Shooting the Messenger

June 11, 2013, 11:30 a.m.

See also the related, "Law's Losing Race With Technology; Redefining 'Privacy,'" June 7, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013.

Should Government Be Able To Keep Its Abuses Secret?

I'd call the cops, but they're already here.
-- Mason Williams

Everybody knows that the dice are loaded . . .
Everybody knows the fight was fixed . . .
Everybody knows that the boat is leaking
Everybody knows that the captain lied . . .
And everybody knows that the Plague is coming
Everybody knows that it's moving fast . . .
Everybody knows the scene is dead
But there's gonna be a meter on your bed
That will disclose
What everybody knows
That's how it goes
Everybody knows
-- Leonard Cohen, "Everybody Knows"

It’s very, very difficult, I think, to have a transparent debate about secret programs approved by a secret court, issuing secret court orders, based on secret interpretations of the law.
-- Senator Tom Udall (D-N.M.) Chris Strohm and Gopal Ratnam, "NSA Leader Seeks Openness on Secret Surveillance Orders," Bloomberg News, June 12, 2013

And what's the response when the cover of secrecy is breached? They lie:

Senator Ron Wyden (D-Ore.): Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Director of National Intelligence James Clapper: No, sir.
-- Connie Cass, "Mangled facts, secrecy, confusion leave Americans unsure what to believe about NSA programs," AP/Washington Post, June 13, 2013

[H]e [Edward Snowden] appears to be a product of . . . the apparently growing share of young men in their 20s who are living technological existences in the fuzzy land between their childhood institutions and adult family commitments. . . . [Their] life is not embedded in a series of gently gradated authoritative structures: family, neighborhood, religious group, state, nation and world. Instead, it’s just the solitary naked individual and the gigantic and menacing state. . . . For society to function well, there have to be basic levels of trust and cooperation, a respect for institutions . . ..
-- David Brooks, "The Solitary Leaker," New York Times, June 11, 2013, p. A23; To which an unidentified Times reader responds with the online comment:

I find it somewhat disingenuous to criticize the younger generation for cynicism and mistrust without acknowledging the wider atmosphere that's responsible for creating such attitudes in the first place. . . . [A]uthorities and institutions have betrayed us at every turn. We have witnessed our political system become hobbled by polarization and corruption, our economy crippled by financial elites, our media devolve into petty bickering and mindless infotainment, our liberties eroded by the unending War on Terror and War on Drugs, our social safety net cut to shreds, our incomes stagnate while the wealthy hoard, our jobs disappear while the stock market soars, our natural environment raped in the name of profits and convenience, our friends and relatives sent off to wars built on lies, and our privacy systematically invaded by corporations and the government. And you ask . . . why we have lost our respect for authority and trust in institutions?

First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the socialists,
and I didn't speak out because I wasn't a socialist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.

Then they came for the Catholics,
and I didn't speak out because I wasn't a Catholic.

Then they came for me,
and there was no one left to speak for me.
-- Martin Niemöller

We should never forget that everything Adolf Hitler did in Germany was "legal" . . .. It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers.
-- Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963

_______________
Whom do you call when the cops are the criminals? Where can a military woman find justice when she is raped by her superior, and even if he is found guilty his superior can overturn the conviction?

And, more to the point today, what is the most appropriate response of a democratic society to its whistle-blowers when what they believe they need to reveal regarding a governmental abuse has been classified "secret"? [Photo credit: multiple sources.]

As Senator Udall has reminded us (quoted above), "It’s very, very difficult, I think, to have a transparent debate about secret programs approved by a secret court, issuing secret court orders, based on secret interpretations of the law." Does that make the case for whistle-blowing about secret, questionable programs stronger or weaker? With all that has been, and will be, written about Edward Snowden's revelations, this is an issue that requires much more discussion among Americans and their elected officials. This blog essay is intended as a stimulus to a beginning of that discussion.

Senator Ted Kennedy said of his brother, at Robert Kennedy's memorial service, "My brother need not be idealized, or enlarged in death beyond what he was in life; to be remembered simply as a good and decent man, who saw wrong and tried to right it . . .."

In a world governed by former Speaker of the House Sam Rayburn's advice to new House members, "If you want to get along, go along," a whistle-blower who "sees wrong and tries to right it" -- as an employee of a hospital, corporation, university, or military unit -- knows there will be a price to be paid: at a minimum, things will no longer be the same with their employer and colleagues. They may be fired. They may find it impossible to find work anywhere within their former industry. As an FCC commissioner challenging some of America's most powerful corporations with revelations about their practices, I knew that I would probably never again be either reappointed to the Commission or employed by law firms in Washington.

Most of us, faced with the choice between what we believe is our moral obligation to at least reveal, if not stop, things we believe to be illegal or otherwise wrong, on the one hand, and on the other hand, to remain silent and continue to be paid, will not casually choose the former over the latter. We have an endless list of our rationalizations for averting our eyes from what, as Leonard Cohen reminds us, "everybody knows."

But the question confronting America today is much more serious than the matter of how we treat everyday, conventional whistle-blowers. All they usually risk is unemployment and ostracism. Few, if any, must consider the possibility that their conscientious act will result in their death, with or without a trial, or life in prison.

That was the potential price that Edward Snowden knew he might pay. As he told The Guardian's Glenn Greenwald:

Yeah, I could be, you know, rendered by the CIA. . . . And that’s a fear I’ll live under for the rest of my life, however long that happens to be. You can’t come forward against the world’s most powerful intelligence agencies and be completely free from risk, because they’re such powerful adversaries that no one can meaningfully oppose them. If they want to get you, they’ll get you, in time. . . .

If I had just wanted to harm the U.S., . . . you could shut down the surveillance system in an afternoon. But that’s not my intention. And I think, for anyone making that argument, they need to think, if they were in my position, and, you know, you live a privileged life -- you’re living in Hawaii, in Paradise, and making a ton of money -- what would it take to make you leave everything behind?

"You're Being Watched": Edward Snowden Emerges as Source Behind Explosive Revelations of NSA Spying," Democracy Now, June 10, 2013 -- along with a transcript.

I'm not suggesting that those who make classified information public should be awarded the Congressional Medal of Honor. But neither do I think they should all be knee-jerk labeled "traitors" guilty of "treason" and "espionage" and thrown into the trash pile along with terrorists and felons. ("U.S. Sen. Dianne Feinstein Monday called self-professed National Security Agency surveillance plans leaker Edward Snowden a traitor. . . . 'I don't look at this as being a whistle-blower. I think it's an act of treason,' said Feinstein, chairwoman of the Senate Intelligence Committee." UPI, June 10, 2013.)

But what are we to make of our Director of National Intelligence, James Clapper, who flat-footed lied to the Senate regarding the existence of the NSA program that collects the metadata from millions' of Americans' phone records, quoted above? (Senator Ron Wyden (D-Ore.): "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" To which Director Clapper unambiguously responded, "No, sir.") Which is the greater treason? Who is the biggest traitor? Clapper, who lied? Or Snowden, who told the truth?

Note how our First Amendment protections work. Little to no actual harm came from Edward Snowden's conversations with, and gift of documents to, The Guardian's Glenn Greenwald. As a result of Snowden's actions only one additional person knew "the secrets."

The harm charged by our government, if any there be in fact, only came later. It came when Greenwald, his editor, and publisher, decided to tell all their subscribers -- knowing that other papers would pick up and run with the story, thereby ultimately spreading the secrets to millions. And yet no U.S. official, so far as I know, has argued that The Guardian, The New York Times, The Washington Post, or other papers telling the story of the government's secret spying programs should be prosecuted for treason. As the Pentagon Papers case [New York Times Co. v. United States, 403 U.S. 713 (1971)] demonstrated, once the media is given information, however much the government would like to restrain its publication, the courts believe the First Amendment forbids them to permit the government to do so. The media may exercise self-restraint, including in response to government appeals that publication would threaten national security, but the media cannot be restrained against its will from publishing by government or the courts. The newspaper owner is not prosecuted, nor the editor who approved the story, nor the journalist who got the information from the source, conducted the interviews, and did the research.

