Professor X’s Notice and Choice Privacy Dilemma

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August 16, 2016

Professor X, the founder and leader of the X-Men, is one of the most powerful mutants on the planet. His psionic powers include telepathy and the ability to identify other nearby mutants. With his powers enhanced by Cerbero, Professor X identifies mutants to attract them to attend the Xavier School of Gifted Youngsters. Professor X’s ultimate goal? Peaceful co-existence between mutants and humankind, a co-existence based on trust and understanding. While his goals benevolent, his methods and their disrespect for basic privacy principles serve to undermine his entire mission.

What exactly are the issues standing in his way and how can the Professor seek to address them to further his mission? To dig into this question, first a quick primer on privacy law.

What is Personal Data?

Privacy law protects “personal data”, generally defined as any information that identifies an individual or relates to an identifiable individual. Many countries define certain categories of personal data more sensitive than others. For example, these “sensitive” categories of personal data can include: “racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life,” (EU Data Protection Directive, Article 8) as well as biometric, genetic or criminal records.

Privacy Law and the Fair Information Practices Principles.

While the philosophical rationale for privacy law varies by jurisdiction, (e.g. EU law designates privacy as a “fundamental human right” and the U.S. law focuses protecting individuals from the “harm” caused by the mishandling of personal data), in reality, privacy law and practices rely on the same underlying principles known as the “Fair Information Practices Principles” (FIPPs) developed by the Organization for Economic Community Development over 30 years ago. (OECD Privacy Guidelines and updated in 2013) The FIPPs provide that when a person/entity collects personal data, that it should ensure that the individual has:

Notice. of how her personal data is being collected and used and with whom it is shared.
Consent. to how her personal data is used, especially if the proposed personal data uses are not readily understood by the individual or if the data are sensitive. and
Access. to understand what personal data has been collected and make corrections to such personal data.

A person/entity collecting personal data must further adhere to principles of: (i) minimization collecting and keeping, only what is truly needed; (ii) quality/accuracy ensuring data is accurate; (iii) security keeping data secure; (iv) destruction, when data is no longer needed, destroying it securely; and (v) assurance/accountability make certain you’re actually practicing what you preach.

In my years of reading X-Men comic books and watching X-Men films, I don’t ever recall Professor X alone, or in his use of Cerebro, following these principles. Let’s delve a little deeper into the Professor’s practices and how he could improve.

Privacy and Professor X

Professor X has the natural ability to scan his surroundings to identify mutants and read the thoughts of mutants and non-mutants alike. However, if you walked by the Professor in real life, would you recognize Professor X as someone with psychic powers? Even if you saw him with his mutant protégés (e.g. Angel with his wings or the blue haired Beast), you’d more likely think that the Professor was just your average mutant-positive human with some really cool friends.

The Central Park Scenario

Clearly, the Professor has a problem with notice and consent, two key privacy principles. Let’s assume the Professor is traveling through Central Park to find recruits for the Xavier School for Gifted Youngsters. As he scans the crowds of mutants and non-mutants alike, he’s collecting personal data and “sensitive” personal data (e.g. whether or not you were homo-sapien or homo-superior and the nature of your mutant power). However, humans and mutants would neither be aware of nor do they consent to such searches or the collection of information about them. Further, he’s gathering information from thousands of individuals to find that one proverbial needle in a hay stack. Finally, what about the mutant that just wants to be left alone. Just because the Professor can identify mutants, should he?

If the Professor wanted to adhere to privacy principles, what could he do? The simplest thing he could is stop scanning people without notice and consent. This might make his mutant hunts of Central Park a little impracticable, but at least he wouldn’t be violating people’s/mutant’s privacy.

Conducting scans in Central Park would be difficult due to the nature of the “genetic” trait information the Professor collected. Collection of such information would require explicit “opt-in” consent. If he wanted to do scans of individuals in Central Park, he could do so by posting clear notices at the park’s perimeter informing persons entering the park that psychic scans are being performed and if an individual wanted to ‘consent’, that individual would just have to “think” the words “I consent”. Upon receiving such a signal, the Professor could hone in on that individual’s thoughts and scan accordingly. This would be most effective because those individuals who either didn’t see the signs or did not otherwise take affirmative action to consent would not be scanned.

