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The transformation of intellectual property law from an esoteric legal subject to a topic of daily conversation and debate has occurred in a relatively short span of time. Over the past few years, the aggressive expansion of property claims into every domain of knowledge and cultural practice has interpellated almost everyone, from the academic to the musician, into the heart of the debate. No account of the contemporary moment would be complete without an examination of the dominance of the copyright sign or the effect of the small print of the trademark notice on our lives. In many ways, the mere act of looking at, reading, listening to, making, understanding or communicating any objects that embody thought, knowledge or feeling is as fraught with danger and anxiety today as the appropriation of material wealth or trespassing onto private property were through much of human history (Bagchi et al. 2005: vi).

The anxiety and conflict are certainly not restricted to a set of geographical locations, but the nature of conflict gets configured differently as we move from the United States and Europe to parts of Asia and Africa. In the United States, the crisis is represented in terms of the shrinking of the public domain and of the commons by the extension of copyright, the linking of file sharing and peer-to-peer activities with the global war on terror, and the emergence of a new breed of criminals in the form of students sued by music companies for downloading MP3s online. In South Africa, the government is bulldozed by pharmaceutical corporations who have attempted to prevent it from declaring statutory licenses that will make AIDS drugs more accessible, and in many parts of Asia, the proliferation of cheap technologies of media reproduction creates a parallel economy that threatens the monopoly of old media players (Cullet 2001). The concern over the expansionist tendency of intellectual property has also motivated a rearticulation of the importance of the commons of knowledge and cultural production. This is exemplified by various phenomena among the increasing popularity of non-proprietary modes such as free software and open content. A number of these concerns historically have emerged from the experience of Europe and the United States. But when one attempts to translate the terms of the intellectual property debate into the contemporary experience of countries in Asia, Latin America and Africa, it is difficult to locate any easy indexical reference to ideas such as ‘the digital commons’.

“The U.S.-Mexican border and border-states have been main battlegrounds where United States policies have fostered, encouraged, and even normalized the genocide and removal of Mexicans from the colonized land.” The United States was created out of settler colonialism, which is defined by permanent settlement in a territory by members of foreign group.[1] The first Anglo settlers came under British rule, creating sovereign colonial territories on lands that were taken from indigenous American communities. The creation of these colonies and later Western expansion reveals that settler colonialism is one of the structuring principles that birthed American society. Settler colonialism involves the displacement and removal of indigenous inhabitants instead of their assimilation or exploitation to the dominant culture; its main goal is to have control over land rather than human or natural resources.[2] As scholar Patrick Wolfe states, “settler colonizers come to stay: invasion is a structure, not an event”[3]. It is a system with no end, as there is always constant tension between the remaining indigenous groups and the colonizers and their descendants. By examining U.S. and Mexican historical relations through the settler-colonialism paradigm, we can see that settler colonialism did not stop after the removal and genocide campaigns against Native Americans; rather, it continued as the U.S. searched for land in the Southwest, with Mexicans becoming the new victims. As stated before, settler colonialism is never ending, and the structure under which it functions is always transforming. I will argue that despite the long history of labor programs involving the recruitment of Mexicans, there have historically been many efforts to rid Mexicans from their captured land or to control those who are on it. I will also argue that the U.S.-Mexican border and border-states have been main battlegrounds where United States policies have fostered, encouraged, and even normalized the genocide and removal of Mexicans from the colonized land. These actions have been taken in order to maintain and increase power over the conquered peoples and country and as a means to continuously lay claim to their ownership of the land. As part of Westward expansion and the idea of a manifest destiny, many believed it was the duty of Anglo-Americans to have claim to all of the North American land. This sentiment was reinforced and strengthened by the success that the United States had experienced in taking land from the indigenous North Americans. Since the early 1800s, many Anglo-Americans had settled in many northwestern areas of Mexico. During this time Texas and Mexico were still Mexican lands; however, in 1836, colonists in Texas fought a war and gained independence from Mexico.[4] President James Polk saw this an opportunity to retrieve more land and in 1846 sent troops to territories below Texas. This led to the U.S.-Mexican War of 1846-48 in which the United States occupied Mexico City, and Mexico, which was unable to find the funds to continue the war, had to cede about 50 percent of its northern territory to the United States.[5] About 50,000 Mexicans died, in contrast to 13,000 Americans.[6] This mass killing and forced dispossession of land was the introduction to settler colonialist activities on this Southwestern territory. Though the U.S.-Mexican War ended with the 1848 Treaty of Guadalupe Hidalgo, which gave Mexicans living in the ceded territory the option of remaining and retaining their Mexican citizenship or becoming United States citizens, it did not mean that Mexicans would socially be accepted as welcome residents and citizens.[7] After the Treaty of Guadalupe Hidalgo was signed, the new border lines were not enforced and there were no border policies set in place, meaning that people could move freely between the two countries. This was an economic advantage to the United States, so it was allowed to happen.[8] Though there was migration, it was in relatively small numbers and the first mass migration into the new American territory did not occur until the 1880s, when there was a need for railroad workers, miners, and agricultural workers on that land. It must be clear that although Mexicans were being welcomed as workers, they were regarded as inferior within the social structure and were therefore rejected by the dominant order. Though some Mexicans gained citizenship through the terms of the 1848 treaty, under the Naturalization Act of 1790 (the first U.S. rules in granting citizenship), naturalization was only afforded to immigrants who were “free white people.” It was not until 1870 that the naturalization process was extended beyond white people and granted to “persons of African descent”; this revision was very limited though and continued to exclude other non-whites. [9] Mexicans were not considered “Americans” legally nor socially in the eyes of white-Americans. This pervading legal and social notion of associating whiteness with permanent residence and Mexican-ness with temporary labor was an institutionalized way of fostering an environment of displacement and racial othering that created the framework for future removal and discriminatory actions. Under the 1924 National Origins Act which placed great numerical limits on immigrants, Mexican immigrant workers were still allowed to come in without any limit, but they still had many other restraints and stresses placed on them. In Texas and California, Mexican students went to separate and unequal schools. Poll tax policies greatly inhibited Mexicans from voting, jobs outside of agriculture were hard to come by, and police violence was very common.[10] These actions can be classified as attrition through enforcement, a practice that intends to target immigrants through dimensions of everyday life in order to promote “self deportation.”[11] By using policies that encouraged discrimination, the government could create an unpleasant environment for Mexicans in order to encourage them to leave the United States, and to facilitate the exploitation of those Mexican-Americans who were citizens. However, nativists did not believe the prejudiced regulations were enough and they were very upset with the lack of limitations in the National Origins Act. This caused nativists to vow to control the Mexican peoples that were “causing a social problem,” a “problem [that] comes into our schools… comes into our cities, and… comes into our whole civilization in California,” as stated by a member of the California Farm Bureau stated during a 1926 hearing intended to put limits on Mexican migrants.[12] This type of narrative exemplifies how historical notions of the land had been reworked and recreated in a way that gave white-Americans more legitimacy over the land than people of Mexican origin. Tensions ran high as nativists on the border-states felt threatened by the increasing presence of Mexican inhabitants and workers. This stipulated a higher level of policing , leading to the 1925 Border Act. This Act “gave border patrol officers broad authority to interrogate, detain, and arrest any person they believe to be engaged in the act of illegal entry, a violation whose boundary extended from the moment unauthorized immigrants crossed the border until they reached their interior destination.[13]” Prior to this act, the Border Patrol had very little power. In fact, it had no more power than the ordinary citizen. However, the 1925 Act gave Border Patrol officers the power of arrest without warrant and defined a mass jurisdiction for their work, thus giving them governmental policing power and creating a new and powerful force to be used against Mexicans at the border and in the neighboring states.[14] This was the start of a new era of Border Patrol policies created to support the settler-colonialist system and to keep out and regulate those deemed unwanted by the nation. The anti-Mexican sentiment increased exponentially in 1929 after the stock market crash, when the economic depression resulted in an intensification of xenophobic behavior. Though the Border Patrol was using its new powers to round up and deport Mexicans that they identified as undocumented, this was not sufficient for anti-Mexican forces. Exclusionists rallied and organized public and private agencies at both the local and state levels agencies in order to institute repatriation programs that would expedite the removal of Mexican people from the United States. They sought to “return indigent nationals to their own country,” “to save welfare agencies money,” and to “create jobs for real Americans.”[15] This repatriation programs did not make a distinction between undocumented Mexicans and U.S. citizens of Mexican descent; instead it aimed to remove all Mexicans. Unlike the Border Patrol, repatriation campaigns did not usually involve the government (with the exception of welfare offices), instead they involved the power of individuals. By using the power of physical violence, the people involved in these initiatives forced Mexicans to leave their jobs and homes throughout the country[16]. Copious amounts of people who had lived their whole lives in the United States and were obligated to abandon everything they had in order to move to a country they may have never been to before. According to the U.S. Labor Department, in only a fifteen-moth period over two million people were forcibly reallocated to Mexico, a large percentage of these people being United States citizens. During a five-month period in 1931 in Los Angeles 50,000 Mexicans were violently and unwillingly deported.[17] Under the conditions of settler colonialism, land owners and the government aimed to control Mexican life and labor; as an agribusiness man from Texas said in the 1920s: “if we could not control the Mexicans and they would take this country it would be better to keep them out, but we can and do control them.[18]” When this perception of control was broken, Mexicans would no longer be accepted as workers or inhabitants of the United States. Mexicans and United States citizens of Mexican descent were subject to warrantless searches and arrests. They were victims of violent and invasive repatriation campaigns and were being exploited for their labor. The policies and laws in place encouraged these activities and served as the foundation and infrastructure for these exclusionary practices and xenophobic systems. Mexican people were systematically dehumanized and abused, a type of treatment that was well accepted by the majority of the American public and strengthened by government sanctions. This desire for control of the Mexican population in the United States is further noted by the initiation of the bracero program created in 1942. This program comprised a wartime agreement between the Mexican and American governments that provided for the use of Mexicans as temporary agricultural workers during a time where the U.S. was desperate for cheap labor.[19] This program aimed to bring in a limited number of expendable workers that would not become permanent residents and that would be under the authority and management of their supervisors at all times. This plan failed, however: smuggling of undocumented workers became commonplace from the beginning of the program and there was a great upsurge in undocumented workers coming into the states.[20] The program lasted until 1964 and employed about five million Mexican workers.[21] A dramatic increase of Mexican workers and inhabitants, both braceros and undocumented, created a national hysteria that led to the creation of Operation Wetback, another program that would lead to a numerous amount of Mexicans being forcibly removed, Operation Wetback was created in 1952 and was a paramilitary law enforcement campaign that used the threat of violence in order to detain and deport undocumented Mexican immigrants, although in reality it also induced the forced removal of thousands of documented Mexicans and Mexican Americans.[22] Officers searched Mexican American barrios throughout the border-states, and raided Mexican communities, migrant camps, ranches, farms, parks, and leisure spots.[23] The object of this intense militarization of border enforcement was to detain “illegal aliens,” but in practice the program focused on all “Mexican-looking” people in general. It was also not uncommon for American-born children to be deported along with their “illegal” parents. Many Mexicans were so fearful of the potential violence of this initiative that they went to Mexico in order to avoid the Border Patrol officials.[24] To have enough space for the detainees, officers turned public spaces into temporary detention facilities.[25] The United States forcibly removed over one million to Mexico during this short time period.[26] After Operation Wetback, the Border Patrol continued the militarization, racialization, and regionalization of the their practices.[27] In 1956, a new initiative to criminalize Mexican migrants and people soon surfaced. At this time, chief law enforcement officers instructed officers to delete wetback from their vocabulary and instead to use the words “criminal alien” or “deportable alien” in order to create a “psychological effect on the public and courts that [would] benefit the Service.”[28] Through these policies and initiatives the United States created a narrative that legitimized the white-American claim to the Southwest, while actively marginalizing and othering the Chicanos and Mexicans in the area. Mexicans were considered aliens on their own land. Part of the settler-colonialist paradigm is that the forced removal of indigenous people of the land becomes hegemonically accepted and adopted into everyday life. These hegemonic forces were incredibly successful at normalizing these exploitative and colonist measures. The impact of the U.S. government’s policies and initiatives even prompted Mexicans and Mexican descendants to become invested in the militarization and enhancement of the Border Patrol. A significant amount of support for the U.S. Border Patrol came from the Mexican-American middle class and Mexican-American political leaders. Many of them believed that migrants from Mexico, particularly those that came unauthorized, thwarted their assimilation.[29] The government also received support from much of the Mexican-American working class. As agricultural worker Drineo González explained in a letter to President Lyndon B. Johnson in 1952, “the legal residents can not live under the wetback wages and [compete] with them.”[30] The Border Patrol soon started working with the FBI on drug and crime related policies; this created a new association between Mexicans and drugs and violent crimes, and provided the BP with ample federal funding and backing. In 1956 the Criminal, Immoral, and Narcotics Program (CIN) was launched, which was a Southwestern Region program whose objective was to find United States immigrants that were excludable under the Immigration and Nationality Act policies regarding criminal records and drug possession. Through CIN the U.S. Border Patrol became a partner in law-enforcement institutions and initiatives and not only policed migration, but also policed criminals and drug related crimes.[31] This program targeted Mexican nationals already living in the United States, thus creating an association in the public conscience between Mexicans and criminals.[32] It also linked the underfunded efforts of U.S. Immigration control with the FBI, “the institutional heart of the U.S. federal law enforcement.”[33] As scholar Nicholas P. De Genova writes: “undocumented migrant labor has been criminalized as ‘illegal’ and subjected to excessive and extraordinary forms of policing.”[34] The legal powers the Border Patrol gained during the 1950s combined with the increase in racialized criminalization allowed for a political atmosphere that supported more force and militarization on the border than ever before. Although discriminatory and militant practices against Mexicans had already historically been used and implemented, these new measures allowed the government to employ them on a much larger scale and with the support of federal agencies. These new formal and democratic legal processes that were created under the country’s duty to “protect the state” legitimized extreme violence by the Border Patrol against Mexican immigrants and people of Mexican descent.[35] It must be recognized that Border Patrol policies also created conditions under which genocide could take place. When Border Patrol officials deported Mexican people and families, they were sending them into environments where they could possibly die. These deportees were sent back to a country they had fled from and had lost connections to. When returning to Mexico under these circumstances, they were often met with conditions of extreme poverty and economic persecution, which could lead to suffering and death. Not only this, but by gaining more armed guards for the border and creating fences, the Border Patrol forced those attempting to cross the border to cross miles and miles of desert and suffer from starvation, dehydration, sexual violence, and other human rights violations. They created a strategy in which they used the environment as a deterrent, thereby engendering the death of thousands of Mexican people over the course of history without directly being the cause of it.[36] The U.S. Border transformed into a militarized base where Mexican people suffered genocide and human rights violations. A study by the Center for Immigration Research at the University of Houston determined that “in the late 1980s, the number of foreign transient deaths usually exceeded 300, and peaked in 1988 at 355.”[37] Rodolfo Acuña a Professor Emeritus of Chicano Studies at California State University also stated that “Mexico’s Ministry of Foreign Affairs reported 117 cases of human rights abuses by US officials against migrants from 1988 to 1990, including fourteen deaths. During the 1980s, Border Patrol agents shot dozens of people, killing eleven and permanently disabling ten.”[38] These numbers do not account for the human rights violations and deaths of those that went unreported or for vigilante killing, so we can only assume the real numbers would be exponentially higher. The U.S.-Mexican Border served as a government-sponsored battleground where Mexican migrants had to fight for their right to live. There is no doubt that settler colonialism has been a structuring principle of American culture and society which has had great effects on U.S.-Mexican relations and the lived experience of the Mexicans and Chicanos that live in the United States. U.S. border and immigration policies have been highly influential in shaping the settler-colonial paradigm and have themselves been largely shaped by it. Settler colonialism is a system that is always transforming, and in order to change and shift these paradigms away from becoming more aggressive, controlling and deadly, we must first realize they exist. In the words of Cesar Chavez: “We need to help students and parents cherish and preserve the ethnic and cultural diversity that nourishes and strengthens this community – and this nation.”

