back to article Elon Musk joins anti-Trump legal brief

Entrepreneur Elon Musk has joined the Big Tech battle against Donald Trump's immigration ban by signing up his companies to the amicus brief filed against it. On Monday, 97 tech companies including Apple, Microsoft, Google and Facebook filed in a San Francisco court against the ban, calling the crackdown illegal and arguing …

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  1. Anonymous Coward
    Anonymous Coward

    Chilling

    Whilst I'm fine with private individuals signing up to fight this sort of cause, it concerns me when big business starts taking on a fight based partially on ethics and partially for their own benefit.

    Business already has a lot of influence on politics and how we live, at what point do we just dispense with government and allow the biggest company to pull the strings?

    1. The Man Who Fell To Earth Silver badge
      Stop

      Re: Chilling

      More to the point, "damaging to their business" isn't a valid legal argument in a National Security case. It really comes down to whether the EO violates the Constitutional Rights of people covered by the US Constitution. It's already clear that the EO does not violate any laws on the books, nor violate any separation of powers aspects of the Constitution.

      The American Bar Association website has had a lot of discussion about all of this.

      1. Neil Alexander

        Re: Chilling

        "in a National Security case"

        So far there is no evidence that this is really anything to do with National Security. I would not be so quick to believe that Trump's intentions are actually aligned to his words. He is a businessman, after all.

        1. Ian Michael Gumby
          Boffin

          @Neil Alexander Re: Chilling

          "So far there is no evidence that this is really anything to do with National Security. "

          Uhm... actually there is.

          Obama removed these countries from the visa waiver program. Now why did he do that?

          Hint... cough, cough... National Security .

          There I said it. The same countries Trump went a step farther and stopped immigration for 90 days.

          There's more, but lets let that little nugget sink in, for a moment. ...

          .

          .

          .

          Trump's ban will withstand the TRO from Washington State and if it makes it to the SCOTUS and they decide to hear it... it will be an unanimous decision in favor of Trump.

          The issue wasn't with the ban, but its implementation and the only questionable pieces were already modified.

          The POTUS has a lot of latitude when it comes to his EO , especially when he can utter the two words "National Security".

          With respect to the SFO court case... its going to be very difficult for any of these tech companies to show harm from a 90 day ban on immigration from these 7 countries.

          Maybe these companies need better lawyers?

          1. bombastic bob Silver badge
            Trollface

            Re: @Neil Alexander Chilling

            "Maybe these companies need better lawyers?"

            Actually they're playing both sides of the political fence. Right now, they "appear to oppose Trump" so that all of the lefties can have a joy-gasm over it. And yet, it's highly likely to be COMPLETELY INEFFECTIVE. A good number of these companies have gummint funding, and contracts that COULD be lost for one reason or another. I don't think Trump is the type to play THAT game, and apparently THEY don't, either. But for now, they "look good on camera" for their "fan base".

          2. Warm Braw

            Re: @Neil Alexander Chilling

            Obama removed these countries from the visa waiver program. Now why did he do that?

            Ostensibly, because the governments of those countries weren't providing adequate intelligence on travellers so the US government decided it needed to pre-screen visitors by means of visas.

            Now, having had to acquire a visa myself in the dim and distant past owing to working for a US company and having to make repeated business visits to the dismal hell-hole of precarious wage-slaveryland of the free and home of the brave, the amount of investigation then was significant and I doubt it's got any less thorough recently.

            I think it's reasonable to question whether a ban on visitors who have already been thoroughly investigated and cleared for travel has been done on grounds of national security, or simply on grounds of being seen to follow up on election rhetoric. Especially when it involved people who were already resident in the US.

            Having said that, I suspect that if Trump had been a bit more careful with his language - and his implementation - there would have been very little wiggle room for his opponents.

            1. Ian Michael Gumby

              @Warm Braw Re: @Neil Alexander Chilling

              I agree that there are two issues. The Executive Order and how it was implemented. The EO had some overreach in that those with Green Cards were impacted. However that was cleared up within 24 hours.

              Note however that both Visas and Green Cards can be taken away.

              "Ostensibly, because the governments of those countries weren't providing adequate intelligence on travellers so the US government decided it needed to pre-screen visitors by means of visas."