What if an individual initially consented and subsequently changed her mind and wanted to “opt-out” or unconsent? As a privacy principles go, revoking consent needs to be just as easy as giving consent. Thus in this case, the individual who initially thought “I consent” could merely think “I withdraw” to “opt-out” of subsequent scans.

The above approach is better than that described in the X-Men books, which present Magneto’s helmet as an “opt-out” option instead of an “opt-in.” When Magneto wears the helmet, the Professor cannot scan or locate him, but the opposite is true when he removes the helmet. Of course, the problem with the helmet is that it must be worn at all times which makes the opt-out onerous to say the least. Plus it requires the individual to take affirmative actions to “opt-out”, contrary to the obligations to obtain explicit consent when collecting sensitive personal data. One can only imagine the case of “helmet hair” Magneto has, especially if he can’t take the helmet off in the shower. The other more troubling aspect is that the Professor and his protégés have an awfully hard time respecting Magneto’s choice when they try to remove Magneto’s helmet against his will – that would hardly be consistent with allowing individuals to express freely given consent – a requirement under nearly every privacy law. Finally, it is also unreasonable for us normal folk to be expected to invest hundreds of thousands of dollars to create the equivalent of a tin foil hat and bucking against fashion and insisting that wearing psychic blocking helmets is “cool.”

Reaching the Mass Audience

Professor X might have to consider going the old school advertising route through online or television advertising. In this classic archived TV commercial from the ’80s, he’s clearly thought about this.

While this was a great attempt to attract those individuals who are truly interested in applying to the school minimizing the data collected, the Professor’s attempts fail again, because this commercial does not disclose that by calling the phone number you’re consenting to a scan of your homo-superior nature as part of the process. Consent can never be valid if you don’t know to what you are consenting. In fact, you’re more likely just get a simple rejection card in the mail.

To scan this poor uninteresting human, the Professor most certainly used Cerebro to amplify his mutant sensing abilities. Cerebro merely amplifies the Professor’s privacy dilemma. Was Cerebro designed with privacy principles in mind and in particular is Cerebro secure? It doesn’t take a mutant to recognize that creating a system that enables two-way psychic connections could be a security problem if the mutant connected at the other end has bad intentions.

Clearly, Cerebro is not really too secure. Seriously, your only option is to destroy Cerebro when a bad connection is made? How about making it “one way” only or a simple on/off switch? A little bit of advanced planning could have avoided some serious drama and uncalled for (alleged) casualties (yes, I’m calling out you Havoc! Show yourself!). Unlike the Professor, not all of us have a small band of mutants who can rebuild a mansion with a little bit of mental effort.

Where Mutants and the Real World Meet

You might think these issues of psychic or behavioral monitoring only exist in the world of comics, but even in today’s primitive, non-super hero world, such issues exist. When you walk around in a retail store today with your smartphone and wifi on, the retailer is often able to gather information about the parts of the store in which you walk and linger or the displays that attract your attention. Unlike Professor X, these systems gather only non-sensitive information about devices and stores are not tracking whether or not you’re a mutant menace trying to flex your homo-superior muscle, instead they use this information to try to better understand the flow of their stores to make them more efficient, more appealing and inviting to their customers. Retailers realize their customer relationships rely on trust and that technologies gathering information might raise concerns, so they’re working on ways to provide notice to individuals when their stores are using such technologies in an effort to both provide notice and choice. You can find an example of these efforts with organizations like the Future of Privacy Forum (www.fpf.org) and their smart places initiative at www.smart-places.org.

Perhaps Professor X could take a page from their book.

A Postscript

A final reminder that privacy principles and laws, just like the relationship of mutant kind to the Marvel universe continues to evolve. However, privacy principles and their protection of personal data will always engender the same basic goals that Professor X wants for mutant kind, those of understanding, fairness and not allowing the qualities that make all of us be gathered and used without our knowledge or to our detriment. So next time Professor X fires up Cerebro, he should ask himself, “Am I truly respecting humans in the way I want them to respect me?” This is a question applies as much to the real world of privacy as it does in the comic books.

