help with this stuff. So I, there's a lot of, there's a lot of hard work in some ways I feel like the hard work is kind of just beginning to get it right. And I absolutely agree with Julia that on the specific data sharing stuff. There's some nuances to how it's written that worry me a little bit and I think I, some of us are trying to help with one I think is how broad are the audiences it's being made available to and does that with journalists. If not, I think that's just a huge miss and how the amount of impact it's going to have. But then secondly, like, you know Europe also. They believe a lot in their regulators and their agencies and so the DSA gives a lot of power and authority to them. I think in a way that is, you know, we have seen go wrong in other countries in different circumstances and so also making sure the work itself doesn't get overly wrong because it sits inside the body. But I think on Pada, you know, I think for the platform and accountability transparency act which is kind of a similar as approach in the US. I mean the number one first challenge is getting it passed. It's, it is going to be reintroduced in the next few weeks with some more prominent bipartisan senators which is exciting. And I think a few improvements to the bill that I think are going to be meaningful for continuing to kind of build a bipartisan coalition here in the US at the Senate. I think it's very unclear how the house is leadership is going to feel about it. I think every, I think these terms are these things are sometimes long term projects and every additional elected official who comes out to support it is important and meaningful, and that each kind of step we go and writing a better bill also is meaningful. So I think first step is getting it passed. And then I think the second step would be a lot of the same work that I've done DSA, which is there's still a lot of details we fleshed out, even in Pada and some of that is technical other parts of it are like figuring out what the the right tradeoffs are. And so there would be a lot of work and getting it right after if even if it did get passed. So a good segue into a question by spot the and, and also bringing it back to, you know, last week's Congress hearings and people having mixed reactions to industry in general, and in this case obviously Sam Altman, specifically saying we want a regulator we want to be regulated, the cynical view being well of course you do because again that helps create your moat, but it also moves the conversation into an arena where companies have a lot of power, especially in the United States where they spent hundreds of years on lobbying, you know, you know, Julia, the, you know, journalists don't go and have hundreds of millions of dollars of lobbyists to go influence policymakers, you know you do well in the court of public opinion, companies don't do well in the court of public opinion right. So what's what these questions is that these technical standard setting bodies are standard setting bodies in general are not neutral. How can these bodies be made to be more accountable and, and maybe this also sort of brings in the Brussels notion right this idea that absent, there's like a vacuum of global governance and, you know, first with GDPR and you know now with both DSA and the EU AI act there there actually is the European standard setting of values. So, how can these bodies be more accountable. Julie I'll start with you. Okay. Sorry. Yeah, I mean, it's a really hard question because, you know, as you mentioned the most wonderful thing about the internet is that no one runs it. That's actually what makes it great. And so the decentralized nature of it is amazing. And when I first started covering the internet, you know, the technical standards bodies really were just like the engineers at universities and even if they were at a company they were really more devoted to the internet than they were to their like corporate practices and so it was a different time and now those bodies have been gained just like everything right so companies realize that they can set standards in a way that that advantages them and they try. And so that is a really sad thing and it's also worth noting that like civil society is just underfunded right like there's not enough money being spent on people like, you know, I wish there was someone who was doing what you know the Federalist Society guy is doing with just like hundreds of millions of dollars to like support engineers to go to the standards bodies and to set up like technical institutes and to honestly save journalism which is falling into the ocean. So I think that but that said, the alternative to these diners bodies is probably worse right so this is like where I don't know what a better I don't really want like Sam Oman in charge of it personally just because you know, and so I, and I don't think the government, any particular government should be in charge of it so I, I feel like the answer is maybe just make this sort of somewhat flawed system slightly better. I always going to agree with that I mean for any this, any solution you're going to propose you have to ask who's going to fund it and there's essentially, I mean, three and a half reasonable sources of funding there's either industry governments or philanthropy slash people, I guess, but the problem is you know I think on the philanthropic side is very unclear at the moment, if that money is meaningful is available in any meaningful way I think it's a lot of us in Europe don't feel like it's available in Europe. It feels like there's more of a possibility of it here in the US but it's still if that space is very nascent at the moment and it's unclear if it could meet the needs of this sort of thing and so are you willing to take the trade offs that would come with trying to build some sort of independent, you know, trusted effective body that gets any either government or government funding at all is that even possible, etc. So I, I agree to I think there's not, we're choosing among probably are not ideal options and try and go do the best you can in that space. And you know I will say I think on the cynical side, you know, I watching Sam Altman's testimony, you know, it, it sounded. I just felt like we're playing the same record all over again from like the last 15 years of this stuff. And I think if they're, they're open AI say what you will about them, they're, you know, they're not dumb and I think they can read the tea leaves anybody else that nothing is getting through the federal government anytime soon on anything. And so I think there is something a little disingenuous about going and calling for this stuff it doesn't I think it. I think it's a lot of obstacles like strategy credit it's very easy to go and try and take credit for doing this thing but knowing it's never it's not going to happen. And meanwhile they probably get some credit for its seeming for hyping up how world changing of a technology it is that it desperately needs regulation. So I think there's a lot of benefits to I think what I think there's a lot of marketing benefits to the testimony in my opinion. But I think you know this question of where the regulations actually even come from is. Yes, it's probably going to be Europe or setting up some sort of international transnational bodies getting administration to join. Or, you know, I, Julie is probably going to kill me for this but like I do think public pressure does still work on these platforms I think there's this notion sometimes that they just think they've had so much bad articles written about them they just write it off from my brief tenure inside I actually saw that oftentimes it felt the opposite that they were bouncing around, trying to figure out what to do from a lot of this criticism and it actually really did impact a lot of decisions and sometimes is too often. And so I think you know on some cases that is clearly not true, and it is not like in some cases I think they planted their flag and they don't care how much criticism they get around X, they won't change. But I do think public pressure can change some of the behavior and I think it's still an important thing to kind of to keep up as we move forward. So I just want to say I heavily agree with you Brandon on that front. In fact, sometimes I just think that like my, I'm like, I'm like, I'm a shame regulator like I'm just, I regulate through shame. Well, and in the like sort of risk analysis way of looking at things and companies that's reputational risk right like a name like yours or Brandon's you know pointing the finger at a company carries a lot of reputational risk for companies. So a good, a good same way to question from jihad and it's come up a couple of times this idea of the imbalance of expertise right we lack enough trained auditors we lack enough people with sort