On 15 August 2006, Elvira Arellano, along with her seven-year-old son, Saúl, took refuge at Adalberto United Methodist Church in the Humboldt Park neighbourhood of Chicago, Illinois. Arellano had been arrested by immigration agents in December 2002 while at work as a cleaner of airplanes at Chicago’s O’Hare International Airport for entering, working and residing in the United States without state sanction. She is, in other words, according to US authorities, an illegal alien. Despite the arrest, Arellano was able to win on humanitarian grounds three temporary stays of deportation, allowing her to remain in Chicago through mid-2006 to provide care for her US citizen son. During that time, she became a prominent spokesperson for Illinois’ unauthorised immigrant population and the president of La Familia Latina Unida (the United Latino Family), a Chicago-based organisation which works with families potentially split by deportation. But the stays of deportation ended. It was on the day that federal authorities ordered Arellano to appear at a local office of the Department of Homeland Security to be deported that she took up sanctuary at the church, challenging federal government to enter the church’s grounds and arrest her. Her son has attention-deficit hyperactivity disorder. Arellano wants Saúl to stay in the country of his birth – which effectively requires her to remain in the United States as well – to ensure that he has access to medical treatment better than he would were he in Mexico. Arellano’s case has attracted a great deal of attention. She has won the support of many who see her as someone courageously standing up for the human rights of migrants, and earned the wrath of many others who perceive her as a law breaker for being in the United States without authorisation.1 Her defiance of US authorities has not yet led to her arrest – as least as of October 2006. Indeed, US officials have not entered the church and, according to one such official, have no intention of doing so. The Arellano case, he explained, carries “no more priority than any of the other 500,000 [non-US citizen] fugitives nationally”.2 That there are so many immigrant “fugitives” – along with many millions of “illegal aliens” – in the United States, especially at a time when immigration and boundary policing has reached unprecedented levels and the calls for ever-greater levels of enforcement resonate with large sectors of the US public, speaks to many of the contradictions that this special issue addresses. In short, this (according to many) neoliberalising era is one of falling barriers to capital and rising walls to migrants – at least those who are officially undesired by the relatively wealthy, secure and powerful countries of the world. Nonetheless, as Elvira Arellano’s presence in Chicago and the support she enjoys illustrate, the rejected outsider is also very much “in.” This is hardly unique to the United States as the large numbers of unauthorised migrants who live and work in Europe, Israel, South Africa and elsewhere demonstrate. These contradictions speak to the incredible persistence and resourcefulness of migrants and those who smuggle them – some unauthorised crossers of the US-Mexico boundary, for example, have resorted to using bicycles to cross the desert3 – as well as the power of resistance. This resistance is brought about in no small part by alternative ethical systems and related political-geographical imaginaries, as well as by the very humanity of migrants, whose neighbours in their country of destination often embrace them in ways that challenge the simple boundaries between “us” and “them”.4 In France, for example, large numbers of people have stepped forward publicly and vowed to hide migrant families with children who are under threat of deportation.5 These contradictions also speak to the difficulties – perhaps impossibilities – of disciplining and reducing people to policing agents of nationalism and its territorial expression. In the case of the US enforcement apparatus, many agents have succumbed to smugglers’ bribery (showing how susceptible they are to neoliberal logic), while some Border Patrol agents have been caught dating, loving and living with the very “illegals” they are charged with apprehending.6 Meanwhile, the neoliberalising forces of capital and their state allies continue to encourage migrants to cross the strengthening territorial boundaries. They do so, by among other means, disrupting socio-economic networks that undermine the ability of people to realise their livelihoods at “home,” and providing powerful employment magnets that attract migrants to go elsewhere.7 The viability of these “illegal” workers is greatly aided by, in the case of the United States, lax workplace enforcement by state authorities.8 This, combined with the very status of the migrants, helps to “produce” a worker of high “flexibility,” to employ a term much used by the champions of neoliberal policies. Such flexibility often reflects migrants’ significant and multifaceted vulnerability, one that frequently manifests itself in a lethal fashion within the increasingly policed border zones between the global North and South. To cite just one example, an estimated 1,700 migrants died in 2005 alone while trying to make the ocean voyage from the Western Sahara and Morocco to the Canary Islands of Spain,9 a tragic outcome which demonstrates the enduring and, in some ways, growing power of nationalism in a time also characterised by increasing globalisation. The papers in this special issue of Geopolitics address these growing “borderline contradictions” from several critical perspectives. First, the authors frame their discussions of unauthorised migration within the context of neoliberalism: a contradictory process which encourages economic flows across international borders (for instance, favouring the accumulation of capital; defence of private property rights, free market and free trade, as discussed by Carter and Merrill in this issue), while at the same time maintaining nationalistic political-geographic closure – at least to migrants deemed as undesirable – across those same borders via expanding boundary enforcement and militarisation. As the authors discuss, the ever-increasing movement of unauthorised migrants across national borders is an important manifestation of these contradictory processes of economic openness and territorial closure. This neoliberal contradiction is a manifestation of a continued adherence to a territorially trapped vision of the nation-state,10 which as Carter and Merrill, and Nevins discuss in this issue, simultaneously neglects the global economic and structural roots of international migration, and therefore places the responsibility for unauthorised migration and the blame for the increasingly deadly consequences of these migration attempts on the shoulders of individual migrants. The unauthorised migrant is perhaps, therefore, the embodied evidence of the Janus-faced nature of the neoliberal state. Contrary to neoliberal discourses which profess and at times, celebrate, the “withering of the nation-state,” unauthorised migration demonstrates the way in which state policies enable an increasingly open economic system, while simultaneously maintaining control of the national territory. This contradiction is typified in the simultaneous enactment, in 1994, of the seemingly paradoxical, yet fundamentally complementary North American Free Trade Agreement (NAFTA) and the Southwest Border Control Strategy (SWBCS). As the papers in this issue also demonstrate, the border is a crucial site in which these contradictions are materialised. While we often think of the border as simply the site at which unwanted people and flows are policed and excluded from the national territory, the neoliberal border also serves other important functions. First, intensifying border policing “performs” national closure for a concerned citizenry in the post-9/11 era, as a response to concerns about and, at times, hysteria over national security and the threat of terrorism, via the material and discursive production of closure at the border. And second, importantly, “the border” does not remain at the margins of the nation-state, but rather is woven throughout the territory of the nation by marking those who have crossed it without authorisation, and therefore delineating boundaries between insiders (citizens and others who have state authorisation to be in the national territory) and outsiders (those who do not belong). This internalisation of the border has the (un)intended effect of producing a marginalised and flexible working class, either through the production of illegality, as Varsanyi’s article discusses in the context of Mexican undocumented workers in the United States, or via the processing of returning overseas workers, as Silvey highlights in the context of Indonesia. The impact of the neoliberal border extends beyond the production of a marginalised working class. As both Scarpellino’s and Kim’s papers contend, albeit from different perspectives, the mortal dangers involved with crossing this border without authorisation can be understood not as aberrations, but rather as the deeply structural results of broader political economic changes. Scarpellino talks about the dangers of the neoliberal, or “hard” border, as she calls it, as manifestations of structural violence – not perhaps, as visible as more commonly understood forms of violence, but a long-term and life-threatening deprivation nonetheless. From a different viewpoint, Kim understands the increasing number of deaths along these neoliberal borders as a form of “slow-onset humanitarian disaster” (see also, Nevins, in this issue). And while the potential impacts of the neoliberal border are grave for those who attempt to cross without authorisation, the production of this border is also having serious impacts on the communities which live along it. As Madsen’s paper illustrates, nowhere, perhaps, is this impact felt more directly than in the Tohono O’odham Nation, a Native American nation which straddles the US-Mexico border, and whose lands have become a major migrant smuggling route since the implementation of Operations Gatekeeper and Hold-the-Line in the mid-1990s, which have had the effect of pushing migrant crossings into the deserts of Arizona and New Mexico. In light of the disciplining, punishing, and potentially deadly impacts of this neoliberal border, what is to be done? A number of the papers in this special issue offer potential pathways across these borderline contradictions. If the commodities and capital flow with increasing ease across international boundaries, Kim’s paper proposes an unconventional solution to the dilemma of increasing migrant vulnerability which essentially fights fire with fire. He proposes, in essence, that the migrant smuggling business should treat migrants as commodities and that the concept of escrow – an arrangement whereby a third party holds payment pending safe delivery of the migrants – could be used to ensure safe delivery of these “goods”. Varsanyi’s paper engages not with the vulnerability of migrants as they cross the border, but with their stability once they are resident in the United States. She explores alternate forms of belonging and membership in the neoliberal context, through an examination of the increasing adoption of the matrículas consulares as an alternative form of identification for unauthorised Mexican migrants in cities and counties across the United States. Scarpellino’s paper engages with the ethical dimensions of this hardened, neoliberal border, and drawing on theories of justice, concludes that the neoliberal border is a violation of human rights. And finally, while neoliberalism has created a context in which international migration is seemingly the only way for many in the global South to survive, given the dangers of the neoliberal border as well as the production of a marginalised working class, Silvey questions the Indonesian state’s decision to promote overseas migration as a state-led development strategy in Indonesia.