              Uhmm,,, that's a bit of an understatement. The issue is that in each of these countries there are concerns about the vetting process performed in the visa check. So that Trump wanted a ban on people traveling with visas from these countries or people who have visas and traveled to one of these countries in the past couple of years.

              Regardless of how either you or I feel about it... Trump has the authority to implement such a ban. Where he got in to trouble was those traveling on Green Cards and those who are already landing in the US that have a valid visa. Then there were other groups like visas for Iraqis who held jobs assisting American troops as translators ... Still there's no permanent ban in place, nor a ban based on religion And that's what you see protesters marching around the airports or talking heads are running their mouths...

              1. anonymous boring coward Silver badge

                Re: @Warm Braw @Neil Alexander Chilling

                "Still there's no permanent ban in place, nor a ban based on religion And that's what you see protesters marching around the airports or talking heads are running their mouths..."

                No, just an indefinite wait for 3-4 months, until it gets worse...

                Perhaps you wouldn't care if that affected your life (say you can't see your family during that time, or your life is in danger, or both), but for some that would be very bad. Very, very bad. Trust me. I know. We know these things the best.

                1. Ian Michael Gumby
                  Boffin

                  @ boring coward Re: @Warm Braw @Neil Alexander Chilling

                  And there you have it.

                  You ignore the present, and the law, based on your own paranoia.

                  The law and the courts deal with the present and not the future. Maybe you need to stop trying to believe that Minority Report is real?

            2. Byham

              Re: @Neil Alexander Chilling

              @Warm Braw

              Indeed the amount of investigation carried out into visas is relatively comprehensive. However, how do you investigate with a foreign government when there isn't one - such as Somalia? How do you trust documentation from Syria when the terrorists have control of the government document generating systems? In all these cases the countries were put on the list because it was not possible to carry out normal vetting, let alone any in depth vetting of the individuals wanting access. Against that are the announcements by the terrorists that they are going to use refugee programs to get into Europe and the USA and the actual terrorists attacks that show that they have indeed used these programs - one of the Paris attackers was admitted as a 'Syrian refugee'.

              Putting a temporary hold on allowing new visas for people from these countries while a system is put in place that has less reliance on honor systems and trust in documents, seems eminently sensible. The hysteria about a 'ban' (there isn't one) and the tech companies claiming that a 90 day delay on new visas will cause them problems is not sensible. Indeed, the tech companies may find themselves under in depth investigation for misuse of the H1b visa system 18 U.S. Code § 1546 which could result in 10 - 25 years imprisonment something Mr Musk might like to think about.

              1. Baldy50

                Re: @Neil Alexander Chilling

                Yup, can't agree more!

                http://www.lifezette.com/polizette/americas-strangest-immigration-program/

                Deleted the accompanying rant, BTW!

        2. mstreet

          Re: Chilling

          "in a National Security case"

          So far there is no evidence that this is really anything to do with National Security. I would not be so quick to believe that Trump's intentions are actually aligned to his words. He is a politician, after all.

          FTFY

        3. Robert Helpmann??
          Childcatcher

          Re: Chilling

          The fact that there are business interests involved should not come as a surprise and also should not be viewed as exclusive of national security issues. Many of the affected companies contribute to the national security in a number of ways and their inability to staff positions may have direct and indirect effects on their ability to do so. Also, filing an amicus brief is a very public way of having their voices heard. I would rather have that out in the open rather than happening behind closed doors.

          1. Ian Michael Gumby
            Boffin

            @Robert Helpmann Re: Chilling

            Wow. You're way out in left field and the argument you're making is a stretch.

            How exactly do these companies have damages from the ruling? Specifically?

            And that's the thing. Its difficult for them to show actual damages that can be directly tied to the ban.

            A good lawyer, can tear the plaintiffs apart. I don't mean a great lawyer, but just a good litigator.

            And you missed a very important point. National Security trumps a corporation's damages. The DoJ lawyers can easily show justification by pointing to Obama's actions in 2015. Yes, its that simple.

            Note that the issue w green cards was cleared up already as well as certain visas and some other issues.

            But to your point... Any argument that goes to staffing... you'd have to show that there are no other qualified persons in the world to perform that job. That argument has a snowballs chance in hell of succeeding. Remember, this is a 90 day ban...

