There is an introduction [...]]]> On February 14-16, we will host an online symposium on A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence White. Given the great discussions at our previous symposiums for Tim Wu’s Master Switch  and Jonathan Zittrain’s Future of the Internet, I’m sure this one will be a treat.  Participants will include Ken Anderson, Ryan Calo, James Grimmelmann, Sonia Katyal, Ian Kerr, Andrea Matwyshyn, Deborah DeMott, Paul Ohm,  Ugo Pagallo, Lawrence Solum, Ramesh Subramanian and Harry Surden.  Chopra will be reading their posts and responding here, too.  I discussed the book with Chopra and Grimmelmann in Brooklyn a few months ago, and I believe the audience found fascinating the many present and future scenarios raised in it.  (If you’re interested in Google’s autonomous cars, drones, robots, or even the annoying little Microsoft paperclip guy, you’ll find something intriguing in the book.)

There is an introduction to the book below the fold.  (Chapter 2 of the book was published in the Illinois Journal of Law, Technology and Policy, and can be found online at SSRN).  We look forward to hosting the discussion!

Social and economic interactions today increasingly feature a new category of being: the artificial agent. It buys and sells goods; determines eligibility for legal entitlements like healthcare benefits; processes applications for visas and credit cards; collects, acquires and processes financial information; trades on stock markets; and so on. We use language inflected with intentions in describing our interactions with an artificial agent, as when we say “the shopping cart program wants to know my shipping address.” This being’s competence at settling into our lives, in taking on our tasks, leads us to attribute knowledge and motivations, and to delegate responsibility, to it. Its abilities, often approximating human ones and sometimes going beyond them, make it the object of fear and gratitude: it might spy on us, or it might relieve us of tedium and boredom.

The advances in the technical sophistication and autonomous functioning of these systems represent a logical continuation of our social adoption of technologies of automation. Agent programs represent just one end of a spectrum of technologies that automate human capacities and abilities, extend our cognitive apparatus, and become modeled enhancements of ourselves. More than ever before, it is coherent to speak of computer programs and hardware systems as agents working on our behalf. The spelling checker that corrects this page as it is written is a lexicographic agent that aids in our writing, as much an agent as the automated trading system of a major Wall Street brokerage, and the PR2 robot, a prototype personal robotic assistant (Markoff 2009). While some delegations of our work to such agents are the oft-promised ones of alleviating tedious labor, others are ethically problematic, as in robots taking on warfare roles (Singer 2009). Yet others enable a richer, wider set of social and economic interconnections in our networked society, especially evident in e-commerce (Papazoglu 2001).

As we increasingly interact with these artificial agents in unsupervised settings, with no human mediators, their seeming autonomy and increasingly sophisticated functionality and behavior, raises legal and philosophical questions. For as the number of interactions mediated by artificial agents increase, as they  become actors in literal, metaphorical and legal senses, it is ever more important to understand, and do justice to, the artificial agent’s role within our networks of social, political and economic relations. What is the standing of these entities in our socio-legal framework? What is the legal status of the commercial transactions they enter into? What legal status should artificial agents have? Should they be mere things, tools, and instrumentalities?  Do they have any rights, duties, obligations? What are the legal strategies to make room for these future residents of our polity and society? The increasing sophistication, use, and social embedding of computerized agents makes the coherent answering of older questions raised by mechanical automation ever more necessary.

Carving out a niche for a new category of legal actor is a task rich with legal and philosophical significance. The history of jurisprudence addressing doctrinal changes in the law suggests legal theorizing to accommodate artificial agents will inevitably find its pragmatic deliberations colored by philosophical musings over the nature and being of these agents. Conversely, the accommodation, within legal doctrines, of the artificial agent, will influence future philosophical theorizing about such agents, for such accommodation will invariably include conceptual and empirical assessments of their capacities and abilities. This interplay between law and philosophy is not new: philosophical debates on personhood, for instance, cannot proceed without an acknowledgement of the legal person, just as legal discussions on tort liability are grounded in a philosophical understanding of responsibility and causation.

This book seeks to advance interdisciplinary legal scholarship in answer to the conundrums posed by this new entity in our midst. Drawing upon both contemporary and classical legal and philosophical analysis, we attempt to develop a prescriptive legal theory to guide our interactions with artificial agents, whether as users or operators entering contracts, acquiring knowledge or causing harm through agents, or as persons to whom agents are capable of causing harm in their own right. We seek to apply and extend existing legal and philosophical theories of agency, knowledge attribution, liability, and personhood, to the many roles artificial agents can be expected to play and the legal challenges they will pose while so doing. We emphasize legal continuity, while seeking to refocus on deep existing questions in legal theory.

The artificial agent is here to stay; our task is to accommodate it in a manner that does justice to our interests and its abilities.

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Those arguing that insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply and unequivocally false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional [...]]]> As the briefs in the Affordable Care Act litigation are still being filed before the Supreme Court, I was intrigued by this new paper by Professor Corey Yung on “The Incredible Ordinariness of Federal Penalties for Inactivity that sheds new light on the problem before the Justices.  Here is the Abstract:

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Those arguing that insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply and unequivocally false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional crimes by omission where a common law duty is violated, but also offenses related to registration, record keeping, possession, receipt, preventive measures, nondisclosure, organizational, misprision, and obstruction. By providing this account of criminal laws punishing and regulating inactivity, this Essay puts the ACA’s insurance mandate in the larger context of federal laws at issue if the mandate is held to be unconstitutional by the Supreme Court. The case of the ACA in regard to the Commerce and Necessary and Proper Clauses is not merely about the enforcement mechanism used for a single health care law as many have contended–it is about the shape and scope of federal criminal law that has been in place for over fifty years.

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Of course, if you try to dismiss Professor Yung’s examples as the regulation of “activities,” then the decision not to purchase health care is probably also an activity.

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied [...]]]> The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why:

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied private property for the purpose of obtaining information.” But, that’s not quite precise enough: the key is that the government must “physically intrud[e] on a constitutionally protected area.” (emphasis mine) The tricky part, naturally, is deciding what counts as such an area. Scalia disposes of Oliver (the open fields case) by emphasizing that a field “is not one of those protected areas enumerated in the Fourth Amendment.” Katz is still around for “Situations involving merely the transmission of electronic signals without trespass.”

Scalia thus wants to create magic places: spots where any governmental intrusion, with any physicality, is a search. The home is certainly such a place (see Kyllo) – Jane Yakowitz pointed out to me that this has to explain why the Court took cert in Florida v. Jardines, when we already have Caballes and Place on the books. Determining which places are magic is hard. It’s here that Scalia’s originalism does its work: Scalia wants to apply the understanding and expectations from 1791 to sort places into protected/magic and unprotected.

Alito thinks this is rubbish: his footnote 3 openly makes fun of Scalia’s contention that we can analogize the Jones facts to a constable hiding in a coach (“this would have required either a gigantic coach, a very tiny constable, or both”). His method would instead simply apply the Katz reasonable expectation of privacy test, which he rightly points out is more consonant with the Court’s jurisprudence since its rejection of the physical trespass test set out in Olmstead. This approach looks analytically cleaner, although Alito forthrightly acknowledges the circularity inherent in the reasonable expectations test – expectations derive from the law, in addition to driving it. And, of course, there is the one-way ratchet worry: the government can reduce our reasonable expectations of privacy by abusing our privacy.

Alito, though, proceeds to mess up a previously tidy picture by inventing two new considerations for Fourth Amendment analysis: the duration of the information-gathering (such as GPS tracking), and the severity of the crime. Scalia rightly smacks Alito around for this, as he fails to ground this analysis in anything remotely resembling precedent. At best, this is judicial activism, and at worst, it’s an invitation for a wave of new cases where the government tests boundaries and magnifies the threat posed by those surveilled.

I like Scalia’s approach much better. It sets out clearly that there are some spaces that get heightened privacy protection: we don’t have to engage in the weighing involved in the reasonable expectations test, so it’s cheaper, and there won’t be instances where judges decide that in fact society is willing to permit certain observations in the home, for example. Scalia’s approach is a firewall: it offers a redoubt for privacy. And, it maintains the viability of Katz in other instances. Alito’s two additional considerations point towards the worry that makes me prefer Scalia. Imagine observation of the interior of a home – say, using tiny drones – that would clearly constitute a search under the magic places theory. If the observation is fairly short, or if the crime involved is serious (drug smuggling, terrorism, child pornography), Alito’s analysis would find that there isn’t a search, and hence no need for a warrant. Scalia’s approach always forces the cops to get a warrant. That reassures me.

There are two issues that neither Alito nor Scalia deals with, although to her credit Justice Sonia Sotomayor tackles both: pervasive surveillance, and cloud computing. Pervasive surveillance involves the government’s increasing capabilities to deploy low-cost observation technology – everything from traffic cameras to facial recognition technology – and to store, index, and analyze the resulting torrent of data. Cloud computing involves the shift from maintaining information on devices we control to storing it on devices controlled by Google or Apple or Amazon. The former presents the mosaic theory that the D.C. Circuit endorsed in its opinion in Jones. The latter invites us to re-visit the third party doctrine, whereby one loses any reasonable expectation of privacy if one turns over data to someone else (unless that someone is, say, a priest or lawyer). One failing of the two major opinions in Jones is that they fail to provide any guide for how the Court thinks about these issues – other than to hope mightily that Congress will take care of it for them.

I like Scalia’s hybrid with its magic places. What our privacy rights are when we venture outside the castle walls is a topic the court reserves for another day.

Cross-posted at Info/Law.

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, [...]]]> I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, Gerard Magliocca, and Derek Bambauer.

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was [...]]]>

Russian President Dmitrii Medvedev met Tuesday with Mikhail Fedotov, Chairman of Medvedev's Human Rights Council. The Khodorkovsky report was the first topic that Mr. Fedotov raised.