One can at least ask, if the values of the First Amendment are so overpowering as to trump the government's judgment that the publication of secrets should be restrained, why are those First Amendment values not equally applicable to the source of that information, so valuable to a democracy -- namely, the whistle-blower?

We also, as a civilized society, recognize acts of conscience -- including with laws providing at least some protection for whistle-blowers. (The Whistleblower Protection Act of 1989 forbids retaliation against government employees who report misconduct.)

In Dr. King's "Letter," quoted and linked above, he says of civil disobedience, "One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."

One of the most serious tests of respect for conscience occurs in wartime, when our government has recognized the right of "conscientious objectors" to decline to be drafted into front line killing of other humans -- substituting community service of some kind as an alternative.

The "Right to Life" folks believe that doctors, pharmacists and others who consider all abortions to be "murder" should be free to act on that belief.

So when Edward Snowden trades in a $200,000-a-year job in Hawaii for the possibility of death and the probability of prison time, I think we have to recognize that as an act of conscience.

I'm with Dr. King. I don't think one should be able to do anything, claim it was compelled by conscience, and thereby escape any recrimination.

However, the issue in Edward Snowden's case is one of the government's own making.

It is saying to potential whistle-blowers, in effect, "You are free to report our run-of-the-mill misconduct; but if you believe our misconduct to be sufficiently serious to constitute a constitutional violation, we can declare our activities to be secret and classified, and thereby reserve the right to prosecute you for treason or espionage if you reveal what we are doing."

Checks and balances? The whole point of whistle-blowing, as with reports of rape in the military, is that the system and requirements of "going through channels" and "following procedure" and "oversight" and "Inspectors General" often fail. Even if the Congress and courts were doing their job of protecting us from the NSA, everything the overseers are doing is also treated as so highly classified as state secrets that they can't tell us enough to reassure us. And, open or closed, there are at least allegations that the NSA sometimes refuses to provide the Intelligence Committees with requested information, and that the Committees have performed more as lapdogs than watchdogs. The FISA "court," some report, has been almost exclusively a rubber stamp for whatever the NSA wants to do. And the executive branch (regardless of who's sleeping in the White House) seems to have been more interested in expanding than restraining its powers.

And with the controversial, litigated, and revised Patriot Act Section 505 gag orders accompanying "National Security Letters" (searches without warrants), American citizens (and their legislative representatives) have even been forbidden to hear from those being searched. The only analogy to that procedure that comes immediately to mind is the pedophile who threatens his victim with severe punishment should he or she ever reveal to anyone how they have been abused.

I'm more interested at this point in stimulating a national debate about revelations of "secrets" than in particular solutions. But here are some of the questions, or standards, I think we might want to consider.

1. Intent. Intent is an element of most crimes; it's one of the differences between "manslaughter" and "murder" -- even though both bring about the death of one person as a result of the actions of another, the defendant. We need to distinguish between revealing state secrets to foreign spies with an intent to aid an enemy, in time of war, and revealing them to a journalist, with an honest intent to prevent government wrongdoing to American citizens.

2. Restraint. In free speech cases we speak of the "least restrictive alternative" standard in evaluating governmental action that impacts speech. In revelations of state secrets we might ask, did the whistle-blower use the most restrictive alternative. That is, did he or she release only enough information to make their point? Did they make an effort to minimize possible harm to the government, or specific individuals? Did they hold back and not disclose some documents, or redact names and portions of others. Or, worst case, did they deliberately try to maximize that harm? Did they personally publicize raw data and documents, or did they filter what was released, both personally and by knowing it would be processed through a responsible media organization, its journalists, editors, and owners?

Snowden told Greenwald, "[A]nybody in the positions of access with the technical capabilities that I had could, you know, suck out secrets, pass them on the open market to Russia. You know, they always have an open door, as we do. I had access to, you know, the full rosters of everyone working at the NSA, the entire intelligence community, and undercover assets all around the world, the locations of every station we have, what their missions are and so forth." The point is, as he's quoted earlier in this blog essay as saying, "If I had just wanted to harm the U.S., . . . you could shut down the surveillance system in an afternoon. But that’s not my intention."

3. Personal responsibility. Did the whistle-blower act behind the curtain of anonymity, or did they come forward, acknowledge, and take responsibility for their revelations -- in the spirit of civil disobedience?

It would seem to me, based on what I now know, that in the case of Edward Snowden he has fully satisfied at least all of those standards.

I am less clear as to the answer of the "So what?" question. I do think we may need new legislation to address that question, and that, at a minimum, meeting these -- and other standards that may be proposed -- ought to take such cases out of the category of "terrorism," "treason," and "espionage," and radically reduce such punishments as might otherwise be appropriate.

For purposes of my question, it is far from decisive -- indeed, it may be not even relevant -- how the American people feel about their government spying on them. (Pew's recent update of its survey indicates we are about equally split, depending on the question -- and, for partisans, which Party occupies the White House.) My question simply addresses the matter of punishment for whistle-blowers who, as a matter of honest conscience, must, in order to be a whistle-blower, reveal things the government considers secret.

There is already a growing support for Snowden (as well as growing disapproval). The photo depicts a demonstration of support in New York City yesterday [June 10]. Robert Johnson, "Rally Held In New York City Supporting 'Hero' NSA Whistleblower Edward Snowden," Business Insider, June 10, 2013.

The White House maintains a Web site where citizens can start, and others can support and sign, petitions. On June 9 one was posted with the headline, "Pardon Edward Snowden," and went on, "Edward Snowden is a national hero and should be immediately issued a a full, free, and absolute pardon for any crimes he has committed or may have committed related to blowing the whistle on secret NSA surveillance programs." By this morning it was already nearly halfway to it's goal of 100,000 supporters (a number that triggers a self-imposed White House requirement that it respond to the petitioners). It's here.

As of this morning [June 11] the Progressive Change Campaign Committee had already raised $20,000 for Snowden's legal defense fund.

For your further reflection, here is Amy Goodman's report, and reproduction of Glenn Greenwald's interview of Snowden, "You're Being Watched": Edward Snowden Emerges as Source Behind Explosive Revelations of NSA Spying," Democracy Now, June 10, 2013 -- along with a transcript.



# # #

From Zazi to Stasi

June 9, 2013, 3:00 p.m.

See also the related, "Law's Losing Race With Technology; Redefining 'Privacy,'" June 7, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013.

Trusting a Government That Doesn't Trust You
Yesterday being the 64th anniversary of the June 8, 1949, publication of George Orwell's novel 1984, I thought it an appropriate time to review surveillance in America.

Unless you've just returned from a vacation, during which you had the good sense to never consult a smart phone, laptop, or newspaper, you know that we've just found out more about the government's spying on our phone calls and Internet activity.

The London Guardian's Glenn Greenwald broke the story that the U.S. super-secret FISA Court (Foreign Intelligence Surveillance Act) has given the NSA (National Security Agency) the legal right to gather all of our phone records indiscriminately -- even if there is no reason for the NSA to suspect we've done anything wrong -- in this specific case, the records of every Verizon customer (with legitimate reason to suspect similar authorizations have been granted for all other major phone companies). Glenn Greenwald, "NSA Collecting Phone Records of Millions of Verizon Customers Daily; Exclusive: Top Secret Court Order Requiring Verizon to Hand Over All Call Data Shows Scale of Domestic Surveillance Under Obama," The Guardian (London), June 5, 2013 (with link to text of FISA Court order). [Photo credit: multiple sources.]

Not to be outdone by The Guardian, the Washington Post soon had a story of its own to break: "The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates, according to a top-secret document obtained by The Washington Post." Barton Gellman and Laura Poitras, "Documents: U.S. Mining Data From 9 Leading Internet Firms; Companies Deny Knowledge,” Washington Post, June 6, 2013.

Note the rather stark conflict here -- one that underscores the fact that it is the major corporations as much or more than the government that should be the focus of our privacy concerns. I'm not sure anyone has the facts at this point; I don't. But my intuition is that the NSA would have had little to no reason to lie, in a highly classified document it had no reason to believe would fall into the hands of the media, that it had the ability to tap "directly into the central servers of nine leading U.S. Internet companies" if it didn't have that ability. On the other hand, the "nine leading U.S. Internet companies" would have had an incentive to hide from their customers the fact that they were permitting the government to peruse your electronic files and mine.