Over the last decade, an embryonic movement examining the overlap between race, art, science and design has been stirring and growing beneath the surface. Afrofuturism is the current name for a body of systematic Black speculative thought originating in the 1990s as a response to postmodernity that has blossomed into a global movement the last five years. Although contemporary Black speculative thought has roots at the nexus of 19th century scientific racism, technology, and the struggle for African self-determination and creative expression, it has now matured into an emerging global phenomenon. Afrofuturism 2.0 is the beginning of both a move away and an answer to the Eurocentric perspective of the 20th century’s early formulation of Afrofuturism that wondered if the history of African peoples, especially in North America, had been deliberately erased. Or to put it more plainly, future-looking Black scholars, artists, and activists are not only reclaiming their right to tell their own stories, but also to critique the European/ American digerati class of their narratives about cultural others, past, present and future and, challenging their presumed authsority to be the sole interpreters of Black lives and Black futures. Kodwo Eshun asserts: “Afrofuturism may be characterized as a program for recovering the histories of counter-futures created in a century hostile to Afrodiasporic projection and as a space within which the critical work of manufacturing tools capable of intervention within the current political dispensation may be undertaken” (288). One example of several approaches within this current wave of Afrofuturism is the strategic formulation reflecting Afrofuturism is a critical project with the mission of laying 230 • Reynaldo Anderson OBSIDIAN • 231 the groundwork for a humanity that is not bound up with the ideals of white Enlightenment universalism, critical theory, science or technology (Jones, 2015, Rabaka, 2010, Rollefson, 2008, p. 91). More recently, according to Anderson and Jones: [C]ontemporary expressions of Afrofuturism emerging in the areas of metaphysics, speculative philosophy, religion, visual studies, performance, art and philosophy of science or technology that are described as “2.0,” in response to the emergence of social media and other technological advances since the middle of the last decade. (ix) Additionally, the authors define Afrofuturism 2.0 as: [T]he early twenty-first century technogenesis of Black identity reflecting counter histories, hacking and or appropriating the influence of network software, database logic, cultural analytics, deep remixability, neurosciences, enhancement and augmentation, gender fluidity, posthuman possibility, the speculative sphere, with transdisciplinary applications and has grown into an important Diasporic techno-cultural Pan African movement. (x) Therefore, propelled by new thoughts and creative energy, members of this Black speculative movement have been in creative dialogue with the boundary of space-time, the exterior of the macro-cosmos and the interior of the micro-cosmos. Yet, there is historical precedent for this movement around the concepts of the color line, the color curtain, and the digital divide. In 1903, W. E. B. Du Bois published his great work, The Souls of Black Folk, drawing on the disciplines of sociology, anthropology, autobiography, and history, and made his argument in the era of Jim Crow and imperialism noting: “The problem of the twentieth century is the problem of the color-line, the relation of the darker races of men in Asia and Africa, in America and the islands of the sea” (18). Furthermore, Du Bois suggested, due to their unique experience, African Americans had developed a metaphysical perspective or “Veil” that bestowed a certain insight upon them on life in the West. The Veil was a literary and philosophical translation of the inner life of people of African descent in the Americas (Du Bois, Souls of Black Folk). Two years later, in 1905, Albert Einstein proposed his Special Theory of Relativity that confirmed the relationship between space and time, postulating 232 • Reynaldo Anderson that the laws of physics are invariant in all inertial systems and the speed of light in a vacuum is the same for all observers. Between 1908 and 1910, Du Bois drew upon ideas from natural science, humanities and social science to write a speculative short fiction story, “The Princess Steel.” Du Bois developed this story with a character that invented a Mega-scope that could see across space and time that would amplify his ideas to study the boundary of space-time creatively, “into a means for perceiving material history” (Du Bois, Brown & Rusert 820). The creative ideas of Du Bois and others during this period would be decisive in aesthetic and socio-political formulations of the non-white world of the twentieth century. Later in the twentieth century, Indonesian president Achmed Sukarno and other leaders organized the Bandung conference, a meeting for the Dark World that called for the de-occidentalization of the earth. Kwame Nkrumah, the foremost African leader to promote Pan-Africanism in the post-World War II era was an ardent supporter of this 1955 conference. Author Richard Wright, a conference attendee, reported on the ideas promoted, and discussed them at length in his work The Color Curtain (1956). This event would influence the imagination of activists like Claudia Jones, Malcolm X, Steve Biko, Thomas Sankara, and others, in pursuit of the liberation of the Dark World. Over the course of a generation, many of these radical initiatives would be repressed or betrayed. However, the seeds for a Black speculative movement challenging white racist normativity and Black parochialism, would be sown by creative intellectuals, mystics, and artists like Sun Ra, Fela Kuti, George Clinton, Max Beauvoir, Octavia E. Butler, John Coltrane, Alice Coltrane, Samuel R. Delany, Jimi Hendrix, Jean Michel Basquiat, and many others. At the end of the twentieth century, scholars such as Molefi Kete Asante, Audre Lorde, Chinua Achebe, Ngugiwa Thiong’o, Greg Tate, bell hooks, and Cornel West catalogued the increasing deterioration and anomie of Black cultural production and dislocation in relation to the transition to a neoliberal, multi-national, political-economic matrix. Furthermore, Anna Everett, Alondra Nelson, Paul D. Miller, Alex Weheliye, Kali Tal, and others, via an online forum during the early conceptual development of Afrofuturism, analyzed an emerging global digital divide that reflected technical, economic, and social inequality. This phenomenon was primarily OBSIDIAN • 233 responsible for the interruption of Africa, its Diaspora, and other countries of the global south in attaining optimal growth or enhancement in political, economic, social, or cultural capital. On the other side of the Atlantic, work by Kodwo Eshun as a member the Cybernetic Culture Research Unit (CCRU), and John Akomfrah, co-founder of the Black Audio Film collective, were crucial to the global theoretical genesis of Black cyber-culture. However, during this time and into the early 21st century, several disparate strands of a new creative Africanist matrix emerged, influenced by speculative design and world building, as well as a renewed radicalized socio-political stance, and the social physics of Blackness (the interface of African peoples, myth-forms, technology, behavioral science, ethics, and social world). Indispensable to this manifesto is the groundbreaking work done on the Black speculative phenomenon by Sheree Renée Thomas. In the late 90s, in a hostile environment toward Black speculative work, Thomas gathered obscure documents with the support of interviews from Octavia Butler, Amiri Baraka, Charles Saunders, Samuel R. Delany, and Delany’s then-wife Marilyn Hacker (Thomas). Furthermore, these interviews and information gave Thomas the insight to revisit the term “speculative fiction” and create a project that led to the genesis of her anthology Dark Matter: A Century of Speculative Fiction from the African Diaspora in 2000 and Dark Matter: Reading the Bones in 2004 (Thomas). This manifesto assembles and recognizes the ideas developed between 2005 and 2015 as the inspiration for the Black Speculative Art Movement (BSAM) and the event Unveiling Visions: The Alchemy of The Black Imagination that established its existence. Black speculative art is a creative, aesthetic practice that integrates African diasporic or African metaphysics with science or technology and seeks to interpret, engage, design, or alter reality for the re-imagination of the past, the contested present, and as a catalyst for the future. Moreover, this manifesto explores the question, “What is the responsibility of the Black artist in the 21st century?” Within the Afrofuturist 2.0 frame of inquiry, Tiffany Barber asserts: What is compelling about Afrofuturism is that it is historical in its gesture back to previous debates about social responsibility, radical politics, and black artistic production that surged during the 234 • Reynaldo Anderson Black Arts Movement or BAM of the 60s and 70s. But it rearticulates these debates and expands our understandings of blackness’s multi-dimensionality, the good and the bad, the respectable and the undesirable. Afrofuturism 2.0 and the Black Speculative Arts Movement are indebted to previous movements like BAM, Negritude, The Harlem Renaissance, and other continental and diasporic African speculative movements. Moreover, it is a continuation of the historical behavior within the Veil to engage the philosophies of thinkers such as Du Bois, Wright, Everett, and others in piercing the Color Line, the Color Curtain, and understanding the digital divide in the face of similarly relevant 21st-century challenges. For example, contemporary artists like Kapwani Kiwanga are revisiting the ideas of Kwame Nkrumah to envision an Afro-Galactic future. Moreover, the goals of the BSAM manifesto are structured as a pursuit or open-sourced path of inquiry to transform the anomie or collapse in ethics and dystopia in the Diaspora and African communities that were displaced by the collapse of space-time. Several events between 2005 and 2015 shaped the development of BSAM, including the explosion in social media platforms illustrated by Facebook, Youtube, and Twitter (Van Dijck, 2013), and three seminal publications: The Big Short (Lewis) documenting the global market collapse, Bill Bishop’s The Big Sort, detailing re-segregation of people; and Michelle Alexander’s The New Jim Crow. Tributary events were the election of the United States’ first African American president, Barack Obama, racist reactions and subsequent collapse of the liberal post-racial project, the increased use of crowdfunding and other new technologies to design creative projects, escalating environmental stress, and the New Scramble for Africa (Kimeyi & Zenia). Furthermore, the resurgence of Pan Africanism and outreach to the African Diaspora (now incorporated as the 6th zone) by the African Union; the appearance of state sanctioned deaths of Black people through police brutality, such as the Marikana massacre; and the current global Black social protest response to localized forms of injustice all intensified the current social context. BSAM is not a unified school of thought. BSAM is a loose umbrella term which represents different positions or basis of inquiry: Afrofuturism 2.0 (and its several Africanist manifestations, e.g. OBSIDIAN • 235 Black Quantum Futurism, African Futurism, Afrofuturismo, and Afrofuturista), Astro Blackness, Afro-Surrealism, Afro-Pessimism, Ethno Gothic, Black Digital Humanities, Black (Afro-future female or African centered) Science Fiction, The Black Fantastic, Magical Realism, and The Esoteric. Although these positions may be incompatible in some instances, they overlap around the term speculative and design, and interact around the nexus of technology and ethics. Individuals or organizations whose work represents pillars of BSAM would include and are not limited to: Martin Delany, Paschal B. Randolph, Toni Morrison, Sun Ra, Amiri Baraka,Tananarive Due, Ben Okri, Nnedi Okorafor, W. E. B. Du Bois, The Afrofuturist Affair, Samuel R. Delany, Minister Faust, Jean-Pierre Bekolo, Jarita Holbrook, Milton Davis, Ishmael Reed, Wanuri Kahiu, Sheree Renée Thomas, Andrea Hairston, Janelle Monae, Sanford Biggers, John Jennings, Octavia E. Butler, Octavia’s Brood, Nalo Hopkinson, Cyrus Kabiru, D. Scott Miller, Pamela Phatsimo Sunstrum, Steven Barnes, N.K. Jemison, D. Denenge Akpem, Ytasha Womack, Kapwani Kiwanga, John Akomfrah, and Kodwo Eshun. In the occidental realm, the epistemic boundaries of speculative design is limited largely to objects, how they mediate the human experience and are primarily interpreted through ideas originating with the Frankfurt school of critical theory (a body of thought usually dismissive, in the case of Theodor Adorno, silent or Eurocentric in regards to Black cultural knowledge production and performance). Furthermore, this occidental approach limits the framework of the speculative to Western philosophy and science. For example, Anthony Dunne and Fiona Raby argue that, in relation to speculative design, only the present, probable, preferable, plausible, and possible should be zones of concern, noting: Beyond this lies the zone of fantasy, an area we have little interest in. Fantasy exists in its own world, with few if any links to the world we live in…This is the world of fairy tales, goblins, superheroes, and space opera. (4) However, this approach eschews or avoids alternative speculative cultural worldviews and attempts to establish a system where Europe assumes the teacher position with all others as the recipients and consequently users of this limited perspective. For example, there is historical evidence that demonstrates, via the route of alchemy, that magic is a 236 • Reynaldo Anderson gateway into the study of science. In contrast to Dunn and Raby, Lewis Mumford (Technics and Civilization) previously noted: Between fantasy and exact knowledge, between drama and technology, there is an intermediate station: that of magic. It was in magic that the general conquest of the external environment was decisively instituted. For the magicians not only believed in marvels but audaciously sought to work them: by their straining after the exceptional, the natural philosophers who followed them were first given a clue to the regular. (36–37) An Africanist example of this phenomenon is the work of Max Beauvoir, a trained biochemist and Voudou priest who synthesized these approaches in medical treatments, as a healer and activist. Digital scientist Nettrice Gaskins, building on and moving beyond previous work done by Ron Eglash with African fractals, along with other contemporary scholars, demonstrates the possibilities of re-conceptualizing African Cosmograms as cultural tools to interact with digital technology, augmented space and augmented reality. Moreover, there are implications for culturally situated learning, STEAM, and holistic health. Nnedi Okorafor’s novel Akata Witch reveals the overlap or merger between magic and technology as a case for these implications. Therefore, in contrast to the occidental speculative design approach, BSAM freely embraces the Africanist approach to speculative design and incorporates earthly and unearthly intuitive aspects of Esoterica, Animism, and Magical Realism. This integration generates overlapping zones with other knowledge formations when formulating or conceptualizing theory and practice in relation to material reality.