        4. BillG
          Alert

          Re: Chilling

          So far there is no evidence that this is really anything to do with National Security...

          As I understand it, the seven countries on Trump's EO have no effective form of government. So getting on an airplane is as easy as riding on a bus.

          I would not be so quick to believe that Trump's intentions are actually aligned to his words. He is a businessman, after all.

          You're confusing businesspeople with politicians.

          Lest we forget:

          "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

          - The Immigration and Nationality Act of 1965, 8 U.S.C. § 1182(f).

          1. jamesb2147

            Re: Chilling

            @BillG - You've been drinking some Kool-Aid.

            "As I understand it, the seven countries on Trump's EO have no effective form of government. So getting on an airplane is as easy as riding on a bus."

            Nope. Just nope. You could make that argument, maybe, about some countries, but Iran is *definitely* not one of them.

            1. BillG
              Facepalm

              Re: Chilling

              @jamesb2147 wrote: Iran is *definitely* not one of them

              Um, it's pretty obvious Iran is on that list for a different reason. Please keep your Kool-Aid to yourself.

      2. jamesb2147

        Re: Chilling

        I would disagree with the first part about "damaging to their business" not being a valid legal argument.

        On the contrary, one has to demonstrate damage in order to have standing to sue.

        Also, the very fact that these injunctions were granted, and across numerous jurisdictions independently at that, is reasonable evidence that there is a good chance of winning the case on the merits; it is a required, if subjective, test before issuing such an injunction.

        That's not to say anything of the merits beyond my indirect readings and I'll now peruse the ABA site to be a better informed citizen. Cheers for the pointer!

      3. jamesb2147

        Re: Chilling

        Also, Immigration and Nationality Act of 1965 can easily be read to bar discrimination based on nationality, which is exactly what this is. A good court might defer on the State Dept's judgement to issue visas, but strike down the cancellation of green cards or even existing visas without specific cause.

        But then, my idea of a good court is one that is as limited as possible in its judgements; these sweeping measures are exactly the type of thing that I hate to see the courts have to adjudicate because they need to have an answer within months of implementation, rather than slowly building a body of law based on lower courts' interpretations.

        If I have no other reason to hate this EO, then forcing a political issue on the courts is reason enough. It makes the court an enemy, no matter the judgement.

        1. Ian Michael Gumby
          Boffin

          @JamesB ... Re: Chilling

          Sorry but I think you need to spend more time around lawyers and in the courts. Not that I would recommend it but its an eye opener about how messed up things can get.

          You have a couple of issues.

          Yes you are correct, the plaintiff must show actual damages incurred by the ban in order to have standing. That's going to be a difficult one.

          Then you have the issue of jurisdiction. You're going to have to do some reading on that one. Does a Federal Judge who's jurisdiction is limited to a district of federal court have the right to impose an order that extends outside of his jurisdiction?

          The current case is the TRO issued by a judge in Washington State. (Home of Amazon)

          The judge didn't have to justify his reasoning and provide a written opinion based on law. His only comments were that it was a religious based ban and that the plaintiffs should win their cases. (This is why the DoJ lawyers should win the appeal. ) The appellate court will have to issue a written statement. If the DoJ lose, it will go to SCOTUS. If they win... most likely it wont. (Per news analysts and lawyers)

          You then talk about the 1965 law which modifies the 1952 law which gives Trump the power to sigh the ban in the first place. You need to spend more time because Trump has the power to impose a time limited ban if there's an issue such as national security.

          This is where it gets fun.

          The courts should provide more leeway to the POTUS based on such a claim. However the DoJ would have to show that there was justification. They can, simply by pointing out Obama's actions on these same 7 countries in 2015.

          Legally, Trump will win.

          IMHO, the execution... not good.

          You should read Alan Dershowitz's comments on this. A bleeding heart liberal, yet an honest lawyer.

          Judges are not infallible. They don't know everything in the law and often make mistakes that you have to live with. Its not uncommon to have to go thru the appeals process which can take a year or two before their ruling is overturned.

        2. BillG
          Alert

          Re: Chilling

          Also, Immigration and Nationality Act of 1965 can easily be read to bar discrimination based on nationality, which is exactly what this is

          No, it's not.