In an earlier blog essay I provided some background regarding privacy law, and reasons why I think we need a new Supreme Court interpretation of the protections provided by the Fourth Amendment, given the current governmental and corporate access to intrusive technologies not dreamed of decades ago, let alone centuries ago. "Law's Losing Race With Technology; Redefining 'Privacy,'" June 7, 2013.

Ultimately, of course, these stories were picked up and repeated by mainstream U.S. media, as U.S. officials scrambled to reassure Americans that they (members of the U.S. House and Senate) had known of this all along and always considered it a dandy way to protect us from terrorists -- carefully noting that at least this order did not include the government’s right to listen to the content of our calls. "All they were doing" was gathering the date and times our calls begin and end, the locations of the parties to the calls, and the phone numbers involved. Charlie Savage and Edward Wyatt, "U.S. Is Secretly Collecting Records of Verizon Calls," New York Times, June 6, 2013, p. A16.

I don't deny these are significant distinctions. There is a difference between a corporation or government agency scanning, recording, storing, analyzing, and ultimately having a human listen to the content of your phone conversations, on the one hand, and, on the other, its focusing exclusively on tracking the phone numbers from and to which you make calls, how long you talk during each, their date and time, and the location of the parties.

But (1) both are a significant intrusion on your privacy, (2) taken alone, but especially when blended with "Big Data" collections of other personal information about you, they reveal a lot of information about you, and (3) the government has not always limited itself to this "meta data" (e.g., phone numbers and time).

Thirteen years ago, February 27, 2000, CBS 60 Minutes reported on "Echelon," a global fish net operated by the NSA that, according to those who had worked with the project and were interviewed, covered all of Planet Earth, monitoring airwaves and optic fiber, picking up everything from e-mail and faxes to cell phones and baby monitors. Today, President Obama and the Chairs of the Senate and House Intelligence Committees are assuring us that no one is listening to the content of our calls. But a former employee of Echelon said on 60 Minutes that she was shocked to find a fellow employee listening to the voice of Senator Strom Thurmond. There have been a number of other reports over the years about this, prior, and subsequent programs, such as "Total Information Awareness."

There are many potential issues with what our government is doing. (1) There is what they are doing: monitoring our phone and Internet activity. (2) There are questions regarding how they are doing it: what data is being collected, how long it is held, how it is being used (including sharing with other agencies, other governments, or even corporations), what other databases it is being merged with, how many people within the agency have access to it, the quality control processes in place to, among other things, avoid mistaken identifications of people. (3) The oversight by the judicial and legislative branches. There are reports that the FISA Court seldom, if ever, has refused the government's requests to spy on Americans and others; we are told that Congress was kept fully informed, but a number of elected officials have said they knew nothing of the program. (4) Secrecy. It was said during the Soviet era that their spies, and ours, were sufficiently well informed that each pretty well knew what the other was up to; the only people who were uninformed as a result of secrecy and classified documents were the American people. The government has expressed extreme concern about terrorists finding out about these cell phone and Internet monitoring programs. It is highly unlikely -- given terrorists' use of couriers and throw-away cell phones, that there is much in this month's papers that they did not already know.

Put aside, if you must, Benjamin Franklin's judgment that, "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." Benjamin_Franklin, Wikiquote.org. It may well be that the American people, once honestly and fully informed regarding how corporations and the government are collecting personal information about our activities, would support such spying programs as a fair trade for the added security they provide. But at the moment, they do not even have enough information to address the issues, let alone form an opinion which could be polled.

The government says that we have been saved from terrorist attacks as a result of their spying on us. But their proof is limited to two leaked examples because, they claim, all the others are classified. One is the case of Najibullah Zazi.

Zazi was an Afghan-American living in Denver, who drove to New York with the intention of creating an explosion in the New York City Subway. Interestingly for our purposes, he was one of those potential terrorists who became aware that he was under surveillance, was stopped and let go by police, abandoned his plans, and flew back to Denver, where he was arrested. He is currently awaiting sentencing. "Intelligence Official: Phone Records Tracking Helped Foil Subway Bomb Plot; Suicide Bomb Plot Was Halted After Suspect Realized He Was Being Tracked," CBS New York/AP, June 8, 2013.

Hard to argue with those results -- though that doesn't automatically lead to the conclusion that the massive spying on Americans is worth it. Especially is this so because we are not going to be told how many other cases there have been -- or whether any of them could not have been solved by other means, or a significantly more restricted spy apparatus.

So I have concerns about what we already know is going on. But those concerns pale by comparison with my most serious concerns. "Give a small boy a hammer and the whole world becomes a nail." Make massive data gathering and analysis and other spying technology available to corporations and governments, and the temptation to use it is almost irresistible.

It is a very small step -- one we know the government has already taken in the past -- from collections of "meta data" (information about our communications) to collections of the content of those communications. We also know that many governments over the years have not trusted their people, and have gone to great lengths to find out what they are up to in order to control them.

Has that already happened to us? Are we being asked by our government to trust it, when it has demonstrated by its actions that it doesn't trust us?

If it is not already obvious, permit me to make express that this should not be about "trust." Most of all, it should not be about the personality of whoever occupies the White House at a given time. Some Americans seemingly hate President Obama, everything he stands for and advocates, everything about him. Others are such solid supporters that they can see no flaws, and become defensive when confronted with anything other than praise of the President. Personally, I was pleased to see Obama elected, and wanted him to be successful. But when I think he's wrong, I've said so, in this blog and elsewhere, believing that to be engaged in his presidency by doing so shows more respect for him, and the office, than blind obeisance.

My concerns about the direction of our government are institutional, not personal. I do not believe President Obama seeks a totalitarian state, a military takeover, or a 1984-style total surveillance of the American people. But I definitely do think that we have the risk, not the inevitability, but the risk, that a future president might seek to exercise such power. Most of what prevents that happening is the basic decency of the individuals involved, for the potential power is there, and the temptations to use it are powerful.

From Zazi to Stasi. Following World War II, the eastern portion of Germany came under Soviet control. In 1950 this German Democratic Republic, known as "East Germany," created the Ministerium für Staatssicherheit, MfS, or Ministry for State Security, commonly known as the Stasi. "It has been described as one of the most effective and repressive intelligence and secret police agencies in the world." "Stasi," Wikipedia.org.

Stasi had, amongst other divisions (including prison camps for "political offenders"), an "'Administration 12' . . . responsible for the surveillance of mail and telephone conversations," and a "'Main Administration for Struggle Against Suspicious Persons' . . . charged with the surveillance of foreigners . . . legally traveling or residing within the country." Ibid.

Fortunately, nothing like this exists in our country. For starters, we don't have "ministries," we have "departments." We don't refer to the "state;" we use the word, "Homeland," similar to the German Vaterland, or Fatherland. Obviously, there's a big difference between a "Ministry for State Security" and a "Department of Homeland Security."

Nor do we have anything with a name like "Administration 12." If we were ever to have a "surveillance of mail and telephone conversations" by the government, we would use legitimate, legal American organizations like the National Security Agency, the Central Intelligence Agency, and the Federal Bureau of Investigation, among others. Very different from an "Administration 12."

# # #

A TIF Discussion

June 9, 2013, 10:15 a.m.

Evolution of A Family's TIF Policy Position

A TIF, or "Tax Incremental Financing," is a technique utilized by local governmental units to, among many other things, provide taxpayer money to for-profit, private businesses, such as high-rise, multi-use buildings containing condo housing, office space, and shops.

There is a good deal of debate among and between economists, public officials, anti-tax groups, editorial writers, and the for-profit beneficiaries regarding the wisdom and equity of this approach, as well as other systems of taxpayer funding for private projects.

Sometimes the different approaches pop up in family discussions. So it has been with my son, Gregory Johnson, ResourcesForLife.com, and myself.

A recent exchange, involving an article he wrote and posted on his Web site that triggered an ongoing exchange on Facebook, I thought worth preserving on this blog for what it might contribute to the evolving thinking of others who are trying to formulate their own opinions on this significant public policy issue.