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Special thanks to the Legal Geeks, Jules Polenetsky, CEO of the Future of Privacy Forum (fpf.org) and Miriam Wugmeister, Partner at the law firm of Morrison & Foerster (mofo.com) for their willingness to review my geeky musings.

Can the Government Vaccinate Mutants?

By

Josh Gilliland

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October 14, 2015

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Brian Michael Bendis new Invincible Iron Man #1 adds a new taboo topic for a first date: Developing a cure to the mutant gene. This immediately raises the issue it would become a law, injecting politics into a date (another taboo). Dr. Amara Perera admits the horror of her cure and that it would be like trying to cure Judaism (adding religion into a first date, another taboo). Since this date is with Tony Stark, sex is eluded to, completing the dating no-no topic discussions.

Dating best practices aside, would it be legal to force people to take a cure for the mutant gene? The answer is surprisingly maybe…

Governments have a rational interest in protecting the public health. This is a legitimate police power.

Puberty is hard enough, so turning into an armadillo or flying lizard is just adding insult to teenage injury. Furthermore, governments have an interest in protecting students (and the public) from dangers, such as kids who cannot control deadly lasers shooting out of their eyes.

Is there any precedent that the government could use to justify having people take a “cure” to the mutant gene?

Many states require mandatory vaccinations to attend public schools. While parents might insist they have a God-given right based on pseudo-science for their children to contract Polio and kill a generation of Americans, this is not the majority view (Exhibit A is we have not had a Polio epidemic thanks to vaccinations).

The state of West Virginia requires children entering a state-regulated school to produce a certificate that they have been immunized against chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough. W. Va. Code § 16-3-4(b). New York takes it to another level and places the responsibility on the parents that any child born after January 1, 1994 be immunized against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, and hepatitis B. NY CLS Pub Health § 2164(a).

States have a facially strong argument that immunizing children against the mutant gene in order to attend public schools is for public safety. The United States Supreme Court has held since 1905 that mandatory vaccinations are within the State’s police power. Jacobson v. Massachusetts (1905) 197 U.S. 11. We do not want the public dying horrible deaths from diseases, thus require vaccines.

There is a giant problem with the argument for forcing children to be vaccinated against the mutant gene in order to attend school: it is based on race and eugenics, not preventing the spread of disease. It is one thing for everyone student to be vaccinated, it is another to target an entire race because of their DNA.

Vaccination cases have not been held to the strict scrutiny standard. From Jacobson in 1905, which addressed people over age twenty-one being required to be vaccinated against small pox or be criminally prosecuted, to vaccinating children in New York who attend public school, all of these cases were decided within a State’s police power. Phillips v. City of New York (2d Cir. 2015) 775 F.3d 538, 542, fn. 5.

Race based legislation is held to strict scrutiny. If racial classifications are explicit, there is no requirement to analyze the legislative purpose of the law. However, facially neutral laws warrant strict scrutiny when motivated by racial purpose or unexplainable on grounds other than race. Hunt v Cromartie (1999) 526 US 541.

Specifically requiring children with the mutant gene arguably could subject the law to strict scrutiny, because the law would be targeted specifically at children with mutant DNA and not the public as a whole. While mandatory vaccinations are not targeted to specific racial groups, vaccinating children with mutant DNA would be on race (Homo Superior, opposed to Homo Sapien).

Strict scrutiny analysis examines the 1) character of classification in question; 2) individual interests affected by classification; and 3) governmental interests asserted in support of classification.

As to the first point, the classification is for anyone with mutant DNA; 2) the individual interests are that the individual is forced to take medication in order they do not mutate as they get older; and 3) the government interest is to ensure there are not super-powered individuals endangering the public (namely other students in public schools).

There is a good chance mutant vaccinations could NOT survive strict scrutiny, but there is no question the vaccination is not to stop the spread of disease, but the speculative injury to students in the future if their classmates can breathe fire, spit venom, or throw a bus into the pool.

