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Dissenting Statement of Commissioner Brendan Carr (FCC 24-18)

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DISSENTING STATEMENT OF COMMISSIONER BRENDAN CARR
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Re: ; Fourth Report and Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking; MB Docket No. 98-204.

Today’s FCC Order takes two separate actions.

First, it reinstates the federal requirement that broadcasters file a document (known as Form 395-B) every year with the FCC that lists the race and gender of their employees. I would have had no objection here to an FCC decision limited to requiring broadcasters to file Form 395-B data with the agency—after all, Congress passed a statute that directs the FCC to collect this information. The FCC could also have made this data available on an anonymized or otherwise aggregated basis that does not disclose information about specific broadcast stations. Indeed, the Civil Rights Act of 1964 expressly requires that the government keep this type of race and gender data confidential when it is collected by the Equal Opportunity Employment Commission. But instead of confining today’s decision to lawful agency action, the FCC chooses a different course—one that violates the Constitution, as the D.C. Circuit has already determined in not one but two separate FCC cases.

In particular, in the second part of today’s Order, the FCC decides that it will take the Form 395-B demographic data and publish it on a station-by-station basis—meaning that the FCC will now post a race and gender scorecard for each and every TV and radio broadcast station in the country. In doing so, the FCC caves to the demands of activist groups that have worked for years and across different industries to persuade the federal government to obtain—and most importantly publish—this type of data about individual businesses. This is no benign disclosure regime. The record makes clear that the FCC is choosing to publish these scorecard for one and only one reason: to ensure that individual businesses are targeted and pressured into making decisions based on race and gender. This is the exact same type of pressure that the FCC created in at least two prior cases. In both instances, the D.C. Circuit invalided the FCC’s rules because they violated the equal protection guarantees of the Due Process Clause of the Fifth Amendment. The only difference this time around is that the FCC has violated the First Amendment as well.

In the Further Notice portion of today’s decision, the FCC proposes to extend this same approach to additional industries.

Let’s start with the FCC’s record of encouraging this type of discrimination. In, the D.C. Circuit reviewed an earlier FCC effort to use Form 395-B (the same form that is at issue in today’s decision) as part of a set of agency regulations aimed at influencing broadcasters’ hiring practices. As with today’s new rules, those FCC regulations did not expressly require broadcasters to hire employees in accordance with fixed quotas. Instead, those earlier FCC rules required broadcasters to compare the composition of their workforce with the availability of minorities and women in its area. On review, the D.C. Circuit found that those rules would operate, in the real world, in a manner that would “oblige stations to grant some degree of preference to minorities in hiring.” In particular, the court found that the FCC’s approach of mandating the comparison of employees with the general population across race and gender categories operated to “pressure license holders to engage in race-conscious hiring.”, 141 F.3d at 351. The D.C. Circuit concluded that the FCC violated the Constitution because its “regulations pressure stations to maintain a workforce that mirrors the racial breakdown of their [area].”

After that appellate court loss, the FCC suspended the relevant regulations and sought comment on a set of replacement rules. Those substitute rules required broadcasters to report the race and sex of each job applicant. The FCC made clear that if the data collected did not demonstrate that a broadcaster’s outreach efforts were reaching the entire community, then the FCC expected the broadcaster to modify those efforts and in some cases face an FCC investigation. On appeal, the FCC once again claimed that its regime did not impose any undue pressure on broadcasters to discriminate on the basis of race or gender and only sought to encourage broad outreach on a race- and gender-neutral basis. Focusing on how the rules would operate in the real world, the D.C. Circuit disagreed and struck them down in. The court found that the regulations did more than encourage broad outreach—they made clear that “the agency with life and death power over the licensee is interested in results, not process, and it is determined to get them.” The FCC’s approach “clearly does create pressure to focus recruiting efforts upon women and minorities” in violation of the Fifth Amendment, the court determined. Ultimately, the court held that those FCC rules created “a race-based classification that is not narrowly tailored to support a compelling governmental interest and is therefore unconstitutional.”

The FCC’s history of unconstitutional conduct is not a trivial matter. The Supreme Court has stated that “‘[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’” Likewise, the Supreme Court has written that racial classifications “threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” For this reason, the Supreme Court has said, “governmental action based on race—a classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry to ensure that the  right to equal protection of the laws has not been infringed.”

Today, for at least the third time now, the FCC once again seeks to pressure broadcasters into making hiring decisions on the basis of race and gender. It does so, as noted above, by requiring broadcasters to publicly disclose, on a station by station basis, a scorecard that lists the racial and gender breakdown of every employee.

As a threshold matter, the FCC argues that its decision merely adopts a disclosure regime and involves no pressure at all on broadcasters to engage in race- or gender-based discrimination. But this argument ignores both the Commission’s own history with Form 395-B and the rulemaking record here. Indeed, the FCC Order goes so far as to assert that, “[b]ased on the record before us, we find no basis to conclude that the demographic data on a station’s annual Form 395-B filing would lead to undue public pressure.”

To the contrary, the record is overflowing with this type of evidence. For instance, one filer states: “We, the undersigned investors, with collective assets under management or advisement of approximately $266 billion, write to urge the [FCC] to require the disclosure of equal opportunity employment statistics among the companies it regulates” because doing so “allows market participants to assess whether companies stand by their public commitments to pursue diversity, equity and inclusion.” You don’t have to read between the lines on that one. Or, as the D.C. Circuit stated in when it struck down one of the FCC’s prior attempts at imposing unconstitutional pressure on broadcasters: “The risk lies not only in attracting the Commission’s attention, but also that of third parties.” Like those investors, other organizations wrote that publicizing this data would be consistent with President Biden’s Executive Order on Advancing Racial Equity and “allow the public to hold these companies accountable.” Other commenters made similar points. So the FCC’s ostrich-like claim that the record is devoid of any evidence that this public scorecard will be used to pressure broadcasters into making race- and gender-based hiring decisions does not withstand even casual scrutiny; indeed, it only raises additional questions under the law.

But even if the record were more opaque, the FCC would still not be in the clear. As the D.C. Circuit stated in, a “regulatory agency may be able to put pressure upon a regulated firm in a number of ways, some more subtle than others. The Commission in particular has a long history of employing: [‘]a variety of pressures and ‘raised eyebrow’ regulation  all serv[ing] as means for communicating official pressures to the licensee.’” So too here. It is obvious to everyone what is going on—or it should be. By requiring the public disclosure of these race and gender scorecards, the FCC is ensuring that broadcast stations will be targeted by activist groups, media campaigns, and conceivably the government itself—unless those broadcasters hire the right (if unspecified) mix and type of employees. In other words, the FCC is standing up the same type of race- and gender-based pressure campaign that the D.C. Circuit invalidated twice before. It is just doing so in a more roundabout way. But the bank shot still counts. Particularly given the FCC’s long history here, broadcasters know the message the FCC is delivering and the results it wants to see. In cases like these, “we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’”

This conclusion is only reinforced when one examines the reasons the FCC proffers for requiring the public disclosure of these scorecards—rather than making the data available on an anonymized or non-station-identifiable basis. It is quite obvious that the FCC’s stated rationales are nothing more than pretext. And none of them establish a government interest sufficient to survive Fifth Amendment review. Let’s go through all three of them.

First, the FCC argues that it is requiring these scorecards to be publicly disclosed because doing so “will increase the likelihood that erroneous data will be discovered and corrected.” But there is no record support at all for the agency’s claim that publicizing this data will render it more reliable. This is not surprising. After all, how exactly does the FCC anticipate that a member of the public will verify the reported race, ethnicity, and gender of an individual employee—including those that the FCC now says can report as gender non-binary? It doesn’t. And, in any event, I don’t think the FCC should be encouraging the public to engage in that type of conduct.

Second, the FCC argues that publicly disclosing the data is consistent with Congress’s goal of maximizing the utility of data an agency collects. But this argument proves too much. It says nothing at all about the propriety of disclosing this particular set of data on a station-specific basis in light of the FCC’s history of pressuring broadcasters and the agency’s own rulemaking record here, which counsels against public disclosure. Indeed, the FCC’s normal practice is not to make all of the data it collects publicly available in the interest of maximizing utility; it makes decisions based on the facts and circumstances relevant to each data set.