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was the American contributor.  The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here. 

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C.  How does the case relate to the recent protests in Russia?  What does it say about the rule of law in Russia and prospects for reform?  Come to the panel and find out!

A Rochester Hills man charged with a 5-year felony for reading his wife’s e-mail pledged today to take the matter to the state’s highest court after a lower court refused to dismiss the charge.

In a written opinion released this morning, the Michigan Court of Appeals rule that Leon Walker should proceed to trial on charges that he gained [...]]]> Short answer: No.  This case got considerable media attention and outrage when it was first reported.  A man accessed his wife’s email without her consent.  They were separated.  He was charged with violating the Michigan’s computer unlawful access law, MCL 752.795, which is similar to the federal Computer Fraud and Abuse Act (CFAA).  Now a court of appeals has rejected the spouse’s argument.  From the Detroit Free Press:

A Rochester Hills man charged with a 5-year felony for reading his wife’s e-mail pledged today to take the matter to the state’s highest court after a lower court refused to dismiss the charge.

In a written opinion released this morning, the Michigan Court of Appeals rule that Leon Walker should proceed to trial on charges that he gained unlawful access to his then-wife Clara Walker’s Gmail account in the summer of 2009.

His 2010 arrest prompted widespread outrage and a national debate about computer privacy in the marital home. But in today’s decision, the three-member appellate panel said Michigan’s computer hacking law has “no spousal exception,” and the law as written applies to Walker’s case. The judges also noted discussions in Michigan’s legislature to amend the law to exclude spouses.

“However, unless and until such legislation occurs, this court is left with the statute as written,” the court said.

The opinion is here.  From the opinion:

Second, there was evidence that defendant acted without authorization when he accessed his estranged wife’s Gmail account. Defendant’s wife testified that her Gmail account was a personal account and that she never shared her passwords for the account with defendant or granted him permission to access the account. Further, she allowed defendant to use her computer only when it needed a repair. Defendant admitted to the police that he accessed his wife’s Gmail account by guessing her password. These facts support a reasonable inference that defendant lacked authorization for his access of his wife’s Gmail account.

It seems to me that spouses should not be given special exemptions to hack into each other’s accounts.  Breaking into one’s private accounts is a violation no matter who does it.  Even spouses are entitled to have private accounts and things, and the law should protect them.

[A] one-strike clause . . . allows the public housing authority to evict [the tenant] if any member of her household or any guest engages in certain kinds of criminal activity. . . . Stories abound about the one-strike policy being wielded in seemingly egregious ways to evict “innocent tenants,” such as a disabled elderly man in California whose caretaker was caught with crack. . . .The Chicago Reporter wrote in September that 86 percent of Chicago’s one-strike evictions last year did not arise from criminal activity by the person named on the lease.

“These policies, the effect of them on children, families, women, families [...]]]> Most readers of this blog are already familiar with draconian treatment of the poor by various law enforcers and state bureaucracies. Here’s yet another example:

[A] one-strike clause . . . allows the public housing authority to evict [the tenant] if any member of her household or any guest engages in certain kinds of criminal activity. . . . Stories abound about the one-strike policy being wielded in seemingly egregious ways to evict “innocent tenants,” such as a disabled elderly man in California whose caretaker was caught with crack. . . .The Chicago Reporter wrote in September that 86 percent of Chicago’s one-strike evictions last year did not arise from criminal activity by the person named on the lease.

“These policies, the effect of them on children, families, women, families of color, were not thought through. And I think now a national conversation is beginning to rethink that,” said Ariela Migdal, a senior staff attorney with the Women’s Rights Project of the American Civil Liberties Union. Migdal pointed to a June 2011 letter from HUD Secretary Shaun Donovan to public housing directors, encouraging the directors to use their “broad discretion” to create a flexible set of standards for who will be admitted to and allowed to stay in public housing.

Certainly the Obama administration has ample experience deploying “discretion” and “mercy” in other areas.  For example, consider Barry Ritholtz’s summary of a shocking Reuters report by Scott Paltrow on foreclosure fraud:

There have been . . . “tens of thousands of fraudulent documents filed in tens of thousands of cases.” Sworn affidavits have been filed containing false information. This is easily prosecuted perjury. . . . The size and scope of the fraud on the U.S. court system is unprecedented in U.S. history.

NY State court judge Arthur Schack, ruled in 2010 that pleadings by the Baum Law Firm— who handle 40% of NY foreclosures — were “so incredible, outrageous, ludicrous and disingenuous that they should have been authorized by the late Rod Serling, creator of the famous science-fiction television series, The Twilight Zone.”  There has been no fraud prosecution to date. . . . [and banks] have routinely filed falsified mortgage promissory notes — in some cases, six different documents have been filed, all claimed to be the original. At the least 5 must be forgeries — an easy felony to prosecute.

 The administration slapped BofA/Countrywide on the wrist for massively discriminatory action.  Its OCC has initiated a program where “servicers agree[] to submit foreclosure fraud for review by ‘independent’ third-party companies” that is not credible.  Matt Stoller describes the dynamics that are now wrecking lives and neighborhoods around the country:

The attitude during the go-go days of the housing bubble was “here today, gone tomorrow,” as Joe Nocera and Bethany McLean make clear in their book “All the Devils Are Here.” This was a refinement of the financial deal makers’ code, “IBG-YBG,” meaning “I’ll be gone, you’ll be gone,” described by Jonathan Knee in “The Accidental Investment Banker.” In this environment, why bother getting your paperwork in order when the goal is to put someone into a predatory loan, reap fees and disappear tomorrow?

Now that these homes are in foreclosure, however, the lack of paperwork is a serious problem. And, since no one has yet been held accountable for the fraud perpetrated during the housing bubble, the business model of financial institutions is often still predatory. This fraud is now coming back to haunt our courts — for example, in the falsified foreclosure paperwork required to cover up the corner-cutting of the subprime lenders and the banks that funded them. . . .The [Obama] administration is now attempting to quash state-level officials by fiercely lobbying for a 50-state settlement to paper over the foreclosure fraud scandal. Obama may talk about his fealty to the “99 percent,” but his administration is engaged in an aggressive coverup of bank crimes.

 But wait, as they say in the infomercials, there’s more.  It would be bad enough if the wholesale campaign of primitive accumulation via predatory loans and sloppy foreclosures merely contributed to destitution and inequality.  But, as CBS’s 60 Minutes documents, the same banks evicting families are not exactly putting the empty houses to their “highest and best” use in many cities:

 Cuyahoga County ripped down 1,000 homes this year. And they have 20,000 more to go. That’ll cost about $150 million dollars. . . . In theory there shouldn’t be this many abandoned houses. When homeowners walk away, the bank is supposed to take responsibility. But one little known feature of the great recession is, that many banks are walking away too, unwilling to maintain a house whose value has crashed. “Very often a bank will take a property to the point of foreclosure, but won’t go to the sheriff’s sale, ’cause they don’t want that property. They don’t want the responsibility of the $8-$10,000 bill that comes with tearing this house down” [says Jim Rokakis, a former county treasurer].

There is no concern for communities, none for struggling families, none for the public treasury.  There is simply a Kafkaesque interlinkage of contracts and incentives that keep the foreclosure machine humming (along with Potemkin programs like HAMP), putting families on streets with dubious documentation for the paper gains of banks and servicers.  The law enforcement apparatus will hammer a disabled man for inadequately monitoring his caretaker, but moves slowly and ineffectively (if at all) against a wholesale abandonment of legality. Glenn Greenwald’s and Bernard Harcourt’s books on such discrepancies, already damning, appear to have understated the extent of our 2-tier justice system.

Banks’ Economic Impact

This is not simply a problem for lawyers, but for anyone concerned about the overall health of the US economy.  The foreclosure disaster is only one particularly pure example of a financial system prone to overcentalization,  bubble-blowing, opacity, and disregard for long-term productivity.  Henry Mintzberg has warned that the economy will never be “fixed” as long as problematic alliances between business and government consume such a disproportionate share of resources:

When economists boast about America’s great productivity, what they have in mind is exploration – finding ways to do things better, especially through superior processes. But much of this “productivity” has in fact been destructively exploitative. Think of all the corporations that have fired great numbers of people at the drop of a share price, leaving behind underpaid, overworked employees and burned-out managers, while the CEOs escape with their bonuses.  To see where this leads, imagine a company that fires all of its workers and then ships its orders from stock. Economic statistics would record this as highly productive – until, of course, the company runs out of stock. American enterprise is running out of stock.

There have been a number of recent studies on the productivity of the financial sector (see, e.g., here, here, here, and here). Many have asked whether it increases GDP, but perhaps the more telling question is how it raises GDP.  Mike Konczal recently evocatively compared the foreclosure crisis to an earthquake or storm affecting millions:

Imagine a natural disaster that hit the United States and internally displaced over 5 million families.  We’d understand that would require a major policy response.  But for the 5 million estimated foreclosures, and the millions more that are going to happen, there’s no response from the administration to match this challenge.

US GDP probably got some kind of “bump” in 2006 as some homes of Katrina victims were rebuilt.  But I’ve heard few people try to describe hurricanes as a form of “creative destruction,” or “information creators.”  Maybe the hurricane lobby just needs to donate to the right think thanks.

A New Way Forward?

Is there any solution to these problems? The Clinton administration diverted law enforcement resources from financial to health care fraud, and later Bush did the same thing in response to terror fears.  Health care fraud detection and deterrence has become extraordinarily sophisticated.  For instance, as Wheeler, Fuller, and Broussard have noted (in 4 J. Health & Life Sci. L. 1, 2011):

Recently, the number of Medicare- and Medicaid-affiliated government contractors charged with detecting fraudulent and abusive practices by enrolled providers has expanded dramatically. The contractors’ role has been to monitor and investigate providers rather than simply to administer these programs.   [T]he healthcare government contractor landscape continues its transformation with an increased number of contractors actively pursuing the recovery of erroneous payments and the identification of potential patterns of fraud and abuse.