          There is a huge difference between banning all Yemanese from entering the USA (which is based on nationality) vs. banning anyone from flying in from Yemen (which is based on flight origin). A Yemanese flying in from Paris would be admitted.

          However, a bad guy who decides to enter the USA from Yemen because their vetting process sucks is exactly the type of person the EO is targeting.

      4. jamesb2147

        Re: Chilling

        @The Man Who Fell To Earth - Can you provide sauce?

        I checked the ABA site. There's no forum that I can identify on the homepage, comments are disabled on the news articles/press releases, and all the press releases talk about is how the ABA is opposed to the ban and to Trump's attack on the legitimacy of the judicial branch.

        TLDR - I have not yet identified where the ABA has a lot of discussion about the EO. Link?

      5. oldcoder

        Re: Chilling

        As soon as it singled out a religion - it did.

        As soon as it was a blanket ban - it did.

        1. Byham

          Re: Chilling

          @oldcoder

          The actual executive order did neither. It was aimed at 7 countries that were identified by the previous administration for a temporary hold.

          And according to the immigration and nationality act - the president could have singled out any group or put in place a blanket ban. You are forgetting that aliens have no _right_ to enter the US under The US Constitution, and that even applies to Green Card holders.

    2. fajensen

      Re: Chilling

      at what point do we just dispense with government and allow the biggest company to pull the strings

      Right after the EU ratifies CETA, and maybe also TTIP and TISA which will surely be back online when someone explains to Donald Trump "what's in those treaties for him".

      Government will still be there, though. Fat, Bloated, Lazy, and now bored out of it's skull, so surely a lot of Moral-Based Legislation can liven up proceedings and make life interesting again?

    3. kmac499

      Re: Chilling

      "Business already has a lot of influence on politics ..."

      Fair enough, but can I raise the point of Microsoft vs Uncle Sam over it's Irish e-mail servers.

      AFAIK this is en route to the supreme court, the bare bones of the case being that Microsoft is refusing to hand over e-mails of a non US citizens (aka alien) held on a server outside the US without due process of Irish law.

      OK there is the obvious commercial imperative for Microsoft to remain a 'trusted' host, but even so that's a corporate influence I will quite happily cheer on.

      1. Ian Michael Gumby
        Boffin

        Re: Chilling

        There are two conflicting cases and two conflicting judgements. Microsoft and Google.

        If our understanding of the Microsoft case, the US Government feels that they have jurisdiction over Microsoft because while its a global company, it's a US based company and thus regardless of where the data is stored the US Government has rights to the data. If this reading is correct, then IMHO the US Government is overstepping their jurisdiction.

        Then you have Google's case.

        Here they ship US data around their global network. Here the judge reasoned is that Google would have to comply with the Government's request because regardless of where the data is located, its accessed by those in the US. If I read that case correctly, Google is screwed.

        You think the US law is confusing. Take a look at Swiss banking and data laws.

        1. kmac499

          Re: Chilling

          "There are two conflicting cases and two conflicting judgements. Microsoft and Google."

          There ain't much room on the pin head for angels these days as there are so many lawyers fighting on one already.

          Viewed from outside the US ( where the majority of us live) both cases emphasise the attitude of the US that US law trumps (sorry) any other law. This does dent the idea of national sovereignity a little.

          I don't know what the answer should be, but if a nation state means anything then it should protect its citizens from persecution and prosecution by other states if there is no reciprocity.

    4. jamesb2147

      Re: Chilling

      You're reading the statements at face value; corporations have no ethics, they would simply like you to believe that they do, because that is convenient for them (you are more likely to use their products if you view them as ethical).

      They may be so inclined; company culture is real, but at the end of the day, if they believe themselves to be facing an existential crisis, they'll abandon the line of business creating moral friction or abandon the morals.

    5. Anonymous Coward
      Anonymous Coward

      Re: Chilling

      "Whilst I'm fine with private individuals signing up to fight this sort of cause, it concerns me when big business starts taking on a fight based partially on ethics and partially for their own benefit."

      Their motives are aligned with the individuals affected within those companies. It's no different to massively wealthy individuals taking on the government. It's hard to see that there would be any imbalance here in favour of the plaintiff.