From my perspective, although Gregory challenges this, as you'll see below, he began his approach to TIF policy some months ago with an effort to justify the use of TIFs from Iowa City taxpayers for the downtown, highrise projects of Marc Moen, an innovative developer and friend of Gregory's. (In his article, below, some of this continues, as he notes, following his listing of standards for awarding TIFs, "The Moen Group would be one example of a developer that would pass the above requirements." And again, "Interestingly, the developer being awarded the experimental TIF money (MoenGroup.com) would actually pass the above 7-question qualification assessment test.")

I also like Marc Moen, though I'm relatively confident given my positions he would not consider me a "friend," and I have a similar (though not identical) approach to his with regard to what Iowa City's downtown (laid out in 1839), needs in the 21st Century. My objections, such as they are, primarily address the propriety of using taxpayers' money to fund his projects -- not him, or the design of his buildings.

Whether that was in fact Gregory's starting point or not, Gregory is now making a real effort to come up with a sensible, balanced approach to cities' use of TIFs, recognizing both their inherent disadvantages and the likelihood they are going to continue to be used whether we like it or not. As he puts it (in the very last lines reproduced in this blog essay): "The reasons for not using TIFs to fund private enterprise are well founded and seem to outweigh the benefits. However, it seems that municipalities across the nation don't care (including ours). That being the case, if we are going to have inappropriate uses of TIFs, should there be a decision process? That's what I'm exploring."

Here, then, are yesterday's exchanges, starting with the major portion of his opening article, and then progressing to the exchanges within a Facebook discussion.

Guidelines for Selecting TIF-Based Funding of Urban Development Projects
Gregory Johnson
http://www.resourcesforlife.com/docs/item6947

Traditional TIF Use. The use of TIF-Based funding is traditionally limited to restoring areas of urban blight. The rationale for this is that poverty is too expensive. That is to say that illiteracy, homelessness, unemployment, substance abuse, crime, incarceration, and other social problems caused by poverty cost society much more than simply eradicating poverty. Some would call this socialism. Others would describe it as simply being fiscally responsible with capital by seeking the maximum return on investment. This, of course, isn’t a practice that all people condone, but it’s embraced by a majority of people, so municipalities are not required to have a vote for using tax revenue in this way. Wikipedia describes the founding principles of TIF usage:

“TIF was designed to channel funding toward improvements in distressed, underdeveloped, or underutilized parts of a jurisdiction where development might otherwise not occur. ” [Source: Wikipedia]

Experimental TIF Use. In recent years, municipalities have implemented experimental uses of TIF-Based funding to include urban development projects that are private business ventures. Without taxpayer consent, city council members are taking tax revenue and giving it to private business owners. This has resulted in public protests from groups that, given the chance, would otherwise vote down such initiatives were they bonds to raise funds for public projects. In theory, the rationale for giving tax revenue to private enterprise is that the initial loan will be repaid in substantially higher property taxes. Once repaid, the ongoing tax revenue will be a benefit to the city.

The goal of experimental TIFs is a long-term increase in property tax income that should recuperate the original investment. Additional financial support allows developers to build beyond what they might have otherwise been able to. This may include aspects of sustainability, urban beautification, and mixed use space that might typically not be considered. Developers seeking maximum profits may create single-use ugly buildings with little consideration of sustainability. Developers given additional financial support may create multi-use attractive buildings with a greater investment in architectural design and sustainable practices.

Usually the only developers who get selected for such experimental projects are those who have a past record of success in the community, and a base of community support for their projects. Communities should be leery of special financial incentives extended to unknown out-of-town developers who have not demonstrated any commitment to the local community and may skip town when the going gets tough.

For communities considering experimental uses of TIFs as an investment, it is advisable to use a dollar cost averaging approach to their implementation, particularly when their use involves giving tax payer money to private enterprise. Because this use may be a risky investment, and because they typically involve tax-free contracts that extend decades, a city can quickly get overextended if the city government becomes “TIF-happy” and erodes the public tax base.

TIF Qualification Assessment Checklist. In general, people are either in favor of experimental TIF use or against it. I would propose that people should be neither “For” or “Against” the use of TIF-Based funding. Instead, communities should utilize a checklist to determine when a TIF should or shouldn’t be used. Below are some questions that should be asked which should rule out about 99.9% of all requests for TIF-Based funding of private projects.

(1) Previous Interest. Has the developer previously shown an interest in the community, or is the TIF a bribe to get an otherwise uninterested and uncommitted developer to build in your community? If the developer has previously shown an interest in the community, without any special favors, then continue to question #2, otherwise TIF should not be used.

(2) Mixed Use. For the other projects the developer has in the community, are those utilizing best practices of mixed use spaces that will enrich an area by having retail space, office space, and residential living? If YES, then continue to question #3, otherwise TIF should not be used.

(3) Past Success. Have the other projects of the developer been successful? If yes, continue to question #4, otherwise TIF should not be used because that would not be a TIF it would be simply TF (tax funding) without a guarantee of an ‘increment’ in tax revenue if the project fails.

(4) Architecture Evaluation. Certainly there are many genres of architecture, and just as many opinions about what is attractive. For the style of architecture being proposed, is the building considered to be attractive by those who appreciate that style of architecture? For example, if the proposed development uses modern design, do people find it to be an innovative and attractive example of modern architecture? If yes, continue to question #5, otherwise TIF should not be used.

(5) Beautification. Businesses and investors generally look at the bottom line and profits when planning a project. An ugly poured cement building or unimaginative brick facade would be popular choices. Similar to question #4, does the proposed development project place value on the aesthetic appearance of the building in a way that demonstrates the developer’s passion to look beyond profits to envision ways that architecture can be a form of habitable art and community beautification? If yes, continue to question #6, otherwise TIF should not be used.

(6) Property Management. Is the developer simply looking to turn a quick profit by constructing a cheaply-made building and then selling it without making any long-term commitment to ensure the property is cared for and the businesses within it are profitable, or, instead, is the developer taking a personal interest in the long-term management and oversight of the property? If the developer is taking an interest in the long-term care of the property, then continue to question #7, otherwise TIF should not be used.

(7) Commitment. If the developer thinks their project is so wonderful, ask them this simple final question: “Would you be willing to actually live in the buildings you are constructing and reside in the neighborhood where you develop?” Most developers will say no, and you can tell them to seek private funding. However, if you have a developer who has answered yes to all of the above questions, then such a developer should probably be retained and well supported by the city because developers like this would be very hard to come by and can be a huge asset to any community.

The above list of requirements may seem like an impossible set of requirements for any developer to meet. However, there are developers that meet such requirements. The Moen Group would be one example of a developer that would pass the above requirements.

There is a commentary and response to the above found at the bottom of this page. In summary, those opposed to giving public tax revenue to private developers would conclude that no decision tree will change the fact that taxes aren’t meant to support private business.

Case Study – Iowa City. In Iowa City, we’ve had several experimental uses of TIF-funded development projects that fall outside their traditional use and best practices. This has raised a significant amount of public outcry, partly because tax payers did not vote on or approve this private enterprise business use of their tax dollars. Interestingly, the developer being awarded the experimental TIF money (MoenGroup.com) would actually pass the above 7-question qualification assessment test.

Dollar Cost Averaging. Because TIF funded private projects represent some risk, the principle of dollar cost averaging should be used. By waiting 7 to 10 years between TIF funded projects, there is enough time to reassess their success, and spread out risk, and spread out the depletion of the municipal tax base revenue.

TIF Concerns. The remainder of this document will explore TIF concerns and potential problems with TIFs. As mentioned above, in recent years, TIFs have been used as a mechanism for taking tax payer money and handing it over to wealthy developers and private business. These are some additional concerns about TIFs that makes their use for private enterprise prohibitive in any circumstances. I believe these are valid concerns that may take precedence over any possible benefit of experimental TIF use.

Infrastructure Needs Come First. Roads, schools, libraries and other shared community infrastructure are traditional government undertakings. Funding private enterprise with tax payer dollars is not.

Public Input is Essential. Although voter approval is not required, citizen participation is essential and any city government that does not seek citizen input does so to the detriment of the entire community. TIF funding is similar to public bonds and should be treated the same way.