of these critical thinking skills or data analytics skills and both of you have worked to improve that so it's, it's, it's hard to be like what can be done, right but like we can't live in this world forever. You know, so what, what, what can be done. You know, like just a minor question, like should you know maybe I'll put it more specifically should foundations be putting their money differently. And just be funding things you know the the White House announced 140 million dollars into various national AI centers which sounds like a drop in the bucket to the $10 billion that Microsoft has just given open AI. You know, so then, you know, like all of these places and you all pointed out amazing people in Europe amazing people in the US trying to work on this, and then you know contest that with a salary at a tech company which would be significantly and frankly the work, you know having worked on both sides I would say the work is easier in many ways, not that the work is easy but it is. You don't have so many frustrations right is lots of wins. What can be done. Yeah, I'll jump in. I saw lots of thoughts this one so I'll save one really really concrete one is there's a program in the US called tech fellows, where they place highly technical staff in Hill offices and DC. It's an incredible program, like there's this notion sometimes like DC doesn't get tech or something. I have like met a lot of the hill staff like working both on on in elected officials offices but also on committees who are like working on this stuff. And some of them are incredible, like, and know this stuff insanely well, Europe needs a tech fellows program, like, desperately. So if there is like flantypers out there think about this stuff like tech tech we need a European version of tech fellows. And by the way, if it does exist, I apologize but like I, they need more of this talent and a version of that and I've been to Brussels a few times and I, I haven't heard of one but I think that's like a very concrete thing. The second is, I do think that the silicon value will always be able to pay more than like public sector etc but like I think the days of like insane compensation insane campuses like there is a bloated era that I think is coming back down to earth and I hope that a little bit more balance will make it easier for some people to choose between private and public sector opportunities. I think literally just the number of layoffs that have these companies have put out a lot of talented technical people, just in like the last nine months and part of what you're seeing is I think the beginning of like a building of a like trust and safety like integrity industry that now exists outside of the platforms, and that is resulting in things like trade associations being created like the trust and safety association or the integrity Institute or things like that so and then you're also seeing a dedicated academic journal journals just focus on this I think like what you're seeing new for profits new nonprofits. I think like my bullish self is like there's a that that space is growing now and will hopefully be become a kind of like personnel infrastructure of the internet going forward in a way that it wasn't just people who were like used to work on the ads team and got asked to help with, you know, you know, impersonation and suddenly we're like the leading, you know, integrity person on spam on the internet but now there's going to be a new industry of why a lot of talented technical people who hopefully will be moving between those spaces, a lot more going forward. So yeah, but I'll pass. Yeah, and Julia like your career, a big part of your career has been literally in cultivating that expertise and people who are not working at tech companies what are your thoughts. Well, the thing that I experienced is that there are so many people with technical skills who don't want to work at those companies and want to do something more mission driven. If, if I had all the money, I could hire so many of them right because that is the only barrier they're willing to work for half a quarter you know they're they're actually really excited about doing meaningful work and the reality is that a lot of the work you have to do in those companies is not that joyful right like optimizing ad, you know, algorithms or whatever and so I, I think there's a huge group of people I have never had any problems recruiting. I think what the challenge is that I'm in a field where revenues globally have gone from 100 billion worldwide 20 years ago to 30 billion. So I'm in the collapsing industry. And, you know, there's only so much nonprofit philanthropy can do right it's just like they're trying to also there's a lot of other urgent questions in the world and so I feel like the amount of journalism that needs to get done, especially technically precise, you know methodologically driven journals and the kind that I like to do which is expensive is something that is is hard to get funded and is is hard is difficult to keep running. Gosh, we have five minutes and so many good questions in the q&a. Well, it's what we'll tear point then in sort of these pathways in. Do you have any thoughts on this is a question by Hector. He wonders about any thoughts on protecting people who highlight ethical and social harms from retaliation so this idea whistleblower protection I know that's actually something that folks have been working on. These protections may not extend to ethics or tech impacts concerns in general. Is this something you'd support is something you're seeing some noise being made about, and you know, into your point both of the points that you're making is, there is a huge audience people who don't want to work for tech companies but also there are people working at tech companies who go in and they realize actually want to be doing something a little bit more meaningful, or I have seen these terrible things I'm afraid to speak out because we have seen, you know the amount of pain that they can send your way. You know, and anything on a whistleblower protections. Are you in support is something you've seen have you seen any noise about it. Brandon I'll start with you.  I mean I would just say like whistleblowers are. We do have, I mean not great whistleblower protections but actually there are somewhat decent whistleblower protections for corporate employees. And the problem is that the law just isn't enough right like companies can make your life hell, regardless of what the legal structure for whistleblower protection says and so, ultimately you see that whistleblowers like Francis haugen for instance, leave it rather than deal with the consequences of what it would be like to work there after having blown the whistle and so I think there's that whistleblowers are just people that we need to protect. But I think realistically the idea that they're going to be able to keep their jobs. I think it's is unrealistic I think especially given that we're not a nation where people move jobs all the time. Yes, I'm really hopeful because there's two new legal entities now that protect whistleblowers and I feel like that didn't used to exist. So I actually feel like things are on the upswing for whistleblowers. Yeah, you know, I know less about kind of the legal to bar for the whistle for whistleblowing so I probably won't speak to it but what I will say is like I think you know one of the reasons I'm so passionate about data access and transparency is that for a long time, getting any window into a lot of these questions required somebody to meet the documents. And if we had a world in which there was much more accountability and much more ability to audit and study and monitor these platforms. Ideally, like, you would have to rely on whistleblowers less because the public would already know so much more. Perfect so in the two minutes we have left. You know the one law that is happening is Digital Services Act right and we talked a little bit about Article 40 which allows openness and transparency and access. But we've all expressed like, oh this is either going to be greater terrible and there's kind of no in between. So in, yeah, in the two minutes we have left so I'll go with you first Julia. What is the one, what is the one thing that lawmakers in in the EU should be focusing on to make Article 40 a success. Oh, thank you for asking me that question. I really think that journalists need to have some access to platform data. We have been on the front lines of providing accountability to these platforms and if they really want these companies rained in we are the ones doing the work. And so there is sort of a provision in there that seems to protect that right for journalists to scrape and I think that should be codified so it's clear that we can go in and work in the public interest on these platforms. Brandon. I