If the “cure” were expanded to adults who had already mutated, that would be different than the State interest in protecting the public as a legitimate police power. It would be the equivalent of gun confiscation of law-abiding citizens or bringing back Prohibition in order to stop drunk driving. Just because someone had the ability to fly, does not mean they will use for ill intent.

In a world with mutants, those with powers might be viewed as those who are athletes or excel from other gifts. There is no way to “equalize” the population so everyone is the same, only that they have the same opportunities to advance. Whether or not it would be legal to impose a cure to the mutant gene might one day be decided by a fictional court, but unlikely one in the real world.

Oh My God I am 40: Reflecting on the Top Geek Events in My Life

By

Josh Gilliland

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September 17, 2014

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I have hit the milestone that always seemed like a far distant future: I turned 40.

While my feelings on my age are very reflective of Admiral Kirk in Wrath of Khan, I have lived in one of the best eras of geekdom EVER.

Being a geek means you appreciate the symbolism from the stories you love. Many of us love to quote films. We know the value of a moment in time. We also know that moments in time can be lost like tears in the rain, but for everyone who is a geek, we know that this, this is our time.

Let’s take a look at what I think are the best geek moments of the last 40 years:

Roll Out of Space Shuttle Enterprise (September 17, 1975)

The Space Shuttle Enterprise at the National Air & Space Museum Annex at Dulles International Airport in 2008.

The Space Shuttle Enterprise was rolled out on my first birthday. This event is a testament to how much people love Star Trek, as it was the fans that inspired NASA to name the test Shuttle Enterprise.

The 747 glide and landing tests of Enterprise paved the way for the first flight of the Columbia in 1981. I had the privilege of seeing the roll out of Columbia, because my father was in charge of the team that installed the tiles.

Rollout of Columbia. — Roll out of Columbia.

Star Wars: A New Hope (1977)

A substantial part of my childhood was spent either watching Star Wars, or running around the backyard with my Y-Wing Fighter, or having light saber fights with my brother. Granted, I was so young when I saw the original Star Wars, I had confused memories in my early years of wondering where I saw a double sunset.

Battlestar Galactica (Debuted on my birthday in 1978)

What better birthday present for a four year old then spaceships and robots fighting?

The original Battlestar Galactica was an outright rejection of detente with the Soviet Union or pacifist leaders. Even the doomed Colonies President looked like Jimmy Carter, whose dovish policies resulted in the near destruction of humanity. Political overtones aside, Donald Bellisario created elements in Battlestar that would later be seen in Quantum Leap.

The 2004 reboot of Battlestar Galactica was not a reflection of Cold War politics, but the War on Terror. Lots of great issues and effectively ends with the opening quote of the original series: “There are those who believe that life here, began out there.”

Superman the Movie (1978)

Richard Donner and Christopher Reeve proved a comic book character could be a colossal box office hit. Without Superman the Movie, there would have been no Spider-Man, Iron Man, Avengers, or Guardians of the Galaxy. Add in a “super” movie score, and the bar was set for super-hero movies in 1978.

Star Blazers (Debuted on my birthday in 1979)

Battleships. In space. With a theme song that said, If we can win the Earth will survive.

Sold.

Star Blazers introduced a lot of “adult” concepts on a children’s TV show. Little things like genocide of the human race through nuclear war.

Captain Avatar’s dying words, as he looked at a picture of his dead son and irradiated Earth through his tears, echoed in my five year old mind for years: “The Earth. I am sorry I will not be here to see you green again. But I have seen you.” [Picture falls to the deck, Doctor comes in the stateroom and salutes his dead Captain.]

Star Wars: Empire Strikes Back (1980)

My mother took me to see Empire on opening day. We sat out on a beach blanket at the now gone Century 21 movie theaters in San Jose waiting hours in line. I can still remember the heat of that day in May 1980. She loved telling the story of how my feet stopped at the edge of the seat and for the length of the film, I did not move or blink. The audience reacting in total horror and shock of Darth Vader saying, “No, I AM YOUR FATHER,” is perhaps one of the most iconic moments in film.