Enhancing or Expanding Wealthy Developments Isn’t Essential. When TIFs are used to make posh and upscale living even more decadent, they run the risk of broadening the gap between the working poor and wealthy in a community. Initially TIFs were intended for urban renewal and low-income housing. The intention was to give the underprivileged a leg up. Giving the wealthy a financial boost at the expense and sacrifice of the poor seems backwards.

Free Marketplace. Most of us believe in the power and effectiveness of the free marketplace to produce equitable and responsible outcomes. Businesses answer to consumer needs and wishes, or they feel the results in their bottom line. Providing tax payer funding reduces or eliminates these marketplace checks and balances. Additionally, TIFs create an imbalance in the marketplace giving some businesses an immense advantage over others.

Disparity of Profits and Losses. A TIF funded project distributes risks of loss and opportunities for profit inequitably because profits are guaranteed to be received by the developer, but if there are losses (if a business folds) the taxpayers will bear the brunt of that outcome.

Business and State Partnership. TIFs intertwine government and business in something that’s neither socialism or capitalism. TIFs represent an erosion of the democratic process whereby the tax payers are stripped of their autonomy, self governance, and money for the benefit of private enterprise. When officials give millions in taxpayers’ money to private, for-profit businesses, the temptations for good-old-boy corruption are great — and virtually impossible to uncover.

Business Incentives and Accommodations. It’s not necessary to give handouts to businesses to gain their approval. Changes in zoning regulations and building codes (for example) can help give businesses a boost without using taxpayer money. Municipalities compelled to bribe business as a means for pleading to win developers is a losing downward spiral that only ends after the last parcel of land is TIFed away. TIFs can devastate a government’s credit rating, thereby increasing the cost of future legitimate projects. Instead, municipalities should be firm and financially conservative when approving what businesses they allow to develop in a given area. Rather than asking, “What can we pay to convince you to develop in our community?” municipalities should be posing the question, “What will you give our community for the privilege of having a business here?”

Impact on Public Funds. Money shifted over to TIF use is pulled from the same collective pot that would otherwise fund schools, programs, and other government units. In the short-term, this creates a deficiency, and in the long-term, if profits are not as expected, there may be a permanent negative impact on other community funding needs.

Difficult to Determine Needs. In some situations, a city will be told by a potential developer that they can’t proceed with a project unless they receive a certain amount of funding from the city. It is difficult for a city to determine the actual needs of that developer, so the city will end up trusting the foxes to guard the henhouse as the money is trustingly handed over.

Higher Risk. Much of the ‘risk’ in business outcome success has to do with those governing and guiding a business. In a traditional business model, all those involved are equally committed to ensuring success. With TIF funded projects, public officials may lack the business experience required to ensure success, and having no personal financial money tied up in a project, there is little incentive to oversee and ensure the success of a project.

Payoffs to Win Business. Sometimes municipalities get into a bidding war trying to win over a certain business or developer. If a developer isn’t adequately committed to your community, and requires that you bribe them to come to your community, that’s not a good place to start a relationship. Choose only businesses and developers who are sufficiently ‘invested’ in your community that you need not bribe them to come. Businesses pick cities for reasons other than TIFs: workforce, local economy, schools, transportation, communication, quality of life. Focus on investing in those assets instead. Otherwise, the money you give to business will be diverted away from the infrastructure that would otherwise attract more business. Indeed, it’s in the best interest of many businesses to depress the local economy and reduce the quality of life in order to attract people who might fill low-wage jobs. So, businesses aren’t always the best friend of a local community or economy.

Risk of Corruption. When officials give millions in taxpayers’ money to private, for-profit businesses, the temptations for good-old-boy corruption are great — and virtually impossible to uncover.

More information about TIFs can be found online on the FromDC2Iowa blog where the inspiration for much of the above content is available.

_______________
And now, the Facebook exchanges:

Nicholas Johnson "Tough TIF Talk," http://fromdc2iowa.blogspot.com/2013/02/tough-tif-talk.html

In his latest effort to justify the use of taxpayer money (TIFs) for Marc Moen's buildings, Gregory Johnson offers, "Guidelines for Selecting TIF-Based Funding of Urban Development Projects," http://www.resourcesforlife.com/docs/item6947.

His "Guidelines" are a constructive step forward; I especially like the decision-tree approach.

However, with respect, I think they still fail to address the elephant in the living room.

So far as I know, none of the economists who oppose crony capitalism argue that there are NO benefits to taxpayer-funded pro football stadiums, for example, or TIFs -- such as short term jobs for construction workers, and a somewhat useful new facility.

But by that standard, there are also benefits from a teenage gang drug distribution organization -- jobs for otherwise unemployed teens, business training, a development of their math skills, sense of responsibility, and ability to work with others.

In short, the issue is NOT whether there are ANY benefits from a Moen project; of course there are, and he lists some of them. The issue is whether those benefits are enough to warrant taking money from the county and schools, subsidizing one housing/office building owner while forcing all others to compete with him without the benefit of taxpayer financing, undercutting banks and other potential investors with cheap taxpayer money when private funding might have been available for the same or a slightly modified project, the risk of corruption when officials are picking winners and losers, and on and on with the list of 20 problems with TIFs I have repeatedly referred to. See "Tough TIF Talk," http://fromdc2iowa.blogspot.com/2013/02/tough-tif-talk.html

In short, the issue is NOT whether Moen does, or does not, make any contribution to downtown Iowa City with his buildings.

The issues are: (1) Does he really NEED this taxpayer money to do what he does (perhaps in a slightly scaled down version)? And (2) Even if there ARE benefits to his projects, zero risks to taxpayers, and he is sufficiently impoverished that he could do nothing at all without taxpayer funding, do those benefits warrant the TIFs, given all the (a) other-than-financial adverse consequences as well as (b) taxpayer costs, and (c) opportunity costs (things the City doesn't/can't fund as a result of what it's given him)?

THAT'S the question that has still not been addressed by anyone to my knowledge, let alone answered to my satisfaction.

_______________
Gregory Paul Johnson These are all very good points and useful suggestions for expanding on the decision tree, if there is to be one. I recognize that some people feel any use of taxpayer money for private business is an inappropriate use.

_______________
Nicholas Johnson Permit me to offer an alternative response/argument you could make that I think would be more to the point and effective.

To say that "some people feel any use of taxpayer money for private business is an inappropriate use" is like saying (to use my example of the teenage drug gang) "some people oppose all teenage gangs."

It's true that some conservative capitalists would oppose TIFs as a form of corporatism or crony capitalism, a bastardization of pure capitalism, on ideological grounds. Capitalism includes the possibility of devastating financial losses as well as the possibility of enormous profits; they are offended by a "heads (i.e., profits) I win (i.e., keep the profits" and "tails (i.e., losses) you lose (i.e., taxpayers cover them)" system.

There are others who believe the only legitimate, constitutional use of taxpayers' money is for military expenditures.

Neither is what's involved here.

There are actual, very real harms (not to mention risks), produced by TIFs, some of which I've itemized in the Facebook entry, and linked blog essay. These are not observations derived from a belief that "any use of taxpayer money for private business is inappropriate," or some other ideological or political philosophy.

As such, they are analogous to the observations that drug dealing often leads to addiction, other health problems (and in the case of drive-by shootings, death), and is associated with other criminal behavior -- which are also not based on an ideological, or political, opposition to all teenage gangs.

It seems to me, therefore, that you have three possible arguments [with regard to any of the 20 categories of objections to TIFs]: (1) denial (e.g., "there is no data or other reason to believe that when the government underwrites a for-profit venture with taxpayers' money it creates an unfair advantage, tips an otherwise level playing field, or otherwise harms the non-publicly-funded competitors"), (2) trivialization (e.g., "yeah, there are a number of taxpayer-funded private profit efforts that are never completed or go belly up, but not many of them, and those that are successful can be very successful"), or (3) to borrow from Lilly Tomlin, "we don't care, we don't have to, we're the telephone company," or, as in this case, the City Council (e.g., "corruption is part of government; always has been, always will be; there are a thousand ways a beneficiary can reward a public official, you can't possibly track, let alone prevent, all of them; so there's some possibility with TIFs, too; so what?").

But I don't think you are persuasive in disposing of the real and serious adverse effects of TIFs when you fail to address them, and rely on the dismissive "some people" don't like any TIFs.