Third, the FCC argues that by publicly disclosing all of the data about every covered broadcaster, rather than disclosing it on an anonymous or non-station-identifiable basis, the FCC avoids the problem of accidentally disclosing data about a specific station. What? That is like deciding to sink a ship to avoid the risk that it might spring a leak. It makes no sense, particularly in light of the fact that the FCC regularly obtains and refrains from inadvertently disclosing a large and wide range of secret, sensitive, and/or confidential data sets.

In other words, the only rationales the FCC offers for deciding to publicly disclose individual broadcasters’ race and gender scorecards are pretextual. They only serve to confirm the FCC is acting for the same reasons it did in and in —to pressure broadcasters into making race- and gender-based hiring decisions.

But the Fifth Amendment is not the only portion of the Constitution that the FCC violates today. For similar reasons, today’s Order also runs afoul of the First Amendment. By requiring stations to publicly disclose their workforce composition, the Order compels speech on matters of race and gender. Compelled disclosures are typically subject to heightened First Amendment scrutiny. And the exception for disclosures of “purely factual and uncontroversial information” plainly does not apply here because that exception is “limited to cases in which disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” The FCC has made no claim that the public disclosure of these scorecards bears any resemblance to consumer protection labels upheld under.

The Order also flunks heightened First Amendment review, whether intermediate or strict scrutiny. As noted above, the three governmental interests the FCC asserts for publicizing this content ring hollow. They are either generic rationales applicable to any disclosure or unsupported in the record. No other justification can save the Order, for it disclaims a governmental interest in using the data for any other purpose, whether license renewal, EEO compliance, audits, FCC enforcement, or third-party filings. Even if a valid governmental interest existed, disclosure would not be narrowly tailored. The Order provides no reason why publicizing race and gender data on a station-specific basis is necessary for the Commission to conduct analysis or stay abreast of industry trends, at least compared to a less restrictive alternative, like requiring broadcasters to submit the forms to the FCC on a confidential or non-station identifiable basis. In short, the disclosures do not accomplish cognizable governmental interests in a narrowly tailored manner.

We are thus left with one of two possibilities. At worst, the Order pretextually seeks to force broadcasters into making race- and gender-based hiring decisions, a constitutionally offensive rationale that cannot justify any rules. Or at best, Order pursues disclosure for disclosure’s sake, which violates the First Amendment.

It did not have to be this way. As I conveyed to my Commission colleagues before casting my vote, I would have supported today’s decision if it eliminated the public disclosure component and instead required broadcasters to complete and file Form 395-B with the FCC on a non-public or non-station-identifiable basis consistent with the way the Equal Employment Opportunity Commission treats this type of data. Narrowly tailoring what is made public would have avoided the FCC playing a part in pressuring broadcasters into making hiring decisions on the basis of race and gender in violation of the Fifth Amendment. And it would have sidestepped a compelled disclosure that runs afoul of the First Amendment. My suggestions were ultimately rejected, and we are now left with an item that runs headlong into the Constitution. I dissent.


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42 were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increasingly been gaining mainstream recognition and acceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. Id., at 140. “Discrimination against gay women and men, by contrast, was not on the table for public debate ... [i]n those dark, pre-Stonewall days.” Ibid.

For those who regard congressional intent as the touchstone of statutory interpretation, the message of Title VII’s legislative history cannot be missed.

Post-enactment events only clarify what was apparent when Title VII was enacted. As noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were introduced in every Congress beginning in 1975, see supra, at 2, and two such bills were before Congress in 1991 when it made major changes in Title VII. At that time, the three Courts of Appeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orientation, two other Circuits had endorsed that interpretation in dicta, and no Court of Appeals had held otherwise. Similarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Rh that it covered discrimination on this basis. These were also the positions of the EEOC. In enacting substantial changes to Title VII, the 1991 Congress abrogated numerous judicial decisions with which it disagreed. If it also disagreed with the decisions regarding sexual orientation and transgender discrimination, it could have easily overruled those as well, but it did not do so.

After 1991, six other Courts of Appeals reached the issue of sexual orientation discrimination, and until 2017, every single Court of Appeals decision understood Title VII’s prohibition of “discrimination because of sex” to mean discrimination because of biological sex. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001), cert. denied, 534 U. S. 1155 (2002); Wrightson v. Pizza Hut of Am., Inc., 99 F. 3d 138, 143 (CA4 1996); Hamm v. Weyauwega Milk Products, Inc., 332 F. 3d 1058, 1062 (CA7 2003); Medina v. Income Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005); Evans v. Georgia Regional Hospital, 850 F. 3d 1248, 1255 (CA11), cert. denied, 583 U. S. ___ (2017). Similarly, the other Circuit to formally address whether Title VII applies to claims of discrimination based on transgender status had also rejected the argument, creating unanimous consensus prior to the Sixth Circuit’s decision below. See Etsitty v. Utah Transit Authority, 502 F. 3d 1215, 1220–1221 (CA10


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44 2007).

The Court observes that “[t]he people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms,” ante, at 24, but it has no qualms about disregarding over 50 years of uniform judicial interpretation of Title VII’s plain text. Rather, the Court makes the jaw-dropping statement that its decision exemplifies “judicial humility.” Ante, at 31. Is it humble to maintain, not only that Congress did not understand the terms it enacted in 1964, but that all the Circuit Judges on all the pre-2017 cases could not see what the phrase discrimination “because of sex” really means? If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.

What the Court has done today—interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity—is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. See Appendix C, infra; e.g., 20 U. S. C. §1681(a) (Title IX); 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Opportunity Act). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante, at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s.

The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least


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 rowest and most exclusive of all parties. Really, before you ask me to hear the Church, I have a right to ask you to define what the Church is.'

'Our Articles define it,' said Argemone, drily.

'The Visible Church,' at least, it defines as a company of faithful men, in which,' &c. But how does it define the 'Invisible' one? And what does 'faithful' mean? What if I thought Cromwell and Pierre Leroux infinitely more faithful men in their way, and better members of the Invisible Church,' than the torturer-pedant Laud, or the facing-both-ways Protestant-Manichee Taylor?'

It was lucky for the life of young Love that the discussion went no further: Argemone was becoming scandalised beyond all measure. But, happily, the colonel interposed,—

'Look here, tell me if you know for whom this sketch is meant?'

'Tregarva, the keeper: who can doubt?' answered they both at once.

'Has not Mellot succeeded perfectly?'

'Yes,' said Lancelot. 'But what wonder, with such a noble subject! What a grand benevolence is enthroned on that lofty forehead!'

'Oh, you would say so, indeed,' interposed Honoria, 'if you knew him! The stories that I could tell you about him! How he will go into cottages, read to sick people by the hour, dress the children, cook their food for them, as tenderly as any woman! I found out, last winter, if you will believe it, that he lived on bread and water, to give out of his own


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56 miæ were plundered and laid waste, the consuls claiming the lion's share of the spoil; and Clodius, with his armed mob, set fire to the noble house on the Palatine, razed it to the ground, and erected on the site a temple to—Liberty!

Cicero had friends who strongly urged him to defy the edict; to remain at Rome, and call on all good citizens to arm in his defence. Modern historians very generally have assumed that, if he could have made up his mind to such a course, it would probably have been successful. He was to rely, we suppose, upon those "twenty thousand Roman youths"—rather a broken reed to trust to (remembering what those young gallants were), with Cæsar against him, now at the head of his legions just outside the gates of Rome. He himself seriously contemplated suicide, and consulted his friends as to the propriety of such a step in the gravest and most business-like manner; though, with our modern notions on the subject, such a consultation has more of the ludicrous than the sublime. The sensible and practical Atticus convinced him that such a solution of his difficulties would be the greatest possible mistake—a mistake, moreover, which could never be rectified.

But almost any course would have become him better than that which he chose. Had he remained and faced Clodius and his bravos manfully—or had he turned his back upon Rome for ever, and shaken the dust off his feet against the ungrateful city, and become a noble pensioner upon Atticus at Buthrotum—he would have died a greater man. He wandered from place to place,

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Rh some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by intervening and proclaiming categorically that employment discrimination based on sexual orientation or gender identity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead.

As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.

I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a comprehensive survey or to suggest how any of these issues should necessarily play out under the Court’s reasoning.

“[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.