      1. Anonymous Coward
        Anonymous Coward

        If you're only fine with private individuals

        Then I assume when you see cases where amicus briefs are filed by the DoJ, or EPA, or NRA, or NEA, or policeman's union, or the attorney general for Texas or NY you think that's "chilling" also? Or is it only when corporations do it, but other organizations are fine?

        Amicus briefs are almost always filed by organizations or those representing them. Rarely would an individual file, and if they do you can bet that most of the time they are 1) rich and 2) have a personal stake in the outcome.

  2. Your alien overlord - fear me

    What the courts should be asking is why does the president have this power in the first place? There are democratically elected congressmen/senators who should be asked to vote on measures like this. Dictators just steamroll these kind of rules.

    1. 2460 Something
      Joke

      Bit hypocritical to be questioning dictators when your 'my alien overlord of whom I am fearful' though?

    2. David Knapman

      The whole point of the legal challenge is to assert that the President does not have this power - that he's overstepped the bounds of what he's allowed to do.

      Whether that's true or not will take time for the courts to decide. But in the meantime, and the subject of this very fast schedule, is that its believed that there's a good chance this legal challenge will succeed and so a Temporary Restraining Order is currently warranted.

      Even if the TRO is overturned this week, the legal challenge itself will still go ahead and determine whether the President has overstepped his authority.

      1. Lars Silver badge
        Coat

        " the legal challenge itself will still go ahead and determine whether the President has overstepped his authority.".

        Yes indeed, Tricky Dick claimed that "when the president does it, it's legal". You find that interview on YouTube. And the rest is history as they say.

        Göran Persson, a former PM of Sweden, has revealed a daydream he had. The dear old pappy (DOPY) was elected without much support from the GOP on the Hill and now he is fully dependent of them. Sooner or later, and rather sooner than later, they will kindly walk him back to his golden tower where he will feel much better again and more at home, twitting to his hearts delight..

        One can always hope

        As for companies assisting the Leader. A few generations ago, in Germany, such things happened and one can of course argue about that too.

      2. Ian Michael Gumby
        Boffin

        @David Knapman

        No, Trump does have the power to do this. While it could have been better written, the underlying power exists and Trump isn't the first President to deal with immigration. Both Carter and Obama have put bans in place.

        The real question is why the uproar?

        The answer is that many who voted for Hillary can't face the fact that Trump won. That the people behind the protests are creating FUD by making this sound like its a ban based on religion. (Its not.) That its an all out ban on immigration. (Its not.)

        I had an Indian (H1B) coworker as me about how the ban affects her. She was worried about traveling for vacation in the US. (I told her she could go back and forth to India without a problem and that traveling to Florida was also not an issue.) Her fears were due to FUD created by the fringe left who look for any excuse to attack Trump.

        We've had to deal with Obama, the worst POTUS in the history of this country and now Trump. Suck it up cupcake, he's the POTUS and he hasn't broken any laws yet.

        I guess if you get down to it... once Sessions is confirmed as the DoJ USAG, he can assign a special prosecutor and then charge Hillary Clinton and her staff for violating the espionage act. (Yes, as of January, there's now enough evidence to show her violations.) He can defer to the NY AG and the IRS to go after the Clinton Foundation. The reason I raise this... it means that those hoping for a coup and getting Hillary in office... aint going to happen. Her political future isn't looking so good. (Besides you lose Trump, you still have Pence. )

        BTW, once the TRO is overturned. (And it will be) The lawsuit becomes moot. Remember this ban is for 90 days, not to mention Trump will win the lawsuit.

        1. Anonymous Coward
          Anonymous Coward

          Re: @David Knapman

          Oh IMG, you were doing so well, you even managed to sound like you actually had a series of valid points but then you let your actual motivation show:

          "We've had to deal with Obama, the worst POTUS in the history of this country and now Trump. Suck it up cupcake, he's the POTUS and he hasn't broken any laws yet."

          Go back to your safe place snowflake, hopefully it's in a well stocked bunker because if Trump carries on as he's started then we're all going to be looking for shelter in the post-apocalypse wasteland.

          1. Ian Michael Gumby
            Boffin

            @AC Re: @David Knapman

            Cupcake,

            Obama cemented his place in history.

            Tell you what. Take Obama's name off his record and look at the facts.

            He's the worst by a long shot.

            You haven't a clue about Trump.