_______________
Gregory Paul Johnson Just to clarify, you mentioned that my article is my "latest effort to justify the use of taxpayer money (TIFs) for Marc Moen's buildings." It's not written with that myopic intent, but genuinely an effort to think broadly about whether TIFs should be used at all beyond their original intent. If so, then how would one make a decision. At present, there seems to be no rational decision tree being applied.

_______________
Gregory Paul Johnson I think any balanced presentation about TIF use should include mention of the 'very real harms and risks' associated with their use for funding private enterprise. That's why I included a summary of those dangers/concerns in my original article and also linked to your comprehensive article on the topic. There's a serious problem of tax payers not being included in the decision process of how their money is spent. I mentioned this in my article as well.

I've now revised my article to reflect the points/comments you made above. In case it wasn't clear, I changed the wording to state, "I believe these are valid concerns that may take precedence over any possible benefit of experimental TIF use." I plan to make further modifications as more comments come in.

I don't think that there are three possible arguments (1) denial, (2) trivialization, (3) not caring.

The reasons for not using TIFs to fund private enterprise are well founded and seem to outweigh the benefits. However, it seems that municipalities across the nation don't care (including ours). That being the case, if we are going to have inappropriate uses of TIFs, should there be a decision process? That's what I'm exploring.

# # #

Law's Losing Race With Technology

June 7, 2013, 5:25 p.m.

See also the related, "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013.

Redefining 'Privacy'
Our decades-long suspicions that our government has been spying on us have recently been confirmed. Once again, public opinion -- not to mention our policy analysis and law -- are lagging far behind leaping technological advances.

The London Guardian broke the story that the U.S. super-secret FISA Court (Foreign Intelligence Surveillance Act) has given the NSA (National Security Agency) the legal right to gather all of our phone records indiscriminately -- even if there is no reason for the NSA to suspect we've done anything wrong -- in this specific case, the records of every Verizon customer (with legitimate reason to suspect similar authorizations have been granted for all other major phone companies). Glenn Greenwald, "NSA Collecting Phone Records of Millions of Verizon Customers Daily; Exclusive: Top Secret Court Order Requiring Verizon to Hand Over All Call Data Shows Scale of Domestic Surveillance Under Obama," The Guardian (London), June 5, 2013 (with link to text of FISA Court order). [Photo credit: multiple sources.]

Ultimately, of course, the story was picked up and repeated by mainstream U.S. media, as U.S. officials scrambled to reassure Americans that they (members of the U.S. House and Senate) had known of this all along and always considered it a dandy way to protect us from terrorists -- carefully noting that at least this order did not include the government’s right to listen to the content of our calls. "All they were doing" was gathering the date and times our calls begin and end, the locations of the parties to the calls, and the phone numbers involved. Charlie Savage and Edward Wyatt, "U.S. Is Secretly Collecting Records of Verizon Calls," New York Times, June 6, 2013, p. A16; Editorial, "President Obama’s Dragnet," New York Times, June 7, 2013, p. A26 ("The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001 attacks, by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.") [Photo credit: www.loohan.com]

Not to be outdone by The Guardian, the Washington Post soon had a story of its own to break:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates, according to a top-secret document obtained by The Washington Post.

The program, code-named PRISM, has not been made public until now. It may be the first of its kind. The NSA prides itself on stealing secrets and breaking codes, and it is accustomed to corporate partnerships that help it divert data traffic or sidestep barriers. But there has never been a Google or Facebook before, and it is unlikely that there are richer troves of valuable intelligence than the ones in Silicon Valley.

Barton Gellman and Laura Poitras, "Documents: U.S. Mining Data From 9 Leading Internet Firms; Companies Deny Knowledge,” Washington Post, June 6, 2013.

As I sometimes say, "The major problem is not so much that big corporations violate the law, it's that they write the law." The same thing's true of government. The White House, Justice Department, and the Intelligence Committees of the House and Senate tell us that all their spying on us is perfectly legal. They may well be right. Only problem is that the court that can tell us is so secret we aren't even supposed to know it exists; and unless the Guardian gets another leaked copy of an opinion we can't ever know what those judges decide, let alone their reasoning.

Legal or not, once again the technology is so far ahead of the ethicists, policy analysts, legislators and lawyers that we really need to "take it from the top," and totally rethink what we mean by "privacy" and what aspects of it are so important to us that we want legal protection.

Let's begin with a very brief review of the law.

The Fourth Amendment asserts a "right of the people to be secure in their persons, houses, papers, and effects" -- seemingly a kind of place-based security, a protection from trespassers -- albeit a protection that only extends to the exclusion of evidence so obtained. In 1928 the Supreme Court was still reading those words literally. Olmstead v. United States was a case in which the defendant had violated the prohibition laws. The prosecutor wanted to use evidence obtained by federal officers who had put wire taps on the defendant's phone lines a short distance from his property. The Supreme Court ruled that a phone tap, off the defendant's property, did not violate the language of the Fourth Amendment -- although it noted that Congress could pass a law prohibiting wiretaps (as it ultimately did).

By 1967, in Katz v. United States, Justice Stewart wrote for the Court, "the Fourth Amendment protects people, not places," even people who, as in that case, use public phones far from their homes. Justice Harlan, concurring, thought that was not enough: "The question, however, is what protection it affords to those people." Then, answering his own question, he posed the standard that has become the primary legacy of Katz: "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'" -- generally truncated into the shorter expression, "a reasonable expectation of privacy."

So far so good. But in the 1976 U.S. v. Miller case the Court explained that once you've shared information with another, even though you did so in confidence and for very limited purposes, you no longer have an expectation of privacy in that information, let alone an expectation that courts will consider "reasonable." In Miller the defendant, Miller, attempted to claim a Fourth Amendment right of privacy in the cancelled checks and other records and documents maintained by his bank.

Few people find it possible to function without a bank account; a relationship with a bank is more of a necessity than an option. A necessary feature of a bank account is that the bank maintain some records of your financial transactions. You may consider those records private, and that you have an implied understanding of confidentiality with the bank. However, the Miller court concluded that by giving those records to the bank Miller could no longer claim a reasonable expectation that they would remain private. Because he had no "reasonable expectation of privacy" law enforcement could get access to those records from the bank, without providing Miller the protections he would have received under the Fourth Amendment if Miller had no bank account and law enforcement had come to his home for his copies of those "papers."

That standard may or may not have made sense during the last decades of our pre-cyber life. Most of our "papers and effects" were kept in our homes, protected by the Fourth Amendment. Not all; the phone company had records of our long distance calls, the gas and electric company would have records of our consumption, and there were probably other exceptions. But for the most part we weren't giving information to third parties that we considered private and confidential.

Today the combination of electronics, digitization, the Internet, computers and telecommunication result in your sharing a large portion of your "papers" with others. Neither librarians nor store owners used to keep records of what books or other merchandise you examined. Today you share a record of every search with Google, a record of every product you examine on a company's Web site, your Kindle book library with Amazon, your music choices with iTunes. You've shared your email and text messages with some company, your photos with Picasa and Facebook, your videos with YouTube, your documents with Dropbox or some other firm that offers you real estate in their "cloud." In addition to your bank, "your" financial records are held by your credit card companies, airlines, rental car companies, hotels, and many local merchants.

As Chief Justice Taft noted in Olmstead, we still have some legislative protections from invasions of our privacy by corporations and government, and the opportunity for more. But there is very little left of the Fourth Amendment protections Americans once enjoyed -- at least with regard to the records maintained by corporations, and often handed over by them to agencies such as the NSA, CIA and FBI.

As yesterday's stories regarding the government's massive, sweeping collections of phone records and Internet traffic make clear, technology has left the Fourth Amendment in the dust as it speeds past. When law enforcement had to get a search warrant to tap one individual's phone, the Fourth Amendment's requirements were administratively feasible. When the government wants to tap everyone's phones, and collect everyone's Internet traffic, that system collapses.