Under the Court’s decision, however, transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the


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Rh sheltered by friends whose unselfish loyalty marks their names with honour in that false and evil generation—Sica, and Flaccus, and Plancius—bemoaning himself like a woman,—"too blinded with tears to write," "loathing the light of day." Atticus thought he was going mad. It is not pleasant to dwell upon this miserable weakness of a great mind, which Cicero's most eager eulogists admit, and which his detractors have not failed to make the most of. Nor is it easy to find excuse for him, but we will give him all the benefit of Mr Forsyth's defence:—

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58 His exile lasted nearly a year and a half. Long before that time there had come a reaction in his favour. The new consuls were well disposed towards him; Clodius's insolence had already disgusted Pompey; Cæsar was absent with his legions in Gaul; his own friends, who had all along been active in his favour (though in his querulous mood he accused them of apathy) took advantage of the change, his generous rival Hortensius being amongst the most active; and all the frantic violence of Clodius and his party served only to delay for a while the return which they could not prevent. A motion for his recall was carried at last by an immense majority.

Cicero had one remarkable ally on that occasion. On one of the days when the Senate was known to be discussing his recall, the 'Andromache' of Ennius was being played in the theatre. The popular actor Æsop, whose name has come down to us in conjunction with that of Roscius, was playing the principal character. The great orator had been his pupil, and was evidently regarded by him as a personal friend. With all the force of his consummate art, he threw into Andromache's lament for her absent father his own feelings for Cicero. The words in the part were strikingly appropriate, and he did not hesitate to insert a phrase or two of his own when he came to speak of the man

So significant and emphatic were his tone and ges-

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Rh ture as he addressed himself pointedly to his Roman audience, that they recalled him, and, amid a storm of plaudits, made him repeat the passage. He added to it the words—which were not set down for him—

and the applause was redoubled. The actor drew courage from his success. When, as the play went on, he came to speak the words—

he pointed to the nobles, knights, and commons, as they sat in their respective seats in the crowded rows before him, his own voice broke with grief, and the tears even more than the applause of the whole audience bore witness alike to their feelings towards the exile, and the dramatic power of the actor. "He pleaded my cause before the Roman people," says Cicero (for it is he that tells the story), "with far more weight of eloquence than I could have pleaded for myself."

He had been visited with a remarkable dream, while staying with one of his friends in Italy, during the earlier days of his exile, which he now recalled with some interest. He tells us this story also himself, though he puts it into the mouth of another speaker, in his dialogue on "Divination." If few were so fond of introducing personal anecdotes into every place where he could find room for them, fewer still could tell them so well.

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60 "I had lain awake a great part of the night, and at last towards dawn had begun to sleep soundly and heavily. I had given orders to my attendant that, in this case, though we had to start that very morning, strict silence should be kept, and that I was on no account to be disturbed; when about seven o'clock I awoke, and told him my dream. I thought I was wandering alone in some solitary place, when Caius Marius appeared to me, with his fasces bound with laurel, and asked why I was so sad? And when I answered that I had been driven from my country, he caught my hand, bade me be of good cheer, and put me under the guidance of his own lictor to lead me to his monument; there, he said, I should find my deliverance."

So indeed it had turned out. The temple dedicated to Honour and Virtue, in which the Senate sat when they passed the first resolution for Cicero's recall, was known as the "Monument of Marius." There is no need to doubt the perfect good faith of the story which he tells, and it may be set down as one of the earliest authenticated instances of a dream coming true. But if dreams are fashioned out of our waking imaginations, it is easy to believe that the fortunes of his great townsman Marius, and the scenes in the Senate at Rome, were continually present to the exile's thoughts.

His return was a triumphal progress. He landed at Brundusium on his daughter's birthday. She had only just lost her husband Piso, who had gallantly maintained her father's cause throughout, but she was the first to welcome him with tears of joy which overmastered her

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46 sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes over time. Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.

A similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance. In 2016, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination, and some lower court decisions have agreed. See Whitaker v. ''Kenosha Unified School Dist. No. 1 Bd. of Ed., 858 F. 3d 1034, 1049 (CA7 2017); G. G. v. Gloucester Cty. School Bd., 822 F. 3d 709, 715 (CA4 2016), vacated and remanded, 580 U. S. ___ (2017); Adams v. School Bd. of St. Johns Cty.'', 318 F. Supp. 3d 1293, 1325 (MD Fla. 2018); cf. Doe v. Boyertown Area


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Rh School Dist., 897 F. 3d 518, 533 (CA3 2018), cert. denied, 587 U. S. ___ (2019).

Women’s sports. Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex. This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male. See, e.g., Complaint in Soule v. Connecticut Assn. of Schools, No. 3:20–cv–00201 (D Conn., Apr. 17, 2020) (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little, No. 1:20–cv–00184 (D Idaho, Apr. 15, 2020) (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). Students in these latter categories have found success in athletic competitions reserved for females.


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Rh Moffat's kind foresight for the continuance of good health. "When visitors arrive at most mission stations, the best of everything is provided for them; but having heard that some graceless fellows, who had been feasted, went back to the colony, saying, "These missionaries live like fighting cocks,"we never made any change in our fare even for our friends.

I have spent the sixteen years from 1840 to 1856 in medical and missionary labours in Africa, and my life has not been favourable to literary pursuits. This has made composition irksome to me, and I think I would rather cross the African continent again than compose another book. It is far easier to travel than to write. I intended on going abroad to continue my studies; but as I could not brook the idea of entering into other men's labours, I undertook, in addition to teaching, building and other handicraft work, which left me generally as much exhausted and unfit for study in the evenings as when I was a cotton-spinner. The want of time for self-improvement was the only regret I experienced during my African career. The reader remembering this will make allowances for the deficiencies of a student who has the vanity to think himself "not vet too old to learn."

The instructions I received from the Directors of the London Missionary Society led me, as soon as I reached Kuruman or Lattakoo, their farthest inland station from the Cape, to turn my attention to the north. Without waiting longer than was necessary to recruit the oxen, which were pretty well tired hy the long journey from Algoa Bay, I proceeded, in company •with another missionary, to the Bakuena or Bakwains, who are a section of the people called Bechuanas.

The Bechuanas are divided into numerous tribes, named


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48 The logic of the Court’s decision could even affect professional sports. Under the Court’s holding that Title VII prohibits employment discrimination because of transgender status, an athlete who has the physique of a man but identifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qualification (BFOQ) under 42 U. S. C. §2000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson, 433 U. S. 321, 334 (1977).

Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX, 20 U. S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies. Similar claims may be brought under the Fair Housing Act. See 42 U. S. C. §3604.

Employment by religious organizations. Briefs filed by a wide range of religious groups—Christian, Jewish, and Muslim—express deep concern that the position now adopted by the Court “will trigger open conflict with faith


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Rh based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” They argue that “[r]eligious organizations need employees who actually live the faith,” and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.

This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.” Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.

At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.” But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for


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50 the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.

Healthcare. Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery. Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.


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was once a king and a queen who had three wonderfully beautiful daughters, and their one thought, from morning till night, was how they could make the girls happy.

One day the princesses said to the king, ‘Dear father, we want so much to have a picnic, and eat our dinner in the country.’

‘Very well, dear children, let us have a picnic by all means,’ answered he, and gave orders that everything should be got ready.

When luncheon was prepared it was put into a cart, and the royal family stepped into a carriage and drove right away into the country. After a few miles they reached a house and garden belonging to the king, and close by was their favourite place for lunch. The drive had made them very hungry, and they ate with a hearty appetite, till almost all the food had disappeared.

When they had quite done, they said to their parents: ‘Now we should like to wander about the garden a little, but when you want to go home, just call to us.’ And they ran off, laughing, down a green glade, which led to the garden.

But no sooner had they stepped across the fence, than a dark cloud came down and covered them, and prevented them seeing whither they were going.

Meanwhile the king and queen sat lazily among the heather, and an hour or two slipped away. The sun was dropping towards the horizon, and they began to think it

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Nken v. Holder

Petitioner Nken sought an order from the Fourth Circuit staying his removal to Cameroon while his petition for review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings was pending. Nken acknowledged that Circuit precedent required an alien seeking such a stay to satisfy 8 U.S.C. § 1252(f)(2), which sharply restricts the availability of injunctions blocking the removal of an alien from this country, but argued that a court's authority to stay a removal order should instead be controlled by the traditional criteria governing stays. The Court of Appeals denied the stay motion without comment.