Empire also taught us life does not always have a happy ending. Sometimes, you just survive to live another day.

Superman 2 (1980)

Kneel before Zod! Kneel!

Raiders of the Lost Ark (1981)

We are simply passing through history. This, this is history.

Steven Spielberg and George Lucas brought the classic adventures of the 1930s back in full force, while fighting Nazis, and finding the Ark of the Covenant. Moreover, you are hard pressed to find a living male who did not want to be Indiana Jones.

Star Trek II: The Wrath of Khan (1982)

I remember going home from seeing Wrath of Khan, looking out the car window at the night sky, trying not to cry.

The Wrath of Khan has an impressive list of life lessons, from facing a no-win scenario, the challenge of aging, redemption of parents, and sacrificing yourself to save your friends, because the needs of the many outweigh the needs of the few.

Blade Runner (1982)

Ridley Scott’s science fiction epic has many dynamic questions on being human. Roy Batty’s final words always captivated me: I’ve seen things you people wouldn’t believe. Attack ships on fire off the shoulder of Orion. I’ve watched c-beams glitter in the dark near the Tannhäuser Gate. All those … moments will be lost in time, like tears…in rain. Time to die.

The fact Roy Batty let Deckard live added a surreal complexity to the film’s villain, posing the theory that Batty had loved life more than he had before dying, which is why he did not kill the hero.

Return of the Jedi (1983)

I have very fond memories of seeing Return of the Jedi opening weekend. There was a sense of awe. People cheered when Vader threw the Emperor down the exhaust shaft.

And Vader did not yell “Nooooo” in 1983.

Star Trek III: Search for Spock (1984)

Sometimes, the needs of the one outweigh the needs of the many. Search for Spock had wonderful symbolism of loyalty between friends. The crew of the Enterprise was willing to destroy their careers in order to save two of their friends. The end result was another lesson in changing the definition of victory, when you have to destroy your own ship to save everyone.

Plus kick the bad guy off a cliff into lava.

Ghostbusters

I ain’t afraid of no ghost.

One of the most entertaining geek movies ever. One of the main villains is also the EPA and government regulations, proving not all evil spirits are undead.

Back to the Future

I remember seeing Back to the Future with my paternal grandparents in Ann Arbor, Michigan when the movie came out. A wonderful story with reckless driving, treason, collaborating with terrorists, and defense of others.

Man, this is heavy.

TimeCon 1985 & 1986

My first “geek” convention was TimeCon in 1985, celebrating Star Trek, Doctor Who, and a whole lot of science fiction. We got to meet James Doohan, Walter Koenig, George Takei, and Anthony Anthony.

Stark Trek IV: The Voyage Home

1986 was a year when Star Trek went mainstream with The Voyage Home. A great story that caught the attention of a much broader audience than traditional science fiction fans.

We also had a very short trial for our heroes. While they did have a solid necessity defense for stealing the Enterprise, sabotaging Excelsior, and destroying the Enterprise, they went with a guilty plea.

Aliens (1986)

Game over man. 17 days, we won’t last 17 hours.

Exhibit A you can have a science fiction blockbuster with a strong female lead. Bring on Captain Marvel. Agent Carter cannot get here fast enough.

Terminator 2

Come with me if you want to live.

Exhibit B that that you can have a strong female lead.

Jurassic Park (1993)

Steven Spielberg brought dinosaurs to life with both CGI and practical special effects.

A real game changer in film making.

Moreover, if you can create an extinct species, is it automatically on the endangered list?

1990s Science Fiction on Television

Star Trek the Next Generation, Deep Space Nine, Voyager, X-Files, and Babylon 5 were all shows I watched weekly. I gave shows like Earth Final Conflict, Space Above & Beyond, Tek Wars, and Lexx, a chance, but never got into them.

X-Men (2000)

The first X-Men movie brought back comic book movies as a viable box office success. After years of defeat, from Superman the Quest for Peace to Howard the Duck, X-Men was a fun adaption of our favorite mutants.

Until X-Men: Last Stand destroyed it, then X-Men: First Class saved it, and X-Men: Days of Future Past, put us back on the right track.