There is a veritable alphabet soup of entities devoted to this goal, including Program Safeguard Contractors (PSCs) and Zone Program Integrity Contractors (ZPICs).  They perform “auditing, data mining, and improper billing and fraud investigation.”  

In my next post on financial institutions, I will outline some potential lessons for financial fraud prevention from the realm of health care fraud.  The critical conceptual issue here is to begin to see the banks as a sector as permanently embedded in a web of state subsidy and support as health care, defense, and energy.  Mintzberg convincingly complains about “the energy companies with their cozy tax deals, the defense contractors that live off government budgets, and the pharmaceutical companies that buy their innovations and price what the market will bear, thanks to patents that governments grant, but without policing their holders.”  I also worry about all these sectors. But it may well be the finance sector that is the most menacing to economic growth, and the least accountable.  We cannot simply accept lawlessness in the sector as the status quo.  Creative and forceful responses are possible, and have precedents both historically, in other nations, and in other sectors in our own economy.

Image Credit: Keith Allison.

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, [...]]]> D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.

So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester.  (Emphasis here on “hopefully.”)

2. Criminal Procedure < 1965 Interview Subjects Wanted

Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.

In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.

I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.

In any event, happy holidays to you all.

Earlier this week, I discussed a “pleading crime,” misprision of a felony.  Pleading crimes are offenses that parties rely upon to terminate criminal cases by way of plea deals.  Today, prompted by the recent acquittal of a California man on charges that he tortured and murdered a former adult film actress, I’ll talk about another, arguably more troubling class of criminal offenses within the criminal-code “ecosystem”—“charging crimes.”

Charging crimes are offenses that prosecutors commonly rely upon to persuade a defendant that a plea to lesser or other charges is in their best interests.  Charging crimes are often peripheral to the gravamen of a defendant’s misconduct, such that a prosecutor may not insist on convictions on these counts, on [...]]]>

Cell Door Detail, Eastern State Penitentiary, Philadelphia, PA

Earlier this week, I discussed a “pleading crime,” misprision of a felony.  Pleading crimes are offenses that parties rely upon to terminate criminal cases by way of plea deals.  Today, prompted by the recent acquittal of a California man on charges that he tortured and murdered a former adult film actress, I’ll talk about another, arguably more troubling class of criminal offenses within the criminal-code “ecosystem”—“charging crimes.”

Charging crimes are offenses that prosecutors commonly rely upon to persuade a defendant that a plea to lesser or other charges is in their best interests.  Charging crimes are often peripheral to the gravamen of a defendant’s misconduct, such that a prosecutor may not insist on convictions on these counts, on top of convictions of the “core” charge or charges.  Nevertheless, charging crimes raise the prospect of a stiffer sentence upon conviction, which gives the defendant an incentive to come to terms with the prosecution, and thus, an incentive for the prosecutor to include these counts in the initial charging mix.

OK, but what does all this have to do with torture?  Well, while I haven’t done much research on the existence of charging crimes within state codes (most of my work on this point involves federal offenses that may amount to charging crimes, like use of fire or explosives in the commission of a federal felony [18 U.S.C. § 844(h)], witness tampering [18 U.S.C. § 1512(a)], and hostage taking [18 U.S.C. § 1203]), I suspect that under California law, torture may represent such an offense.

Here in California, the crime of torture (Penal Code, § 206) occurs when an individual, acting “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury” on the person of another.  Torture is punishable by a life term in prison (a defendant sentenced to life in California may be eligible for parole in as little as seven years, however).

Torture is broadly worded, such that it’s not that hard to prove; it overlaps with several other crimes; and it carries severe sentencing consequences.  These circumstances make torture susceptible to charging by those prosecutors who may, in the final analysis, care less about what particular crimes a specific defendant is convicted of than about the defendant receiving a particular dollop of custody time. Toward this purpose, the in terrorem effect of a torture count may encourage a defendant charged with this offense to plead guilty to lesser crimes, such as assault, that carry shorter sentences than the torture offense—but enough time to satisfy the prosecution (and judge).  In return, the torture count will be dismissed, and its life term averted.

These situations aren’t merely theoretical.  Recently, in San Jose, two brothers accepted plea deals to lesser charges that carry sentences of (respectively) two to seven and two to eight years in prison, after they were charged with torture for assaulting a former friend whom they suspected of molesting an eight-year-old girl (the stepdaughter of one of the two defendants).  In matters such as these, a torture charge effectively creates a high-stakes game of chicken between the prosecution and the defense, except that the prosecution is driving an 18-wheeler; the defendant, a subcompact.

All this is not to say that defendants charged with torture or related offenses are not accused of serious crimes—they are; nor that these defendants, if convicted, should not be held accountable for their actions—they should be; nor that the torture charges are somehow unsupported by the evidence in these cases—they are, which is the very problem. Instead, the point is simply that by creating such a broad crime that carries such a severe sentence, California voters (torture having been enacted by initiative in 1990) have provided prosecutors with a very substantial bargaining chip, and they can’t be too surprised when, as in the San Jose case, it’s used to win some pots that one might wish had gone unclaimed.

Cellblock, Eastern State Pen.

Cat Statuette, Eastern State Pen.

Criminal codes sometimes remind me of ecosystems. Like organisms in an ecosystem, crimes within a code can be connected to one another in interesting and unexpected ways.

I’ll explain this analogy by describing a federal crime that doesn’t get much attention: misprision of a felony (18 U.S.C. § 4). Misprision of a felony occurs when a person, “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States.”

This crime seems pretty banal; it’s kind of like the algae of the federal criminal code.  You never hear about a [...]]]>

Mono County Courthouse, Bridgeport, CA

Criminal codes sometimes remind me of ecosystems. Like organisms in an ecosystem, crimes within a code can be connected to one another in interesting and unexpected ways.

I’ll explain this analogy by describing a federal crime that doesn’t get much attention: misprision of a felony (18 U.S.C. § 4). Misprision of a felony occurs when a person, “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States.”

This crime seems pretty banal; it’s kind of like the algae of the federal criminal code.  You never hear about a complex, multi-agency investigation into misprision of a felony.  But, like algae, misprision of a felony serves very important purposes within its environment. It is what I call a “pleading crime,” used to resolve a wide range of matters in which a federal prosecutor, for one reason or another, either (1) doesn’t want to charge a potential defendant with the “concealed” substantive crime (even though there might be sufficient evidence to charge the person with, and convict them of, this offense), but does want to charge them with a lesser, related crime; or (2) wants to resolve, via a plea bargain, a case in which the substantive crime was originally alleged, but as to which evidentiary problems or other reasons for compromise exist.

Misprision of a felony fills these roles because of its malleable nature (it applies to the concealment of any felony) and because of the sentence that adheres to the crime.  The United States Sentencing Guidelines prescribe a sentence for misprision that’s indexed to, but somewhat below, that of the concealed offense. This placement tees up misprision of a felony as a (to use Ronald Wright and Rodney Engen’s phrase) “landing point” for compromises in plea deals.

Federal charging and plea-bargaining data underscore this crime’s role as a case closer.  In federal criminal cases that terminated by plea between October 2002 and September 2007, misprision of a felony was the most serious charge at the time of initial filing in only around 600 cases (virtually all of which resulted in a guilty plea to the misprision charge, suggesting a pre-filing deal between the prosecution and defense).  Misprision was most serious charge at the time of case termination much more often, claiming this status in more than 2,300 matters.  The almost 1:4 ratio bespeaks the frequent utilization of misprision of a felony as a pleading crime.

And so, just like species in an ecosystem, even the most humble crimes may serve important functions.   Though I’m still searching for the big-picture purposes of crimes such as acting or attempting to modify the weather without proper authorization (15 U.S.C. § 330a);  the misuse of the Swiss Confederation Coat of Arms (18 U.S.C. § 708); use of the United States Army or Air Force as a posse comitatus (18 U.S.C. § 1385); and the transportation of illegal dentures (18 U.S.C. § 1821).

Under one prong of this adjustment effort, many yet-to-be-sentenced convicts who once would have gone to state prison will serve their time in local jails, instead. As a general rule, defendants convicted of “serious” or “violent” felonies—also known as “strikes”—remain eligible for prison. (So do most sex offenders.) This dynamic begs the question: might realignment result in more “strike” convictions?

Here’s why this might occur:

1) While the state is footing some of the costs associated with realignment, no one knows if these payments will fully [...]]]> California’s counties are still figuring out how to adjust to “realignment,” the name given to the state’s efforts to comply with the judicial decree, upheld in Plata v. Schwarzenegger, that demands a reduction in the number of prisoners incarcerated in state prison.

Under one prong of this adjustment effort, many yet-to-be-sentenced convicts who once would have gone to state prison will serve their time in local jails, instead. As a general rule, defendants convicted of “serious” or “violent” felonies—also known as “strikes”—remain eligible for prison. (So do most sex offenders.) This dynamic begs the question: might realignment result in more “strike” convictions?

Here’s why this might occur:

1) While the state is footing some of the costs associated with realignment, no one knows if these payments will fully offset the costs of housing a prisoner in local jail. Meanwhile, the state is guaranteed to foot the bill if a defendant goes to state prison.

2) Furthermore, local judges and district attorneys might be loathe to clog up their jails with prisoners who will be taking up space there for several years, as might be the case post-realignment. Among the reasons why, a substantial body of long-term occupants may make it more difficult to accommodate the daily ebb and tide of short-term detainees.  Plus, some judges and district attorneys may have a lingering sense that some defendants who historically would have gone to prison should still go to prison, which now may occur only if the defendant is convicted of a strike.