Held: Traditional stay factors, not the demanding § 1252(f)(2) standard, govern a court of appeals' authority to stay an alien's removal pending judicial review. Pp. 423–436.

(a) This question stems from changes made in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which "repealed the old judicial-review scheme set forth in [8 U.S.C.] § 1105a [(1994 ed.),] and instituted a new (and significantly more restrictive) one in § 1252," Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 475 (AAADC). Because courts of appeals lacked jurisdiction before IIRIRA to review the removal order of an alien who had already left the United States, see § 1105a(c), most aliens who appealed such a decision were given an automatic stay of the removal order pending judicial review, see § 1105a(a)(3). Three changes IIRIRA made are of particular importance here. First, the repeal of § 1105a allows courts to adjudicate a petition for review even if the alien is removed while the petition is pending. Second, the presumption of an automatic stay was repealed and replaced with a provision stating that "[s]ervice of the petition does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise." § 1252(b)(3)(B). Finally, IIRIRA provided that "no court shall enjoin the removal of any alien unless [he] shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law." § 1252(f)(2). Pp. 423–425.

(b) The parties dispute what standard a court should apply when determining whether to grant a stay. Petitioner argues that the "traditional" stay standard should apply, meaning a court should consider "(1) [p419] whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether [he] will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776. The Government argues that § 1252(f) should govern, meaning an alien must show "by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law." Pp. 425–426.

(c) An appellate court's power to hold an order in abeyance while it assesses the order's legality has been described as inherent, and part of a court's "traditional equipment for the administration of justice." Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9–10. That power allows a court to act responsibly, by ensuring that the time the court takes to bring considered judgment to bear on the matter before it does not result in irreparable injury to the party aggrieved by the order under review. But a stay "is not a matter of right, even if irreparable injury might otherwise result to the appellant." Virginian R. Co. v. United States, 272 U.S. 658, 672. The parties and the public, while entitled to both careful review and a meaningful decision, are also entitled to the prompt execution of orders that the legislature has made final. Pp. 426–427.

(d) Section 1252(f) does not refer to "stays," but rather to authority to "enjoin the removal of any alien." An injunction and a stay serve different purposes. The former is the means by which a court tells someone what to do or not to do. While in a general sense many orders may be considered injunctions, the term is typically used to refer to orders that operate in personam. By contrast, a stay operates upon the judicial proceeding itself, either by halting or postponing some portion of it, or by temporarily divesting an order of enforceability. An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the Government, but instead asks to temporarily set aside the removal order. That kind of stay, "relat[ing] only to the conduct or progress of litigation before th[e] court[,] ordinarily is not considered an injunction." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279. That § 1252(f)(2) does not comfortably cover stays is evident in Congress's use of the word "stay" in subsection (b)(3)(B) but not subsection (f)(2), particularly since those subsections were enacted as part of a unified overhaul of judicial review. The statute's structure also clearly supports petitioner's reading: Because subsection (b)(3)(B) changed the basic rules covering stays of removal, the natural place to locate an amendment to the standard governing stays would have been subsection (b)(3)(B), not a [p420] provision four subsections later that makes no mention of stays. Pp. 428–432.

(e) Subsection (f)(2)'s application would not fulfill the historic office of a stay, which is to hold the matter under review in abeyance to allow the appellate court sufficient time to decide the merits. Under subsection (f)(2), a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a "clear and convincing evidence" standard that does not so much preserve the availability of subsequent review as render it redundant. Nor would subsection (f)(2) allow courts "to prevent irreparable injury to the parties or to the public" pending review, Scripps-Howard, 316 U.S., at 9; the subsection on its face does not permit any consideration of harm, irreparable or otherwise. In short, applying § 1252(f)(2) in the stay context would result in something that does not remotely look like a stay. As in Scripps-Howard, the Court is loath to conclude that Congress would, "without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review." Id., at 11. The Court is not convinced Congress did so in § 1252(f)(2). Pp. 432–433.

(f) The parties dispute what the traditional four-factor standard entails. A stay is not a matter of right, and its issuance depends on the circumstances of a particular case. The first factor, a strong showing of a likelihood of success on the merits, requires more than a mere possibility that relief will be granted. Similarly, simply showing some possibility of irreparable injury fails to satisfy the second factor. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22. Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. The third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party. In considering them, courts must be mindful that the Government's role as the respondent in every removal proceeding does not make its interest in each one negligible. There is always a public interest in prompt execution of removal orders, see AAADC, supra, at 490, and that interest may be heightened by circumstances such as a particularly dangerous alien, or an alien who has substantially prolonged his stay by abusing the processes provided to him. A court asked to stay removal cannot simply assume that the balance of hardships will weigh heavily in the applicant's favor. Pp. 433–436.

Vacated and remanded.

, C.J., delivered the opinion of the Court, in which, and , JJ., joined. , J., filed a concurring opinion, in which, J., joined, post, p. 437. , J., filed a dissenting opinion, in which, J., joined, post, p. 439.

Lindsay C. Harrison argued the cause for petitioner. With her on the briefs were Donald B. Verrilli, Jr., Ian Heath Gershengorn, and Jared O. Freedman.

Then-Acting Solicitor General Kneedler argued the cause for respondent. With him on the brief were former Solicitor General Garre, Assistant Attorney General Katsas, Principal Deputy Assistant Attorney General Dupree, Nicole A. Saharsky, Donald Keener, Melissa Neiman-Kelting, Song E. Park, and Andrew C. MacLachlan.

title: Nken v. Holder


text: Category:United States Supreme Court decisions in Volume 556


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text: Author:Bernard Rogan Ross

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Rh

after certain animals, which probably indicates that in former times they were addicted to animal-worship like the ancient Egyptians. The term Bakatla means "they of the monkey;" Bakuena, "they of the alligator;" Batlapi, "they of the fish," after you wish to ascertain what tribe they belong to, you say, "What do you dance ?" from which it may be inferred that dancing was also a part of their ancient rites. Each tribe has a superstitious dread of the animal after which it is called, and never eats its namesake. They use the term " ila," — hate or dread — in reference to killing it. We find traces of many extinct tribes in individual descendants — such as the Batau, "they of the lion;" the Banoga, " they of the serpent;" though no such tribes now exist. The use of the personal pronoun they, Ba-Ma, Wa, Va, or Ova, Am-Ki, &c., prevails very extensively in the names of tribes in Africa. A single individual is indicated by the terms Mo or Le. Thus Mokwain is a single person of the Bakwain tribe, and Lekoa is a single white man or Englishman. Makoa is the name for Englishmen.

We did not stay long on our first visit to the Bakwains, but retraced our steps to Kuruman. As the object I had in view was not, however, to be attained by a temporary excursion, I determined to make a fresh start into the interior as soon as possible. Accordingly, after resting three months at Kuruman, which is a kind of head station, I went to a spot called Lepelole (now Litubariiba). Here I secluded myself from all European society for about six months, in order to obtain a knowledge of the native tongue, and gained by this ordeal an insight into the habits, ways of thinking, laws, and language of the Bakwains, which has proved of incalculable advantage in my intercourse with them ever since.

In this, my second journey to Lepelole — so called from a cavern of that name — I began preparations for a settlement, by making a canal to irrigate gardens, from a stream then flowing copiously, but now quite dry. When the work was well advanced, I went northwards to the Bakaa, Bamangwato, and Makalaka tribes, living between 22° and 23° south lat. The Bakaa mountains had before been visited by a trader, who, with his people, all perished from fever. Most of my journey beyond Shokuane was performed on foot, in consequence of the draught oxen being sick. Some of my companions, who


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Page:The Privacy and Electronic Communications (EC Directive) Regulations 2003 (UKSI 2003-2426 qp).pdf/12

 Modification of contracts

27. To the extent that any term in a contract between a subscriber to and the provider of a public electronic communications service or such a provider and the provider of an electronic communications network would be inconsistent with a requirement of these Regulations, that term shall be void.

National security

28.—(1) Nothing in these Regulations shall require a communications provider to do, or refrain from doing, anything (including the processing of data) if exemption from the requirement in question is required for the purpose of safeguarding national security.

(2) Subject to paragraph (4), a certificate signed by a Minister of the Crown certifying that exemption from any requirement of these Regulations is or at any time was required for the purpose of safeguarding national security shall be conclusive evidence of that fact.