De Genova (2007) observes that the production of the “enemy alien” serves the production of “heightened insecurity,” which may be the Homeland Security State’s “most politically valuable end” (p. 436). While border security measures seem to protect the nation from foreign threat, de Genova observes, such defense projects in fact generate ideological sites of “radical insecurity” (Kaplan, 2003, p. 90). Kaplan (2003) notes that homeland security blurs the inside and outside and reproduces itself through the repeated production of a nation that is insufficiently protected from – and cannot escape – internal and external threat. The production of border insecurity does not hinge simply on the delineation of deserving and undeserving, but rather a set of flexible technologies by which the (greatest) “threat” or “enemy” is constantly recreated. As de Genova writes, undocumented migrants and “terrorists” have been differently imagined by U.S security regimes; while the former is characterized by deportability, the latter is defined in relation to detainability. With the “War on Terror,” however, the “deportable alien” and the “enemy/terrorist” have converged. This merging was enacted, in part, through a strategy of targeted policing, which conceptualized “fugitive apprehension” as the precursor to the official “Endgame” of “remov[ing] all removable aliens” (USDHS-ICE, 2003, p. ii, quoted in de Genova, 2007). Although targeted enforcement – manifest in ICE raids and localized border militarization –cannot (and does not aspire to) achieve the putative goal of mass deportation, it does provide the rationale for an ever-growing Homeland Security apparatus (de Genova, 2007). Detention of those targeted for removal enhances the equation of detention with “illegality,” which enables the immigration regime’s even more targeted use of “preemptive” surveillance and detection for those produced as potential “terrorists.” Now employed by the Department of Homeland Security, border patrol officers are charged with the detection, containment, and detainment of immigrant, criminal, and terrorist threat. Thus, the border operates as a site of convergence for crime and immigration regulation, and overlapping carceral regimes (Bohrman & Murakawa, 2005; Hannabach, 2013). Razack (2010) conceptualizes the border as a “space of exception,” where neither domestic nor foreign law check the authority of the sovereign state and non-citizens are constituted as “extraterritorial” – neither inside nor outside the nation-state and therefore unprotected by human rights principles. Spaces of exception are structured through race, as the production of undeserving racialized subjects naturalizes the suspension of rights in the name of national security. Individuals may be detained indefinitely based on mere suspicion of membership in a “terrorist group,” as the “special” nature of national security provides a cloak of immunity in treating those who “threaten” the nation-state. Rhetorical appeal to colorblind logics of protection and “rule of law” – i.e., punishment of those who crossed the border without papers – naturalize violence and obscure the ways in which “citizen” and citizenship have been produced through colonization and racism (Garcia, 1995; Razack, 2010). When the racialized figure of the “illegal” migrant is created through the law and made into a spectacle at the “theater of the border” (Oliviero, 2011), the constitutive racialization of the law and “democracy” itself becomes invisible. Consequently, the “rule of law” and protection of national “sovereignty” become floating signifiers available to operate in service of immigration “reform” and “national security” (de Genova, 2004). The relationship between Indigenous peoples and the United States can also be understood through Agamben’s conceptualization of the state of exception, wherein biopolitical strategies cohere with and support sovereign violence in the (re)production of the nation-state. Rifkin (2009) argues that national sovereignty is not foundational to US law and policy, but rather the consequence of an exception “that rests on nothing more than the absoluteness with which it is articulated and enforced” (Rifkin 98). Reiteration of Indigenous peoples’ exceptionality legitimates their governance by seemingly limitless federal authority.

The "cult of domesticity," the ideology of "sepa- rate spheres," and the "culture of sentiment" have together provided a productive paradigm for understanding the work of white women writers in creating a middle-class American culture in the nineteenth century. Most studies of this paradigm have revealed the permeability of the border that separates the spheres, demonstrating that the private feminized space of the home both infused and bolstered the public male arena of the market, and that the sentimental values attached to maternal influence were used to sanction women's entry into the wider civic realm from which those same values theoretically excluded them. More recently, scholars have argued that the extension of female sympathy across social divides could violently reinforce the very racial and class hierarchies that sentimentality claims to dissolve.' This deconstruction of separate spheres, however, leaves another structural opposition intact: the domestic in intimate opposition to the foreign. In this context domestic has a double meaning that not only links the familial household to the nation but also imagines both in opposition to everything outside the geographic and conceptual border of the home. The earliest meaning of foreign, according to the OED, is "out of doors" or "at a distance from home." Contemporary English speakers refer to national concerns as domestic in explicit or implicit contrast with the foreign. The notion of domestic policy makes sense only in opposition to foreign policy, and uncoupled from the foreign, national issues are never labeled domestic. The idea of foreign policy depends on the sense of the nation as a domestic space imbued with a sense of at-homeness, in contrast to an external world perceived as alien and threatening. Reciprocally, a sense of the foreign is necessary to erect the boundaries that enclose the nation as home. Reconceptualizing domesticity in this way might shift the cognitive geography of nineteenth-century separate spheres. When we contrast the domestic sphere with the market or political realm, men and women inhabit a divided social terrain, but when we oppose the do- mestic to the foreign, men and women become national allies against the alien, and the determining division is not gender but racial demarcations of otherness. Thus another part of the cultural work of domesticity might be to unite men and women in a national domain and to generate notions of the foreign against which the nation can be imagined as home. The border between the domestic and foreign, however, also deconstructs when we think of domesticity not as a static condition but as the process of domestication, which entails conquering and taming the wild, the natural, and the alien. Domestic in this sense is related to the imperial project of civilizing, and the conditions of domesticity often become markers that distinguish civilization from savagery. Through the process of domestication, the home contains within itself those wild or foreign elements that must be tamed; domesticity not only monitors the borders between the civilized and the savage but also regulates traces of the savage within itself.2

This looks like the end of the beginning for PIPA/SOPA, as Harry Reid tweets that “In light of recent events, I have decided to postpone Tuesday’s vote on the PROTECT IP Act.” I think we can learn a few lessons here, many of which illustrate the main conclusions of Baumgartner et. al.’s excellent book Lobbying and Policy Change: Why Wins, Who Loses, and Why.

1) Lobbying isn’t all about money: Hollywood badly outspent Silicon Valley on this issue and still lost. This is completely typical. There’s no evidence that better-funded groups systematically win policy fights.

Politicians seek to move policy in their preferred ideological direction and believe that elections give them a mandate to govern (Azari 2014). But that hardly means voters will reward them. Consider research showing that public support for policy change moves “thermostatically” against the direction of policymaking, shifting leftward under Republican presidents making conservative policy moves and rightward under Democratic presidents making liberal policy moves (Wlezien 1995; 2004; Erikson, et al 2002). These shifts lead voters to turn against the party of ambitious presidents that overshoot public demand for policy change (Erikson, et al 2002; Wlezien 2017). In presidential elections, the further policy moves rightward or leftward, the more relative preferences move in the opposite direction and the worse the candidate of the incumbent party does (also see Bolstad 2012), explaining about half of the cost of ruling effect (Wlezien 2017).

Policymaking may have similar consequences for Congressional elections. Public judgments of Congress respond to congressional lawmaking, as voters use policy output to judge the ideological distance between themselves and Congress (Algara 2021). Voters tend to move against major laws passed by Congress as they learn about details (and infighting) from media coverage (Atkinson 2017). Major electoral losses for the majority party in Congress, such as in the 2010 election, are the product of voters punishing legislators for supporting policies that demonstrate they are ideologically distant from voters (Nyhan et al. 2012). All of these findings suggest that parties may suffer from moving policy too far in their preferred direction. State-level evidence also finds that voters counterbalance parties that succeed in legislating major policy victories (Pacheco 2013).

Inwood Standard” Indiana Law Journal, Iss. 2, Article 9, https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11200&context=ilj //DH

But the Tiffany standard is more than just Inwood for services. In addition to what it takes from Inwood, Tiffany creates a more defined and practical gray area within which courts can apply the knowledge requirement.155 Importantly, the Tiffany standard demands more than general knowledge but less than specific knowledge.156 It also leaves open alternative knowledge theories, such as willful blindness. The Second Circuit stated: "For contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary."157 This holding keeps with Inwood's narrow standard but also aligns with the Supreme Court's subsequent interpretations of Inwood in other cases.158 It rightly rejects general knowledge. If general knowledge were enough, online service providers would constantly be embroiled in contributory infringement actions merely because of their business model. In Tiffany, eBay conceded that it knew generally that there were counterfeit Tiffany goods on its site.159 With a case so easy to prove—all a plaintiff would need to show is that counterfeiting occurred somewhere on the site without having to provide an example—online service providers would be subject to witch hunts for damages simply because direct infringers chose the provider's site as a sales platform. Moreover, "some contemporary knowledge" is not as narrow as specific knowledge.160 This is a kinder standard to the plaintiff, as it is not as stringent and leaves open the window of circumstantial evidence. Additionally, contemporary knowledge ensures that the online service provider is not being sued merely for its business model, but instead because there were genuine infringing acts occurring that the provider knew of and should have stopped.

In the fight for the ideas of individual liberty and limited government, we often, and rightfully, argue about legislation. But while we go back and forth on the initiation or the repeal of laws and the regulations that surround them, we tend to forget to think about their enforcement. You could, arguably, have the most repressive laws on the books without actually enforcing them. Enforcement Is How We Evaluate Seriousness We evaluate the seriousness of the law in front of us because we can measure the real-life consequences. We've all seen these trendy lists of "the most ridiculous bans", and how they really, really, really, really, really, reaaaalllly fill the internet. Some of them are so odd that we often tend to scrub it off or engage in irrelevant debates over family dinner if these weren't all made up in the first place. However, would we really be treating these lists with the same degree of humor if Oklahoma would seriously enforce a ban on making ugly faces at dogs, if Alabama was raiding homes to find sex toys, or if Austria were to jail people for kissing on a train? Hardly so. We evaluate the seriousness of the legislation that is in front of us, not because it is on the books but because we can actually measure the real-life consequences if we happen to break them. We even do this with laws that are clearly enforced very seriously, like the repression against speeding, driving under the influence, or drinking in public (depending on the country and city). We break the law anyway because we estimate our chances of being caught to be lower than the pleasure or utility we derive from breaking them. This has shown to be particularly true for drugs, where even people who are neither poor nor in the general category of those who risk problems with the law break the law because they believe that they won't get caught. The Law of the Land... That You're In The EU is an interesting case study on very selective enforcement. European Union directives are legislative acts that member states have to translate into national rules, but the way they achieve that is up to them. This leads to situations in which the Greek smoking ban is not enforced at all, while the French prohibition on smoking indoors in public places can make bar or club owners lose their licenses. "The law of the land" becomes "the law of the land in which you happen to be right now". All too often, politicians talk about bans on products, services, or behaviors as if such a decision will make the act disappear altogether. They don't account for economic relevance or desires of the consumer to acquire a certain product or service. If there were only a handful of rules that you had to follow, law enforcement would be consequential yet the multiplication of rules has given the executor the power of selectively enforcing the rules that it likes. In fact, an unenforced law isn't a law to start with. No Enforcement? No Problem. While large parts of Europe stringently enforce rules regarding the prohibition of drugs, countries such as Portugal and the Czech Republic have taken a complete laissez-faire attitude on the topic. Portugal decriminalized the use of all drugs as early as 2001, with amazing results: "Fifteen years later plentiful data tell a drastically different story from what many predicted. Drug use among 15- to 24-year-olds has decreased dramatically and drug-induced deaths dropped from 80 in 2001 to 16 in 2012. Before 2001 Portugal confined around 100,000 drug users. Within the first 10 years of the policy’s adoption, this number halved. Today Portugal boasts one of the lowest drug-usage rates in all of Europe." A number of other countries, such as Denmark, Belgium, or Luxembourg are far from going the whole distance on hard drugs but have considerably softened the repression against the use of marijuana. The pattern here as well is: the less you repress the substance, the less it is a big deal. Despite drug-related health concerns being real and problematic, actual issues arise through the very violent enforcement of these rules. When special forces bust through people’s doors, and when police militarize in order to step up to violent gangs that profit off of prohibition, the violence of the state becomes truly apparent. When the laws become so numerous that police chiefs can become selective on the 'which' and 'how' of their enforcement, then we have reached the illiberal state. The inherent question of the problematic nature of the state is not that of the law, but how it is enforced.