3) In many cases, district attorneys have substantial discretion whether to allege, and insist upon a conviction for, a “strike.” For example, under California law, assault with force likely to produce great bodily injury is not, by itself, a strike. However, assault with force likely to produce great bodily injury that does produce great bodily injury is a strike. The threshold that caselaw and legislative history set for “great bodily injury” is not as high as one might think; on the right (or, depending on your perspective, wrong) facts, a broken jaw may suffice. Appreciating that the low bar for this “strike” may lead to disproportionate punishment, district attorneys sometimes choose not to allege a great bodily injury enhancement even when it would be justified. In other cases, prosecutors agree to dismiss the enhancement as part of a plea deal.

Put these facts together, and it seems at least possible that realignment will spur local district attorneys’ offices to charge “strikes” more often, and to insist upon more “strike” convictions in plea negotiations.  (Somewhat similar dynamics also may cause local judges to “strike” [which essentially means to remove, for sentencing purposes] prior strikes less often.)  I don’t know that this will occur, but it seems like a conceivable, if unintended, outcome.

If this result obtains, one response might be to think harder about requiring counties to foot at least some of the bill for the incarceration of the defendants they send to state prison. My colleague David Ball suggests as much in his recent paper Tough on Crime (on the State’s Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates —And Why it Should, which provides an interesting take on the subject.

We’ll start with the relevant Sentencing Guideline for obstruction of justice (USSG § 2J1.2), which recommends a sentence of 15-21 months for a first offender, such as Bonds.  These Guidelines are only advisory (though extremely important), of course; ultimately, the governing text is 18 U.S.C. § 3553(a), which enumerates the factors to be considered in the formulation of a criminal sentence.

I won’t go through those factors here. Instead, I’ll relate what other defendants, arguably [...]]]> Yesterday, federal prosecutors asked that Barry Bonds be sentenced to 15 months in prison, following his conviction on one charge of obstruction of justice (18 U.S.C. § 1503). A probation officer has recommended that Bonds receive only probation, and Bonds himself (understandably) agrees with the officer’s assessment.  How realistic are these respective sentencing requests?

We’ll start with the relevant Sentencing Guideline for obstruction of justice (USSG § 2J1.2), which recommends a sentence of 15-21 months for a first offender, such as Bonds.  These Guidelines are only advisory (though extremely important), of course; ultimately, the governing text is 18 U.S.C. § 3553(a), which enumerates the factors to be considered in the formulation of a criminal sentence.

I won’t go through those factors here. Instead, I’ll relate what other defendants, arguably similarly situated to Bonds, have received in recent cases. Here, I sifted through data collected by the Administrative Office of the United States Courts for FY 2003 – FY 2007, which I compiled into a single database for another project a while back. (For full citations of these datasets, please go to footnote 119 here.)

The AOUSC data capture any and all criminal cases that terminated in federal district court between October 2002 and September 2007, providing a wealth of information regarding each matter. I separated out from this mass of data the handful of cases that entailed a single conviction under 18 U.S.C. § 1503, without any convictions for other offenses. The data do not relate whether the defendant in each of these cases was sentenced as a first offender, or not; nor do they indicate whether any departures or enhancements applied in a particular case. But they do reveal the sentence that was imposed in each matter.

What I found was that 30 of the 83 defendants whose cases terminated within this time frame and who were arguably similarly situated to Bonds, in that they were convicted upon plea or guilty verdict at trial of a single count under 18 U.S.C. § 1503, received only probation (and, in some cases, a fine) as their sentences. The remaining defendants received prison time, with the median term being 24 months (again, some of these defendants were almost assuredly not first offenders, accounting for the longer sentences). The prison sentences were quite spread out, such that they did not form a bell curve; no more than five defendants received any specific term. Of these, five defendants received five-month terms, five received 12-month terms, and another five received 18-months terms.

So, if these numbers are any guide (which, I concede, they may not be), it looks like Bonds has a pretty good argument for probation.

There are few (if any) “free markets” in the largest sectors of the US economy. The health care industry is a labyrinth of public and private payers. Sectors known as “guard labor” are also larded with subsidies.  The Departments of Defense and Homeland security contract with thousands of companies.  The communications industry enjoys various government “givings.” And at this point, everyone knows that our largest financial institutions are taxpayer supported entities. Without the implicit backing of the federal government, they would collapse.

Government subsidy to large industries is not, in and of itself, a bad thing. When wages are stagnant and capital gains are mainly enjoyed by the top thousandth of [...]]]> (Glenn Greenwald is having a fundraiser; link here.  I think his work is well worth supporting.)

There are few (if any) “free markets” in the largest sectors of the US economy. The health care industry is a labyrinth of public and private payers. Sectors known as “guard labor” are also larded with subsidies.  The Departments of Defense and Homeland security contract with thousands of companies.  The communications industry enjoys various government “givings.” And at this point, everyone knows that our largest financial institutions are taxpayer supported entities. Without the implicit backing of the federal government, they would collapse.

Government subsidy to large industries is not, in and of itself, a bad thing. When wages are stagnant and capital gains are mainly enjoyed by the top thousandth of the population, some entity has to spend for common provision. But the price of that spending should be higher standards for the propped-up industry. In health care, for instance, Medicare Conditions of Participation (and laws like the 1986 EMTALA) require many hospitals to provide care regardless of patients’ ability to pay. Tough fraud and abuse enforcement subjects providers’ bills to rigorous audits; privacy law will soon require audit-capability for digital medical records. Legislation passed in 2009 and 2010 creates many other requirements to channel private provision of health care toward more public ends. It’s certainly not a perfect system, but regulation is serious and purposeful. There are real consequences for many lawbreakers.

Glenn Greenwald tells a very different story about three other heavily subsidized industrial sectors.  He gives us serious reason to doubt that law has constrained banks, telcos, and the security sector when they posed critical threats to our economy, privacy, and liberty. His book With Liberty and Justice for Some is a passionate indictment of four distinct trends:

1) elites who violate laws with impunity,
2) retroactive immunity for acts unlawful at the time they were committed,
3) lobbyists’ power to influence legislators to render bad conduct lawful or even subsidized, and
4) a radical increase in punishment of those who fall outside the charmed circle of political and economic elites.

Greenwald has examined each area in his blog, as have other, lonely voices in corporate law (and a more robust chorus in communications & cyberlaw troubled by telecomms’ sweetheart deals). The vital contribution of With Liberty and Justice for Some is to show how the four trends mutually reinforce one another, contributing to a politics of wealth and privilege defense commonly known as oligarchy.

An Agenda-Setting Book

There is much in Greenwald’s book to interest legal scholars. The very concept of “retroactive immunity” militates against the rule of law, and I could find only twenty or so mentions of it in Westlaw’s database of journals and law reviews prior to 2005.*  While there have been 40 pieces addressing “retroactive immunity” since then, we need both research and activism on the topic. Whose rights are abrogated when retroactive immunity is granted? Is this a taking?

A note by Olivia Radin in the Columbia L. Rev. suggested that legal rights are a form of property. She argues that, “When a state confers retroactive immunity on a defendant, the [Supreme] Court understands that the plaintiff has suffered an injury to his existing legal rights.” Shouldn’t retroactive immunity be costlier, then? If the state entirely takes away a vested right of yours, to enrich another, why shouldn’t there be some sort of compensation? When Congress afforded retroactive to the telecoms for warrantless wiretapping, it should have at least acknowledged the cost of its actions, both to individuals and to the rule of law as a whole.  And it should have stepped in to pay the fines that it spared communications giants from suffering, directing them to future privacy enforcement efforts.

Another question is: how much worse have things gotten over the years? Bill Black has frequently noted that “In the Savings and Loan crisis, which was 1/70th the size of [the current] crisis, our agency made over 10,000 criminal referrals, and that resulted in the conviction on felony grounds of over 1000 elites in what were designated as major cases.” Why so few referrals now? Have priorities shifted so far in the direction of terrorism and homeland security that law enforcers aren’t even accepting criminal referrals? Or have staffers at financial regulatory agencies become so captured by the industry that they are terrified of alienating potential future employers, or exposing their own past deeds? What were the institutional safeguards that let people like Black do their jobs in the aftermath of the S&L crisis, and how can they be replaced? Why is the Nevada AG such an outlier in these matters?  And how have we come to the point where the yearly income of a hedge fund manager can easily be twice or three times the entire annual SEC budget?

Greenwald’s book is also a call to lawyers to “wake up” and try to do something about a legal regime whose deficiencies have been thoroughly documented and theorized. Greenwald doesn’t advance a detailed political program in the book. Rather, he mentions some suggestive historical precedents and principles. Many come from the Founding Fathers, including George Washington’s insistence that constitutional governance rests on “the denial of every preeminence.” Greenwald mentions the example of Theodore Roosevelt, recently revived in Osawatomie by President Obama.  Paine called equal application of the law “the true and only basis for representative government,” and Franklin worried about society divided between the “favored” and the “oppressed” if the rule of law were not applied fairly to all.

Paradoxes of Penality

What would Franklin, Paine, or Washington think of today’s great divide between the 1% and the 99%? Greenwald details case after case in which connected, wealthy individuals escape sanctions for transgressions costing millions or billions of dollars. But law enforcers turn from lamb to lion upon ordinary citizens.

Bernard Harcourt has both documented and theorized the “neoliberal penality” that lets Dick Fuld walk away with hundreds of millions of dollars from what was in essence a disastrous mix of gambling and misrepresentation, but unleashes new Inspectors Javert on food stamp recipients. (Or: sell a school system toxic investments, and retire rich; try to enroll your kid outside your district, and get arrested for a $15,000 theft.) Harcourt describes “two paradoxical tenets” that seem to rule contemporary politics: “government incompetence when it comes to regulating the economy and government competence when it comes to policing and punishing.”  Greenwald explores these tenets’ effects: incredible wealth for a connected “top 0.1%,” and untold misery for a bottom 1%—my conservative estimate of the number of now-jailed or stigmatized Americans who would not be in prison (or suffering from collateral consequences) if they lived in a country like Canada, which regularly gives sentences as third as long as US prison terms for the same crimes (235).