totally agree. There is a version of the current article 40.4 and 40.12 that could be read in such a way where three four years from now and it's all said and done. All we have is regulators picking and choosing from among a very small handful of academic researchers whose projects may or may not even be technically feasible by the time they go to the platforms and ask for the data which may or may not exist. And they may or may not have funding after they may or may not get the data. There's a world in which if you read this stuff very narrowly, it's a very it's essentially moving from one walled garden to another, and from moving from real time monitoring of these bases to constantly looking back three to five years later in a space that changes insanely quickly. So, can we craft the details in such a way that they allow tiers of different access and tears of different data, including one that makes room for real time monitoring of what is happening on the platforms. Julia, Brandon, thank you so much. If the comments and chat or any indicator this conversation could have gone on for hours and everybody would have been glued to their screen so thank you both for your insights. And thank you to the folks who joined us and stay tuned will be will be posting this fireside chat, as well as reaching out again so thanks everybody. Thank you.


What's up guys and welcome to Trendy Update Upper SPM Boys. Now onto the trending news today is a popular comedian, Juggush, who has reacted to MP Langata Jelango blaming content creators for costing 15% tax proposal by flaunting lavish lifestyle online. Now this came about after MP Langata Jelango went on social media did a video comparing the kind of lifestyle some of the content creators have been showcasing online and yet they are saying that they should not be taxed the 15%. Now Jelango went ahead to mention a few content creators. Among them was Oga Obina Bahati, comedian and director Eddie Butita, Abel Mutua among others and of course Juggush himself. Now this has led Juggush to react to these claims that the artists or other content creators are flaunting their lifestyle online and yet they are saying they should not be taxed. Now Juggush has said that indeed some of the content creators are making money, like Kimmy Sea of Water. Some of them are even doing content for fun and he is asking does it mean they should be taxed. Juggush was doing this interview at hot 96 and he said that he has no problem with content creators being taxed at least 5% because that is what every other person is taxed at what makes it special for content creators being taxed all the way to 15%. Now on Juggush said that the government should be considerate of that matter and 15% is quite high to put on content creators. Now we all know this proposed finance bill has brought a lot of reaction on social media which has led so many people commenting that includes Jelango and Juggush and clearly Juggush doesn't seem to agree with NB Jelango that content creators are flaunting so much lifestyle on social media but he actually says that some of these are paid influencer jobs and not even a lot of money is given only that it's an in-kind sort of engagement with the clients and indeed he says that flaunting that kind of lifestyle doesn't really reflect the kind of amount of money that content creators are making. I'm going to be reading some of the comments here when Jiko Stiffin says Juggush is one smart man, we can all tell school fees are high to put here. Nick, a big fish parlay content creator and now I know that I'm not a parlayer, I'm not a parlayer. Juggush, Kenzo Matata and Sema sober mind that I'm not a parlayer. Carolina Carlsby and Sema thank you. It's sad we have young politicians in parliament but they are clearly not in touch with the youth they claim to represent. Director Dona and Annika Parley Jelango you know that not everyone makes 200k plus in their channel. Others will always get 10k and what will they give to their funny to your funny president.  We still push at a 30% we will find our way out. Now on Alex Matengena and Mubaliana and Juggush and Sema exactly. Now finally when you talk here K-Hot 96, Juggush Alieza, Alieza Pia Kutadia. Past Zambalpia when I think it's a hairline, they are also front in Galastel online. But I can't sit here and say it's not a bean tax. This is Kitu Alieza Kutadia. Nathani it's Honorable Kevin Daniel and Kitu Ambacua and Tadia Palia and Sema and Sema Natasha and Warpia Wanga Lewis and Danny. So today I'm going to tell you about this idea that you will never know. Yopirayo says, tax lasima who? We are not saying lasima, we are taxiway. Ayabasi. Let us know down on the comment section, do you agree with Juggush who says that content creators should be taxed at least 5% and not all the way to 15%. But in the meantime, keep it trendy. Updates, hopper, SPM Buzz. Buzz, buzz, buzz.


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Welcome to Free Thoughts. I'm Trevor Burris, and I'm Aaron Powell. Joining us today again is Peter Van Doran, a guest we like so much that we gave him his own theme music. He's a senior fellow at the Caden Institute, an editor of Regulation Magazine. Welcome back to Free Thoughts, Peter. Thanks for having me. Now a few months ago, what has it been? About two months now, you had an interesting experience of jury duty. Everyone gets called for jury duty at some point, but you actually got to serve on a jury. So give us a little bit of background on that. On February 20th, 2018, I reported to the Federal District Court for the Southern District of Maryland in Greenbelt, Maryland for possible federal jury duty, and there were 500 jurors and my, we were assigned random numbers. I was zero, two, six, seven. I think.  And the joke at Cato, of course, is that when we carry our jury nullification books to Vaudeer, we will never be allowed to serve on a jury. I did not carry a book, but during Vaudeer, I did, I was at, or the, there were all sorts of questions they asked. Is anyone a member of law enforcement? Is anyone a lawyer? Is anyone, so then there was a question, is anyone work on behalf of victim rights? And so I said, all right, I should disclose that I'm an analyst at the Cato Institute, and we advocate for less criminalization of, of lots of things. And I thought, sure, the prosecution would say, oh, we don't want him on the jury. Well, the, the judge simply said, fine. And would that affect your ability to hear the case before you fairly and judge only on the case and, and the law? And I said, no, it would not affect me. And he said, stand back and you're still in. And so, so it took all day. So four o'clock in the afternoon, they start picking in random number order the people who are left after all the people have been, well, they actually, I guess, at some point, I should describe what this trial was about. Well, you didn't know. Did they tell you what the type of trial it was during Vaudier? Yes, they did. Was it just that it was MS-13 in a conspiracy case or? They said this involves gangs and MS-13. And, and so one of the Vaudier questions was, has anyone have any personal experiences with gang activity? My goodness, a hundred, a hundred people stood up and that questioning took hours. And the jury was drawn from the southern district of Maryland, which is everything south of Baltimore, those counties. And apparently, in PG County, which is where the Spanish immigration immigrants tend to live in this area, as well as Virginia, there is a tremendous amount of gang activity. And I was personally unaware of it, although I've read a bit about it in the newspaper. So they did ask whether anyone was engaged in victim rights. And I sort of said, maybe that's me. And then that we were for less criminalization of activity. But anyway, I was, I was picked. I was the 12th juror. And you raised your hand and I was sworn in. And I said, oh my goodness, because they told us this trial was going to last four weeks. And I said, oh, wow, my life has changed. And, and I'm not going to be able to go to Cato for a while. And this is a big deal. This is a murder conspiracy Rico case. And I then said, I'm going to learn a lot about the law. And so that's what we're here today to talk about. So what were the specifics of the alleged crime? The defendant was charged with being a member of an ongoing criminal conspiracy, which is Rico, the Racketeering Influence and Corrupt Practices Act of 1973. Something around there. And I didn't, I sort of knew a little about that. And we weren't supposed to look up right at night. We're not supposed to look up anything about gangs or anything.  