The use of parole by the Executive acting sua sponte in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict come readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. Even those who are in removal proceedings or have already been ordered removed, and are beneficiaries of approved petitions, also need not wait until eternity for Congress to come to the rescue. The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien.16 This safety valve will fix our broken system of future flows by allowing those who could not qualify for any other visa option to have new hope and unimagined choices. There are those who argue that only Congress can make immigration policy in this fundamental way and this reservation is both serious and worthy of deep respect. Yet, we have a dysfunctional Congress that is or appears to be incapable or unwilling to reach consensus on immigration. Do we as a society simply throw up our hands and do nothing, allowing a bad situation to become worse or do we use this challenge as an opportunity to create something better through temporary and targeted executive action that Congress can either overturn or accept at a later date? There are several examples of administrative action to create new immigration policy in the face of Congressional inaction in recent years. In the STEM OPT regulation, the USCIS openly admitted that granting an additional 17 months of employment authorization was a regulatory response to an inadequate H1B quota. When they limited the validity of a labor certification of 180 days, the US Department of Labor did so on their own without the fig leaf of legislative authorization.17 Remember when the AAO handed down the decision in New York State Department of Transportation,18 thus effectively repealing the national interest waiver statute for several years until the relaxation came?19 Finally, under the Cuban Adjustment Act of 1996, even if the Cuban national entered without inspection, the former INS Commissioner Doris Meissner clarified that the Service could use its authority under the humanitarian and significant public benefit criteria in Section 212(d)(5) to parole Cubans who had entered without inspection under the fiction that the individual would surrender to the government, which in turn would release or parole him or her, and thus render them eligible for adjustment of status under the CAA.20 Did Congress tell them they could do that? All of these actions, and many others not singled out, had profound effect but depended solely upon the imaginative exercise of executive authority yet consonant with a proper respect for separation of powers. So we can do so here. Those who do not think so ignore at their own peril and ours the fundamental distinction between making policy, which only Congress can do, and implementing tactical adjustments, which the Executive is uniquely suited to do. This is why only Congress can create a legal status while the Attorney General can authorize a period of stay. This is why only Congress can enlarge the EB quota but the Executive can allow adjustment applications without a quota expansion so long as final approval is not forthcoming. This is why only Congress sets visa limits while the Executive can grant parole. This is why only Congress sets work visa law but the Executive can issue EADs. To suggest that Congress must act in both a long and short term context is to ignore the historic and legitimate differences between the two branches of government. If Congress wants to overturn such executive action, it can do so. Likewise, if it supports the President, it can stay its hand. Either way, Congress is expressing its will, whether through positive action in the form of legislation or negative action in the form of silent acquiescence. Both action and its absence are authentic manifestations of congressional intent and expressions of congressional authority. In reality, we all know that there are 40 votes in the Senate to uphold such regulatory initiative. Congress will be more than content to allow the President to take the lead and solve what it has manifestly been powerless to solve- how to regulate both past and future migration flows; how to solve the growing unskilled worker backlog; how to ameliorate the gratuitous cruelty of the 3/10 year bars; how to reduce the size of the undocumented population who may already working here and contributing to the exchequer and how to satisfy the hungry manpower needs of employers once the dark cloud of recession lifts without creating a single new immigrant visa. When has so much come from so little? We do not say that CIR can be cast aside for there are many people who will never be the beneficiary of an I-140 or I-130. Ours is a far more modest proposal. We seek only to broaden the debate and widen the national conversation. Now is the time for what Franklin Roosevelt rightly called "persistent, bold experimentation." We must not wait for Congress to act. However important CIR remains, it is not the only way.

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users, although both violate federal law. And so on.

Nearly all of this non-enforcement takes place with implicit congressional acquiescence; once in a while, Congress complains because the president’s priorities are not the same as its own. But the president has no obligation to listen to these complaints. The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment. This is the separation of powers. People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers; that’s the principle of legislative supremacy, embodied in parliamentary systems like Britain’s, which America's founders rejected.

The Tahirih Justice Center is the largest national policy and direct services organization in the United States that focuses on assisting immigrant women and girls who face gender-based violence. The women Tahirih serves are often particularly vulnerable to horrific crimes such as human trafficking, domestic abuse, and sexual assault. Laws such as the Violence Against Women Act (VAWA) and the Trafficking Victims Protection Act (TVPA) are specifically intended to encourage survivors to call 911 without fear of deportation. These laws recognize that incentivizing survivors to help police get dangerous criminals off the streets is sound policy and results in safer communities for all of us. The TVPA and VAWA enjoy longstanding, broad bipartisan support. Consistent with these laws, so-called “sanctuary” policies promote immigrants’ trust of local police, while sending a clear message to criminals that they cannot exploit victims’ fears of deportation with impunity.  When Immigrant Communities Trust Local Police, We All Benefit from Enhanced Public Safety It is well-documented that domestic abusers and traffickers routinely manipulate their victims by threatening to have them deported if they call the police. A survivor might therefore face the impossible “choice” of risking separation from her young children and forfeiting custody to her abuser upon deportation, or continuing to endure life-threatening violence at home. Abusers also commonly hold proof of their victims’ lawful immigration status hostage in order to keep them silent. Citing immigrants’ growing mistrust of police, the Los Angeles Police Department reports a 25% and 10% decrease in reporting of sexual assault and domestic violence among Latinos, respectively, since the beginning of 2017. Last month, the Denver City Attorney’s Office reported that four immigrant women abandoned pending domestic violence cases due to a fear of deportation if they appeared in court. Likewise, the Houston Police Department revealed a 42.8% drop in reports of rape by Latinos compared to the same period last year, and reporting of other violent crimes decreased by 13%. When local police and federal immigration functions are indistinguishable to immigrants, police become the unwitting accomplices of abusers and traffickers in creating a climate of fear for the most vulnerable among us. Abusers and traffickers are often recidivists and engage in other criminal activity as well. Law enforcement officers rely on victims and witnesses for critical, firsthand information to help solve crimes that afflict all members of our communities. Therefore, we are all less safe when immigrants are too afraid to come forward or are swiftly deported and unable to provide eyewitness testimony. Punishing Localities that Incentivize Immigrants to Report Crime Endangers Public Safety Efforts to punish so-called “sanctuary cities” force them into a false “choice;” either lose essential funding, or discourage victims and witnesses from reporting crime. The funds at issue are critical to protecting all members of the public from gun violence, human trafficking, gang violence, and other criminal activity. As a result, the Fraternal Order of Police, the largest police union in the United States, strongly opposes such punitive measures. Some proposals would force localities to detain individuals for civil immigration offenses at the request of the federal government, even if doing so might violate the 4th amendment of the Constitution. This renders police unnecessarily vulnerable to legal liability and unwisely diverts valuable resources away from crime fighting.  Well-Intended Exceptions for Victims and Witnesses Fall Short and Fail to Preserve Community Trust Federal and state proposals that exempt crime victims and witnesses from immigration status inquiries by police are commendable, yet they unintentionally fall short of meaningfully protecting both survivors and the public. Specific exemptions within broad punitive measures are also insufficient to quell the sweeping, chilling effect that punitive policies have on entire immigrant communities. Despite outreach efforts to immigrant communities, victims may remain afraid to come forward. Some exemptions miss the mark by protecting a victim only if she encounters police for the exclusive purpose of reporting a crime. Victims may encounter police in a variety of contexts including car-seat safety checks and community outreach or school education programs, and they should not fear participating in such programs. Proposals that limit protection for survivors who are arrested or charged with certain categories of crimes ignore the unique dynamics of domestic violence. Perpetrators routinely retaliate against victims who report violence by fabricating serious criminal allegations against them. This is a deliberate tactic abusers use in part to heighten a victim’s risk of deportation. Tahirih is aware of an example where an abuser planted drugs in his wife’s car and then smashed her tail light to get her pulled over and arrested. In another example, an abuser set fire to his home himself and called the fire department to report that his wife did it. She was arrested and jailed for weeks. A victim may also face charges arising from an act of self-defense or a false counter claim for domestic abuse. Immigration enforcement ultimately remains a federal function. Policies that respect the distinction between federal and local enforcement do not, under any circumstances, single-handedly bar federal prosecution for immigration violations. Rather, these policies support local agencies in prioritizing community trust for the benefit of us all. State and federal efforts to punish so-called “sanctuary” jurisdictions lead to various unintended, dangerous consequences to the detriment of society as a whole. Tahirih urges lawmakers, policymakers, and the public to diligently educate themselves about these consequences when determining whether to support such efforts.

California has just become the first sanctuary state of the 21st century thanks to Gov. Jerry Brown’s (D) signing of Senate Bill 54, which limits state and local police cooperation with federal immigration authorities. This is good news because greater policing of immigrants by local law enforcement, it turns out, has not enhanced public safety and has resulted in significant human costs. The California Values Act (SB 54), prevents local jails from holding releasable inmates — a practice that had given U.S. Immigration and Customs Enforcement (ICE) time to collect them. The bill also places strict limits on ICE transfers, or the practice of notifying ICE when an inmate will be released, while also limiting “joint task forces,” or teams of federal agents and local officers that work together. Even though SB 54 may seem like a radical departure from business as usual, it actually represents a return to previous practices. Historically, immigration enforcement was left to the federal government. But over the past few decades, under both conservative and liberal administrations and through various programs — Secure Communities, Criminal Alien Program and 287g — local officers have increasingly been asked to police immigration in new and complex ways. Today, this devolution of immigration enforcement is reaching its apex thanks to executive orders signed by President Trump. California’s state sanctuary bill is a conscious effort to push back. SB 54 is backed by the data; devolution policies do not enhance public safety, as originally thought. One study of Secure Communities found the program was associated with a less than 1 percent reduction in murder, rape, larceny and vehicle theft. Another reports it has had “no observable effect on the overall crime rate.” What explains these findings? Devolution’s foundational assumptions are flawed. Contrary to popular belief, immigrants are not more crime-prone than their native-born counterparts and immigration to an area does not cause crime to rise, as one of us recently explained and demonstrated with a newly published meta-analysis of the literature. Moreover, devolution does not target the right offenders. The pettiest of offenders constitute the bulk of those identified. The study mentioned earlier found that the most radical expansion of “criminal aliens” removed between 2004 and 2012 was for, of all things, traffic offenses. Devolution policies aren’t just ineffective: they may do more harm than good. Police-community relations break down. Enforcing immigration law counteracts efforts to engage more closely with the community. Police need the trust and cooperation of residents, including immigrants, to do their job effectively, and they rely on the willingness of victims and bystanders to cooperate with investigations. Law enforcement leaders, including the LAPD’s Chief Beck, worry that devolution is eroding decades of progress. Worse relations with police may cause crime to increase. Immigrants may choose not to report crime or victimization to law enforcement authorities because they fear the police — exacerbating victim’s vulnerability and emboldening criminals. And, there are potential abuses. Officers who prefer more aggressive immigration enforcement might make arrests for offenses that otherwise would be too petty, in an attempt to screen a person through Homeland Security databases. This could lead to racial profiling, and more lawsuits against police departments. Finally, devolution policies have significant human costs. The individual being deported is not the only one affected: innocent family members, especially children, remain behind and become victims. The Urban Institute assessed the impact of immigration workplace raids on children and families. The results are striking. The children left behind bear the psycholgical trauma of having a parent deported and face the prospect of foster care. California’s stance today echoes earlier times. Newly released digital archives at the University of California, Irvine show that California was home to a critical mass of cities declaring themselves sanctuaries for Central American refugees in the 1980s, when political violence caused many to flee. Former L.A. Mayor Tom Bradley said that even though they didn’t legally reside in L.A., “in too many cases, they are also living lives of poverty, fear and desperation. And the city has an obligation to provide all of its inhabitants with fire, police and other essential services.” The politics of sanctuary still involve refugees from war-torn countries but today also involve undocumented immigrants simply seeking a better life. Yet the obligation Mayor Bradley spoke of has not changed, and California has not forgotten. With California’s sanctuary state bill now signed into law, it carries with it a tradition of both humanity and good governance.