Greenwald’s chapter on “American Justice’s Second Tier” is a tour de force compilation of stories and stats: America’s spectacularly high level of incarceration, the 1 in 9 black children with a parent behind bars, the manifest failure of the War on Drugs.  These are depressingly familiar themes. However, they feel newly urgent in Greenwald’s hands.  Mass incarceration for drug possessors seems a far more disproportionate punishment when it’s contrasted with the coddling of politically connected torturers and perjurers.

Next time an apologist for the finance industry says that suits against the likes of Citi must be settled because the SEC lacks resources (after other apologists for the finance industry defunded them), we might wonder if the Florida foreclosure kangaroo courts provide a model for action:

The judges . . .  openly admit that their primary mission is not justice but speed. One Jacksonville judge . . . even told a local newspaper that his goal is to resolve 25 cases per hour. Given the way the system is rigged, that means His Honor could well be throwing one [person] on the street every 2.4 minutes.

A society which “efficiently” dispossesses homeowners cannot long stand as a democracy if it fails to apply the same standards of “swift justice” to its largest debtors. As Loic Wacquant and Mike Konczal have argued, there is something essentially feudal in this logic of “rule by men,” not law.

Does Inequality Breed Instability?

Toward the end of the book, Greenwald concludes that “In the face of … massive financial inequality, the notion of equal legal treatment for everyone has crumbled away completely” (270).  With Liberty and Justice for Some is often bleak. By the last chapter, Greenwald predicts that “ever-greater inequality will result” from America’s 2-tiered justice system, and “the inevitable discord that such inequality provokes will come to threaten the country itself” by generating social unrest. He says that this could prove the “undoing” of American elites, an analysis that Bruce Judson has developed in more detail in his book It Can Happen Here. The Occupy Wall Street movement may seem to vindicate this perspective. However, as I noted about 2 weeks before OWS started, I have my doubts.

US authorities are getting more creative in defusing protests, deploying chemical agents, smear campaigns, and increasingly militarized police forces. Technologies of surveillance have made dissent more costly. Sarah Jaffe has explained the consequences of the application of military-grade technology on the homefront:

As a burgeoning international protest movement takes shape, opposing austerity measures, decrying the wealth gap and rising inequality, and in some cases directly attacking the interests of oligarchs, we’re likely to see the surveillance state developed for tracking “terrorists” turned on citizen activists peacefully protesting the actions of their government. And as U.S. elections post-Citizens United will be more and more expensive, look for politicians of both parties to enforce these crackdowns. Despite growing anger at austerity in other countries, those policies have been embraced by both parties here in the States.

Add into the mix the growing power of entities that secretly generate reputational data about individuals, and you have a variety of “chilling effects” on political activism that challenges inequality in the US. Meanwhile, the Bush-Obama war on whistleblowers has demonstrated the dangerous consequences of trying to publicize misuses of that technology. The end result is a mass “learned helplessness,” as the very idea of collective action becomes a bitter joke to a critical mass of the populace.

Is Disclosure the Answer?

But there are at least three ways out of that “doom loop.”  First, the punitive policing of the “99%” could be redirected toward corporate wrongdoing. As Bernard Harcourt has written,

What is required is constant vigilance of all the micro and macro rules that permeate our markets, our contracts, our tax codes, our banking regulations, our property laws — in sum, all the ordinary, often mundane, but frequently invisible forms of laws and regulations that are required to organize and maintain a colossal economy in the 21st-century and that constantly distribute wealth and resources.

A lot of what I’ve written in the past few years, in fields ranging from internet governance to health law, explores when and how such strategies work.  There is some hope here: agencies ranging from the SEC to the HHS are trying to entrench “audit trails” in order to create a digital record of suspect corporate behavior.  The FTC will be auditing the privacy practices of companies like Google and Facebook. Corporate actors may engage in better behavior once they understand their misdeeds can be exposed.

But there are many pitfalls to an “audit society.” Greenwald painstakingly documents a government revolving door in the national security and finance sectors that spins so fast it’s hard to know where critical officials’ “public service” begins and their private employ begins.  Both corporate and government leaders are fighting a “war against disclosure,” trying to assure that whatever monitoring happens is too episodic, fragmentary, and amateurish to deter bad behavior.

A passion to hide potential wrongdoing provokes a second strategy: extraordinary and possibly illegal disclosures, as exemplified by Bradley Manning and Wikileaks.  I am less of an enthusiast for this strategy than Greenwald is; I’ve worried both about backlash and unintended consequences.

But perhaps most dangerous is the possibility that disclosures will have no effect at all. Alastair Roberts’s book Blacked Out is one of the best recent treatments of government secrecy. After analyzing freedom of information movements around the world, Roberts considers in his closing chapter whether they actually can do any good. For example, Mark Danner lamented a near complete lack of action against high Bush administration officials who had authorized torture even after details of their chilling program became clear.  “Wrongdoing is still exposed; we gaze at the photographs and read the documents,” Danner observed, “and there the story ends.”  Indeed, exposure may just have made the US a more torture-accepting nation, as programs like 24 lionized “whatever-it-takes” law enforcement.

Resisting Elites’ Resistance to the Rule of Law

If disclosures can’t rouse the nation’s conscience, the third option is resistance.  There is a telling contrast between the lawbreaking along the securitization chain in foreclosure fraud, and the defiance of the subsequent dispossession that leads to homelessness and community decay.  A firsthand account of OccupyLA gets to the heart of the matter:

Each seated, nonviolent protester beside me who refused to cooperate by unlinking his arms had the following done to him: an LAPD officer would forcibly extend the protestor’s legs, grab his left foot, twist it all the way around and then stomp his boot on the insole, pinning the protestor’s left foot to the pavement, twisted backwards. Then the LAPD officer would grab the protestor’s right foot and twist it all the way the other direction until the non-violent protestor, in incredible agony, would shriek in pain and unlink from his neighbor. . . . My hands were then zipcuffed very tightly behind my back, where they turned blue. I am now suffering nerve damage in my right thumb and palm. . . . I spent most of my day and night crammed into an eight-man jail cell, along with sixteen other Occupy LA protesters. My sleeping spot was on the floor next to the toilet.

So that’s what happened to the 292 women and men were arrested last Wednesday. Now let’s talk about a man who was not arrested last Wednesday. He is former Citigroup CEO Charles Prince. Under Charles Prince, Citigroup . . . . spent years intentionally buying up every bad mortgage loan it could find, creating bad securities out of those bad loans and then selling shares in those bad securities to duped investors. And then they sometimes secretly bet *against* their *own* bad securities to make even more money. For one such bad Citigroup security, Citigroup executives were internally calling it, quote, “a collection of dogshit”. To investors, however, they called it, quote, “an attractive investment rigorously selected by an independent investment adviser”.

[Prince] received fifty-three million dollars in salary and also received another ninety-four million dollars in stock holdings. What Charles Prince has *not* received is a pair of zipcuffs. The nerves in his thumb are fine. No cop has thrown Charles Prince into the pavement, face-first. Each and every peaceful, nonviolent Occupy LA protester arrested last week has has spent more time sleeping on a jail floor than every single Charles Prince on Wall Street, combined.

To date, about 5,000 people have been arrested, and many of those jailed, for protesting Wall Street firms’ destructive and often illegal acts leading to the financial crisis.  Virtually no executives in critical firms have been prosecuted.  I cannot imagine a jurisprudence which could rationalize this asymmetry. And as Greenwald continues to chronicle the disparities in our two-tiered system of justice, arrested protesters start looking more and more like Lech Walesa and Vaclav Havel than the hippies or dilettantes the media loves to portray them as.  (Lest that seem overdramatized, Janine Wedel recently directly compared “the sense of helplessness, the gut-wrenching frustration and mounting anger” she felt at Bank of America to the desperation she felt in communist Poland in the early 1980s.) The “power of the powerless” begins when they realize that the playing field truly isn’t level, that there is one set of rules for elites and another for everyone else.

Greenwald has eloquently and passionately documented the failures of American justice for years.  When future historians explore the tenor of our time, they will turn to With Liberty and Justice for Some for a powerful account of ideals betrayed, elites run amok, and the terrible human toll left in their wake. After reading Greenwald, one truly understands why Occupy Wall Street began on September 17—America’s Constitution Day.

* Many had to do with the Truth in Lending Act Amendments of 1995, which “gave retroactive immunity to creditors for certain violations”—one more bank error in their favor.

Images: 1) Picture of the copy of the book that was part of the Occupy Wall Street People’s Library.  The police trashed the library when they cleared the park in November. 2) Pepper Spray Liberty, via Michael Shaw and Bag News Notes.

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear [...]]]> Shortly after I joined the faculty at Santa Clara Law, I wandered into the area of our library dedicated to a collection of Arcana and Occult texts. (Disclaimer: This section of the library does not, in fact, exist.) My goal: to find advice for drafting my first set of law-school examinations. I was concerned about making my exams too easy, and wanted some tips on how to construct tough, but fair, tests.

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear to this day, it leapt off the shelf and sprung open in my hand.

The page that revealed itself bore the image of a man dressed in ancient professor’s garb; of what precise vintage I could not tell, and there was no caption to disclose his identity. Instead, next to the portrait on the yellowed, crumbling page lay this text, written in what I hoped beyond hope was simply reddish-brown ink: “Ye Olde Professor’s Guide to Building an Exam Curve.”

Eureka! This was precisely what I had been looking for, so I read on. I will spare the reader a full recitation of the text that followed, save to say that H.P. Lovecraft himself might have claimed its contents. To ensure that my eyes, and my eyes alone, are the only ones scarred by what these pages revealed, I will simply summarize the advice it conferred, for professors and students to do with what they will. Much of this counsel concerned the concoction of Torts examinations, but may cast its dark shadow elsewhere.