And I'm used to doing homework. So anyway, I did not. So part of what we're going to talk about today is conspiracy law and how it differs from probably Cato approved notions of individual causation. So this, this person, the defendant was charged with participation in ongoing criminal enterprise, i.e. MS 13 and participation in a series of murders in particular one in Frederick, where sadly a recent El Salvador immigrant who was a teenager who was fleeing El Salvador because of gang activity to live with relatives in Frederick, Maryland, was targeted for killing and in fact was killed by a branch of MS 13 in this area. And the defendant was charged with participation in that crime. And lots of other bad things, which were then part of the charge of being a member of an ongoing criminal conspiracy. So the defense argued that this person was peripherally involved. And here was the interesting thing that the murder in question, the shooter involved what had already been deported. So the defendant was charged with just participating in knifing the victim 13 times after the shooting took place with a single gunshot wound to the head. And the defense lawyer raised the issue of whether brain death had already occurred and thus stabbing a corpse isn't murder. Well, it technically is not murder. Well, the vice against it though still. Yeah, it's desecration of a corpse at the maximum if they are in fact dead. There was no physical evidence linking the defendant to the crime. There were no knives recovered. There were no fingerprints. There were no there was no DNA evidence. So why did they think he was why did they think he stabbed him? The all the witnesses in the trial were a gang members who had pleaded guilty in return for sentence reductions out of all the gang members. This was the only person who did not plead guilty and requested a trial. And so the so the week how how go should was from to actually request a trial. Everyone else pleaded out. Come on. They must have been kind of upset. They being the prosecutors. I mean, oftentimes they as most of most criminal prosecutions do not go to trial and requesting a trial is is can be I mean prosecutors like them, but they would rather get rid of stuff before going to trial about upward of 95% of criminal charges are cut out. Exactly. And when I spoke when I gave a Cato seminar about my experience and said the people involved didn't seem to be to me to be exude the expertise that I would have thought Clark one of our colleagues who's a lawyer said, Oh, well, this may have been their first trial. Like they're there's so few trials anymore that the fact that they seem like rookies to you. They may have in fact been rookies even though they spent years as as federal prosecutors. And this guy assume had public defenders. The we thought so but we got to talk to the judge after the trial was over and we asked the judge that because the defense seemed pretty competent. And so we said, is that a public defender? And he said, no, this person was the the all the witnesses who had pleaded guilty had public defenders. And so I guess under federal procedure or the law, I'm not sure this last defendant could not have a public defender. The judge said and instead received in effect private defense counsel at some high hourly rate at government expense. There's probably conflict of interest, interest amongst the public defender's office in that district and all the other defendants who had public defenders would be my guess. That seemed what would the conflict be? They're in the same office. So that's, that's, you don't remember, you don't remember legal profession class, Aaron. He's blocked law school out of his mind. Yeah. They're being in the same office to require screening or just actually using a voucher or something. Oh yeah. Okay. Yeah, I remember that stuff. See, I see.   That's true. That's legal ethics. But anyway, going back to the trial, what was it? I'm just digging myself deeper. Exactly. What was the most surprised is someone who's economist who doesn't do law, what was your first reaction to the trial in the sense of that this is not like television or this is not what you expected and as the trial moved forward? I guess the first, I have some reactions to trials as processes and then I'll have some substantive things about the law. The first was the trial because it was a long trial and because it involved conspiracy, my experience may not be typical at all of what normal criminal trials are. This may be specific to my experience, but it felt like a very, very mysterious Dickens novel done in installments. And I wrote notes. We were all given notebooks. Many of us took notes. There was an engineer on the jury. He and I were the kind of note taking nerds that you might suspect, but those who were more ordinary background on the jury also seemed very interested and took notes. Some weren't paying attention, but I got a sense that the citizens were taking this very seriously and we all wrote notes. And as someone who's taught college classes for 35 years or so, I found the trial to be a mystery where I didn't know how much I had to hang on to in my head because you presented the charges and the jury instructions at the end. You are given a prosecution view and a defendant view up front with the opening statements, but through all the introduction of mayhem and testimony and knives and ballistic evidence and this and that and the other thing and you're writing and trying to figure out which of this do I have to hang on to for what purpose. So here was the biggest puzzle which is during our deliberations we were puzzled on some things and our own notes disagreed and did you get that? Can you find right? We were asking each other. So we said, all right, let's ask for a transcript. Let's ask for a readout of who said what and why on this. A couple hours later we get the judge replied to us that a transcript doesn't exist and we go, what? And it turns out at least in this court, I don't know in general, but in this federal district court in Greenbelt, Maryland, all the stuff we see on TV about transcripts and reading back the transcripts, that's not possible. Transcripts are produced not in real time, but later and they take months, we were told by the judge. So they have a court reporter? Yes, she was there taking, in fact, because the testimony often involves Spanish and then translation, there were ish and gang slang and gang words. The court reporter was often asking what, you know, how to spell this Spanish word or whatever and I can't think of a reason why that would be except for maybe fighting over the contents of them. Not being a trial attorney, but lawyers can fight forever over whether or not the transcript is accurate when a jury asks for it to be read back to them or played back to them. So it wasn't just me, all of us, all jurors were shocked that we were reliant on our notes, which we weren't told would be the only thing we had. The judge said, just rely on your recall. Well, it was four weeks of testimony. And so going way back to week one where they were fussing about this bullet and that bullet and who was there and who wasn't and who said what to whom in Spanish, you know, we were, so anyway, the jurors, we were shocked that we were so dependent on our notes. And as an instructor and when I was a student, I always rewrote, we reworked my notes at night after class. You take them in real time, but it's so fast that you can't digest it all. And then it's the reworking of the notes to make a coherent story, at least in your mind, even if it's totally wrong. That for me wasn't possible in the trial. We weren't allowed to take our notes home. And I sort of get that it's, you can't discuss or do anything about the trial offsite, but that looking and reworking and then thinking of questions to ask, I mean, I started to want to raise my hand and ask some questions along the way about what the heck's going on here. And I'll give you an example. I mean, on day two of the trial, we, it was clear they were laying out all these gang members and their Spanish names and their gang names. And then there were photos and then we were lost. And I said so. We sent a note to the judge, can we have a play bill? I mean, can we have a list of all the players here and what's going on and who's in what's photo and what their names are? And afterwards the judge said, that was really good. That was a good request. And they did fulfill our request and indeed introduced that into testimony. But the defense argued strenuously against this play bill because it was created by the person who testified and introduced it into testimony was a Homeland Security agent. And so I get it. The defense is saying in effect that this play bill, this list makes, reifies this notion that in fact there was a gang and here are all the players. And in fact, the, the, my defense is that this is a fiction or that it's sort of not a fiction, but this defendant's name who's on there as a member of this thing will now it's in print and new jurors are all going to see this as in effect evidence that isn't in the defense interest to admit is true. And so I now understand all this scrum over that, but in real time, we were lost. And I don't know how we would have dealt with things in deliberations if we didn't have this, like who is who and who said this and oh yeah, they were in El Salvador and they were in prison and they weren't, you know, et cetera, et cetera. Do you think that your lostness benefited one side versus the other? Well, since it was remedied early, I can't, I have to do the counterfactual, which is, I don't know.  