The Lord of the Rings Trilogy

Peter Jackson brought J.R.R. Tolkien to life. The fact Return of the King won Best Picture and Jackson took home Best Director, demonstrated “sci fi” and “fantasy” films could clean house at the Oscars.

Spider-Man (2002)

The first two Spider-Man movies again showed comic book movies could be successful. And then Spider-Man 3 torpedoed the franchise.

Firefly (2002)

What happens when you have an amazing show that is a creative adventure of a steampunk Western in Space where being a “Companion” is a respected career choice? You get cancelled after a dozen episodes (or fourteen counting the two unaired ones). Firefly suffered that initial fate, but because of its incredible fan base, developed cult status and spawned one movie.

You can’t stop the signal.

The Dark Knight Trilogy

Batman Begins, the Dark Knight, and Dark Knight Rises, again demonstrate comic book movies have depth and box office success. Sure, watching all three in a row can be highly traumatic, but an action-packed tour de force. Never mind Gotham looks like a fictional city, then Chicago, and then New York.

Marvel’s Civil War

I started re-collecting comics after many years because of Civil War. A very gripping story that walked the tight rope of making both sides look right, whether you supported the Registration Act or thought it looked like a massive civil rights violation.

The story’s ending with Captain America’s assassination and following shock waves in Fallen Son and James Barns/Winter Soldier ultimately becoming Captain America were fantastic.

I actually had to get Captain America #25 in Canada. Not one the local comic book stores had the big issue of Cap’s death and I was lucky to get the last issue in Vancouver on a business trip.

DC’s Sinestro War & Blackest Night

The Sinestro War in Green Lantern was a stunning war story that ultimately turned on the Green Lanterns shifting from law enforcement to war-making when the Guardians gave the Green Lantern Corps permission to kill members of the Sinestro Corps. The war is won, but at a cost that ultimately lead to the Blackest Night.

DC delivered again with Blackest Night, where death itself declared war on life. Heroes and villains alike are brutally killed by dead characters who rip out the hearts of the living. There were actually disturbing deaths before the battle was turned in the heroes’ favor.

There many symbolic moments of how the different Lanterns interacted, such as only the Blue Lantern representing Hope could calm the Red Lantern represent rage, or that Compassion was the rarest of all the Power Rings.

Star Trek (2009)

JJ Abrams brought Star Trek back after years of being off the air and the big screen. The return of Star Trek also showed a new era in science fiction film making, because fans who grew up watching the show and movies, are now making the movies.

The Entire Marvel Cinematic Universe

Marvel movies have set the gold standard for comic book adaptions. They range in depth from political thrillers like Captain America The Winter Soldier to a rip-roaring good times of Guardians of the Galaxy. I look forward to their future films.

The Day of the Doctor

Doctor Who for decades was watched on late night PBS in the United States. The fact the 50th Anniversary special was a global simulcast that broke world records stands as testament that being a “geek” is now mainstream. Also factor in the 3D showings in one night that had fans from five decades dressing up and cheering is just wicked cool.

That Time Being a Geek Helped Save My Life

On February 21, 1990, my bowel ruptured as a result of being undiagnosed with Crohn’s Disease for five years. What followed included nearly 70 days in two hospitals, three surgeries, and a whole lot of pain.

I spent my days in the hospital watching Star Trek and Raiders of the Lost Ark. I also read Tom Clancy’s Clear & Present Danger. My wonderful grandmother set out to find Stephen Coonts’ third book The Minotaur. I had to know what happened after Final Flight.

My very kind godmother worked some magic with her sister, a florist in Beverly Hills, who through several contacts asked Leonard Nimoy to send me a get well card. Being an outstanding human being, Nimoy delivered.

I was lucky to meet Leonard Nimoy in 2009 at a conference and thank him for sending me a get well card back in 1990.

Life is the Greatest Adventure

My first 40 years have been a great adventure.

I have seen two Space Shuttle launches, watched dolphins illuminated by bioluminescent plankton swim around a tall ship, borrowed aircraft carriers and battleships, and have traveled from Anchorage to Saint Thomas. There are many more adventures to have and I look forward to the days ahead.