The Guide related five tips:

1. Divide and Conquer

First, the accursed manual advised me to space the facts pertinent to a given issue far apart in a fact pattern. Are you a Torts professor, testing negligence per se? If so, relate the statute or ordinance in question at the very start or very end of the fact pattern, several paragraphs away from your discussion of the conduct that might implicate the measure. Or are you a Criminal Procedure professor, testing the good-faith exception to the exclusionary rule? Reference the date of the incident―say, November 2008―in passing in your introductory sentence, along with several other foundational facts; hold back on mentioning any search of the passenger compartment of a vehicle incident to arrest until a few paragraphs later; and, a few paragraphs after that, finally mention, in as offhand a manner as possible, that the resulting case is being tried in December 2011.  Voila—only the most careful exam connoisseurs will detect that you have laced their drink with a Belton/Gant/Davis good-faith issue.

2. Overlapping Theories, and Peripheral Plaintiffs and Defendants

Here, the guide recommended that I incorporate multiple theories of liability against a potential defendant; students may lock in on only one, and neglect the others. Likewise, defendants such as retailers in a strict products liability hypothetical, employers in a respondeat superior fact pattern, and landowners when intentional tortfeasors are afoot often prove difficult for students to spot, if only because their culpability seems so much less than that of other potential parties.  In the same vein, in a passage I cannot help but quote directly (for I could not have written it myself), the Guide advised, ”You will find that passing references to husbands and wives, who might have easily-overlooked wrongful-death or consortium claims, will oil the slope of your curve with student tears.”

3. Dogs that Don’t Bark

The Guide instructed that the best issues, from the standpoint of creating a curve, are those that do not require extensive factual build-up, or peculiar words or phrases that will blow their “disguise” (cf. any reference to “dynamiting” in a Torts examination), but which have a huge impact on the correct answer nevertheless. With Criminal Procedure, standing (in a situation involving multiple defendants) is just this sort of issue; with Torts, but-for causation can have a similar effect―so long as one avoids the word “caused.”

4. Sleight of Hand

Here, the Guide told me, begin by writing your fact pattern such that a particular issue looks like a slam-dunk, with a particular party getting his or her just desserts. Have a drunk driver blow through a stop sign and mow down a nun; he’s guilty of negligence, at least, of course. Or, notwithstanding Rule Three, supra, use variants of the word “conspiracy” to describe a cabal, e.g., “A and B conspired to rob a bank”; they’re clearly guilty, right? Feel free to employ adverbs liberally toward this purpose, e.g., “C cruelly drove drunk and cruelly blew through a stop sign and cruelly mowed down a nun.”

Then, Step Two: Subtly structure the facts such that A, B, and C in fact cannot be found liable. Maybe the nun was pushed in front of the drunk driver, such that even a sober driver who obeyed all traffic laws would have struck her. You get the idea. This way, a student’s moral intuition may cause them to overlook the more subtle reason why, in fact, the defendant can’t be found liable, or successfully prosecuted for a crime.

5. The Ghost

Perhaps most diabolically, the Guide advised me that the best cause of action is sometimes no cause of action at all. Students, it instructed, want to find causes of action, crimes, or other violations of the law within an issue-spotter; an exam that implicates innumerable theories, all of which fail for some reason or another, will prove especially vexing to all but the most confident students.

***

The reader will have to accept my account of this text’s existence, for as soon as I read the last words above the book shuddered and shook in my hands, then crumbled into dust.  Whether the text yielded wisdom, or only heartbreak, I cannot say; I recount this story solely for posterity, and desire not to be seen as an advocate of its mayhap baleful words.

I don’t have data on the number of prosecutions under existing mandatory-reporting laws, but others have written that these cases are relatively rare.   (And, if anything, toughening the laws by converting what are now misdemeanors into felonies will make prosecutions even less common.)  I’ve discussed elsewhere why prosecutors are often apathetic about new crimes. Here, I’ll simply point out that crimes like the mandatory-reporting offenses are quite peripheral to the everyday work of the criminal justice system.

Indeed, you might be [...]]]> In the wake of the Penn State child-abuse scandal, authorities in several states have considered toughened and broader mandatory-reporting laws. These laws impose criminal penalties on certain adults, such as teachers and social workers, who fail to report known or suspected child abuse to the police.

I don’t have data on the number of prosecutions under existing mandatory-reporting laws, but others have written that these cases are relatively rare.   (And, if anything, toughening the laws by converting what are now misdemeanors into felonies will make prosecutions even less common.)  I’ve discussed elsewhere why prosecutors are often apathetic about new crimes. Here, I’ll simply point out that crimes like the mandatory-reporting offenses are quite peripheral to the everyday work of the criminal justice system.

Indeed, you might be surprised by how small a portion of any criminal code drives a very large percentage of the overall criminal docket.  To illustrate this point, a while back, in connection with some other research I am pursuing, I performed a back-of-the-envelope exercise using charging data collected from the Executive Office for United States Attorneys (EOUSA) Central Charge file for federal criminal cases that terminated in Fiscal Year 2009 (October 1, 2008 to September 30, 2009). I wanted to see (1) how many different crimes were encompassed within this dataset and (2) the number of crimes that accounted for 50,75, 90, 95 and 99 percent of these charges. (Here, keep in mind that, at least according to one source, as of 2008 there were an estimated 4,450 crimes across the federal criminal “code.” Though, in truth, no one really knows for sure, and much depends on how you go about identifying distinct “crimes.”)

Overall, the EOUSA data for federal criminal cases terminating in FY 2009 identify 1,547 distinct crimes as having been alleged in these cases.  This sounds like a lot, but keep in mind the 4,450-crime figure cited earlier; even acknowledging the apples-to-oranges comparison issue, it’s obvious that many—almost certainly most—federal crimes were not alleged in even a single one of these cases.

Of the crimes that were charged, just 14 accounted for 50.6 percent of the 191,884 counts in the FY 2009 dataset. They are, in descending order of frequency, 21 U.S.C. § 841(a)(1); 21 U.S.C. § 846; 8 U.S.C. § 1326; 18 U.S.C. § 922(g)(1); 8 U.S.C. § 1326(a); 18 U.S.C. § 1343; 18 U.S.C. § 1341; 21 U.S.C. § 841; 18 U.S.C. § 1344; 18 U.S.C. § 371; 8 U.S.C. § 1324(a)(1)(A)(ii); 18 U.S.C. § 924(c); 8 U.S.C. § 1324(a)(1)(A)(iv); and 18 U.S.C. § 1347. Few surprises here; drug crimes, felony re-entry, gun crimes, and fraud offenses represent federal prosecutors’ bread and butter.  (The fraud crimes are over-represented in this dataset relative to the number of defendants charged with these offenses, since a given case many involve dozens of fraud counts.) Meanwhile, just 61 crimes accounted for 75 percent of all counts; 164 crimes, 90 percent of all counts; 291 crimes, 95 percent of all counts, and 699 crimes, 99 percent of all counts.

I appreciate that this is a very rough exercise, to be viewed with a hefty pinch of salt.  To repeat, what may represent a single crime to one observer may constitute multiple offenses to another, and I did not review the dataset carefully to grasp the logic behind its crime-coding system (thus, for example, I don’t know why the EOUSA database distinguishes between 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841), or the accuracy of the data presented.

Nevertheless, even this simplistic inquiry underscores an important, and I believe incontestable, point: Vast portions of any criminal code are effectively inert.  My guess is that any new Sandusky’s Laws will join this moribund lot.

(This exercise used the following dataset: United States Department of Justice, Office of Justice Statistics, Bureau of Justice Statistics, Federal Justice Statistics Program: Charges Filed Against Defendants in Criminal Cases in District Court – 2009 (Study 30789).)

Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:

Economics is not a technique in search of problems but a set of problems in need of solution. Such problems are varied and the solutions will inevitably be eclectic. Such pragmatic thinking requires not just deductive logic but an understanding of the processes of belief formation, of anthropology, psychology and organisational behaviour, and meticulous observation of what people, businesses and governments do.

In this post, [...]]]> It’s becoming clearer that classic Keynesian stimulus—ranging from Obama’s minimalist jobs program to the robust visions of a Krugman or Delong—won’t be enough to get us out of the Great Recession/Lesser Depression. The exhaustion of conventional macroeconomic thought (chronicled in outlets like the Real World Economics Review) has cleared some space for more imaginative thinkers. As John Kay observes:

Economics is not a technique in search of problems but a set of problems in need of solution. Such problems are varied and the solutions will inevitably be eclectic. Such pragmatic thinking requires not just deductive logic but an understanding of the processes of belief formation, of anthropology, psychology and organisational behaviour, and meticulous observation of what people, businesses and governments do.

In this post, I want to briefly highlight Bernard Harcourt’s work in crossing disciplinary boundaries to engage in the synthesis necessary to truly understand our plight.

Consider the following paradoxes or contradictions, which will also be highlighted at a conference that Harcourt is keynoting:

1) Dahlia Lithwick argues that GOP frontrunner Rick Perry “is skeptical of everything the government does—except when it executes people.” (And that privacy is on the rise for companies, but not for individuals.)

2) There is political passion for slashing government, except in criminal and military functions where its effectiveness is highly doubted.

3) Dana Priest and Bill Arkin have uncovered evidence that domestic intelligence agents are closely monitoring Tea Party groups. But the monitoring has stirred very little protest among such groups.

4) Banking law experts tell us that the Volcker Rule is trivial and counterproductive, because it would not have stopped the last crisis. They also tell us that rules that would have stopped the last crisis are trivial and counterproductive, because genius financiers have already cooked up new methods that can’t be touched by those “fighting the last war.”

Harcourt’s work puts all these positions in a larger intellectual perspective, helping us explain (if not forgive) them.