I felt like if our job is to try facts based on evidence, then what I said in the Cato seminar was I would introduce the charges at the start. And so we, and then we would, every day they would say, well, this testimony is related to this charge. And then you end up, you will end up having to decide the veracity of this testimony vis a vis this charge. Whereas at the end of five, four weeks, five weeks, we were given this three-page list of charges and then saying to ourselves what parts of who said what are linked to these things. But I can see the argument against doing it the way that you've proposed, which is when people, you would have fixated upon the charges and then you would have seen all of the testimony through light of that and would have been looking for things. The same as like, to some extent, you buy a red car and then all of a sudden you start noticing all the red cars on the road. You wouldn't have been assessing all of the evidence, but only the evidence that spoke to what you thought was important. Whereas if you put it at the end, then you have all of the presented testimony and evidence in mind and kind of... I think, yeah, it's what I think defense attorneys would agree with that because a lot of times you spar over jury instructions. In federal court, from what I understand, they're a little bit more regimented, but some of my friends who practice in state courts, after though everything is done, they're like, what are the jury instructions? Sometimes they're standardized, but what you tell a jury is very leading to a jury and when you tell it to a jury is very leading to a jury. So after my first year law school, the summer of my first year law school, I was called on to a jury for a homicide case that was substantially less complex than this one, but we had in the jury room at the end as we were deliberating after, I think, two days of testimony, we had a couple of questions of clarification about jury instructions, like just weren't 100% sure, and sent a note to the judge and the response was, you have to use what's there. That's what? That's what we got. And it was because if he had clarified that would have been something else that the counsels, putting counsels would have had to agree on. We got the same treatment jumping ahead during our deliberations. Twice we asked for help and the judge after hours just replied, please read the instructions and we kind of just throw our heads and pencils up in the air and go, that wasn't helpful. And particularly because we were dealing with layman's conceptions of conspiracy. Which are not the same as the federal government's. Exactly. And we were mostly because of me. The collective was hung up because I was resisting, convicting this person of conspiracy. I was willing to convict on gang membership, but then I said conspiracy means before they went to Frederick and did all these bad things, they sort of talked about it in some way that there's evidence of. And it turns out under the definition of Rico and conspiracy and things like that, that really wasn't necessary and I, and then the others didn't understand that. And then we gradually did and realized that once we found the person defended to be a member of an ongoing criminal conspiracy, all the rest of the charges sort of logically follow. And we didn't really have the right to not convict given the way the laws written and the instructions were given. And I asked the judge specifically about this after the fact. And he said, because during the deliberation, my logical preposition, the logical thing I just stated, which is we didn't have any choice once we did the first thing. Everyone said, oh, no, we have to go through and talk about all these individually. And I said, it's already happened whether you realize it or not. And the judge afterwards basically said to me when I asked him, he said, yeah, you're right. So I said, why are there all these other charges? And he said, because prosecutors pile on so that the sentence goes way up so that we then don't have to do this, IEA trial. You're going to your question about just add some of my knowledge here about the mystery of being on a jury. Historically, it wasn't always that way. Actually, in the in common law era, England, the jury was actually investigative. They would go to the and sometimes they will take a jury to a crime scene and stuff like that. I think they did that in the OJ trial, but they would the jury would actually investigate the facts and give its own wisdom slowly over the years. I won't go into that. The jury, everything about the trial has been turned into keeping the jury as sort of like much children as we can possibly keep them in turn with rules of evidence and saying, what will the jury hear and what won't they hear and what inflames the jury and what doesn't inflame the jury. In the very, I think Aaron and I, I remember this, we had evidence class together in the first case. I do remember taking evidence class. Yes. The first case that we read in evidence class, which are the rules of what you can present to a jury. The first case that you read in that case book was a case about a horribly dysfunctional jury. Remember this case? Where the juror came to the judge or after the jury had given their verdict, he said, I can't in good conscience say because no one was paying attention. People were sleeping. People were doing drugs in the jury room. I want to upset this jury verdict by saying that this jury was dysfunctional. They have all these hearings about the jury and say, are we going to overturn this jury verdict? They say no. It takes a lot to overturn a jury verdict from a juror testifying that the deliberations were problematic. That illustrates the fact that to what we think about in the trials of the jury is a black box. We generally do not want to look inside that box to see how that box operates. We want to feed things into that box that are clean when they get in there and make sure the jury doesn't know anything else that we don't feed into the jurors, including things that might be very, very probative of guilt, like prior bad acts that this person was convicted before of rape, so they probably raped today. That's not allowed in all these things. We keep you in mystery. If you're not a lawyer, it's even more mysterious because then you don't understand why they're doing these processes in this way. It's just part of the general trial. It's not surprising to me that it was so mysterious to you as an economist and not a lawyer. I asked the judge lots of questions. We all did actually afterwards and mostly about this mystery and what we felt like we didn't know what to do. He said he still taught law school classes and he'd been a federal judge 30 some odd years, very experienced. Then every time I said, maybe you ought to consider and he said, no, no, we don't do that. Whatever common sense my arguments might make, they're going to have no effect on anything as best I can tell. Well, the law is inherently conservative. It's, as my property law professor used to say, it's agents of the dead ruling over the living. But I wonder how much those things would change. I mean, so there are just their discrete reforms that we at Cato have offered. There are legitimate concerns people have about the veracity by witness testimony and all sorts of things like that, the medical bite, the bite examiners and forensics and stuff like that. But as far as the more procedural stuff, I mean, my sense from when the jury I was on first went back to the jury room and I was foreman and so they had me, I took a vote. At that point, we hadn't really talked through much of the evidence that we hadn't been presented. We hadn't talked through it at all. And it was so more people were just kind of based on their general perspective from sitting through two days. They had a response and that was the one they gave, which in our case was almost everyone said not guilty. Everyone but one person said not guilty. And then the deliberations didn't budge anyone on that. And so I wonder if, I mean, you could make these procedural things to fix it, but it makes me think of like there's those studies done where they'll give people a very systematic matrix for grading of papers. And then the last other people just give the paper a quick read and pick the grade that kind of their gut says. And they end up getting the two groups end up getting basically the same grades. And so I just wonder if it's kind of just this general impression you get, but these kind of changes wouldn't actually affect much in the outcome. And in our case, the one person who disagreed with the group, it wasn't any sort of principal disagreement. It was simply she that this was a case where a guy had gone to a party, he brought a gun with him, someone ended up being shot at the party. It wasn't clear whether it was him who had whether he'd done the shooting, but her response was nice people don't bring guns to parties. So therefore he's guilty. So that wasn't like an instance of, you know, like different interpretations would have changed anything.  