And it is good to be a geek. This is our time.

Magneto’s Threat Against President Richard Nixon

By

Josh Gilliland

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June 16, 2014

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Magneto in X-Men Days of Future Past threatened to assassinate President Richard Nixon and a substantial number of his cabinet during the Sentinel product demo gone horribly wrong. The story took place before, during, and after the Paris Peace Accords, which was signed on January 27, 1973.

As such, the attempted assassination had to be in the final days or January or early February 1973 (which magically looked like summer). We can assume the cabinet members included:

Vice President Spiro Agnew, who may or may not have been at the Sentinel demonstration;

Secretary of State William Rogers;

Secretary of the Treasury George Shultz (Unlikely at the demo);

Secretary of Defense Melvin Laird;

Attorney General Richard Kleindienst;

Secretary of the Interior Roger C. B. Morton (Unlikely at demo);

Secretary of Agriculture Earl Butz (Unlikely at demo);

Secretary of Labor James D. Hodgson (Unlikely at the demo)

It was unlikely the other cabinet members were in attendance. However, there was a high likelihood that the Speaker of the House Carl Albert would be in attendance. It is hard to say whether or not Senator James Oliver, the President Pro Tempore would have attended the ceremony. Given the high cost of the project and national defense interests, it would make sense for Congress to have key players attend the demonstration.

Who Would Be President if Everyone at the Sentinel Demo Died?

Knowing who was in attendance would have a major impact on the Presidential Line of Succession in case of a mass assassination. This is why one cabinet member does not attend State of the Union Address, in the event of a Tom Clancy-type attack taking place on the United States Capitol Building.

The short order of Presidential succession goes from President to Vice President, followed by the Speaker of the House; then the President Pro Tempore of the Senate; then the Secretary of State; then Secretary of the Treasury; then the Secretary of Defense; then Attorney General; then Secretary of the Interior, then Secretary of Agriculture; followed by the Secretary of Commerce; Secretary of Labor; and further down other cabinet members.

If Magneto had killed President Nixon, the Vice President, the cabinet members present, and possible Congressional leadership in the Presidential Line of Succession, there was a high chance someone like Senator James Oliver or Secretary of the Interior Roger C. B. Morton would have become the 38^th President of the United States.

And that would have been weird and terrifying, but would show the Constitution was prepared for a nightmare situation.

Good thing the 1970s did not see a Constitutional crisis where someone never elected President or Vice President became President. Just imagine one Congressional term with three Vice Presidents….

Do No Threaten A President

Threatening a President is a bad life choice. US law states that:

(a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.

(b) The terms “President-elect” and “Vice President-elect” as used in this section shall mean such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. The phrase “other officer next in the order of succession to the office of President” as used in this section shall mean the person next in the order of succession to act as President in accordance with title 3, United States Code, sections 19 and 20.

18 USCS § 871.

Magneto’s threat on Nixon and the cabinet was not done through the mail, but in person and televised. A World War 1 Era 1917 statute prohibits any person from “knowingly and willfully . . . [making] any threat to take the life of or to inflict bodily harm upon the President of the United States…” Watts v. United States, 394 U.S. 705 (U.S. 1969).

The Watts case took place during the Vietnam War. An 18 year-old voiced his feelings towards the Draft and stated: “They always holler at us to get an education. And now I have already received my draft classification as I-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” Watts v. United States, 394 U.S. 705, 705 (U.S. 1969).

The young man was convicted of knowingly and willfully threatening President Johnson. Id.

The United States Supreme Court reversed, holding both that the 1917 statute was Constitutional, but that the Defendant lacked the “willfulness” required by the statute. The Court did not fully state “willfulness” required “an apparent determination to carry them into execution,” but the Government failed to prove the Defendant was a true threat to the President.” Watt, at *706, citing Ragansky v. United States, 253 F. 643, 645 (C. A. 7th Cir. 1918).