            He's a crazy Ivan.

        2. Anonymous Coward
          Anonymous Coward

          Re: @David Knapman

          "The answer is that many who voted for Hillary can't face the fact that Trump won."

          No. Many aren't even in the US.

          The real reason is that, even IF Trump was within his rights (which we don't know yet), he shouldn't have used those rights in a dictatorial-insensitive-psycho-shithead way. That is the reason.

      3. Byham

        @ David Knapman

        The President has the power to do as he did under the immigration and nationality act of 1965 which amended the previous 1952 act under which the president also had the power. There is ZERO chance that the litigation will succeed. By displaying their ignorance and gullibility these companies and individuals are destroying what credibility they used to have.

        1. anonymous boring coward Silver badge

          "The President has the power to do as he did under the immigration and nationality act of 1965 which amended the previous 1952 act under which the president also had the power."

          Even if that's true, which I'm not convinced it is, it doesn't follow that he SHOULD use this powers in this way. Even the POTUS has a responsibility not to abuse his powers. Even if an Alt-Righter whispers in his ear.

    3. LordDarkGoose

      Part of the reason why Trump now has all these extra powers in "Executive Orders" and "Big Government" are because they were brought in by the previous 8 years of Obama's Democrats - a typical liberal, socialist model of government. That is why he now has these powers. Ironic isn't it?

      1. David Knapman

        You mean the powers he's asserting under a 1952 law (which was revised in 1965)? Which of those were introduced by "Obama's Democrats"?

        1. This post has been deleted by its author

        2. bombastic bob Silver badge

          "Which of those were introduced by '"Obama's Democrats'?"

          yeah, that WAS a bit of a stretch. I think it made reference to all of the executive orders that Obama did, that Republicans and conservatives generally objected to, SOME of which were said to have exceeded his authority (and I generally agree about those kinds of EOs), and there WERE some lawsuits in progress over a few of them, last I heard.

          The case over THIS one, however, seems WAY too politically charged. Assuming that the 1965 law is applied in SIMPLE terms, which l[aw]yers seem ALL! TOO! EAGER! to CORRUPT into something overly COMPLICATED, Trump has THE AUTHORITY to determine who enters the USA, and who doesn't. Yeah, the Cold War is over, but TERRORISM is still happening, is happening in the EU, and in a few MAJOR cases in the USA [one of which was a gay night club in Florida, so the left should REALLY want that kind of thing stopped, ya know?], and I have to wonder if Obama had done the same thing, would ANYONE be objecting to it? I wouldn't. Even BILL CLINTON did similar things. (I heard some interesting Clinton quotes on the radio yesterday, wish I could remember the details better, but it was the same KIND of thing Trump is trying to do).

          1. HausWolf

            The Orlando shooting was not done by a refugee though. And no Clinton did not do the same kind of thing.

          2. anonymous boring coward Silver badge

            "TERRORISM is still happening, is happening in the EU, and in a few MAJOR cases in the USA [one of which was a gay night club in Florid"

            Look, you had almost NO terrorism in the US since 9/11. Florida: Weirdo homofobic homosexual sicko. No different to any high-school shooting. Toddlers kill way more people than terrorists in the US.

            Please wake up, and stop watching trash-news on TV. Is there a more afraid people on this planet than the americans? And then the americans rain down munitions in various places. Perhaps you should start counting those bodies and get just a little perspective?

            1. anonymous boring coward Silver badge

              Just to add: Seems Trump killed 30 women and children, thanks to a casual decision over dinner. And thanks to the incompetent redneck marines who mustn't be criticised -or you are a traitor.

              Now, that is terrorism.

              WTG, Psycho in Chief.

      2. Voland's right hand Silver badge

        Part of the reason why Trump now has all these extra powers in "Executive Orders" and "Big Government" are because they were brought in by the previous 8 years of Obama's Democrats

        Gawd, what they teach kids in history these days.

        The absolute record on EOs and EOs overturned by courts (including the Supremes) belongs to FDR.

        Obama's EO drive by shooting towards the end of his presidency is nothing compared to FDR. FDR during his famous 100 days averaged more than one a day (if memory serves me right).

        1. anonymous boring coward Silver badge

          Probably makes sense not only to count the EOs, but also look at the scope of them.

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