(3) A certificate under paragraph (2) may identify the circumstances in which it applies by means of a general description and may be expressed to have prospective effect.

(4) Any person directly affected by the issuing of a certificate under paragraph (2) may appeal to the Tribunal against the issuing of the certificate.

(5) If, on an appeal under paragraph (4), the Tribunal finds that, applying the principles applied by a court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may allow the appeal and quash the certificate.

(6) Where, in any proceedings under or by virtue of these Regulations, it is claimed by a communications provider that a certificate under paragraph (2) which identifies the circumstances in which it applies by means of a general description applies in the circumstances in question, any other party to the proceedings may appeal to the Tribunal on the ground that the certificate does not apply in those circumstances and, subject to any determination under paragraph (7), the certificate shall be conclusively presumed so to apply.

(7) On any appeal under paragraph (6), the Tribunal may determine that the certificate does not so apply.

(8) In this regulation—
 * (a) “the Tribunal” means the Information Tribunal referred to in section 6 of the Data Protection Act 1998(a) ;
 * (b) Subsections (8), (9), (10) and (12) of section 28 of and Schedule 6 to that Act apply for the purposes of this regulation as they apply for the purposes of section 28;
 * (c) section 58 of that Act shall apply for the purposes of this regulation as if the reference in that section to the functions of the Tribunal under that Act included a reference to the functions of the Tribunal under paragraphs (4) to (7) of this regulation; and
 * (d) subsections (1), (2) and (5)(f) of section 67 of that Act shall apply in respect of the making of rules relating to the functions of the Tribunal under this regulation.

Legal requirements, law enforcement etc.

29.—(1) Nothing in these Regulations shall require a communications provider to do, or refrain from doing, anything (including the processing of data)—
 * (a) if compliance with the requirement in question—
 * (i) would be inconsistent with any requirement imposed by or under an enactment or by a court order; or
 * (ii) would be likely to prejudice the prevention or detection of crime or the apprehension or prosecution of offenders; or

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 :(b) if exemption from the requirement in question—
 * (i) is required for the purposes of, or in connection with, any legal proceedings (including prospective legal proceedings);
 * (ii) is necessary for the purposes of obtaining legal advice; or
 * (iii) is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

Proceedings for compensation for failure to comply with requirements of the Regulations

30.—(1) A person who suffers damage by reason of any contravention of any of the requirements of these Regulations by any other person shall be entitled to bring proceedings for compensation from that other person for that damage.

(2) In proceedings brought against a person by virtue of this regulation it shall be a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the relevant requirement.

(3) The provisions of this regulation are without prejudice to those of regulation 31.

Enforcement–extension of Part V of the Data Protection Act 1998

31.—(1) The provisions of Part V of the Data Protection Act 1998 and of Schedules 6 and 9 to that Act are extended for the purposes of these Regulations and, for those purposes, shall have effect subject to the modifications set out in Schedule 1.

(2) In regulations 32 and 33, “enforcement functions” means the functions of the Information Commissioner under the provisions referred to in paragraph (1) as extended by that paragraph.

(3) The provisions of this regulation are without prejudice to those of regulation 30.

Request that the Commissioner exercise his enforcement functions

32. Where it is alleged that there has been a contravention of any of the requirements of these Regulations either OFCOM or a person aggrieved by the alleged contravention may request the Commissioner to exercise his enforcement functions in respect of that contravention, but those functions shall be exercisable by the Commissioner whether or not he has been so requested.

Technical advice to the Commissioner

33. OFCOM shall comply with any reasonable request made by the Commissioner, in connection with his enforcement functions, for advice on technical and similar matters relating to electronic communications.

Amendment to the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000

34. In regulation 3 of the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000(a), for paragraph (3), there shall be substituted—
 * “(3) Conduct falling within paragraph (1)(a)(i) above is authorised only to the extent that Article 5 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector so permits.”.

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ABSTRACT

The privacy-related behavior of mobile browsers has remained widely unexplored by the research community. In fact, as opposed to regular Android apps, mobile browsers may present contradicting privacy behaviors. On the one hand, they can have access to (and can expose) a unique combination of sensitive user data, from users' browsing history to permission-protected personally identifiable information (PII) such as unique identifiers and geolocation. On the other hand, they are in a unique position to protect users' privacy by limiting data sharing with other parties by implementing adblocking features.

In this paper, we perform a comparative and empirical analysis on how hundreds of Android web browsers protect or expose user data during browsing sessions. To this end, we collect the largest dataset of Android browsers to date, from the Google Play Store and four Chinese app stores. Then, we develop a novel analysis pipeline that combines static and dynamic analysis methods to find a wide range of privacy-enhancing (e.g., ad-blocking) and privacy-harming behaviors (e.g., sending browsing histories to third parties, not validating TLS certificates, and exposing PII—including non-resettable identifiers—to third parties) across browsers. We find that various popular apps on both Google Play and Chinese stores have these privacy-harming behaviors, including apps that claim to be privacy-enhancing in their descriptions. Overall, our study not only provides new insights into important yet overlooked considerations for browsers' adoption and transparency, but also that automatic app analysis systems (e.g., sandboxes) need context-specific analysis to reveal such privacy behaviors.

1 INTRODUCTION

Mobile browsers (i.e., apps that allow users to visit websites) are complex, powerful, and poorly understood software systems that account for 55% of global website visits [119]. Their critical role as one of the primary gateways to the web, and the rich set of features that they support, make mobile browsers a particularly interesting platform to study from a privacy perspective. On the one hand, mobile browsers can enhance user privacy in unique ways by implementing features such as blocking web trackers and advertisers, enforcing secure network protocols wherever possible, and minimizing personal data exposure [75, 81, 96, 97, 130]. However, they can also inflict privacy harms by harvesting and exposing permission-protected information such as unique identifiers or user geolocation to third parties (as is commonly found in non-browser apps), or indirectly by making them available to website scripts via JavaScript APIs. Further, they may expose browser-specific sensitive data such as users' browsing history or credentials to third-parties due to poor design choices or a need to generate revenue, potentially at the expense of user privacy [42, 108, 113, 130].

Despite their potential for harm, the research community has largely overlooked the privacy threats inherent to mobile browsers. Early studies focused on a small set of browsers [74, 128] and identified isolated cases of "privacy protecting" browsers deceiving their userbase and abusing their access to personal and browsing data for tracking purposes [71, 102]. In this paper, we augment the state-of-the-art by conducting the first large-scale, systematic, and multidimensional analysis of the privacy behavior of 424 Android browsers available in public app markets (including the Google Play Store and four Chinese markets) and others pre-loaded by certain phone vendors. Specifically, we study and characterize: (1) how mobile browsers help or harm users' privacy during the course of web browsing sessions; (2) what additional permission-protected personal data mobile browsers collect and share with other parties, and the implications of such data collection; and (3) how the combination of these behaviors impacts the overall privacy disposition of the mobile browsers in our dataset.

While there is a significant amount of work on mobile app privacy space in general, the study of mobile browsers poses unique

KEYWORDS

android, privacy, mobile browsers

This work is licensed under the Creative Commons Attribution 4.0 International License. To view a copy of this license visit https://creativecommons.org/licenses/by/4.0/ or send a letter to Creative Commons, PO Box 1866, Mountain View, CA 94042, USA. Proceedings on Privacy Enhancing Technologies YYYY(X), 1–18 © YYYY Copyright held by the owner/author(s). https://doi.org/XXXXXXX.XXXXXXX


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 Amendment to the Electronic Communications (Universal Service) Order 2003

35.—(1) In paragraphs 2(2) and 3(2) of the Schedule to the Electronic Communications (Universal Service) Order 2003(a), for the words “Telecommunications (Data Protection and Privacy) Regulations 1999” there shall be substituted “Privacy and Electronic Communications (EC Directive) Regulations 2003”.

(2) Paragraph (1) shall have effect notwithstanding the provisions of section 65 of the Communications Act 2003(b) (which provides for the modification of the Universal Service Order made under that section).