The case against Magneto being a “true threat” against the President is extremely clear. Magneto dropped RFK Stadium around the White House, ripped a bunker out from many stories below the White House, and aimed multiple guns at the President for a public execution. There is no question that Magneto was a true threat to the President before Raven (or Mystique) and the X-Men stopped him.

…and while Mystique certainly took many steps to murder Bolivar Trask, she did not go through with it. President Nixon might have given her a pardon for her saving the day.

"I Don’t Want Your Future [Legal Nightmare]!"

By

Josh Gilliland

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June 14, 2014

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Jessica Mederson, Esq., and Joshua Gilliland, Esq., put on their X-Uniforms and jump in the Blackbird to discuss legal issues in X-Men Days of Future Past. For example, who would have been President if Magneto had been successful in killing President Nixon and his Cabinet? Would it even remotely be Constitutional to use Sentinels to hunt Mutants?

Does Killing Mutants With Sentinels Violate the Equal Protection Clause of the Constitution?

By

Josh Gilliland

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June 11, 2014

0

X-Men Days of Future Past highlighted a disturbing idea: the US Government deploying Drones (Sentinels) to kill US citizens solely on their racial status (Homo Superior, opposed to Homo Sapiens). There would be no crime, no arrest based on probable cause, no right to counsel, or even a trial. Simply killed for their racial status.

Would that be Constitutional?

No, for multiple reasons.

As a preliminary matter, a Court would find a “mutant” is a “person” and a US Citizen under the law. Determining that a Homo Superior is a human being is not as controversial as claiming Orca Whales have their 13th Amendment rights violated at Sea World (an argument that lost in Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).).

A Homo Superior is born like Homo Sapiens, often from other Homo Sapiens. Whether you believe life begins at conception or viability, there is no question that human beings are conceived and born of other humans. Moreover, Homo Sapiens and Homo Superiors can have children together. Human beings cannot cross-bred with other animals (Thank God).

The Constitution would not tolerate human rights being striped of those born of other human beings. Moreover, the very idea someone’s child is “not human” because they are Homo Superior has the moral weight of determining humanity by eye color.

There are many historical examples of countries enacting raced-based legislation, imposing nightmarish laws in the past. In the United States, one only needed to have 1/32 African heritage to qualify as a “slave.” Courts even took the view that there was a “presumption of law…that a person of African descent is a slave, but that the presumption may be repelled by any evidence tending to show he is free.” Lee v. Tapscott, 2 Va. 276, 282 (Va. 1796). Further evidencing horrific legal abominations, Nazi Germany required someone to have 1/16 Jewish heritage to be a “Jew” for Hitler’s genocidal war crimes.

Those are two examples from the eighteenth through twentieth centuries etched into my memory from college. The horror of state licensed inhumanity should never be forgotten.

There are far more good laws than bad. The Due Process Clause of the 5th Amendment states that “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . ” The 14th Amendment to the United States Constitution further states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

A Court would be hard pressed to say a “mutant” is not a person under the law without resurrecting the ghosts of Dred Scott and Korematsu. A Judge who would uphold the use of Sentinels would simultaneously channel Chief Justice Taney in saying mutants were not “people” and Korematsu,except instead of interning mutants because of their racial status, to kill them without a trial, regardless whether any crime had been committed. Any such law would be convicting citizens for the crime of being a Homo Superior with an extra-judicial death sentence.

There is no way Congress could authorize the use of Sentinels without triggering “Strict Scrutiny,” because it is a race-based law that calls for the execution of US citizens. While the Government could argue there is a compelling government interest in national defense, there is no way they could argue systematically killing citizens without a trial is in the government’s interest. Secondly, there is no way any such law would be narrowly tailored, because the Sentinels would systematically kill any mutant. (See, Richmond v. J. A. Croson Co., 488 U.S. 469, 476 (U.S. 1989), for the strict scrutiny test). There would be multiple less restrictive means to carrying out the compelling government interest of national defense without mass murder.

The Constitution further requires the right to a trial and counsel. People in the United States cannot be randomly arrested for no reason, let alone roadside executions by a Drone. There is simply no way the use of Sentinels would be Constitutional because of the extreme denial of Due Process or Equal Protection for Homo Superior citizens.