I highlighted Harcourt’s Illusion of Free Markets last year, and I’m pleased to see it reviewed on the History News Network. The reviewer, Eric Laursen, connects Harcourt’s work to current controversies over banking regulation:

Last December, Wall Street’s leading banks were fighting tooth-and-nail to keep federal regulators from setting rules governing the vast market in financial derivatives contracts – the market that helped turn the 2008 mortgage-backed securities meltdown into a global catastrophe. . . . Then an article appeared in the New York Times that seemed to blur the outline of this reform scenario. Titled “A Secretive Banking Elite Rules Derivatives Trading,” the article, by Louise Story, detailed how nine big banks had virtually captured the new regulatory regime before it even got started. One of Dodd-Frank’s provisions called for most derivatives to be traded via clearinghouses, putting buyers and sellers in closer touch with each other and cutting out middlemen.

According to Story, nine big banks, including such familiar names as JP Morgan Chase, Morgan Stanley, Goldman Sachs, and Citigroup, had already checkmated this plan by setting up their own, secretive clearinghouse to trade credit default swaps, and cut a deal with the Chicago Mercantile Exchange that gave them effective control of another new clearinghouse. Result: nine elite banks, operating out of public view, have cemented even tighter control of the derivatives market than they had before. If anything, Dodd-Frank has helped them to do it.

Now comes The Illusion of Free Markets, a dense, groundbreaking book that explains why such things happen: why the supposedly freewheeling capitalists of the post-New Deal decades can get away with operating a tightly controlled system geared primarily to generate profits for a small group of big players. “At the end of the day, the notion of a ‘free market’ is a fiction. There is simply no such thing as an unregulated market.” . . .

Harcourt calls The Illusion of Free Markets a “prolegomenon” – a first step in creating a new analysis that asks who benefits from the supposedly “free” economic system that’s been built to regulate us. The next step, of course, is to figure out what we want instead. By exposing the flawed ideological roots of what’s taken for “expert” social and economic thinking today, Harcourt’s book may help us avoid the pitfalls in getting there.

Harcourt’s work is a sustained reflection on the “two paradoxical tenets” that seem to rule contemporary politics: “of government incompetence when it comes to regulating the economy and government competence when it comes to policing and punishing.” He doesn’t try to separate out either trend as a dependent or independent variable, eschewing the trend toward “clean identification” in social science explanation. Rather, he adopts a more hermeneutical approach, examining how “neoliberal ideas were born — and remain today — joined at the hip with the Big Brother state.”

His recent interview with Scott Horton reveals some of the problems arising out of the elective affinities between neoliberal economics and an increasingly harsh policing regime. President Reagan “tripled the debt, increasing it by $1.9 trillion, and . . . oversaw the prison buildup and the war on drugs.” Bush fils further ballooned the debt, in even more costly foreign wars. Blocking tax increases on the wealthy to pay for these initiatives, they have left middle and lower class citizens more desperate and bereft of services.

That leaves a workforce willing to take any job to stay afloat. And when some scrambling workers use drugs like meth to keep themselves going, that just creates more work for the police apparatus. Can Hungarian-style labor camps for the unemployed be far behind? Forced evictions are also a tool of some multinational corporations, and are objectionable whether accomplished by paid mercenaries or bribed government officials. These trends reveal the invisible hand to be more than a little “iron fist,” even when covered in velvet glove rhetoric of freedom and contract.

Harcourt’s work also connects nicely with James Boyle’s critical work on the rise of intellectual property and the shriveling of antitrust law:

We appear to have a kind of bipolar disorder in our view of the state. When it comes to breaking up high tech monopolies through antitrust, we are deep sceptics. We point out the unanticipated consequences and deadweight losses to state intervention. We say the state is a blundering second or third best to the genius of the market, its efforts to establish limits and quotas will create a mess that even the Invisible Hand cannot sweep clean.

But when it comes to setting up some of those same quotas, limits and monopolies in the first place – in this case, by overly broad intellectual property rights that clog the channels of competition and allow companies to leverage their existing property into a control over tied services – we are much more sanguine. This, after all, is property, not regulation. Here there seems to be an optimism about unintended consequences, a willingness to believe that vague state regulatory schemes have got it right – even when existing market leaders can twist them to prevent challenges to their position.

In one view, the state is a bumbling idiot, in the other a scalpel-wielding genius, carving just the right pound of flesh to satisfy our debts to creators without shedding a drop of the blood of competitors and future innovators. Can this be the same state we are talking about?

Given Harcourt’s work, we should expect trends toward criminal enforcement of IP law to displace government sponsored efforts to subsidize (or compulsorily license) IP. DC elites roll their eyes at the idea of a government using its bargaining power to get a fairer deal for all here, but jump at the chance to police piracy.

Finally, I’m glad to see that Harcourt’s next book may focus on national security. These words from James Madison remind me of Washington’s and Eisenhower’s Farewell Addresses. Even the founding fathers anticipated that a garrison state could become a banana republic:

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare. (“Political Observations” (1795))

And yet “continuous warfare” seems to be the foreign policy consensus. There are ways to channel that martial energy toward better purposes, ranging from William James’s “Moral Equivalent of War” to “Mr. Y’s” ideas about redirecting military expenditures toward projects that truly enhance national security. But, as Harcourt argues, there are also many connections between the growth of DOD and DHS and the cruel, cronified capitalism of leading firm/government combines.

[O]n this flight she was sitting by chance in a row with two Indian-looking passengers, neither of whom knew the other or knew her. But collectively they aroused the suspicion of other passengers or crew, and when the plane landed, heavily armed troops stormed aboard, handcuffed the three of them, and took them off for extensive questioning. After which they were eventually released with “no charges filed.” Which is fair enough, considering that [...]]]> You may have heard about “multiple passengers holed up in the bathroom” of a plane flying on Sunday, which “led to F-16s shadowing . . . it [as it] neared Detroit.” Turns out that the false alarm was sparked by a “half-Arab and half-Jewish” woman who sat between two South Asian passengers:

[O]n this flight she was sitting by chance in a row with two Indian-looking passengers, neither of whom knew the other or knew her. But collectively they aroused the suspicion of other passengers or crew, and when the plane landed, heavily armed troops stormed aboard, handcuffed the three of them, and took them off for extensive questioning. After which they were eventually released with “no charges filed.” Which is fair enough, considering that like everyone else on the plane they were simply trying to travel from Denver to Detroit and had done absolutely nothing wrong except to have “suspicious” looks.

Here is her first-hand account:

Someone shouted for us to place our hands on the seats in front of us, heads down. The cops ran down the aisle, stopped at my row and yelled at the three of us to get up. “Can I bring my phone?” I asked, of course. What a cliffhanger for my Twitter followers! No, one of the cops said, grabbing my arm a little harder than I would have liked. He slapped metal cuffs on my wrists and pushed me off the plane. The three of us, two Indian men living in the Detroit metro area, and me, a half-Arab, half-Jewish housewife living in suburban Ohio, were being detained.

The cops brought us to a parked squad car next to the plane, had us spread our legs and arms. Mine asked me if I was wearing any explosives. “No,” I said, holding my tongue to not let out a snarky response. I wasn’t sure what I could and could not say, and all that came out was “What’s going on?”. . . .

What is the likelihood that two Indian men who didn’t know each other and a dark-skinned woman of Arab/Jewish heritage would be on the same flight from Denver to Detroit? Was that suspicion enough? Even considering that we didn’t say a word to each other until it became clear there were cops following our plane? Perhaps it was two Indian man going to the bathroom in succession?

Combine this with Vance Gilbert’s “flying while black” story, and any number of others, and you do have to wonder about how easily the racialized paranoia of a few can be given the full backing of the government (if only for a few hours of fright for the victim while he or she is cleared). Having recently looked into some aspects of the surveillance state, I have to wonder: do these incidents generate secret “Suspcious Activity Reports” for the publicly vindicated victims? Are they a mark against them in some undisclosed TSA or fusion center databases? The FBI justified its Detroit action by stating “The public would rather us err on the side of caution than not.” Is there any way for targeted minorities to assure that the public’s irrational discrimination is not empowered and advanced by law enforcers who are willing to “see something” when anyone “says something?”

It’s difficult to see how the group and its various permutations warrant the breathless admiration of journalists who dub them “hacktivists.”  A little step back to the [...]]]> I’d like to pick up on Olivier Sylvain’s post on the cyber mob Anonymous and take it in a slightly different direction.  Let’s step back to get a sense of the group dubbed Anonymous. The group originated on 4Chan’s /b/ forums and now has a serious presence on the wiki Encyclopedia Dramatica, YouTube, and Internet Relay Chat forums.  The group may now compromise several groups with different aims (see here for a discussion of splinter group more interested in so-called “pranks”, or in my view bigoted attacks, than strident “political activism” like DDos on PayPal, Visa, and the like).

It’s difficult to see how the group and its various permutations warrant the breathless admiration of journalists who dub them “hacktivists.”  A little step back to the original hackers of the early 1960s.  As Howard Rheingold explains (and Patricia Wallace concurs in her work), the term was coined to describe people who “create computer systems.”  The first people to call themselves hackers ascribed to an informal social contract called the “hacker ethic.”  This ethic included these principles:

“Access to computers should be unlimited and total.  Always yield to the Hands-On Imperative.  All information should be free.  Mistrust authority–promote decentralization.”

The original hackers were motivated by altruistic concerns.  Indeed, we owe a debt of gratitude to their broader community for helping design the Internet.  Our guest blogger and celebrity computer scientist Steve Bellovin was a key player in that community: in 1979, Bellovin, then at UNC for graduate school, and Jim Ellis and Tom Truscott, Duke grad students, created the first link between Duke and UNC, which later became Usenet, the oldest global virtual community.