Transitional provisions

36. The provisions in Schedule 2 shall have effect.

Stephen Timms, Minister of State for Energy, E-Commerce and Postal Services, 18th September 2003

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Proceedings on Privacy Enhancing Technologie YYYY(X) methodological challenges that we address in this work. First, neither the Android OS nor app markets provide a comprehensive way to determine whether an app is a mobile browser. To address this challenge, we combine code inspection and dynamic analysis methods to identify those apps that match our definition of a mobile browser. Second, both browsers and websites expose data to other parties while in use, and simple analysis of network traffic traces is insufficient to distinguish whether the data was exposed by a browser or a website. To address this, we develop a novel browser analysis pipeline that uses webpage replays and a baseline browser to attribute data collection to either the website or the browser itself. We further use a combination of static and dynamic analysis techniques to identify which browser component (for instance, a third-party library) is responsible for data collection and gather actual evidence of these behaviors. Third, browsers can implement privacy-enhancing features to protect users from harm (e.g., use of TLS encryption, limited access to JavaScript APIs that retrieve sensitive information, blocking websites from contacting third parties), but there are limited standard benchmarks to test for them. To overcome these challenges, we build a new test suite that addresses this need, along with instrumentation and automation to capture and study browsers' behaviors automatically and at scale.

We use the above methods to analyze a dataset of 424 browsers and observe the following:

 * We find that 65% of browsers enhance privacy by blocking tracking scripts by default. Similarly, 51% of browsers block scripts that access protected JavaScript APIs.
 * We see that most browsers do not default to HTTPS (only 2% of browsers do so) and that 10% of browsers do not properly validate TLS certificates, making them vulnerable to personin-the-middle attacks.
 * We find that 63% of browsers contain at least one third-party library related to advertisement and tracking, and that these libraries are often responsible for browsers requesting "dangerous" permissions. Furthermore, our run-time behavior analysis shows that 32% browsers share PII with other parties over the Internet, and that 19% browsers do the same for browsing history. While 14% of these browsers share this information for a specific feature (such as web search APIs), we find that 3% send it alongside personal data (thus harming user privacy). We also show that browsers often share both resettable and non-resettable identifiers with third-party servers across the Internet, including four instances of ID bridging, a practice that completely defeats the use of resettable identifiers.
 * We conduct a multidimensional analysis of individual browsers to understand their overall privacy disposition. We find that few browsers uniformly improve privacy (e.g., FOSS Browser), while many exhibit multiple harms (e.g., Yandex, Baidu, Opera etc.). We also find mixed behaviors: of the 276 (65%) browsers that block tracking content, we see that 70% also allow tracking requests, 23% expose PII, 14% share browsing history, and 7% fail to validate certificates.

Our study has important implications for (1) end users who adopt a non-default web browser on Android, and for (2) automatic app analysis processes. For the former, our results can help guide their decisions about which browser to install from a privacy standpoint.

In fact, understanding the privacy risks of the mobile browser ecosystem is critical in the EU as Google Chrome is no longer the default browser on Android and EU citizens can choose any browser when configuring their device [43, 52]. For the latter, we show that existing sandboxes may be ineffective for studying the privacy risks of mobile browsers, and they can benefit from our novel methodology to analyze browser apps and gain actual visibility into their behavior. We reported our findings to Google, which is currently investigating potential corresponding breaches of their policies. We also responsibly disclosed observed security vulnerabilities to developers. To support reproducibility and foster further research in this area, we make our code and data publicly available at https://github.com/NEU-SNS/mobile-browser.

2 THREAT & PROTECTION MODELS

This section describes our privacy threat and protection models. Our models are motivated by the fact that mobile browsers occupy a privileged position in terms of the type of data they can access: (1) all Android devices are expected to have at least one mobile browser [16, 51]; (2) like other apps, mobile browsers can access permission-protected device sensors, system resources and unique identifiers; and (3) being endpoints for web traffic, they have access to all data from web browsing e.g., page content or browsing history. Note that our study focuses on browser behavior in the default mode, as opposed to "safe", "private", or "incognito" modes. Previous work has shown that these modes have their own security and privacy issues [13], and that they do not prevent browsers from collecting user data [50, 116].

2.1 Privacy Threat Model

We assume that a benign browser should render webpages, follow best practices for connection security, and adhere to data minimization principles when it comes to exposing user data. We acknowledge that there may not be such a browser, but we assume one for the sake of comparing against our threat model. We consider that a browser is "privacy harmful" if it deviates from this benign browser model by exhibiting any of the following behaviors:

Data dissemination not required for page rendering.

Browsers may collect and share sensitive data (e.g., location, unique identifiers), with first parties (the browser developer) or third parties (e.g., data brokers, advertisers, analytics companies). Such sharing might be required to implement site features (e.g., geofencing or localized search results); or used for secondary purposes (e.g., for monetization through ads and tracking).

In this paper, sensitive data includes personally identifiable information (PII) and users' browsing history. Specifically, we consider the following data types to be PII: IMEI, Advertising ID (AdID), Android ID, MAC address, and geolocation. Note that the IMEI, Android ID, and MAC addresses are non-resettable IDs, while the AdID can be reset by users. We also consider the list of installed apps to be sensitive, as it can be used to profile users [115]. For browsing history leaks, we consider cases where over half of the websites visited are transmitted to another party over the Internet. While browsers may share the visited websites as part of their functionality (e.g., URL safety checks [67, 101]), this data can


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 Roebourne district on behalf of John Wellard. W. S. Hall's party was the only one in the Roebourne district until the arrival of the Withnell family in April 1864. At that time there was no communication with the south other than by occasional and erratic sailing boats. His diary covering the first year gives some insight into the toil and difficulties involved. With much of the developmental work of the property achieved by the end of the second year, he turned to pearling (with Malay and native divers) and business pursuits in Roebourne and Cossack. He married Hannah Boyd Lazenby (1849-1911) and had three children who survived infancy, Henry Ernest Hall (1869-1941), Harold Aubrey Hall (1871-1963) and Hannah Joy F. M. Clifton. Like his father before him W. S. Hall was short in stature, striking looking and of prodigious strength, his death by drowning, after a heart attack whilst swimming late on a hot summer night on 11 February 1995 in Cossack Creek, the newspapers wrote of him as "One of the most brilliant, upright, honest and valued lives that has ever been lived amongst us." Henry Edward Hall, his son William Shakespeare Hall and his grandson Harold Aubrey Hall were all highly knowledgeable of the aborigines, their customs and their language and were singularly successful in their handling of them. Today there are Halls still to be found in the north-west making a continuing contribution to the pastoral industry. At the time of his death William Shakespeare Hall was Chairman of the Cossack Municipality and a wrought iron screen in the Roebourne Anglican Church and a tombstone on his Cossack grave were erected "as a mark of appreciation and respect by the North West Pioneers."

"Thomas Peel of Swan River." by Alexandra Hasluck. Oxford University Press, 1965.

W.S. Hall diaries Gregory Expedition 1861 and first year of establishing Andover Station 1863.


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362 of time cannot but be of some small interest at least to all students of English literature.

It is but too certain, on the other hand,—and I should be the last to question or dispute the certainty,—that no lover of Dryden's fame could wish to see any addition made to the already too long list of his comedies. Rather might we reasonably desire, were it possible, to strike off several of these from the roll and erase the record of their perpetration for ever. Why then, it will most properly and inevitably be asked,—why then be at pains to unearth an ugly and unsavoury relic of the Restoration—a word for which history, whether French or English, reads Degradation—on the chance that we may discover in such miry clay the impression of Dryden's great dishonoured hand? there were surely stains enough already on the broad hard outlines of its giant strength. And certainly, if I had but stumbled across a new sample of his indecent impotence and laborious incapacity in the heavy ploughed field of low comedy or farce, I should have had no thought but to let it lie. But if indeed there be anything of Dryden's in a long-forgotten play which was issued in his lifetime under cover of his approbation as containing a scene supplied by his own hand, it must be sought in one of two passages where the style suddenly changes from the roughest farce to the gravest and most high-toned rhetoric of which comedy can properly be capable.

In the year 1675 the too copious comic literature of the period was enlarged by the publication of 'The Mistaken Husband. A Comedie, as it is Acted by His Majesties servants At the Theatre-Royall. By a Person of Quality.—Hæc placuit semel.—[Hor.]' I should hardly have thought so, even then: at all events, we have no reason to suppose that on a tenth repetition it was found equally pleasing. Between title-page and prologue we find our only reason for taking notice of it, in the following address of 'the Bookseller to the Reader.'