And I just wonder how much all any sorts of tinkering on the margins would matter much at all. The nerds on the jury sort of had my sentiments, whereas other people just had impressions of these people were good or bad or and et cetera, et cetera. So the, I guess, I mean, when I've talked to my Kato colleagues subsequently to this experience, they've said on average, people like you are never allowed on juries ever. And so this, this very nerdy, very make sure everything's right. We worry about convicting someone who's not guilty and all that. I mean, that's a very intellectual perspective and the ordinary people on the street just want to make sure there are no gang guys out there that are marauding in their neighborhoods, not much more abstract intellectual way of dealing with things that is common around here. How did, so the deliberations during your trial, as you said, as soon as you kind of realized that conspiracy meant being a member of an organization that carried on criminal predicate acts, which is what basically it means in the RICO statute, the deliberation was over basically because it was clear he wasn't- Well, no, I was, I mean, I, we have the charging form in front of us. So I, based on the evidence said he was guilty of being member of a criminal ongoing criminal enterprise, but then I wasn't sure whether he conspired in my sense of the word to commit this murder. But then you learned that conspiracy meant something different. I learned that my kind of narrow grammatically common, and the other jurors also said, yeah, Peter, make a conspiracy that, yeah, you sort of have to whatever. And so that's when we asked for testimony about there was a disagreement among the witnesses, i.e., the other gang members, as to whether a phone call did or did not come from an El Salvador prison and whether the defendant was there when that phone call came in ordering the hit on this person. And I said, that doesn't that matter? And it turns out it doesn't. And so then they said, well, Peter, the cell phone evidence, which we can talk about, the cell phone evidence placed all the gang members involved in that day. They went to one guy's house, and you can see the phone movement. And then they went up 270 to Frederick. And then all the phones were around where the murder happened. And then all the phones, including the victims, went down 270. And then halfway towards DC on 270, the victim's phone disappears, i.e., it was smashed and thrown out the car by the testimony we received. And that's when the cell phone records for that phone end. And so I said, that's pretty, I mean, the notion that all these guys just happened to, oh, they had cell phone evidence 30 days before and 30 days after this event, because the defense claim was that they just happened to go to Frederick to smoke marijuana in the woods with their friend. And based on the fact that they hadn't gone there before, after in a month, and then all this cell phone evidence during the time of the murder seemed, I said, I'm convinced this person was present at the murder. Okay, so then I didn't know legally what I should, what did that, could I contain it and say that there were lesser charges possible? Because the charge, the jury instructions actually talked about second degree murder and this and that and the other thing. But in fact, we weren't given that choice. And I still don't actually know why about that. So we asked the judge for some of these things. And he just sent back, please read the instructions. And it was like this. So eventually I realized this 11 people wanted to convict and Peter was asking questions and not getting very far. And I didn't know what to do. So you eventually voted to convict or yes, yes, because even though it may not make sense in terms of what you would comment, since a conspiracy isn't in the RICO sense, count one here, I'm looking at the counts. It does qualify under RICO, which is a stunningly capacious statute that can pretty much get anyone who is a member of any organization that is doing underlying criminal activity, which is, which they always say racketeer. It means racketeering. Racketeering does not mean your classic running numbers, any underlying criminal enterprise. It's I think I've read this in the charges. It says murder in the aid of racketeering. Commit murder in the aid of racketeering.  It really means anything from accounting fraud to large mafioso, which is why this statute was passed. It was passed purportedly to fight organized crime as part of the omnibus act of 1970 and so they could go after large criminal organizations and it's been misused since then to go after anyone who is a member of an organization that does anything vaguely criminal. I did ask my colleague Clark about whether there was a the legal equivalent of market failure. In other words, if he had been around, then if Cato had existed at this time, what would we have said about the need for this statute? And he said, well, there really was evidence that lots of juries and queens weren't convicting lots of people who had done very bad things and thus even Cato at the time may have said there was a reason for collective responsibility as it were, which I was surprised. He said that, that he didn't just dismiss this as made up, but rather there was perhaps a need for it and then New York prosecutors aggressively used it and the mafia as we know it has been disbanded, but he then, now the Cato perspective is that it's now being used in lots of ways, mostly white collar that never intended to be used and he hadn't actually thought about whether reviving it for El Salvador gangs was valid or not and whether it was necessary or not. How does mens rea play out in RICO? It does not. So some of these counts have mens rea. There's a civil and a criminal side of RICO and so conspiracy though is a difficulty because the underlying predicate act, you don't have to intend to... It's not a specific intent time. You just have to intend to be a member of the organization. Do you have to know that the organization is criminal? So like in that novel, The Firm, when he joins that law firm, that's actually a criminal organization but doesn't know it. The intent has to be to be a member of the organization. That's the problem here with the separation between whether or not you know that they're carrying out illegal things and I mean, I would say that you do to some extent. In this particular context... But I'm not a trial attorney. Probably like in this particular case, you kind of know that MS-13 is a criminal organization. Well, testimony was introduced in this particular case about the defendant wearing a hat made in a prison in El Salvador which said MS-13 and Normandy click on it and Facebook photos with gang signs and tattoos. That was a week of testimony about that and then gang experts saying that if you use these tattoos or use the signs without permission, then you'll be killed, i.e. kind of a brand name, misuse kind of thing and then the defense lawyer was saying... Like enforce your trademark? Yeah, they're really big on trademarks. The defense lawyer was saying, well, in this particular case now and then there are people who aren't members who do display gang signs and things like that. So trying to introduce the possibility that this was just a winter ski cap that the defendant was wearing prominently in Facebook photos and really wasn't a sign of gang membership. Well, to Aaron's question, I mean, that's part of the issue about knowing. So let's take the firm, that's a really good analogy. What the prosecutors really love about RICO is that it's insanely vague and that means that they can threaten a lot of people in an organization with criminal activity and incredibly bring charges and say, you know, so you do to know your member of the organization and then the organization, you would have to know that it somehow criminality is being... If you're just working in the accounting pool at a criminal law firm and you literally know nothing, technically that should not be illegal, but they