II. “SANCTUARY” POLICIES IN AN ERA OF MASS DEPORTATION Part I described the rise of crimmigration and introduced the major components of Trump’s deportation apparatus—CAP, administrative warrants, 287(g), Secure Communities, and other joint operations.166 Collectively, these programs generate significant pressure on localities to make their law enforcement resources available for federal immigration enforcement. In Part II, we turn to an analysis of the policies of “sanctuary” jurisdictions in the United States. Specifically, we focus on how these policies function to protect community members and limit the involvement of local government institutions in furthering the Trump administration’s immigration agenda.167 In conducting our analysis, we collected a set of over 500 sanctuary policies spanning nearly four decades. To aid other researchers, we have made full text versions of the all of the laws and policies we collected available in an accompanying online library.168 Our library of sanctuary policies focuses on those policies that explicitly address the degree to which local criminal justice systems and actors interact with federal immigration enforcement.169 We relied on a range of techniques to identify and collect our set of sanctuary policies for analysis. We identified many policies by scouring academic sources,170 issue papers,171 news articles,172 and online collections of policies accumulated by advocacy groups across the political spectrum.173 We also obtained copies of the policies through public records requests, communications with practitioners, and internet and other online research.174 Because our authors have been engaged in scholarship, research, and advocacy relating to sanctuary policies, many policies (particularly those enacted in the last decade) were already known to us. Although we cannot claim to have surveyed every sanctuary policy, we believe our collection of policies provides the largest single collection available of the various policies that have been enacted since the 1980s. Based on our review of the collected policies, we identified five principle types of legal and policy initiatives adopted by jurisdictions. These five types, which we discuss in Part II, are: (1) barring investigations into immigration violations; (2) limiting compliance with ICE detainers and administrative warrants; (3) limiting ICE’s access to local jails; (4) limiting disclosure of sensitive information; and (5) declining to participate in joint operations.175 We introduce each category of policy, drawing on examplesof state laws, municipal ordinances and resolutions, and internal sheriff and police regulations and policies.176 The Trump presidency has driven localities to clarify their role in immigration enforcement. Local officials must consider how best to respond to the divisive racial tenor of the Trump administration’s immigration policy pronouncements within their communities. But whereas some jurisdictions have newly embraced the sanctuary policies we discuss in this Part since the election, others have had such policies in place for decades.177 In addition, some policies, such as detainer policies, developed in response to developments in federal law or policy that pre-date the Trump presidency. Regardless of when these policies were enacted, they share some common characteristics. For example, the Trump administration has sought to bring sanctuary jurisdictions to heel by claiming that their policies violate 8 U.S.C. § 1373,178 a provision of the federal code that prohibits localities from preventing their employees from exchanging citizenship or immigration status information of individuals with federal officials.179 But, as our description of the policies in this Part makes clear, many disentanglement policies do not restrict the sharing of information about citizenship or immigration status and therefore cannot run afoul of § 1373.180 Under federal law, localities have discretion to decide whether they will engage in local policing activity that may result in deportation. A. Barring Investigation of Civil and Criminal Immigration Violations Perhaps the most common type of sanctuary policy is a requirement that police not investigate civil or criminal immigration violations.181 These types of internal policies, which have been called “don’t police” policies,182 are important given that local law enforcement officers can act as deportation “gatekeepers” when they arrest noncitizens.183 Such policies generally prevent law enforcement from asking questions about immigration status or otherwise enforcing civil immigration law violations.184 Some “don’t police” policies go further and prevent police from investigating criminal immigration law violations.185 An early example of a “don’t police” policy is the LAPD’s “Special Order Number 40,” issued by Chief Daryl Gates in 1979.186 Special Order 40 prohibits officers from “initiat[ing] police action with the objective of discovering the alien status of a person.”187 In addition, it prevents officers from arresting or booking persons for illegal entry into the United States under 8 U.S.C. § 1325.188 Similarly, in 1989, San Francisco adopted a “City and County of Refuge” ordinance that provides that state and local officials “have no duty . . . to enforce the civil aspects of the federal immigration laws.”189 More recently, in 2008, the City of Hartford, Connecticut enacted an ordinance restricting any employee from “inquir[ing] about . . . confidential information,” including immigration status, except when “necessary to the provision of the city service in question.”190 Some states have also restricted their police agencies from enforcing civil immigration law. In 1987, Oregon passed a state law prohibiting law enforcement throughout the state, including political subdivisions of the state, from enforcing civil immigration law.191 In 2014 the State of Vermont passed a law requiring that all local law enforcement agencies adopt a “model fair and impartial policing policy” that prohibits policing civil immigration violations.192 Among other restrictions, the model policy adopted in 2017 specifies that local law enforcement in Vermont may not: (1) ask for a “person’s civil immigration status unless it is necessary to the ongoing investigation of a criminal offense”; (2) use suspicion of a person’s undocumented status as a basis for initiating contact, detaining, or arresting that person; or (3) attempt “to enforce federal criminal law” where the only violation is “unauthorized presence in the country[,] . . . a civil infraction.”193 And, in 2017, the California Values Act was enacted, similarly prohibiting local law enforcement from expending resources “to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes . . . .”194 B. Limiting Compliance with Immigration Detainers and Administrative Warrants Federal pressure to participate in immigration enforcement has prompted a second type of local disentanglement policy: limiting compliance with immigration detainers and administrative immigration warrants. Given the Secure Communities program’s reliance on immigration detainers, declining these federal requests has become a prominent way by which localities are expressing resistance to the program. Practices limiting detainer compliance are found in a range of local ordinances, state laws, and internal policing directives. Early examples of such policies typically stopped short of denying all requests to extend detention for deportation purposes. For example, the California and Connecticut TRUST Acts mandated that localities decline detainers unless issued against persons with certain criminal charges or convictions.195 Similarly, local policies in Cook County, Illinois and New York City included numerous criminal history-based exceptions to the general rule of not complying with immigration detainers.196 More recent policies now provide that jurisdictions not honor any detainer unless it is accompanied by a judicial warrant or other documentation establishing probable cause of a crime. For example, the Alameda County Sheriff’s Office has announced that it will decline all immigration detainers from ICE, distinguishing between “an arrest warrant signed by a judge, and an immigration detainer signed by an ICE Agent.”197 The weight of judicial decisions now firmly establishes that the federal government cannot require jurisdictions to comply with detainers.198 Courts have also made clear that holding someone on a detainer amounts to a new arrest that must comply with the Constitution.199 In addition, many jurisdictions have implemented policies prohibiting detention based not only on immigration detainers but also on administrative immigration warrants for arrest. The Princeton Police Department, for example, has a General Order prohibiting police from “arrest[ing] or otherwise detain[ing] persons” based on an ICE administrative warrant contained in the NCIC database.200 An administrative arrest warrant is a document issued by an ICE official stating that the officer has determined there is probable cause to believe that an individual is subject to removal.201 Unlike criminal arrest warrants, administrative arrest warrants are neither issued by a judge nor based on sworn testimony, and the statute and regulation that mention these warrants identify no standard of proof for their issuance.202 Until March 2017, DHS did not even require ICE officials to obtain an administrative warrant before issuing a detainer.203 The lack of judicial and constitutional safeguards for administrative arrest warrants arguably render the federal government’s reliance on them constitutionally suspect.204 But even if they properly authorize ICE to conduct an arrest, they do not necessarily authorize local authorities to do so.205 C. Refusing ICE Access to Jails Another way in which local jurisdictions have protected immigrants is by declining to let ICE agents enter their local jails. Indeed, the CAP program introduced in Part I relied on local jail access to interview and deport inmates held in local custody.206 Information obtained from in-person interviews of inmates is also significant for the Secure Communities program, as it supplements data available through the fingerprint-sharing function. Limiting ICE access to jails was a critical part of New York City’s effort to disentangle local law enforcement from ICE. On February 14, 2015, immigration authorities were shut out of the New York City jail at Riker’s Island pursuant to New York City Local Law 58, which prohibited federal officials from “maintain[ing] an office or quarters on land over which the [Department of Corrections] exercises jurisdiction, for the purpose of investigating possible violations of civil immigration law . . . .”207 Similar measures are now in place in other jurisdictions. For example, in Cook County, Illinois and Richmond, California ICE agents are not allowed to enter the local jails without a criminal warrant or other legitimate law enforcement purpose other than civil immigration enforcement.208 In the District of Columbia, local law enforcement may not provide ICE “an office, booth, or any facility or equipment for a generalized search of or inquiry about inmates . . . .”209 Santa Clara, California will not allow ICE agents to enter their county jails for “investigative interviews or other purposes . . . .”210 And, although not an absolute bar to jail access, some policies have attempted to create a procedural firewall between noncitizens and federal immigration authorities by requiring a Miranda-type warning in the event ICE seeks to interview inmates. As one example, the California TRUTH Act requires inmates be provided with a “written consent form” and be given the opportunity to decline an ICE interview or have a representative present before proceeding.211 These sorts of protections help fill a gap created by federal court decisions extending the booking exception for Miranda to questioning by ICE agents—even if the information elicited is inculpatory— so long as there is an administrative purpose to the questioning.212 D. Limiting Disclosure of Sensitive Information Many sanctuary jurisdictions have sought to impose limits on the unnecessary sharing of sensitive information about their residents. Sensitive information may include citizenship and immigration status as well as other information that residents would be fearful of being disclosed to third parties.213 Two types of limitations on the sharing of sensitive information appear in the local policies we studied. First, some jurisdictions limit the sharing of confidential information about residents by city or county officials, including law enforcement, to encourage residents to feel safer when accessing local services or interacting with local government authorities. These limitations can encompass information about citizenship or immigration status, but often are not limited to such.214 Hartford’s restriction on disclosure of “confidential information,” for example, encompasses an individual’s sexual orientation, status as a victim of domestic violence or sexual assault, status as a crime witness, receipt of public assistance, as well as immigration status and “all information contained in any individual’s income tax records.”215 Los Angeles takes a functional approach, protecting personally identifying information, described as information the City possess which could allow someone to determine citizenship or immigration status.216 Second, local jurisdictions have established policies declining to provide information in response to requests by ICE about the release dates of inmates held in local jails.217 By not notifying immigration authorities about the time and place of an individual’s release from custody, these jurisdictions are refusing to facilitate the individual’s arrest by ICE. For example, a 2011 Cook County, Illinois ordinance directed that, without a “criminal warrant” or “legitimate law enforcement purpose . . . not related to the enforcement of immigration laws,” County officials “shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals’ incarceration status or release dates while on duty.”218 New York City similarly requires a judicial warrant as a requisite to notification of release dates.219 The Trump administration has claimed that policies limiting the exchange of information between local officials and federal immigration officials violate federal law, pointing to 8 U.S.C. § 1373.220 But many of the policies that the administration has criticized on this basis do not limit the sharing of citizenship and immigration status information and thus fall outside the reach of § 1373. This is particularly true of policies that limit notification of release dates of individuals in local custody.221 Furthermore, § 1373 arguably amounts to an unconstitutional intrusion on state sovereignty.222 At a minimum, it must be construed narrowly to avoid unduly infringing on state sovereignty.223 In City of New York v. United States, the only federal court decision to directly address § 1373’s constitutionality, the Second Circuit rejected New York City’s facial challenge to § 1373 but acknowledged that applying § 1373 to bar “generalized confidentiality policies that are necessary to the performance of legitimate municipal functions” could run afoul of the Tenth Amendment.224 Following the decision, the City Mayor issued precisely the kind of “generalized confidentiality policy” the court suggested would be permissible,225 and as discussed earlier, other jurisdictions have followed suit.226 In addition to the examples discussed above, Santa Ana, California recently passed an ordinance with broad confidentiality protections distinguishable from the problematic policy at issue in City of New York. The Santa Ana City Council decreed that sensitive information would not be disclosed unless required by law, but the ordinance defines “sensitive information” broadly to include: any information that may be considered sensitive or personal by nature, including a person’s status as a victim of domestic abuse or sexual assault; status as a victim or witness to a crime generally; citizenship or immigration status; status as a recipient of public assistance; sexual orientation; biological sex or gender identity; or disability.227 Local confidentiality policies such as Santa Ana’s are particularly important in the Trump era. The Trump administration has abandoned policies previously in place under the Obama administration that allowed certain immigrants to be considered for a favorable exercise of prosecutorial discretion, including victims, witnesses, and those who had experienced violations of their civil rights, employment, or housing rights.228 These and other individuals who have important reasons to interact with local government officials will no longer receive protection from deportation if they end up in the hands of ICE. E. Precluding Participation in Joint Operations with Federal Immigration Enforcement A fifth type of sanctuary policy limits local participation in joint operations with federal immigration officials. Joint operations are collaborative law enforcement efforts in which federal law enforcement relies on local law enforcement to provide boots on the ground. When joint operations target immigrants for deportation, local law officials become participants in the federal government’s deportation efforts. Local law enforcement is under renewed pressure in the Trump era to designate local officers to enforce immigration law through a common type of joint operation, 287(g) agreements.229 Sanctuary jurisdictions have responded by declaring their intent not to participate in this program.230 For example, Seattle’s “Welcoming City” resolution, which was adopted following President Trump’s inauguration, clarifies that the city “will reject any offer from the federal government to enter into a Section 287(g) agreement.”231 In 2012 the town of Amherst, Massachusetts adopted a similar policy that explicitly prohibits 287(g) agreements.232 The New York State Attorney General’s Office has also distributed a “model sanctuary” policy that, among other provisions, provides that local law enforcement “shall not perform the functions of a federal immigration officer or otherwise engage in the enforcement of federal immigration law—whether pursuant to § 1357(g) of Title 8 of the United States Code or under any other law, regulation, or policy.”233 Beyond 287(g) agreements, there are other types of joint operations that may involve immigration enforcement as well, such as when local police team up with HSI’s “National Gang Unit” or the “National Fugitive Operations Team.”234 Some jurisdictions have barred local participation in such joint operations. Often, such policies prohibit local criminal justice agencies from participating in “civil” immigration enforcement,235 but some jurisdictions’ negative experiences with joint operations have pushed them even further. In Oakland, California, for example, one of the nation’s early sanctuary city resolutions called on city employees to refrain from providing assistance or cooperation “relating to the alleged violations of the civil provisions of the immigration laws.”236 In 2007, Oakland reaffirmed its “City of Refuge” status through a resolution condemning the immigration raids taking place under the administration of President George W. Bush.237 The 2007 resolution maintained the same focus on disentangling city officials from civil immigration enforcement while explicitly allowing joint operations “in matters involving criminal activity and the protection of public safety.”238 A resolution passed in the wake of the 2016 presidential election likewise maintained a distinction between civil and criminal enforcement, condemning cooperation with respect to the former but not the latter.239 Six months into the Trump presidency, however, Oakland changed course. The City Council resolved to “immediately” cancel a memorandum of understanding with HSI that allowed local officers to be designated as “U.S. Customs Title 19 Task Force Officers.”240 In support of the resolution canceling the MOU, the council cited the Trump administration’s plans for mass deportation and ICE’s “willing[ness] to lie . . . to their local law enforcement partners (e.g. Santa Cruz Police Department).” The last reference was to a February 2017 joint operation between Santa Cruz officials and HSI.241 Oakland soon determined to go beyond even this step. Although it had been directed to terminate its MOU with HSI, on August 16, 2017, the Oakland Police Department provided traffic control for an HSI raid that resulted in the arrest of members of a Guatamalan family in West Oakland.242 Following a public outcry, in 2018 the City Council reframed Oakland’s policy to eliminate all cooperation with immigration enforcement, whether related to civil or criminal violations.243 Oakland’s Mayor Libby Schaaf also took affirmative steps to warn residents of an impending ICE raid in February 2018.244 Santa Cruz adopted a resolution in 2007, declaring that “to the fullest extent possible by law, the City of Santa Cruz shall not cooperate with ICE and shall prohibit the use of City funds or resources for any Federal immigration enforcement.”245 On the eve of Trump’s inauguration, the city council reaffirmed that no city resources or assistance would be used to aid federal immigration enforcement efforts, and explicitly prohibited local officials from “assisting with or participating in any immigration enforcement operation or joint operation . . . .”246 The City soon learned that would be insufficient when the Santa Cruz Police Department’s joint raid with ICE in February 2017, less than a month after the city council’s resolution, resulted in the deportation of community members with no gang ties.247 This prompted the city council to quickly enact an ordinance