"This Play was left in Mr. Dryden's hands many years since: The Author of it was unknown to him, and return'd not to claim


text: Talk:1911 Encyclopædia Britannica/Coringa


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I've suffered from them this morning no tongue can tell. It began with Gustavus Adolphus. Gustavus Adolphus (they call him "Gusty" downstairs for short) is a very good sort of dog, when he is in the middle of a large field, or on a fairly extensive common, but I won't have him in-doors. He means well, but this house is not his size. He stretches himself, and over go two chairs and a what-not. He wags his tail, and the room looks as if a devastating army had marched through it. He breathes, and it puts the fire out.

At dinner-time, he creeps in under the table, lies there for a while, and then gets up suddenly; the first intimation we have of his movements being given by the table, which appears animated by a desire to turn somersaults. We all clutch at it frantically, and endeavour to maintain it in a horizontal position; whereupon his struggles, he being under the impression that some wicked conspiracy is being hatched against him, become fearful, and the final picture presented is generally that of an overturned table and


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 a smashed-up dinner, sandwiched between two sprawling layers of infuriated men and women. He came in this morning in his usual style, which he appears to have founded on that of an American cyclone, and the first thing he did was to sweep my coffee cup off the table with his tail, sending the contents full into the middle of my waistcoat.

I rose from my chair, hurriedly, and remarking, "," approached him at a rapid rate. He preceded me in the direction of the door. At the door, he met Eliza, coming in with eggs. Eliza observed, "Ugh!" and sat down on the floor, the eggs took up different positions about the carpet, where they spread themselves out, and Gustavus Adolphus left the room. I called after him, strongly advising him to go straight downstairs, and not let me see him again for the next hour or so; and he, seeming to agree with me, dodged the coal-scoop, and went; while I returned, dried myself, and finished breakfast. I made sure that he had gone into the yard, but when I looked into the passage ten minutes later, he was sitting at the top of the stairs. I ordered him down at once, but he only barked and jumped about, so I went to see what was the matter.

It was Tittums. She was sitting on the top stair but one, and wouldn't let him pass.

Tittums is our kitten. She is about the size of a


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 penny roll. Her back was up, and she was swearing like a medical student.

She does swear fearfully. I do a little that way myself sometimes, but I am a mere amateur compared with her. To tell you the truth—mind, this is strictly between ourselves, please; I shouldn't like your wife to know I said it, the women folk don't understand these things; but between you and me, you know, I think it does a man good to swear. Swearing is the safety-valve through which the bad temper, that might otherwise do serious internal injury to his mental mechanism, escapes in harmless vapouring. When a man has said: "Bless you, my dear, sweet sir. What the sun, moon, and stars made you so careless (if I may be permitted the expression) as to allow your light and delicate foot to descend upon my corn with so much force? Is it that you are physically incapable of comprehending the direction in which you are proceeding? you nice, clever young man—you!" or words to that effect, he feels better. Swearing has the same soothing effect upon our angry passions that smashing the furniture or slamming the doors is so well known to exercise; added to which it is much cheaper. Swearing clears a man out like a pen'orth of gunpowder does the wash-house chimney. An occasional explosion is good for both. I rather distrust a man who never swears, or savagely kicks the footstool, or pokes the fire with unnecessary violence.


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 Without some outlet, the anger caused by the ever-occurring troubles of life is apt to rankle and fester within. The petty annoyance, instead of being thrown from us, sits down beside us, and becomes a sorrow; and the little offence is brooded over till, in the hot-bed of rumination, it grows into a great injury, under whose poisonous shadow springs up hatred and revenge.

Swearing relieves the feelings, that is what swearing does. I explained this to my aunt on one occasion, but it didn't answer with her. She said I had no business to have such feelings.

That is what I told Tittums. I told her she ought to be ashamed of herself, brought up in a Christian family as she was, too. I don't so much mind hearing an old cat swear, but I can't bear to see a mere kitten give way to it. It seems sad in one so young.

I put Tittums in my pocket, and returned to my desk. I forgot her for the moment, and when I looked I found that she had squirmed out of my pocket on to the table, and was trying to swallow the pen; then she put her leg into the ink-pot and upset it; then she licked her leg; then she swore again—at me this time.

I put her down on the floor, and there Tim began rowing with her. I do wish Tim would mind his own business. It was no concern of his what she had been doing. Besides, he is not a saint himself.


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 He is only a two-year-old fox terrier, and he interferes with everything, and gives himself the airs of a greyheaded Scotch collie.

Tittums' mother has come in, and Tim has got his nose stratched, for which I am remarkably glad. I have put them all three out in the passage, where they are fighting at the present moment. I'm in a mess with the ink, and in a thundering bad temper; and if anything more in the cat or dog line comes fooling about me this morning, it had better bring its own funeral contractor with it.

Yet, in general, I like cats and dogs very much indeed. What jolly chaps they are! They are much superior to human beings as companions. They do not quarrel or argue with you. They never talk about themselves, but listen to you while you talk about yourself, and keep up an appearance of being interested in the conversation. They never make stupid remarks. They never observe to Miss Brown across a dinner-table, that they always understood she was very sweet on Mr Jones (who has just married Miss Robinson). They never mistake your wife's cousin for her husband, and fancy that you are the father-in-law. And they never ask a young author with fourteen tragedies, sixteen comedies, seven farces, and a couple of burlesques in his desk, why he doesn't write a play.

They never say unkind things. They never tell us


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 Mandurah & Pinjarrah, History of Thomas Peel & the Peel Estate 1829–1865. W. C. Smart.

The W.A. Historical Society Journal Vol. 1, Part IV 1929, by Paul Hasluck.

Hall Family Papers.


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 of our faults, "merely for our own good." They do not, at inconvenient moments, mildly remind us of our past follies and mistakes. They do not say, "Oh yes, a lot of use you are, if you are ever really wanted"—sarcastic like. They never inform us, like our inamoratas sometimes do, that we are not nearly so nice as we used to be. We are always the same to them.

They are always glad to see us. They are with us in all our humours. They are merry when we are glad, sober when we feel solemn, sad when we are sorrowful.

"Hulloa! happy, and want a lark! Right you are; I'm your man. Here I am, frisking round you, leaping, barking, pirouetting, ready for any amount of fun and mischief. Look at my eyes, if you doubt me. What shall it be? A romp in the drawing-room, and never mind the furniture, or a scamper in the fresh, cool air, a scud across the fields, and down the hill, and won't we let old Gaffer Goggles's geese know what time o' day it is, neither. Whoop! come along."

Or you'd like to be quiet and think. Very well. Pussy can sit on the arm of the chair, and purr, and Montmorency will curl himself up on the rug, and blink at the fire, yet keeping one eye on you the while, in case you are seized with any sudden desire in the direction of rats.

And when we bury our face in our hands and wish


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happened upon a November evening (when I was about fifteen years old, and out-growing my strength very rapidly, my sister Annie being turned thirteen, and a deal of rain having fallen, and all the troughs in the yard being flooded, and the bark from the wood-ricks washed down the gutters, and even our water-shoot going brown) that the ducks in the court made a terrible quacking, instead of marching off to their pen, one behind another. Thereupon Annie and I ran out to see what might be the sense of it. There were thirteen ducks, and ten lily-white (as the fashion then of ducks was), not I mean twenty-three in all, but ten white and three brown-striped ones; and without being nice about their colour, they all quacked very movingly. They pushed their gold-coloured bills here and there (yet dirty, as gold is apt to be), and they jumped on the triangles of their feet, and sounded out of their nostrils; and some of the over-excited ones ran along low on the ground, quacking grievously with


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 So, thou wast once in love, Trim! said my uncle Toby, smiling

Souse! replied the corporal—over head and ears! an' please your honour. Prithee when? where?—and how came it to pass?—I never heard one word of it before; quoth my uncle Toby:—I dare say, answered Trim, that every drummer and serjeant's son in the regiment knew of it—Its high time I shouldsaid my uncle Toby.