Remember the song with the line, "If it weren't for bad luck, I'd have no luck at all"? Well, if it weren't for the FISA court we'd have no court at all; indeed, we didn't, not that many years ago. The government contended it didn't need any judicial approval to spy on Americans. But a "Top Secret" (that is the classification on the FISA court's Verizon order) court that reportedly grants virtually every request, and never releases its cases, their resolution, or its reasons, is a pretty thin reed on which to rest the public's confidence in their government.

The Supreme Court needs to rethink the Fourth Amendment's protection of our privacy in a post-cyber world. The mere fact that today's technology means that no American can have a "reasonable expectation of privacy" anywhere, at any time, requires that standard -- and its deadly presumption regarding records shared with third parties -- be discarded.

There's much, much more to be said on this subject. And I'm told there are more revelations coming from the Guardian's Glenn Greenwald. But that's all for now.

# # #

Finding Your Different Drummer

June 5, 2013, 2:15 p.m.

An Alternative to the Corporate, Televised Test Pattern

Test Pattern for Living is back.

Originally published as an original Bantam paperback in 1972, the book was reissued in a Lulu paperback edition last week. It should be available through Amazon sometime in mid- to late July. Meanwhile, the publisher is the only source. (There may be a book signing in a couple weeks at Uptown Bill's, at which 20% of the heavily discounted price will be a contribution to Uptown Bill's.)

Meanwhile, the book celebrated its Iowa City debut last evening at "Slices: Performance and Pie" (an event presented the first Tuesday of every month at 7:00 p.m. at Uptown Bill's in Iowa City, Iowa, in cooperation with Combined Efforts Theatre).

"Slices" offers participants an opportunity to present brief (10-minute maximum) readings from favorite or original literature. One of Slices' unique features is that participants must use a total of no less than two persons for the presentation.

I was fortunate enough to have the assistance of two professional actors for this event -- Rachael Lindhart and Jason Grubbe (both Actors Equity members) -- and my son, Gregory Johnson. Any additional background on what we did and why is contained in the script used on that occasion.

An Excerpt from Nicholas Johnson’s Test Pattern for Living
Uptown Bill’s
Iowa City, Iowa, June 4, 2013
Nicholas Johnson (NJ): Test Pattern for Living. 1972.

The women’s movement was just getting started. Women as well as men were still referred to as “he.” But it was also a time of great creativity in everything from politics to the arts. So the Foreword to Test Pattern for Living was sheet music by Mason Williams, the composer of “Classical Gas” and the “Smothers Brothers Comedy Hour” head writer. And instead of text throughout, the text I wrote was on the right hand pages, and the left hand pages had quotes from others that were supportive of that text.

I was still an FCC commissioner, and was trying to bring attention to the impact of television, and its corporate sponsors, on Americans’ lives. The phrase “test pattern” was a reference to the test patterns on the television screens at that time. The book was designed to offer readers a path to thinking through their own individual standards, a way to break out of the corporate interlock.

The pressures on individuals today are similar to those 40 years ago. America is again at war. A collapsing economy is now the reason individuals are rethinking their own set of values. That’s why the book was reissued just last week.

For our excerpt at this evening's "Slices," I’ll be reading my text from the right-hand pages of Test Pattern for Living. My "Greek chorus," Rachael Lindhart and Jason Grubbe,will speak the quotes from others from the left-hand pages. The book also reproduces the text of actual TV commercials. One of them, plus Mason Williams' all-purpose commercial, will be read by my son, Gregory Johnson, who starts us off.

# # #

Gregory Johnson (GJ):

Mason Williams.
At last
New from us
This amazing dramatic proof
There.
See?
You can.
It's easy!
You mean America's favorite modern families?
Yes! . . .
Because they used that other stuff in tests
But without the special ingredient of a magic formula
Now available in two sizes
Fresh and moist
And especially made so effectively light and lovely
That the leading new word for all you ladies
Combined with their report
Is a timely message of less than a minute
And quick to fix from now on . . . .
So why not try big, tough, super
Flakes of special interest for all you guys
With twice the power and vitamins necessary
For a high rate of saturated “duh”
That is free for an unlimited time only
with every Hey!

NJ: The difficulty in America today is that we have turned it all over to the big corporations. Time owns Life. Our colleges, churches, foundations, and public broadcasting stations tend to be presided over by the same guys who decide what automobiles we'll buy and breakfast cereals we'll eat. They publish our children's school books; they own most of the nation's artistic talent—and they have little hesitation in censoring the copy of both.

Jason Grubbe (JG): Mason Williams.
The censor sits
Somewhere between
The scenes to be seen
And the television sets
With his scissor purpose poised
Watching the human stuff
That will sizzle through
The magic wires
And light up
Like welding shops
The ho—hum rooms of America
And with a kindergarten
Arts and crafts concept
Of moral responsibility
Snips out
The rough talk
The unpopular opinion
Or anything with teeth
And renders
A pattern of ideas
Full of holes
A doily
For your mind

NJ: Understanding this concept of "corporate interlock" is really essential to an understanding of this book. In general, people either understand the concept right away or not at all—in which case spelling it out is a waste of time. But I'm going to try.

Rachael Lindhart (RL): Philip Slater. “One cannot successfully alter one facet of a social system if everything else is left the same, for the patterns are interdependent and reinforce one another.”

NJ: Let me begin with an anecdote. One evening Mason Williams and I were debating whether to go out for dinner or cook something at his house. We finally decided we'd stay home—principally because we didn't want to bother to change clothes. This prompted Mason to start speculating—as do a great many of life's quirks. "Nick, I've finally figured out why you have to dress up to go out to dinner."

"Why's that, Mason?" I asked.

"Because the same people who own the restaurants own the clothing stores."

His years of working for television have forced Mason to think in one-liners. (That's all you ever have time for.) And, like many of his one-liners, this one is both inaccurate in its particulars (so far as I know clothing stores are not owned by restaurateurs) and profound in its more general wisdom. "Living" ought to be individual, spontaneous, extemporaneous; a personal quest, evolution, and growth; an experience in uniqueness. But living your life according to the corporate plan involves no more of a creative "centering," or flowering soul, than painting in numbered spaces with the indicated colors is "art." It's like putting together a jigsaw puzzle. You are living out somebody's else's plan—not yours—paying them handsomely for the privilege of doing their work for them.

JG: Timothy J. Cooney and James Haughton write, “In America one of the basic rules many people live by is that one must keep up with the Joneses. By your own example you must turn this rule upside down. If you absolutely need a car, let it be the oldest on the block. . . .

At first, such "odd ball" behavior will cause some embarrassment and you will hardly be popular with your neighbors. . . .

Half the worry of . . . people in this country is how to pay for all the brand-new and superfluous junk they have signed up for, at just "pennies a day." By your example you will be offering an escape from this endless worry . . ..”

NJ: The psychology of acquisitiveness is to know, at every stage, what pieces you must next acquire, and in what order—house, car, sailboat.

GJ: Once upon a time there was a girl who dreamed of a doll that had everything. And then came Dawn, the doll that comes with these beautiful things. Like a car with Dawn actually at the wheel! Just look at Dawn go! There's a Music Box with Dawn on top, and the fabulous Dawn Fashion Show—the only one in the world with a revolving stage like this. Dawn comes with it—watch her walk and model, all by herself. And start collecting all these accessories: a handbag, elegant furniture with a phone that really works, a beauty parlor set. You can display Dawn, her friends, her fabulous clothes, right in your own home. Make your dream come true with Dawn, the doll that has so many beautiful things. Dawn's clothes are so beautiful, so stunning, so elegant, you'll want to collect more than one doll just to show them off! And it's so much fun to put two Dawns here, three Dawns there, call it "Midnight Magic." Then change their clothes, set them up, and call it "Sweet Dreams." Use your imagination! Dawn. Fun to play with, fun to collect.

NJ: "House" takes on an externally imposed meaning: suburbs, air conditioning, grass, wall-to-wall carpeting—just as surely as "Dawn" would be incomplete without her "car," "fabulous clothes," "elegant furniture,” and "beauty parlor." Sound familiar? Could it be you are now living in the doll house you used to play in? Is that an accident? Is it really what you want?

The corporate interlock of jobs, products, and life style means that once you come into the circle at any point you find yourself surrounded by all of it. And once you're in it's very difficult to get a little bit out.