can certainly threaten you very, very harshly. And what they really want is the ability to threaten as many people with credible conviction possibilities to get testimony out of them, which is part of the problem with RICO. And that comes up in your trial that they're really... All the people who testified against him were given plea deals. Right. And the defense... The main component of the defense was that and that we shouldn't trust any of what these folks say because they've all admitted to doing very bad things and they were facing life and now they're facing less than life. Therefore, everything they said was a lie. How did you feel about that? I don't know. The testimony of all the witnesses, the gang members, was fairly consistent and we were told that they had not been in contact with each other. And so the story, but they did have rehearsals with the prosecutors. So they basically said that this defendant was a member of the gang and it had done these things because he knew he hadn't done a murder because you need to do a murder in order to be elevated from a lower level status to a higher level status and that's what this thing in Frederick was all about. And the defendant never testified. There were no defense witnesses. The defense rested after the prosecution rested. The only defense side we saw was the cross, right? The defense attorney crossing the prosecution witnesses, i.e. the other gang members. That testimony question is very, very important and I guess never having watched someone on trial and decided whether I believe them, but I would be... If someone said you could... I'll knock 20 years off of a 30-year sentence for you to do something and I was already not a very upstanding citizen, I'm not sure why I wouldn't just lie about it. And that does seem to be often the case of the jailhouse snitch problem is pretty bad, but I mean like that's... They're doing some pretty serious sentence reductions in these.  Do you have any idea how much these sentences were reduced for testimony? Yes, they were. In fact, the defense made a big deal about this that basically they were, oh goodness, this is federal sentence guideline 44 down to level 36, and we were scratching our heads. Basically it seemed like these were all men in their 20s, right? And so they were... Instead of facing life, they would be facing 20 or 25 years or something like that. So that's pretty substantial. But then they would be deported back to... I mean they were all illegal except one. They would all be then deported back to El Salvador and then killed if the gang was still... I mean the weird thing is some of us wondered, do you really want to get out? And then, yes, and then would witness protection work and is that credible? And and all I know is what I see in the movies which is sometimes it seems to work and sometimes it doesn't. And so I don't... We didn't have any independent empirical evidence about that. It was very weird. I mean in some sense it seemed like we were in a movie but it was a very slow movie. Did that surprise you at all that you didn't see anyone saying I want the truth or just very clinical kind of questioning? No, that leads me to one of my other procedural observations which is this trial I was in, even though the stakes were momentous, was incredibly boring. We spent mountains and mountains and mountains of time on chain of evidence procedures, i.e. plastic bags filled with gang hats and bullets and guns and then the questions would be like, and I wrote, do you recognize this plastic bag? Yes. How do you recognize this plastic bag? Would you please open this plastic bag? What is in the plastic bag? This is all just teeing up appeal stuff, right? They're not expecting you, the jury, to go lean one way or another or care much about that. Well, it's the prosecution trying to avoid the appeal stuff. Right, that's right. So then you ask all of that. So then if he's found guilty, the defense can say, well, wait a second, at this point, you didn't ask, you asked that guy about the plastic bag and you asked that guy about the plastic bag, but you only asked that guy about a bag, but maybe it wasn't the plastic bag. We didn't realize all that. Lawyers weren't on the jury. Lawyers are never on the jury. Subsequent to being on it in my Cato seminar of the lawyers at Cato said exactly what you have said, which is the point of all this boredom is so that the prosecution messes up. So in effect, the defense wants all of this because if someone messes up, then they can perhaps... Oh, so it wasn't the prosecution asking about the chain of evidence, but it was the defense? Yes. Okay. Well, either way, because the prosecutors, they want to make sure that that's good too, but I guess to make the defense would be asking that. Again, never having done a trial, but only on appellate work, it makes sense. And my reaction to that is simply the two scandals I know of as a layperson reading the newspapers are the Harris County, Texas Lab Tech scandal, and the same in Massachusetts, where thousands and thousands of cases involved fraudulent plastic bags and or blood samples and or testimony about the chain of evidence and the accuracy of it. And my only feeling is that as a juror, the procedure I saw didn't stop all this in Texas. In other words, all this elaborate, trying to make the person accused only responsible for things that are accurate and displayed and shown in public. I sort of get all that, but this procedure hasn't stopped the two biggest scandals I know in the U.S. in recent history. And to me, it seemed like a waste of time. And I wish the prosecution and defense could stipulate that we agree that all of these things exist and we'll just focus our attention on other things we don't agree on. They would never do that. Why would they stipulate to that? Every lawyer I've met said exactly what you said, which is... You stipulate to like, you know, January 28 was a Sunday, but if there's any possibility that January 28 was not a Sunday, you do not stipulate to that. Well, you'll love this, which is there were two stipulations in the trial. And they were ironic or funny or something, which is the witnesses were, you know, El Salvador immigrants with sixth and seventh grade educations. And the one witness that kept having a dispute about whether he had a child or not, and it turns out he did, but he didn't want people back in El Salvador, i.e. his other wife or something to know this. And so he testified, no, I don't have a son. And then the next day we were quietly told that the defense and prosecution do stipulate that in fact the witness does have a child. The second thing was there's this gang initiation ritual involving beating the the initiate for 13 seconds.  And they went through the count. And the prosecutor said one, two, three, and then asked the witness, how long was that? And he goes three minutes. And then the prosecution goes one, two, three, four, and he goes five minutes. And you realize he doesn't know the difference between minutes and seconds. So maybe it's a language problem. No, this was all Spanish translation. And the next day we were stipulated that the beating took 13 seconds, not 13 minutes. And the the witness does understand that, whatever that. So it was, I mean, those were the two stipulations. And I said, how come not other things? Did you get a sense? Because this is something that I noticed almost immediately in the trial that I was on was that one of the sides, the sides kind of knew what their chances were. We knew that the prosecution knew that they didn't have much of a case in our like you could just tell. Did you get a sense at all of whether one side? Well, the defense was flailing and bringing up. She would ask like, how do you know that that's your testimony? Well, because my initials are, are you reading or are you recalling? And is your read, you know, this all those are all really important legal rules that I look it into, but like whether or not you're recalling something you said and like that matters and things that may be different kind of testimonies of like maybe five years ago. Well, all these murders are five years ago. So you ask an officer to write down a statement and then you want to, if you want to be sure, you know, you can enter their statement and evidence possibly or have them read it to the court. And then these be very clear that they're reading to the court or they're remembering because then you can attack their recollection or you can attack the provenance of the paper and just a bunch of rules around that that I won't get into. But that's why the law is boring. We didn't, we didn't understand. They did a lot of that the defense attorney did and so it seemed like to that it's interesting that that seems like flailing to you when they're actually doing a good job. That would be making sure that you