Your honour remembers with concern, said the corporal, the total rout and confusion of our camp and army at the affair of Landen; every one was left to shift for himself; and if it had not been for the regiments of Wyndham, Lumley, and Galway, which covered the re-


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 treat over the bridge of Neerspeeken, the king himself could scarce have gain'd it—he was press'd hard, as your honour knows, on every side of him

Gallant mortal! cried my uncle Toby, caught up with enthusiasm—this moment, now that all is lost, I see him galloping across me, corporal, to the left, to bring up the remains of the English horse along with him to support the right, and tear the laurel from Luxembourg's brows, if yet 'tis possible—I see him with the knot of his scarfe just shot off, infusing fresh spirits into poor Galway's regiment—riding along the line—then wheeling about, and charging Conti at the head of itBrave! brave by heaven! cried my uncle Toby—he deserves


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648

1. P. Totara, ''D. Don. in Lamb. Pin.'' ed. ii. (1832) 189.—A lofty forest-tree 40–80 ft. or even 100 ft. high; trunk 2–6 ft. diam.; bark thick, furrowed, stringy and papery, capable of removal in large sheets. Leaves dull brownish-green, spreading on all sides or obscurely distichous, ½–1 in. long, linear, straight or slightly falcate, acute, pungent, rigid and coriaceous, midrib obscure. Flowers diœcious. Males ½–¾ in. long, stout, obtuse, axillary, solitary or 2–3 together at the top of a very short stout peduncle or almost sessile; each flower with 4 bracts at the base. Anthers numerous, crowded; connective toothed at the tip. Female flowers axillary, solitary or geminate at the top of a short swollen peduncle. Fruit ovoid-oblong, rounded at the tip; peduncle usually much enlarged, red, succulent; but occasionally dry and shrivelled.—''A. Cunn. Precur. n. 328; Raoul, Choix, 41; Hook. in Lond. Journ. Bot.'' i. 572. t. 19; ''Hook. f. Fl. Nov. Zel. i. 233; Handb. N.Z. Fl. 258; Kirk, Forest Fl.'' t. 115. Pilger, Pflanzenreich, iv. 5, 84. P. Bidwillii, ''Hoibrenk ex Endl. Conif.'' 213. P. Cunninghamii, Col. Visit to Ruahine Range, 58.

2. P. Hallii, T. Kirk, Forest Fl. t. 9, 9.—Very closely allied to P. Totara, and perhaps a mere variety, but smaller, 25–60 ft. high; trunk rarely exceeding 3ft. diam.; bark thin, papery;


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PREFACE 6 is insoluble, and it has furnished a field for the wildest hypotheses, wonderful reconstruction and bold romance. The fragmentary condition of the material from out of which history has to be reconstructed is another obstacle. In these circumstances I must hesitate to call this work a History of Indian Philosophy.

In interpreting the doctrines of particular systems, I have tried to keep in close touch with the documents, give wherever possible a preliminary survey of the conditions that brought them into being, and estimate their indebtedness to the past as well as their contribution to the progress of thought. I have emphasised the essentials so as to prevent the meaning of the whole from being obscured by details, and attempted to avoid starting from any theory. Yet I fear I shall be misunderstood. The task of the historian is hard, especially in philosophy. However much he may try to assume the attitude of a mere chronicler and let the history in some fashion unfold its own inner meaning and continuity, furnish its own criticism of errors and partial insights, still the judgments and sympathies of the writer cannot long be hidden. Besides, Indian philosophy offers another difficulty. We have the commentaries which, being older, come nearer in time to the work commented upon. The presumption is that they will be more enlightening about the meaning of the texts. But when the commentators differ about their interpretations, one cannot stand silently by without offering some judgment on the conflict of views. Such personal expressions of opinion, however dangerous, can hardly be avoided. Effective exposition means criticism and evaluation, and I do not think it is necessary to abstain from criticism in order that I may give a fair and impartial statement. I can only hope that the subject is treated in a calm and dispassionate way, and that whatever the defects of the book, no

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10 INDIAN PHILOSOPHY attempt is made to wrest facts to suit a preconceived opinion. My aim has been not so much to narrate Indian views as to explain them, so as to bring them within the focus of Western traditions of thought. The analogies and parallels suggested between the two thought systems are not to be pressed too far, in view of the obvious fact that the philosophical speculations of India were formulated centuries ago, and had not behind them the brilliant achievements of modern science.

Particular parts of Indian philosophy have been studied with great care and thoroughness by many brilliant scholars in India, Europe and America. Some sections of philosophical literature have also been critically examined, but there has been no attempt to deal with the history of Indian thought as an undivided whole or a continuous development, in the light of which alone different thinkers and views can be fully understood. To set forth the growth of Indian philosophy from the dim dawn of history in its true perspective is an undertaking of the most formidable kind, and it certainly exceeds the single grasp of even the most industrious and learned scholar. Such a standard encyclopædia of Indian philosophy requires not only special aptitude and absolute devotion, but also wide culture and intelligent co-operation. This book professes to be no more than a general survey of Indian thought, a short outline of a vast subject. Even this is not quite easy. The necessary condensation imposes on the author a burden of responsibility, which is made more onerous by the fact that no one man can attempt to be an authority on all these varied fields of study, and that the writer is compelled to come to decisions on evidence which he himself cannot carefully weigh In matters of chronology, I have depended almost entirely on the results of research carried on by competent scholars. I am conscious that in surveying this wide field, much of

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PREFACE 11 interest is left untouched, and still more only very roughly sketched in. This work has no pretensions to completeness in any sense of the term. It attempts to give such a general statement of the main results as shall serve to introduce the subject to those to whom it may not be known, and awaken if possible in some measure that interest for it to which it is so justly entitled. Even if it proves a failure, it may assist or at least encourage other attempts.

My original plan was to publish the two volumes together. Kind friends like Professor J. S. Mackenzie suggested to me the desirability of bringing out the first volume immediately. Since the preparation of the second volume would take some time and the first is complete in itself, I venture to publish it independently. A characteristic feature of many of the views discussed in this volume is that they are motived, not so much by the logical impulse to account for the riddles of existence, as by the practical need for a support in life. It has been difficult to avoid discussions of, what may appear to the reader, religious rather than philosophical issues, on account of the very close connexion between religion and philosophy in early Indian speculation. The second volume, however, will be of a more purely philosophical character, since a predominantly theoretical interest gets the upper hand in the darśanas or systems of philosophy, though the intimate connexion between know- ledge and life is not lost sight of.

It is a pleasure to acknowledge my obligations to the many eminent orientalists whose works have been of great. help to me in my studies. It is not possible to mention all their names, which will be found in the course of the book. Mention must, however, be made of Max Müller, Deussen, Keith, Jacobi, Garbe, Tilak, Bhandarkar, Rhys Davids and Mrs. Rhys Davids, Oldenberg, Poussin, Suzuki and Sogen.

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12 INDIAN PHILOSOPHY Several valuable works of recent publication, such as Professor Das Gupta's History of Indian Philosophy and Sir Charles Eliot's Hinduism and Buddhism, came to hand too late for use, after the MS. had been completed and sent to the publishers in December 1921. The bibliography given at the end of each chapter is by no means exhaustive. It is intended mainly for the guidance of the English reader.

My thanks are due to Professor J. S. Mackenzie and Mr. V. Subrahmanya Aiyar, who were good enough to read considerable parts of the MS. and the proofs. The book has profited much by their friendly and suggestive counsel. I am much indebted to Professor A. Berriedale Keith for reading the proofs and making many valuable comments. My greatest obligation, however, is to the Editor of the Library of Philosophy, Professor J. H. Muirhead, for his invaluable and most generous help in the preparation of the book for the press and previously. He undertook the laborious task of reading the book in the MS., and his suggestions and criticisms have been of the greatest assistance to me. I am also obliged to Sir Asutosh Mookerjee, Kt., C.S.I., for his constant encouragement and the facilities provided for higher work in the Post-Graduate Department of the Calcutta University.

 * November 1922

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thinking minds to blossom, for arts and sciences to flourish, the first condition necessary is a settled society providing security and leisure. A rich culture is impossible with a community of nomads, where people struggle for life and die of privation. Fate called India to a spot where nature was free with her gifts and every prospect was pleasing. The Himalayas, with their immense range and elevation on one side and the sea on the others, helped to keep India free from invasion for a long time. for a long time. Bounteous nature

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Author:Anthony Rizzo

As director

 * Duck and Cover (1951), for the US Federal Civil Defense Administration

title: Author:Anthony Rizzo


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Index talk:Indian Philosophy Volume 1.djvu

Title is missing. Please move project to the appropriate title.  — ineuw (talk) 09:31, 24 February 2024 (UTC)