Let’s compare the original hackers to the group(s) Anonymous, which exemplifies the destructive side of cyber anonymity.  From its beginnings, the group took its name because it believes its collective identity serves as a mask, letting them do and say things that would otherwise be out of bounds.  According to a YouTube posting from a group member, “We are Anonymous, a “people devoid of any type of soul or conscience” who form “a nameless, faceless, unforgiving mafia”—“we ruin the lives of other people simply because we can.”  Anonymous members describe themselves as “unencumbered by pointless ethics, foolish moralities, or arbitrary laws or restrictions.”  When Anonymous members engage in offline “raids,” they hide behind the Guy Fawkes mask design made famous by the film of Alan Moore’s graphic novel V for Vendetta.

The group (or part of it) has been rightly called an “Internet Hate Machine.”  Much of what it does is for the “lulz.”  It has attacked African Americans, women, LGBT individuals, Jews, and Muslims.  It urged members to “search and destroy” a popular female video blogger’s online identity.  The group hacked into her online accounts, posted doctored photographs of her being raped, and took down her videos.  On Encyclopedia Dramatica, group members listed feminist websites that should be shut down with distributed denial-of-service attacks and “image reaping”—flooding sites with traffic to use up their allocated bandwidth.  Members updated the wiki as they accomplished their goal.  Disabled sites appeared with black lines through them next to the phrase: “Down due to excessive bandwidth.  Great success!”  As sites reappeared, group members updated the wiki entry with the phrase “back from the dead” and called for others to “search and destroy” them.  When Cheryl Lindsey Seelhoff’s blog reappeared after successful image reaping campaign, group members were notified: “FUCK!  Pulled a Lazarus. Get in there.”  The group has closed over 100 feminist sites and blogs.  It attacked two popular hip-hop sites, defacing them with swastikas and racial slurs and hacking into its employees’ computers.  The disabled were targeted as well: group members posted JavaScript code and flashing computer animation to trigger heaches and seizures in epileptics.  Benjamin Mako Hill, a student at MIT’s media lab specializing in sociology and online communities, describes Anonymous as likely just “a lot” of “selfish teenage assholes.”

The attacks allegedly devoted to political activism — such as the DDos attacks on PayPal, Visa, and Mastercard — seems like just more lulz activities.  Consider its recent “cyber protest” after the BART shut down cell service to ward off protesters from gathering in response to a police shooting.  The group released personal information from BART customers:

Thus below we are releasing the User Info Database of MyBart.gov, to show that BART doesn’t give a shit about it’s customers and riders and to show that the people will not allow you to kill us and censor us. This is but the one of many actions to come. We apologize to any citizen that has his information published, but you should go to BART and ask them why your information wasn’t secure with them. Also do not worry, probably the only information that will be abused from this database is that of BART employees.

Let me get this straight: releasing the sensitive personal information of BART customers to punish BART?  That sounds like a privacy-invasive joy ride by a bunch of trolls.  Hacktivists?  I think not.

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming [...]]]> The fourth Class Crits conference will be held in DC in about a month. Titled “Criminalizing Economic Inequality,” it focuses on the US’s “increasing reliance on the criminal justice system to make and enforce economic policy.” A few recent items highlight the conference’s timeliness:

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming out of their own paychecks.”

Nationally, according to Kaaryn Gustafson of the University of Connecticut Law School, “applying for welfare is a lot like being booked by the police.” There may be a mug shot, fingerprinting, and lengthy interrogations as to one’s children’s true paternity. The ostensible goal is to prevent welfare fraud, but the psychological impact is to turn poverty itself into a kind of crime.

Another impact is to permanently estrange many of the temporarily needy from government. In Griftopia, Matt Taibbi interviews members of the US Tea Party. He reports that their views of government arise out of their interactions with officials at the IRS, DMV, TSA, zoning boards, or similar agencies: stressful, one-shot interactions with bored, inattentive, hostile, and/or underpaid bureaucrats. Is it any wonder why many so many of those in economic distress may want to turn their back on government altogether?

Dismissive attitudes from frontline bureaucrats end up corroding state action generally.  The worse they do, the less voters want to fund their agencies; and the more strapped agencies are, the less likely they are to retain qualified and motivated workers.  Corey Robin puts it well as he assesses the immense popularity of anti-tax movements:

Liberals often have a difficult time making sense of these movements – don’t taxes support good things? – because they don’t see how little the American state directly provides to its citizens, relative to their economic circumstances. Since the early 1970s, with a few brief exceptions, workers’ wages have stagnated. What has the state offered in response? Public transport is virtually non-existent. Even with Obama’s reforms, the state does not provide healthcare or insurance to most people. Outside wealthy communities, state schools often fail to deliver a real education. In such circumstances, is it any wonder ordinary citizens want their taxes cut? That at least is change they can believe in.

Matthew Yglesias questions whether there is still much anti-tax fervor left.  But whatever the current polling numbers are, both Ehrenreich and Robin show how the weakness of our social welfare state is self-reinforcing.  Ehrenreich also shows how social silences about poverty are imposed, down the very youngest children:

At school, [Kristen's] seven-year-old’s class was asked to write out what wish they would present to a genie, should a genie appear. Brianna’s wish was for her mother to find a job because there was nothing to eat in the house, an aspiration that her teacher deemed too disturbing to be posted on the wall with the other children’s requests.

That teacher’s reticence is re-enacted daily on a happy talk MSM that leaves it to the World Socialist Web Site to report on the US’s soaring child poverty rate. If the middle class is invisible to them, how can they glimpse those barely keeping their heads above water?

2) Martha McCluskey, From the Welfare State to the Militarized Market: Losing Choices, Controlling Losers: McCluskey is one of the ClassCrits organizers, and her book chapter puts Ehrenreich’s observations in a broader historical perspective:

The triumph of market freedom has been accompanied by increasing authoritarian government control in many spheres. . . . [For example, in the] welfare reform policies of the 1990s . . . restrictions on poor mothers were rationalized as expanding their “freedom of choice” by making their power to bargain for better choices appear pathological. . . . [F]ree market rhetoric identifies welfare state protections with market losers who threaten others gains, so that security seems to come from controlling rather than supporting those who are most insecure.

As with the market fundamentalism in Lochner v. New York, constrained choices can be reconstructed as free choices by masking the role of law in coercing and penalizing many peoples’ choices in the interests of privileging some interests. The ideology of market freedom contains a contradiction: if freedom comes from maximizing unconstrained self-interested gain in a harsh world of zero-sum competition, then maximizing one’s freedom can mean imposing the most constraint on others. Market winners will not be those who best make the tough choices necessary to maximize resources within given constraints, but those who create better choices for themselves by mobilizing government power to constrain others. This strategy permeates foreign policy that links military and corporate power to control global competition, and it shapes domestic policies controlling struggling workers and racialized groups through mass incarceration and the criminalization of immigration.

McCluskey’s deconstruction of free market rhetoric reminded me of the paradoxes explored in a recent article titled Monopoly and Competition in 21st Century Capitalism.   The authors note that, today, “most of the examples of competition and competitive strategy that dominate economic news are in fact rivalrous struggles between quasi-monopolies (or oligopolies) for greater monopoly power.”  The authors back their ideas with empirical data about the degree of concentration in many US industries.  More importantly (given the endless contestability of such data), they give a fascinating account of competition as an essentially contested concept in the history of political economy.

3) Glenn Greenwald on the surveillance state: Greenwald believes that a sprawling surveillance apparatus is becoming increasingly focused on political “radicalism,” rather than the terror threats that were its founding rationale.  This is a real problem, made all the more menacing by economic instability.  The state could address it by embracing the bold experimentalism of the New Deal. That nurturing and supportive role is being increasingly eclipsed by a domestic state remade in the image of its foreign roles.  Alfred W. McCoy has argued that “the crusade for democracy abroad . . . has proven remarkably effective in building a technological template that could be just a few tweaks away from creating a domestic surveillance state—-with omnipresent cameras, deep data-mining . . . biometric identification, and drone aircraft patrolling ‘the homeland.”  The “Secure Communities” program may be validating McCoy’s (and Greenwald’s) fears.

I think all of this work is an important “reality check” as we consider the patterns of privilege and burden created by the modern economy.  Don Peck recently observed the self-serving two-step that many at the top have used to justify their accelerating affluence:

As America’s winners have been separated more starkly from its losers, the idea of compensating the latter out of the pockets of the former has met stiff resistance: that would run afoul of another economic theory, dulling the winners’ incentives and squashing their entrepreneurial spirit; some, we are reminded, might even leave the country. And so, in a neat and perhaps unconscious two-step, many elites have pushed policies that benefit them, by touting theoretical gains to society—then ruled out measures that would distribute those gains widely.

Peck is mostly comfortable with the idea that those at the top are a legitimate meritocracy, though he does note that “some of the policies that have most benefited the rich have little to do with greater competition or economic efficiency.”  John Kay of the Financial Times ups the ante, suggesting that we must always be careful to assess whether fortunes spring from productivity (a sign of a well-ordered society) or brute power (an indicator of injustice):

Two broad economic theories describe the allocation of income and wealth. The power theory states, broadly, that people get what they grab: from the forest, the markets, or the shop window. The distribution of income reflects the distribution of power. . . .The alternative theory is that what people earn reflects their marginal productivity – how much they personally add to the value of goods and services. The marginal productivity theory has many attractions, especially to those who are well paid: if what they receive is a product of their own efforts, their rewards are surely well deserved.

Kay worries that, among elites, the “ethic of just reward through effort gave way to the culture of present entitlement from possession.”  If, as McCluskey, Ehrenreich, and Greenwald all suggest, today’s low wage labor force is being pressed toward privation by the state’s “guard labor,” then the edifice of industry built on a cheap workforce owes as much to state discipline as it does to managerial genius.

When the dragnet replaces the safety net, workers have fewer options and are more desperate for any position they can get.  Instead of developing better technology, methods, and innovations, business leaders can count on profits from squeezing workers.  Prosperity based on that kind of sweating can’t last forever, as dollar stores are now learning.  But when CEOs’ average pay is $9.8 million per year, they need only keep the game going a few years to earn the fortune of a lifetime.

Image Credit: Flawka.