ask every, every witness that this is your statement. Do you recognize this? Do you recognize your signature? I'd like to, you know, submit to the court that this is the statement, that kind of thing. It's that that's a good defense attorney. Let me get to the most substantively interesting thing, which I questioned during deliberations and then we asked questions and then we were kind of left tie and drive, which was, was this murder and what the defendant did not, did not use the gun that everyone admitted to that the, the person who just real quickly then why are there questions on the, on the charge sheet? There are questions about whether he used a gun. No, not he, but whether a gun was used in this thing where he was present. Oh, use of a firearm in relation. Was brandished during, oh, so, oh, yeah, right. It's the one thing we found him innocent on was brandishing a firearm. And I raised, I said, there was no testimony one way or the other about brandishing. And I, again, I said to me, brandishing is you're showing the gun to try to achieve something. And A, it was dark. If this was at night and B, there, there was no testimony one way or the other about brandishing. All that was said was the shooter who was not here and was deported suddenly turned quickly, put a gun to the guy's head and shot. Well, that's not brandishing, is it? So we found the defendant not guilty on the charge of brandishing. That was the only. So there was this question here. How do you find the defendant as to the charge of use of a firearm during and in relation to a crime of violence in Cal 4, that there was literally no evidence and contradicted that he even had a firearm or used it to kill the guy because it was admitted that the shooter who was in El Salvador was the one who had the gun? It wasn't that. It's just that no one, neither the shooter nor the defendant brandished. That was the basis of our thinking. And again, Clark in the Cato seminar said, oh, jurors feel bad about stuff. And they try to find something that they can do to help the defendant, no matter how bad the defendant is. And you, jury that I was on, did exactly that. You found one thing. And when we talked to the judge, we asked brandishing and we explained why we didn't think that there was any evidence one way or the other about that. And we thought that was important. Oh, he said, yeah, you know, he, he, it was funny. I think I'm not sure the judge was paying attention to the trial. He was writing all the time. He was just looking like he was doing homework. And again, I've talked to lawyers at Cato since the end and they've said, oh, yeah, you're probably right. He probably, judges are busy. They've got lots of stuff to do because when, when objections were raised and things, sometimes he would go, Oh, well, tell me what you were talking about and why you're objecting. And it's like. So how did they deal with this question of stabbing a guy 13 times? The medical examiner for the state of Maryland or assistant medical examiner, whatever he was, he said the official, his official finding was death by gunshot wound and stabbing on cross. The defense attorney said, if the gunshot had not occurred, it's your testimony that none of the stat 12 stab wounds hit anything vital, correct? And he said, correct, they did not. And it is your testimony that if the shooting had not occurred and the def, and only the stabbing had occurred and the defendant had received proper medical attention, the defendant would have survived. Or was it possible that the defendant could have survived? And the medical examiner said, yes. So in deliberations, I said, well, what are we to make of this? So there's an official finding by the medical examiner. And then on cross, there's this admission that if some things had occurred. So the gunshot wound itself was not then fatal, is what you're saying? No, it was. But if the gunshot had not occurred, would the stabbings, which is what the defendant was charged with directly. But then even still like I could, that doesn't seem to get to the, the heart of the matter, which is, was he stabbing a guy who was already dead? Oh, that's the question he's asking. Right. But how so, but if the gunshot wound is, was fatal, the, the medical examiner didn't want to, in other words, he's not there at the time to diagnose brain death. Yeah, he would. The medical examiner would not be allowed to comment on that thing that he doesn't have the knowledge of. Bleeding occurred subsequent to the gunshot wound. He said the heart was beating, which is why the wounds had this kind of blood and not that kind of blood. So you can't say that the heart had stopped. Brain death is impossible to scientifically discuss ex-post. So the question was, unless you were there at the time and do an EEG, right? So the question was, if the gunshot wound had not occurred, would the defendant have died from the stabbings alone if the victim had received medical attention? And what did you determine on that? Well, the, the medical examiner said, yes, that the victim could have survived the stabbings if he had received. Or how did that affect your deliberations? Do that mean?  Instead, he should be charged with desegration of, of corpse. And in fact, sort of said that in, in closing. So we asked the judge what, you know, we didn't know the legal standing of what the medical examiner said in his official statement versus then what was stated in cross. Were they of equal legal value? Did we have the discretion to whatever? And what we got back was, please read the instructions. That makes sense. Frustrating. It reminds me though of a case where in law school, in criminal law, the question was based on a guy, one guy shooting a guy while and what person a shooting person B while person C is there and then person C waiting a few minutes and then going to get a gun and then also shooting the guy who had been shot. And the question was in that case was whether or not he was still alive without any knowledge of whether or not person B was still alive.   I mean, it's okay for, but it creates complex situations clearly. So what is your biggest takeaway from, from this, this experience that I'm sure was, was fascinating. We wanted to bring you on to talk about them. We were joking even in the office about, I would love to watch Peter Vandoren be on a jury. It would be, it would be really fun to watch. And you've already described yourself as being the person demanding more than the other jurors. Yeah, was it, was it fun for the other jurors? Yeah, it was, well, I, I did ask them, I, I said, I mean, I did hold things up for two days and I stay, said mostly the women on the jury said, you were, we, we appreciated all your thoughts and it was important to hear that the men seem less interested. And I don't know. I mean, I, I do have more respect for the criminal justice system, do you think, or less? Or is it hard to categorize in such a way that it seems more random and puzzled? I hope I don't know. I mean, I've told my story to a seminar and, and Cato colleagues now and now the wider world in this podcast. And I don't worry at night that I did the right thing by eventually deciding to convict, but sometimes I wonder, could I imagine again, what you're taught as a kid, put yourself in someone's shoes and would you want to be treated that way? And the, you know, we're all taught that this jury institution is seven or 800 years old and it's important part of western civilization. And that's why we send people to fight wars and because of jury system and Declaration of Independence and stuff like that. And so I got to experience it. And in some ways, it was an enormous expense of public resources to pursue what for most people would seem like the conviction of someone that obviously probably wasn't up to much good. On the other hand, part of me wonders whether some of the concerns that I've raised today, we that I didn't hold out long enough or longer or, or whether I should have pursued, it would have been a mistrial. I mean, I don't think anybody would have changed their mind. And even if I achieve that, what I have been doing good by that, given that this appears to be by all descriptions, a set of young men that were up to much, much mischief in mayhem and disrupting lots of other people's lives. And I hadn't, we haven't talked about, there was Facebook test Facebook pictures and messaging after the fact in the year, there was a year after these events before the defendant was actually arrested. And if he was trying to escape the gang and you know, lay low and not brag about what happened, he was not doing a good job of it. So I think that helped me also in effect, stop objecting and go with what everyone else wanted to do. Thanks for listening. Free Thoughts is produced by Test Terrible. 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