specifically prohibiting such joint operations.248

7.2 Internet/technology as part of the solution Although the internet and other networked technologies have facilitated trafficking, most technologists suggest that technology also be viewed as part of the trafficking solution, typically starting with the premise that the internet and related technologies are widely used and here to stay.196 The primary recurring themes in this regard are provided in the following section. i. Inevitable migration of sex ads? Inevitable migration of advertising from one online site to another is one of the most common reasons cited for not working to shut down online sex advertising, which mingles trafficked people with non-exploited women in prostitution. Because business will simply migrate from one site to another, efforts to attack any one internet platform are seen to be futile. 197 Indeed, after pressure from numerous Attorneys General due to trafficking concerns, craigslist closed its “Adult Services” section both in Canada and the US in 2010, only to have posts selling sex migrate to its “therapeutic services” section as well as other online sites, such as (in Canada) backpage.com, sp411.com, erslist.com, and perb.ca.198 While such migration can easily occur and is often cited, it is not clear whether all ads do, indeed, migrate. A leading classified ads consultancy found that in the two years since craigslist stopped accepting paid advertising from escorts and escort services, other sites have not collectively generated as much revenue as craigslist did from ads selling sex.199 Estimates show a $7.3 million dollar reduction over craigslist’s estimated $44.6 million profits from sex ads in 2010, suggesting some ads did not migrate. 200 Immediately following craigslist’s closure of its adult services section, online prostitution advertising is reported to have fallen by more than 50%, although this number is contested by backpage, that states its “adult, dating and other paid ad content” increased approximately 29% when craigslist shuttered its adult services section. 201 Thus, while migration can and does happen, losing a major online marketplace may at least be a temporary setback to traffickers. ii. Visibility assists law enforcement Some in law enforcement think their job to identify trafficking cases is made easier when traffickers’ crimes are “visible” online and can, thus, be traced. When perpetrators use various communication technologies to share information, advertise victims, and coordinate among themselves, they increase the chances of leaving digital traces that can be followed. 202 Law enforcement officers can thus, more easily track patterns in credit card transactions, mobile phone calls, GPS patterns, plane tickets, and apartment rentals of potential suspects. 203 Forensic examiners can recover digital evidence from computers and other electronic devices. Advertisements and online sales of trafficking victims can also leave digital traces.204 Officers can monitor suspected individual’s activities online or conduct webbased reverse stings by posting decoy advertisements online or responding to real online ads.205 And, for the many law enforcement agencies with limited resources, knowing where traffickers and victims reside online reduces the time and resources required to find victims. Some companies that house ads selling sex, including craigslist and backpage, publically express willingness to work with law enforcement to detect human trafficking cases. Attorneys general and informants report, however, that this willingness has not actually resulted in meaningful action.206 Other sex-advertising sites are less cooperative. There is also substantial skepticism from critics that law enforcement and society can rely upon companies that derive significant profits from the online sex industry to regulate one of the most profitable parts of their industry.207 While technology firms may be well placed to understand their own technology, the profits generated by sex ads may make voluntary monitoring less than thorough for fear of driving away profitable business. iii. Developing anti-trafficking innovations Various technology companies express interest in helping combat human trafficking and are developing technological tools to further this effort, such as data mining and new identification technologies. Some financial institutions are partnering with law enforcement to shut down payment systems in related cases. iv. Data mining Manually sorting through online advertisements is a daunting task that strains resources. Basic data-mining techniques such as automated data collection, natural language processing, and digital mapping allow investigators to respond to potential cases more efficiently. 208 Automated data collection can filter, flag, aggregate, and store online ads that appears to feature underage victims, thus narrowing the pool of online classified ads that must be reviewed by humans. 209 Scientific minds in the Natural Language Group at the University of Southern California’s Information Sciences Institute are exploring computational linguistic and machine-learning methods to develop algorithms designed to detect possible cases involving individuals who demonstrate qualities that place them at particular risk of human trafficking. 210 v. New identification technologies Investigation of sex trafficking often starts with the photos used in the advertisement of sex trafficking victims. Microsoft has developed PhotoDNA and offered for free to law enforcement, to help match photos of human trafficking victims to photos of missing children and locate copies of pornographic images online. In 2009, it donated the technology to those fighting online child pornography. 211 Anti-trafficking organizations use the technology to inform online service providers to remove copies of the photos.212 Facebook is reported to currently employ this technology. Microsoft has also funded research grants in 2012-2013 to study how technology affects human trafficking in the US, specifically in connection with the commercial and sexual exploitation of children, the results of which will be published shortly.213 vi. Global mapping New mapping technology uses location-based information to map the location of individuals mentioned in the online ads, which enables monitoring and tracking of victims and survivors over geographic space.214 In April 2013, internet search giant Google launched the Google Global Human Trafficking Hotline Network, which covers the US, Europe and Asia. Every time the network receives a call, factual data provided by the caller and the caller’s location is logged and analyzed. As the network builds information, it will reveal trafficking locations and patterns, which will be shared with law enforcement through three designated nongovernmental organizations. vii. Public-private partnerships In the related crime of commercial child pornography, the US Treasury Department's Office of Terrorist Financing and Financial Crimes reported in 2011 that commercial child pornography had dropped to "effectively zero" from a multi-billion dollar industry six years earlier. This dramatic change was a result of cooperation with the private sector, which shut down distribution and payment mechanisms for child porn as well as increased enforcement efforts. 215 The Financial Coalition Against Child Pornography was established in 2006 and includes 35 financial and credit companies, such as MasterCard, Visa and American Express. While commercial child pornography has shrunk dramatically as a result of the coalition, the non-commercial distribution of child pornography has reportedly “exploded.”216 LexisNexis, the world’s largest electronic database for legal and public records, received public recognition from the US State Department for helping develop a database of human trafficking social service providers and creating various online resources for attorneys working on human trafficking cases. 217 These types of public-private interface are promising developments if technological advancement is to check rather than augment rates of human trafficking. viii. Public awareness There is also general agreement that the internet and mobile technology can be effectively used to raise public awareness, advocacy and activism by educating the public. Online platforms help anti-trafficking organizations share information and coordinate their efforts. Crowdsourcing, flagging and mapping technologies have been cited as effective means of monitoring social media and advertisement websites for instances of trafficking. 218 Digital mapping, such as that produced by Slavery Map, can record and display instances of trafficking. 219 Technology can therefore play an important role in ensuring that public outrage at this horrendous crime translates into political engagement, resource commitments and, ultimately, accountability.