The choices remaining to you are relatively meaningless—such as which color and extras you want with your Chevrolet, whether you'll drink scotch or bourbon, how "mod" your ties will be, and which toothpaste you'll use.

JG: William F. Fore. “Free selection of a wide range of goods and services does not signify genuine freedom, particularly if the desire for these goods and services tends merely to foster more frantic work, more compulsive buying, more fear and self-doubt. In this context, free selection tends to create and sustain alienation.”

NJ: It all fits: corporate white-collar job, suburban home, commuting by automobile, eating in restaurants, and the clothes. There is the canned entertainment of radio and television for the boredom, the bottled alcohol and aspirin for the pain, and the aerosol cans of deodorant and room freshener to maintain the antiseptic cleanliness of it all.

JG: Mason Williams. “We're like a race horse shot full of speed to make us run harder than is good for us, to win for the owners and lose for ourselves, to win the race for only the price of the chance to run.”

NJ: You wear your office, your home, and your car as much as your clothes and deodorant. And from the corporate layers of externals comes your very identity—and the smothering of your soul.

RL: Suzannah Lessard. “A young person gets a big bang out of taking a well-paying white-collar job with a large and important company, thinks to himself "I'm making it," and sees . . . himself in the saddle. It's only later, much later, when the exits have all been quietly sealed off, that it becomes apparent that the saddle is really a harness . . ..”

NJ: Let me try another example. Once you have accepted a job in a professional or managerial capacity with one of the nation's top two hundred corporations, you will be led inevitably to the purchase of a special automatic dish-washing detergent. Here's how it happens:

You are probably working in a large, fairly new office building in a major city, and living in the suburbs. You not only feel under pressure to get a house about the same size and cost as your neighbors, but such a house is, in fact, the only kind available.

JG: Paul Swatek. “Social custom teaches us to strive for a privately owned, single-family home in the suburbs, possessing a garage of at least two-car capacity, and filled with "conveniences" that assure us of more "leisure" time. Advertising urges us to consume and dispose. Is this really what you want? The decision is yours and you are free to say no.”

NJ: The kitchen is really quite large. It has lots of cupboard space. You may have moved a lot of kitchen stuff with you; or maybe you bought it because you never envisioned any other way to live, or because you're expected to entertain in a particular style.

In any event, even though you find a camp cook set more than enough in the way of kitchenware when you're camping, you don't want all those empty kitchen cupboard shelves.

Once they are filled, you feel a compulsion to use the stuff. Instead of washing a pot after it has been used, you put it aside and dirty another one. Silverware, glasses and cups, bowls and plates are likewise dirtied in great number, even during the course of a family meal, let alone when you are entertaining.

Having dirtied so many pots and dishes, it really is a drag to have to wash them all by hand. So you get an automatic dishwasher. Maybe it was already in the house. Maybe you were partly influenced to buy it because the neighbors have dishwashers. But mostly you get it because you have all those dirty dishes.

And once you get it, you find it's designed so that you have to use the special dishwasher detergent or the soap will suds out all over the floor.

And that's why, once you accept the job, you have to buy the special dish washing detergent.

# # #

Let's Keep What Works in Schools

June 1, 2013, 3:00 p.m.

Seldom do I reproduce others' writing in this blog. This morning I make an exception for my wife, Mary Vasey's, column in The Gazette regarding changes in Cedar Rapids' formerly nationally prominent alternative school, Metro High School -- along with examples and analysis of what made it successful during the 1980s and 1990s.

Some of our greatest technological innovations had their beginning in someone's garage (think Apple). Educational innovations are also more likely to come from two or three creative, caring teachers than from school boards or superintendents. So it was with Metro. Metro's first innovative efforts were carried out in two nearby structures, pictured here: an old abandoned fire station and grocery store. The effort was so successful at what was originally called Metro East that a Metro West was begun. Eventually they were all brought together in the former Tyler Elementary School building, which is the current Metro home. [Photo credit: Wikimedia.org.]

Three years after Metro began in the firehouse, Mary joined in helping build what Metro ultimately became, taught there for 21 years, and was one of the first teachers asked to join the national faculty of the Coalition of Essential Schools. She was a part of the group that helped plan what is now Iowa City's alternative school, Tate High School. Both are (or were) examples of one sub-set of the kinds of creative thinking that is needed today throughout K-12 (and higher) education -- and what can be accomplished when administrators are willing to stop insisting round students be squeezed into square holes, trust the teachers, and support and encourage their creativity rather than snuffing it out.

-- Nicholas Johnson

Know What You Had Before It's Gone
Mary Vasey
The Gazette, June 1, 2013, p. A6
Echoing Joni Mitchell’s warning, “Don’t it always seem to go/That you don’t know what you’ve got/Till it’s gone” (Big Yellow Taxi), former Metro High School teacher Bonnie Sovern warns us: “Metro changes in wrong direction,” May 27 letter.

As a former Metro teacher myself, from 1979 to 2000, I couldn’t agree more.

Why is it institutional administrators so often seem to find more comfort with the common than the truly creative? Why are successful innovations, recognized nationally, ignored or worse locally?

Metro’s national recognition included a number considered “presidential awards” during the administrations of Presidents Reagan, Bush and Clinton. Metro has been recognized as one of the nation’s top 212 schools (1985), First in the Nation in Education (1991), Redbook top 140 (1992), and National Blue Ribbon Award (1993).

Presidential recognition is nice. But the greatest reward for teachers, and taxpayers, is watching these potential dropouts go on to successful careers.

What was unique? Metro’s innovative programs and activities were the result of teachers, staff and students living in a culture that rewarded, rather than punished, creative responses to needs.

Half-day sessions meant students with job or family responsibilities could attend morning or afternoon. Small classes made possible needed individual attention. Each teacher had 15 to 20 advisees throughout those students’ time at Metro. Teachers made regular home visits.

Teachers could innovate with “team teaching” and “block scheduling,” like combining literature and American history.

In addition to job training, students learned the attitudes and social skills necessary to keep a job. Those in Metro Farm planned, planted, cared for, harvested and sold the produce. The Daycare Center enabled young parents to attend Metro, while teaching them parenting skills. The Bake-a-Teria taught marketing as well as baking skills, with an on-site restaurant for group meetings. There were Metro businesses doing bike repair, laundry and clock making.

Local businesses and Kirkwood Community College partnered with Metro and its students — internships in real jobs, classes at Kirkwood.

Arts were no “frill.” Some students feel conventional high schools have failed them, rather than the other way around. They drop out. By contrast, Metro was a place they wanted to be. For many, arts programs were their primary magnet.

Their visual art was displayed wherever an opportunity arose. The Metro Theater Group performed two plays every year, often at CSPS. Some were original; all enthusiastically attended. The Dance Troupe performed with the Theater Group.

There was experiential learning: a class taking samples of river water, contacting other science classes, lobbying for conservation policies. Researching and then lobbying the Iowa Legislature regarding rent-to-own schemes. Groups went on weeklong camping and bicycling trips. Students kept journals. Metro produced a literary magazine from student writing. Students had enthusiasm about such a variety of learning opportunities. [The water project, pictured, continues (although no longer as an integrated, multiple-disciplines, major curriculum); many other programs and activities have been cut entirely, contributing to Metro's student population decline from 600 (as reported in an abandoned 2009 blog) to less than half that.] [Photo credit: Metro High School (active blog).]

Perhaps, given the times and attitudes about education, we shouldn’t be shocked that the school district’s administration would want to squeeze the life out of what was once recognized as one of the best high schools in the nation.

Hopefully, in not too many years, the spirit of Metro will rise again. Three or four teachers will decide to start an alternative school in an old house or deserted building. Maybe a future administration will have the courage and wisdom to let them have their way, as administrators once supported Bonnie Sovern, me and our colleagues.

Meanwhile, I guess we’ll just continue to frustrate ourselves and our students by trying to fit those sometimes difficult, often creative and bright, sometimes confused and alienated kids into an assembly line mold.
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Mary Vasey, a retired Metro teacher, lives in Iowa City and is board president of Combined Efforts Theatre. Comments: MaryVasey@yahoo.com.

The old Tyler Elementary School that serves as the Metro High School buiilding today. [Photo credit: Metro High School (active blog).] # # #