In order for the Court to provide a remedy in naturalization based equal protection cases, it would need to find a jurisprudential foundation to counter the plenary power doctrine and sanction such a remedy. For citizenship applicants stymied by unconstitutional naturalization provisions, meaningful relief ultimately must come in the form of a grant of citizenship, so the doctrinal foundation would need to support judicial conferral of citizenship. This Note considers two possible doctrinal solutions: indirect or direct conferral of citizenship-the former a byproduct of the Court's striking down an unconstitutional statute and the latter stemming directly from the Court's equitable powers. In the end, only equity can provide a strong enough foundation to support judicial conferral. B. Indirect Conferral of Citizenship If the Court finds that a statute violates the Equal Protection Clause, it may strike down the statute or sever the offending clauses;10 3 this ensures that everyone is judged under a constitutional law.1'4 Indirect conferral of citizenship could mean nothing more than striking down offending clauses of naturalization statutes and allowing petitioners who meet the remaining, valid requirements to naturalize through those channels. At first glance, this means of conferral seems unexceptionable, as courts regularly sever offending clauses from federal acts.105 In many cases, these courts use the statute's own severability clause as a guide. Such clauses include instructions on severing, providing, for example, that if any portion of the Act is struck down, the rest of the statute shall remain in effect. Given that the INA includes such a clause, and thus contemplates severance, effecting such severance cannot inherently be seen as judicial overreach.10 6 From one perspective, merely severing the unconstitutional provisions of the statute would not implicate the conferral issue: "[Once the two unconstitutional clauses are excised from the statute, that statute [would] operate[ ] automatically to confer citizenship . ..'at birth.'" 07 On the other hand, severance could be seen as effecting a conferral of citizenship, albeit indirect, contrary to Pangilinan's strictures; the practical import of such severance would be the indirect conferral of citizenship to those included in the statute by virtue of the severance. The Ninth Circuit panel in Ahumada-Aguilar followed this path in declaring petitioner a citizen: "The evidence in the record sufficiently demonstrates that Ahumada-Aguilar is the child of a U.S. citizen father, satisfying the requirements of § 1409(a)(1) and (a)(2).' ' 1 o8

A. The U.S. Supreme Court Has Weakened Students’ Fourth Amendment Rights An important driving force behind the proliferation of intense surveillance measures in schools is the decline of students’ Fourth Amendment rights. Over the last three decades, the U.S. Supreme Court has rendered a series of decisions that provided school officials with more discretion to promote orderly, safe environments.41 For example, the Court has held that school officials do not need to obtain a search warrant, meet the probable cause standard, or have an individualized suspicion that a student is involved in illicit activity before conducting a search.42 These decisions allow school officials to legally create intense surveillance environments in their schools, even when those environments may not serve students’ best interests.43 They also allow school officials to provide evidence of wrongdoing to prosecutors that they obtained from searching students under circumstances that might have rendered that evidence inadmissible if it had been obtained under similar circumstances outside of the school context.44 The Court addressed students’ Fourth Amendment rights in schools for the first time in New Jersey v. T.L.O.45 There, after a teacher spotted two students smoking in the bathroom, the teacher promptly escorted the students to the principal’s office.46 T.L.O.’s companion admitted to a school official that she had been smoking, but T.L.O. denied the allegations.47 The school official demanded that T.L.O. hand over her purse and, after T.L.O. complied, the school official searched through its contents and uncovered a package of cigarettes, a small amount of marijuana, a substantial amount of one-dollar bills, a list of students who owed money to T.L.O, and two letters indicating that T.L.O. was dealing marijuana.48 When the state of New Jersey brought juvenile delinquency charges against T.L.O., T.L.O. moved to suppress the evidence the school official obtained, claiming that it resulted from an unlawful search.49 After determining that students do indeed hold Fourth Amendment rights in schools,50 the Court concluded that the school official’s search complied with the Fourth Amendment.51 Although the Court acknowledged students’ legitimate expectations of privacy in the belongings they bring to school and in their persons,52 the Court held that these expectations of privacy must be balanced against educators’ need to maintain order and discipline so that learning can take place.53 Accordingly, it held that school officials do not need to obtain a warrant before searching a student.54 It further held that a school official’s suspicion of student wrongdoing does not need to rise to the level of probable cause before she can conduct a search.55 Rather, a court should determine whether a search was reasonable under the circumstances by applying a twofold inquiry: (1) “whether the . . . action was justified at its inception,” and (2) whether the search “was reasonably related in scope to the circumstances which justified the interference in the first place.”56 The next U.S. Supreme Court decision to evaluate students’ Fourth Amendment rights, Vernonia School District 47J v. Acton, 57 involved a very different set of circumstances. Rather than examining the constitutionality of a search performed on an individual student, it examined the legality of a school district’s random, suspicionless drug-testing program on students participating in interscholastic sports programs.58 In a 6–3 decision authored by Justice Scalia, the Court declined to hold that individualized suspicion was essential to conduct a lawful search.59 Rather, the Court held that it must balance a search’s “intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”60 It then set forth the following three factors for courts to consider: (1) “the scope of the legitimate expectation of privacy at issue;” (2) “the character of the intrusion that is complained of;” and (3) “the nature and immediacy of the governmental concern at issue . . . and the efficacy of this means for meeting it.”61 Evaluating each of these factors, the Court first acknowledged that students retain an expectation of privacy while at school, but explained that the scope of their Fourth Amendment rights is “different in public schools than elsewhere” because of “the schools’ custodial and tutelary responsibility for children.”62 The Court reasoned that because students must submit to various physical examinations, including vision, hearing, dental, dermatological, and scoliosis screenings, their expectations of privacy in schools, “[p]articularly with regard to medical examinations and procedures,” are reduced.63 Second, the Court concluded that the drug tests were minimally intrusive because drug testing resembled conditions that students often face when using public restrooms; their purpose was limited only to ascertain whether a student athlete was using drugs, and the test results were disclosed only to a limited number of school officials, not law enforcement officers.64 Third, the Court concluded that the school district’s interest in deterring student drug use, especially among student athletes, was important in light of drugs’ physical, psychological, and addictive effects.65 The Court also concluded that the school district’s concern was immediate because “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion . . . [which] was being fueled by alcohol and drug abuse.”66 Thus, according to the Court, these considerations outweighed any privacy rights those students possessed.67 Seven years later, in Board of Education v. Earls, the Court again evaluated the constitutionality of a random, suspicionless drug-testing program.68 This drug-testing program, however, was broader than the drug-testing program in Acton because it involved all students participating in extracurricular activities, not just those involved in student athletics.69 The United States Court of Appeals for the Tenth Circuit determined that the school district’s random, suspicionless drug-testing policy violated the Fourth Amendment because the school district had not demonstrated that there was an identifiable drug abuse problem among students who participated in extracurricular activities.70 The U.S. Supreme Court, however, reversed the Tenth Circuit in a 5–4 decision authored by Justice Thomas.71 The Court evaluated the three factors outlined in Acton and largely reached the same conclusions.72 However, the Court’s holding was broader than its holding in Acton. While the Court noted that the school district “presented specific evidence of drug use,”73 it also held that it was unnecessary for the school district to provide evidence of a drug abuse problem before imposing a suspicionless drug-testing policy.74 The Court reasoned that the school district’s program complied with Fourth Amendment jurisprudence because “the nationwide drug epidemic makes the war against drugs a pressing concern in every school.”75 These decisions have paved the way for school officials to legally employ an array of search practices, including performing random, suspicionless searches of students in forms other than random drug tests.76 For example, based on this precedent, lower courts have justified the use of metal detectors in schools77 and searching through students’ lockers.78 Moreover, there are no protections against school officials’ use of a combination of security measures, such as relying on metal detectors, random sweeps, locked gates, law enforcement officers, and surveillance cameras together, even when their combined use may create an intense, prison-like environment that arguably is highly-intrusive, undignified, and inconsistent with a healthy learning atmosphere.79

Terry v. Ohio (1968) The Supreme Court’s first step to sanction racial profiling was Terry v. Ohio, 392 U.S. 1 (1968), an 8-1 ruling that developed the “reasonable suspicion” standard (also known as the “stop-and-frisk” rule). The Court, whose opinion was delivered by the usually astute Chief Justice Earl Warren, held that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” is not violated when a police officer has “reasonable suspicion” “in light of his experience” that a crime has been committed. By opening the door to greater law enforcement discretion with respect to whom to stop and search, the Supreme Court in Terry gave its first approval of racial profiling. Several studies show that police officers perceive young black boys as violent and older than they actually are. One study from 2007 found that officers display a “robust racial bias in response speed” in a simulated shooting exercise of black and white targets. So when police officers are given greater discretion “in light of their experience” as Terry offered them, it’s no surprise that they disproportionately target black people. (That’s in addition to police departments institutionally over-policing poor communities of color compared to their presence in white communities.) Since Terry, police departments ‒ and the Burger, Rehnquist, and Roberts Courts ‒ have interpreted Warren’s decision as carte blanche for police officers, so much so that UNLV constitutional law professor Thomas B. McAffee described Terry‘s long-term impact on the Fourth Amendment as “truly disastrous.” “The Terry stop-and-frisk doctrine has lent itself too readily to supporting law enforcement efforts rooted in stereotypical generalizations and racial profiling,” he wrote in the Nevada Law Journal. United States v. Brignoni-Ponce (1975) United States v. Brignoni-Ponce, 422 U.S. 873 (1975) might seem on the surface to be an anti-racist decision, a good step in Fourth Amendment law. The Court ruled against law enforcement on the grounds that it violated the Fourth Amendment for stopping a vehicle solely on the basis that the driver looked Mexican. But while the Court acknowledged that, by itself, “apparent Mexican ancestry” does not justify reasonable suspicion that occupants of a vehicle are undocumented drug smugglers, it did rule unanimously that “Mexican appearance” is a “relevant factor.” Ostensibly to help law enforcement justify a stop, Justice Lewis F. Powell offered several reasons sufficient for reasonable suspicion to stop a car near the border with Mexico: “previous experience with alien traffic,” a “heavily loaded” vehicle, a vehicle with “an extraordinary number of passengers,” and finally ‒ the part that justifies racial profiling ‒ “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In other words, a police officer can racially profile a motorist if that officer finds an additional reason to make a stop, effectively deeming race acceptable for reasonable suspicion. As Michelle Alexander wrote in The New Jim Crow, “Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe racial profiling exists only when race is the sole factor.” The Court in Brignoni-Ponce neglected to recognize what Kevin R. Johnson, a public interest law professor at UC Davis, pointed out in the Georgetown Law Journal: “In fact, people from Mexico run the gamut in terms of phenotypes, with there being persons of both fair and dark complexions of Mexican ancestry. Nevertheless, stereotypes of ‘Mexican appearance’ persist, and the Brignoni-Ponce Court ultimately appears to have sanctioned reliance on such stereotypes by the Border Patrol.” Whren v. United States (1996) In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court unanimously sanctioned racial profiling by allowing police officers to make “pretext stops,” wherein an officer pulls over a motorist for a traffic violation with the specific intention of hunting for drugs. “It does not matter, the Court declared, why the police are stopping motorists under the Fourth Amendment, so long as some kind of traffic violation gives them an excuse. The fact that the Fourth Amendment was specifically designed to prevent arbitrary stops and searches was deemed unpersuasive,” Alexander wrote of the decision. But approving pretext stops wasn’t even the most dangerous legal precedent set in Whren. The Court barred victims of a pretext stop from challenging the admission of evidence on Fourth Amendment grounds, thus ignoring Whren’s argument that police officers may decide which motorists to stop based on factors that should be constitutionally impermissible, such as race. Justice Antonin Scalia ruled, “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.” Scalia’s ruling left people of color with “an onerous evidentiary burden,” Johnson wrote. The responsibility for proving racism was once again placed on the oppressed. Pointing out that the Court “failed to cite any cases supporting its conclusion that the Equal Protection Clause offered the exclusive constitutional remedy (or, at least, that it offered a remedy where the Fourth Amendment did not),” Johnson noted how difficult it is to prove discrimination under the Equal Protection Clause: The Fourth Amendment’s exclusionary rule bars the use of unlawfully seized evidence against a defendant; there is no counterpart in the Equal Protection Clause of the Fourteenth Amendment. The inability to exclude the fruits of a stop based on impermissible factors under the Equal Protection Clause make any such claim of limited utility to criminal defendants like Whren and Brown, who wanted to avoid conviction and imprisonment, not to recover damages in a civil action for a violation of their constitutional rights. By ruling that the Fourth Amendment offered no protection against a racially motivated traffic stop, the Court gave law enforcement officials its approval to racially profile motorists and “closed the courthouse doors to claims of racial bias,” Alexander wrote. The law is supposed to protect the rights of individuals against state abuse. But these cases show how the law can be manipulated by those who wield power to uphold a system of racial hierarchy.

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